United States District Court, S.D. Texas, Houston Division
H. Miller United States District Judge.
before the court is Joe Hand Promotions, Inc.'s
(“Joe Hand”) motion to strike the defendants'
affirmative defenses under Federal Rule of Civil Procedure
12(f). Dkt. 16. Having considered the motion, complaint, and
applicable law, the court is of the opinion that the motion
should be GRANTED IN PART and DENIED IN PART.
case involves the alleged unlawful interception and
exhibition of the UFC 168: Wiedman v. Silva 2
(“UFC 168”) broadcast at Republica Sports Bar
& Grill (“Republica”) in Houston, Texas on
December 28, 2013. Dkts. 1, 16. Joe Hand claims it has the
right to exclusive domestic commercial distribution for the
mixed martial arts promotion company, the Ultimate Fighting
Championship (“UFC”). Dkt. 1. Joe Hand agrees
with bars and restaurants, in exchange for a fee, to allow
the establishments to show the fights to patrons.
Id. The UFC 168 broadcast originated via
satellite uplink, and was re-transmitted interstate to cable
systems and satellite television companies. Id. Joe
Hand argues that Izalco, Inc., David E. Aguiluz, and Teodoro
Augiluz (collectively, the “defendants”) did not
obtain a proper license or authorization to show UFC
168 at Republica, but that they received or intercepted
the broadcast “[b]y unauthorized satellite transmission
or, alternatively, by unauthorized receipt over a cable
system.” Id. Joe Hand alleges that the
defendants then exhibited the program to patrons without an
authorization or a license. Joe Hand brought this suit under
47 U.S.C. § 553 for the unauthorized reception of cable
service and, alternatively, 47 U.S.C. § 605 for the
unauthorized publication or use of communications.
defendants asserted four affirmative defenses in their
answer: (1) failure to state a claim, (2) failure to mitigate
damages, (3) waiver, and (4) the reservation of the right to
assert additional defenses. Dkt. 12. Joe Hand filed a motion
to strike the defenses from the answer under Federal Rule of
Civil Procedure 12(f). Joe Hand argues that the
defendants' affirmative defenses are “legally
insufficient and should be stricken from the record.”
Dkt. 16 at 1. The defendants did not respond.
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). Striking a
pleading “should be sparingly used by the courts. . . .
The motion to strike should be granted only when the pleading
to be stricken has no possible relation to the
controversy.” August v. Bd. of Pub. Instruction of
Scambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)
(quoting Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953)). In addition,
“when there is no showing of prejudicial harm to the
moving party, the courts generally are not willing to
determine disputed and substantial questions of law upon a
motion to strike.” Id. at 868.
“[s]triking an affirmative defense is warranted if it
cannot, as a matter of law, succeed under any
circumstance(s).” United States v. Renda, 709
F.3d 472, 479 (5th Cir. 2013); see Puckett v. United
States, 82 F.Supp.2d 660, 663 (S.D. Tex. 1999)
(Rosenthal, J.). The rules require more than mere legal
plausibility. Under Rule 8(c), a defendant must “plead
an affirmative defense with enough specificity or factual
particularity to give the plaintiff ‘fair notice'
of the defense that is being advanced.” Rogers v.
McDorman, 521 F.3d 381, 385 (5th Cir. 2008) (quoting
Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.
1999)); see, e.g., Tran v. Thai, No. H-08-3650, 2010
WL 723633, *1 (S.D. Tex., Mar. 1, 2010) (Rosenthal, J.)
(holding that no more stringent pleading standard applies to
affirmative defenses than fair notice). Without notice, the
affirmative defense risks prejudicial harm against the moving
party. Rogers, 521 F.3d at 385. If, however, the
defense is “sufficiently articulated . . . so that the
plaintiff [is] not a victim of unfair surprise, ” then
the fair notice requirement is met. Home Ins. Co. v.
Matthews, 998 F.2d 305, 309 (5th Cir. 1993) (citing
Bull's Corner Rest. v. Dir., FEMA, 259 F.2d 500,
502 (5th Cir. 1985)). In some instances, that means
“merely pleading the name of the affirmative defense .
. . may be sufficient.” Woodfield, 193 F.3d at
362 (noting, for example, that pleading “contributory
negligence” without extensive factual allegations is
failure to respond to a motion is taken as a representation
of no opposition. S.D. Tex. L.R. 7.4. Because the defendants
have not responded to Joe Hand's motion to strike, the
court will treat it as unopposed.
Hand moves to strike each of the defendants' affirmative
defenses because they are devoid of factual support or are
invalid as a matter of law. Fed.R.Civ.P. 12(f); Dkt. 16. The
court will address each defense in turn.
Failure to state a claim for relief
defendants pled an affirmative defense of failure to state a
claim upon which relief might be granted. Dkt. 12 at 2.
12(b)(6) motion for failure to state a claim may be raised in
a responsive pleading, by a motion of judgment on the
pleadings, or even at trial. Fed.R.Civ.P. 12(h)(2). So long
as the affirmative defense avoids unfair surprise, a mere
“technical failure to comply precisely with Rule 8(c)
is not fatal.” Allied Chem. Corp. v. Mackay,
695 F.2d 854, 855-56 (5th Cir. 1983) (per curiam). Because
failure to state a claim is not technically an affirmative
defense, Joe Hand argues that it should be stricken. Dkt. 16.
Joe Hand argues that, “[f]ailure to state a claim for
relief is an assertion of a defect in Plaintiff's prima
facie case, not an ...