United States District Court, D. Nevada
ORDER MOTION TO STRIKE [ECF NO. 24]
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Atturo Tire Corp.'s Motion to
Strike Defendant's Affirmative Defenses. (ECF No. 24).
For the reasons discussed below, the Plaintiff's motion
is granted in part and denied in part.
complaint, Plaintiff brings trademark infringement, unfair
competition, common law trademark infringement, and common
law unfair competition claims against Defendant Max-Trac Tire
Co. (ECF No. 1 at 19-22). Defendant filed an answer
containing three affirmative defenses. (ECF No. 22 at 12-13).
now moves to strike each of the affirmative defenses. (ECF
No. 24). Plaintiff argues that they are not true affirmative
defenses and do not provide Plaintiff with fair notice.
(Id. at 4-6). Defendant argues that the affirmative
defenses are properly pled. (ECF No. 25 at 2-3). In the
alternative, Defendant requests leave to amend the defenses.
(Id. at 3). “With respect to Defendant's
second and third affirmative defenses, Plaintiff does not
oppose Defendant's request for ‘leave to amend its
affirmative defenses to add any additional details or
allegations sufficient to cure any defect.'” (ECF
No. 30 at 7).
Rule of Civil Procedure 12(f) states that “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” The purpose of a Rule 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.” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)
(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524,
1527 (9th Cir. 1993), rev'd on other grounds,
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994));
see also 2 James Wm. Moore, Moore's Federal
Practice, § 12.37, 128-29 (3d ed. 2017)
(“To prevail on this motion to strike, the movant must
clearly show that the challenged matter ‘has no bearing
on the subject matter of the litigation and that its
inclusion will prejudice the defendants.'”).
to grant a motion to strike lies within the discretion of the
district court. Whittlestone, Inc., 618 F.3d at 973.
“[F]ederal courts generally disfavor motions to
strike.” D.E. Shaw Laminar Portfolios, LLC,
570 F.Supp.2d at 1271 (quoting Germaine Music v.
Universal Songs of Polygram, 275 F.Supp.2d 1288, 1300
(D. Nev. 2003)). “[C]ourts often require a showing of
prejudice by the moving party before granting the requested
relief.” Roadhouse v. Las Vegas Metro. Police
Dep't, 290 F.R.D. 535, 543 (D. Nev. 2013) (internal
quotation omitted). “Unless it would prejudice the
opposing party, courts freely grant leave to amend stricken
pleadings.” Kohler v. Islands Restaurants, LP,
280 F.R.D. 560, 564 (S.D. Cal. 2012) (citing Wyshak v.
City Nat'l Bank, 607 F.2d 824, 826 (9th Cir.1979)).
first affirmative defense states that “Plaintiff's
Complaint fails to state a claim against Defendant upon which
relief may be granted.” (ECF No. 22 at 12). Plaintiff
argues that this is not a true affirmative defense. (ECF No.
24 at 2-3). It is true that some courts strike defenses that
are “not properly asserted as an affirmative defense,
” meaning they assert a defect in the case rather than
assert facts to bar recovery notwithstanding a valid case.
F.T.C. v. Johnson, No. 2:10-CV-02203-MMD, 2013 WL
4039069, at *3 (D. Nev. Aug. 5, 2013); Barnes v. AT &
T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d
1167, 1174 (N.D. Cal. 2010). However, this approach does not
fulfil the purpose of a Rule 12(f) motion: “to avoid
the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial.” Whittlestone, Inc., 618 F.3d
at 973 (internal quotation omitted). The Court should not
strike a defense “to merely polish the
pleadings.” Duramed Pharm., Inc. v. Watson Labs.,
Inc., No. 308-CV-00116-LRH-RAM, 2008 WL 5232908, at *4
(D. Nev. Dec. 12, 2008). “The Court fails to see the
utility in striking a negative defense at this point, despite
it being mislabeled as an affirmative defense, without proof
that it is legally insufficient.” Garity v.
Donahoe, No. 2:11-cv-01805-MMD-CWH, 2013 WL 4774761, at
*3 (D. Nev. Sept. 4, 2013). Therefore, Plaintiff's motion
to strike is denied as to the first affirmative defense.
second and third affirmative defenses each contain one
sentence: “Plaintiff's claims are barred in whole
or in part by unclean hands, ” and “Plaintiff has
failed to mitigate damages, if any such damages exist.”
(ECF No. 22 at 13). Plaintiff argues that these defenses fail
to give Plaintiff fair notice of their bases. (ECF No. 24 at
3-4). “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)
(citing Conley v. Gibson, 355 U.S. 41, 47-48
Court finds that Defendant's second and third affirmative
defenses fail to give Plaintiff fair notice. There are
competing cases in this District regarding what must be
alleged in an affirmative defense-merely the legal theory of
the defense (Eyetalk365, LLC v. Zmodo Tech. Corp.,
356 F.Supp.3d 1059, 1067 (D. Nev. 2018)); the legal theory
and grounds for the defense (MetroPCS v. A2Z Connection,
LLC, No. 2:15-cv-01412-JAD-CWH, 2019 WL 1244690, at *4
(D. Nev. Mar. 18, 2019)); or sufficient factual matter to
show the defense is plausible (Rimini St., Inc. v. Oracle
Int'l Corp., No. 2:14-cv-1699-LRH-CWH, 2017 WL
7038125, at *2 (D. Nev. Nov. 17, 2017)). The Court finds the
interests of both parties and the Court are best served by
requiring Defendant to provide the legal theory and grounds
for these affirmative defenses. This does not require any
detailed factual statement, but Defendant must give some
indication of what direction the defenses will take. Unclean
hands and mitigation are both very broad legal theories, and
it is not reasonable for the parties to engage in discovery
covering every possible form that these defenses will take.
Defendant's second and third affirmative defenses are
stricken with leave to amend. This case is still in its very
early stages, and Plaintiff will not be prejudiced by
allowing Defendant to amend these affirmative defenses to
provide more detail regarding the grounds for the defenses.
and for good cause shown, IT IS ORDERED that Plaintiffs
Motion to Strike Defendant's Affirmative Defenses (ECF
No. 24) is DENIED as to Defendant's first affirmative
FURTHER ORDERED that Plaintiffs Motion to Strike
Defendant's Affirmative Defenses (ECF No. 24) is GRANTED
WITH LEAVE TO AMEND as to Defendant's second and third
affirmative defenses. Defendant will ...