United States District Court, D. Arizona
S. WILLETT UNITED STATES MAGISTRATE JUDGE.
before the Court is G&G Closed Circuit Events, LLC's
(“Plaintiff”) “Motion to Strike
Defendants' Affirmative Defenses” (Doc. 19). For
the reasons set forth herein, the Court will deny
Plaintiff's Motion (Doc. 19).
action concerns Defendants' alleged unauthorized and
unlawful exhibition of a televised broadcast of Saul
Alvarez v. Julio Cesar Chavez, Jr. Super Middleweight
Championship Fight Program (the “Program”)
to which Plaintiff held the exclusive nationwide commercial
distribution rights. (Doc. 1 at 7, § 21). Plaintiff
alleges that Defendants violated (i) the Communications Act
of 1934 (47 U.S.C. § 605 et seq.) and (ii) the
Cable & Television Consumer Protection and Competition
Act of 1992 (47 U.S.C. § 553 et seq.).
(Id. at 2, ¶ 1). Defendants timely answered
Plaintiff's two-count Complaint on April 24, 2018. (Doc.
12). Defendants raise three affirmative defenses.
first affirmative defense alleges that if a violation of 47
U.S.C. § 605 is proven, then Defendants “were not
aware and had no reason to believe that the alleged acts
constituted a violation of 47 U.S.C. § 605.” (Doc.
12 at 3, ¶ 35). Defendants assert that damages may be
reduced to a sum of not less than $250.00 in accordance with
47 U.S.C. § 605(e)(3)(C)(iii). (Id.).
second affirmative defense, Defendants allege that if a
violation of 47 U.S.C. § 553 is proven, then Defendants
“were not aware and had no reason to believe that the
alleged acts constituted a violation of 47 U.S.C. §
553.” (Doc. 12 at 3, ¶ 36). Defendants assert that
damages therefore may reduced to a sum of not less than
$100.00 pursuant to 47 U.S.C. § 553(c)(3)(C).
final affirmative defense alleges that “the Program, if
exhibited at the business, was a taped-delayed match from
Mexico City, and not a live broadcast.” (Id.
at 4, ¶ 37). Defendants further assert that the
broadcast was a legitimate broadcast of Defendants'
provider, SKY Television. (Id.).
15, 2018, Plaintiff filed the pending “Motion to Strike
Defendants' Affirmative Defenses” (Doc. 19).
Defendants have responded (Doc. 29), and Plaintiff has
replied (Doc. 30).
Rule of Civil Procedure 12(f) provides that a “court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” “[T]he 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). In
general, motions to strike a defense are disfavored.
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982);
see also 5C C. Wright, A. Miller, et al., Federal
Practice & Procedure § 1380 (3d ed. 1998)
(“Both because striking a portion of a pleading is a
drastic remedy and because it often is sought by the movant
simply as a dilatory or harrassing tactic, numerous judicial
decisions make it clear that motions under Rule 12(f) are
viewed with disfavor by the federal courts and are
defenses “deny plaintiff's right to recover, even
if the allegations of the complaint are true.” Fed.
Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 262
(E.D. Cal. 1987). “By contrast, denials of a
plaintiff's allegations or allegations that the plaintiff
cannot prove the elements of her claims are not affirmative
defenses.” Hartford Underwriters Ins. Co. v. Kraus
USA, Inc., 313 F.R.D. 572, 575 (N.D. Cal. 2016). The
Court may strike an affirmative defense if it fails to give
“fair notice” of the defense or if it is
insufficient as a matter of law. See Wyshak v.. City
Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)
(“The key to determining the sufficiency of pleading an
affirmative defense is whether it gives plaintiff fair notice
of the defense.”).
support of its Motion to Strike, Plaintiff asserts that all
three of Defendants' asserted affirmative defenses are
actually denials. (Doc. 19-1 at 4, 6). Yet the “sparse
authority addressing the subject has concluded that denials
that are improperly pled as defenses should not be stricken
for that reason alone.” Mattox v. Watson, No.
CV 07- 5006, 2007 WL 4200213, at *3 (C.D. Cal. Nov. 15,
2007); see also 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 1269 (2d
Ed. 1990) (observing that “the federal courts have
accepted the notion of treating a specific denial that has
been improperly denominated as an affirmative defense as
though it was correctly labeled.”); see also Smith
v. Wal-Mart Stores, No. C 06-2069 SBA, 2006 WL 2711468,
at *9 (N.D. Cal. Sept. 20, 2006) (“[W]hile denials
which negate elements of Plaintiffs' claims should not be
pled as affirmative defenses, Plaintiffs fail to show that
this alleged pleading error provides adequate grounds for
addition, contrary to Plaintiff's assertion, the Court
finds that Defendants' affirmative defenses provide
Plaintiff with fair notice of the bases for Defendants'
arguments. See, e.g., J & J Sports Prods.
Inc. v. Mosqueda, No. CV-12-0523 PHX DGC, 2013 WL
951366, at *1 (D. Ariz. Mar. 12, 2013) (finding that
affirmative defenses that quoted statutes specifying the
appropriate damages for violations of the statutes provided
the plaintiff with fair notice of the basis for the
defendants' argument). Finally, the Court does not find
that Plaintiff would be prejudiced by the denial of their
Motion (Doc. 19). Hernandez v. Balakian, No.
CV-F-06-1383 OWW DLB, 2007 WL 1649911, at *1 (E.D. Cal. June
1, 2007) (“[E]ven when technically appropriate and
well-founded, Rule 12(f) motions often are not granted in the
absence of a showing of prejudice to the moving
party.”) (internal quotation marks and citation
omitted). Plaintiffs Motion to Strike (Doc. 19) will be