Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. 4Internet, LLC

United States District Court, D. Nevada

April 30, 2019

ROBERT MILLER, Plaintiff,
v.
4INTERNET, LLC, et al., Defendants. And all related actions.

          MOTION TO STRIKE [ECF NO. 14]

          Cam Ferenbach, United States Magistrate Judge.

         Before the Court is Plaintiff Robert Miller's Motion to Strike Defendant/Counterclaimant's Affirmative Defenses. (ECF No. 14). For the reasons discussed below, Plaintiff's motion is granted in part and denied in part.

         Background

          In the complaint, Plaintiff asserts Defendant 4Internet owns search engine websites that wrongfully re-posted a picture taken by Plaintiff. (ECF No. 1 at 2-5). Plaintiff brings a copyright infringement claim against Defendant. (Id. at 5-6). In its answer, Defendant listed ten defenses generally relating to the picture's originality and Plaintiff's conduct. (ECF No. 9 at 5-7).

         Plaintiff now moves to strike each of the defenses. (ECF No. 14). Each argument will be addressed in more detail below. Plaintiff generally argues that the defenses do not contain sufficient detail or are inadequate as a matter of law. (Id. at 6-16; ECF No. 22 at 3-20). Defendant argues that the defenses are properly pled. (ECF No. 17 at 4-16). Defendant “concedes that defense five is redundant and does not oppose it being stricken.” (Id. at 8).

         DISCUSSION

         Federal 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[3], 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.'”).

         Whether 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)).

         I. First Defense-Failure to State a Claim

          Defendant's first defense states that “Plaintiff has failed to state a claim upon which relief can be granted.” (ECF No. 9 at 5). Plaintiff argues that “Defendant does not state the nature or grounds upon which this assertion rests.” (ECF No. 14 at 6).

         The failure to state a claim defense is clearly a catch-all provision that overlaps with Defendant's other defenses. Technically, the first defense could be stricken for failing to re-state and summarize each of Defendant's assertions in its other defenses. 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). Whether or not a failure to state a claim defense is stricken, Defendant's discovery in the case will clearly focus on the potential issues and inadequacies within the complaint. 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).

         Therefore, Plaintiff's motion to strike is denied as to the first defense.

         II. Second and Eighth Defenses-Creativity and Originality

          Defendant's second and eighth defenses assert that the picture at issue in this case lacks sufficient creativity and originality to qualify for copyright protection. (ECF No. 9 at 5-6). Plaintiff argues that these defenses are redundant, since creativity is part of the two-prong test for originality. (ECF No. 14 at 6-7). Plaintiff also asserts that the image clears the “low bar for originality” currently set under the law. (Id. at 12-13). Defendant argues that, “The Eighth Defense is similar to the Second Defense, but it is legally possible that the photograph could be found to satisfy the constitutional requirement while falling short of statutory, administrative or judicial rules.” (ECF No. 17 at 5). Defendant also asserts ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.