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Ventures Edge Legal PLLC v. GoDaddy.Com LLC

United States District Court, D. Arizona

March 22, 2017

Ventures Edge Legal PLLC, Plaintiff,
v. LLC, Defendant.



         Pending before the Court is the Motion to Strike Affirmative Defenses of Plaintiff Ventures Edge Legal PLLC.[1] (Doc. 57.) For the following reasons, the Motion is granted in part and denied in part.


         Plaintiff Ventures Edge Legal, PLLC (“Ventures Edge”) filed this putative class action lawsuit on November 12, 2015, alleging that Defendant, LLC (“GoDaddy”) “fail[ed] to disclose certain material facts” with respect to its sale of the office software product known as “Microsoft Office 365.” (Doc. 1 at 2.) GoDaddy moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). (Doc. 21.) The Court denied that motion in its entirety. (Doc. 48.)

         GoDaddy then filed an Answer to Ventures Edge's Complaint. (Doc. 53.) In this Answer, GoDaddy set forth nineteen affirmative defenses. (Id. at 9-14.) Ventures Edge, in turn, filed the pending motion to strike eighteen of the nineteen affirmative defenses, (Doc. 57), and that motion is fully briefed. (Docs. 61, 64.)


         I. Legal Standard

         Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a pleading an insufficient defense.” The “function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, a motion to strike “should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation.” Brewer v. Indymac Bank, 609 F.Supp.2d 1104, 1113 (E.D. Cal. 2009).

         “An affirmative defense may be insufficient as a matter of pleading or as a matter of law.” Kohler v. Islands Rests., LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012). “The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979). “[A]n affirmative defense is legally insufficient only if it clearly lacks merit under any set of facts the defendant might allege.” Kohler, 280 F.R.D. at 564 (internal quotation marks and citation omitted). “If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits.” Pickern v. Chico Steakhouse, LP, No. 12-cv-02586-TLN-CMK, 2013 WL 4051640, at *2 (E.D. Cal. Aug. 8, 2013).

         II. Analysis

         Ventures Edge's challenges to GoDaddy's affirmative defenses fall into three broad and sometimes overlapping categories. Ventures Edge argues that twelve of the “affirmative defenses” are not affirmative defenses at all, but rather negative defenses or denials-or, in one case, “nothing.” The other six challenged affirmative defenses, Ventures Edge contends, are insufficiently pleaded. Some of the challenged defenses are additionally argued to be legally insufficient based on the Court's prior ruling on GoDaddy's motion to dismiss.

         There is no need, however, to engage in a lengthy and fine-grained analysis over whether each of the purported affirmative defenses is best characterized as an affirmative defense or a negative defense or denial. The mislabeling of defenses as affirmative rather than negative is not grounds for striking those defenses. See Kohler, 280 F.R.D. at 567. This is so because just as Rule 8(c) permits the pleading of affirmative defenses in an answer, Rule 8(b) permits the pleading of negative defenses in an answer. To dismiss a defense simply because it is mislabeled is thus “unnecessary formalism.” Hernandez v. Balkian, No. CV-F-06-1383 OWW/DLB, 2007 WL 1649911, at *3 (E.D. Cal. June 1, 2007).

         Moreover, the pleading requirements as to defenses and affirmative defenses are, if not identical, sufficiently similar as to render any distinction irrelevant for the purposes of this motion. Federal Rule of Civil Procedure 8 provides the general rules for all pleadings, but it is divided into separate subparts governing the pleading of claims, defenses, and affirmative defenses. Rule 8(a), governing claims, requires a “short and plain statement of the claim showing the pleader is entitled to relief.” Rule 8(b), governing defenses, requires a party to “state in short and plain terms its defenses to each claim asserted against it.” Rule 8(c), governing affirmative defenses, states that “a party must affirmatively state any avoidance or affirmative defense.” This Court has previously noted the important difference in language between Rule 8(a) and Rule 8(c) and found that affirmative defenses are not subject to the pleading requirements set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). See Verco Decking, Inc. v. Consol. Sys., Inc., No. CV-11-2516-PHX-GMS, 2013 WL 6844106, at *4-5 (D. Ariz. Dec. 23, 2013). Thus,

the only pleading requirement for an affirmative defense, as opposed to a defense or a claim, is that “a party must affirmatively state” it. That affirmative statement merely needs to give fair notice by meeting traditional notice-pleading standards. Although the Supreme Court has abrogated the “any set of facts” ...

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