United States District Court, D. Nevada
MOTION TO STRIKE [ECF NO. 14]
Ferenbach, United States Magistrate Judge.
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.
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).
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).
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 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).
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).
Plaintiff's motion to strike is denied as to the first
Second and Eighth Defenses-Creativity and
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