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Joe Hand Promotions, Inc. v. Izalco, Inc.

United States District Court, S.D. Texas, Houston Division

July 24, 2017

Joe Hand Promotions, Inc., Plaintiff,
v.
Izalco, Inc., d/b/a Republica Sports Bar & Grill, David E. Aguiluz, and Teodoro Aguiluz, Defendants.

          ORDER

          Gray H. Miller United States District Judge.

         Pending 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.

         I. Background

         This 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.

         The 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.

         II. Legal Standard

         A “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.

         Nevertheless, “[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 sufficient).

         A 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.

         III. Analysis

         Joe 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.

         A. Failure to state a claim for relief

         The defendants pled an affirmative defense of failure to state a claim upon which relief might be granted. Dkt. 12 at 2.

         A 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 ...


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