United States District Court, D. Rhode Island
WILLIAM E. SMITH, Chief Judge.
the Court is Plaintiff's Motion to Strike Affirmative
Defenses (ECF No. 10) (“Plaintiff's Motion”),
to which Defendants Responded (ECF No. 11) and Plaintiff
Replied (ECF No. 12). For the reasons stated herein,
Plaintiff's Motion is denied.
case arises out of Defendants' allegedly unlawful
broadcast of “‘The Fight of the Century'
Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight
Program, ” (“the fight”) which was
broadcast live on Saturday May 2, 2015. According to the
Complaint, Plaintiff, a media production company, had the
exclusive nationwide commercial distribution rights to the
fight and entered into sublicensing agreements with various
commercial entities allowing them to broadcast the fight.
Plaintiff alleges that Defendants, who are owners of the
commercial establishment called Broadway Cigars, unlawfully
broadcast the fight in their establishment. On May 1, 2018,
Plaintiff filed a Complaint alleging two counts of commercial
piracy and one count of conversion. Defendants answered,
denying liability and asserting three affirmative defenses:
(1) that “Plaintiff fails to state a cause of action
upon which relief can be granted”; (2) that
“Defendants affirmatively assert the defenses of
license and payment”; and (3) that “Defendants
affirmatively assert the defense of waiver.”
(Defs.' Answer 3, ECF No. 6.) Plaintiff now moves to
strike the second and third affirmative defenses.
12(f) provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). “To prevail on a motion to strike
an affirmative defense, a plaintiff must establish three
criteria: (1) there is no question of fact which might allow
the defense to succeed; (2) there is no question of law which
might allow the defense to succeed; and (3) the plaintiff
would be prejudiced by inclusion of the defense.”
United States v. Kennebec Scrap Iron, Inc., No.
1:16-CV-191-GZS, 2016 WL 6651302, at *2 n.2 (D. Me. Nov. 10,
2016) Elliot v. City of New York, No. 06-CV-296 (KMK), 2008
WL 4178187, at *15 (S.D.N.Y. Sept. 8, 2008).
crux of Plaintiff's argument is that Defendants'
affirmative defenses are not, in fact, affirmative defenses;
they are merely denials of liability. (Pl.'s Reply 3
(“A denial is just that, a denial, it is not an
affirmative defense.”).) Plaintiff argues that an
affirmative defense must assume that the allegations in the
Complaint are true and cannot contradict the Complaint.
(Pl.'s Mot. to Strike 3 (stating that affirmative
defenses “plead matters extraneous to the
plaintiff's prima facie case, which deny plaintiff's
right to recover, even if the allegations of the complaint
are true”) (quoting Fed. Deposit Ins. Corp. v. Main
Hurdman, 655 F.Supp. 259, 262 (E.D. Cal. 1987) (emphasis
added by Plaintiff).) Plaintiff contends that the affirmative
defense of license and payment must be stricken because it
directly contradicts Plaintiff's allegation that
“Defendants were not sublicensees and did not contract
with Plaintiff.” (Id. at 4; see also Compl.
¶¶ 16-19, ECF No. 1.) Similarly, Plaintiff argues
that the affirmative defense of waiver must be stricken
because Defendants did not plead sufficient facts to support
that defense. Both arguments fail.
by asserting the affirmative defense of “license and
payment” Defendants presumably meant to claim that they
had properly obtained a license and paid for the use of
Plaintiff's media content before they broadcast the fight
on May 2, 2015. This defense presents questions of fact and
law for the Court to resolve, namely: whether Defendants
possessed a license to broadcast the media, what was the
scope of that license, and whether Defendants' actions
were within that scope. Additionally, because this is a
“commercial piracy case arising out of the alleged
unlawful interception, publication, and/or receipt of [the
fight]” (Pl.'s Mot. to Strike 2), the affirmative
defense of “license and payment” appears to go to
the heart of the ultimate issue of whether Defendants'
broadcast was lawful. Clearly the issues raised by this
defense are integral to the case and, as such, the argument
that inclusion of this defense would prejudice Plaintiff by
forcing it to “litigat[e] irrelevant issues” is
baseless (Id. at 5); see also Kennebec Scrap Iron,
Inc., 2016 WL 6651302, at *3 (“At this early stage of
the proceeding . . . the Court does not believe that the
Government will be prejudiced by having to engage in
discovery and further argument on issues that will be central
to proving its claims . . . .”).
Plaintiff's argument that Defendants have not pleaded
sufficient facts to “indicate that the defense [of
waiver] can succeed factually or legally” misses the
point. (Pl.'s Mot. to Strike 5.) Defendants are not
obliged at this stage to prove the plausibility of their
affirmative defenses. Owen v. Amer. Shipyard Co., LLC, No.
15-CV-413 S, 2016 WL 1465348 at *3 (D.R.I. April 14, 2016)
(declining to extend the Twombly and Iqbal pleading standards
to affirmative defenses). Rather, it is Plaintiff who bears
the burden of proving beyond cavil that these affirmative
defenses are insufficient and must be stricken. See Kennebec
Scrap Iron, Inc., 2016 WL 6651302, at *2 (stating that
plaintiff bears the burden of proof on a motion to strike
affirmative defenses); Honeywell Consumer Prods., Inc. v.
Windmere Corp., 993 F.Supp. 22, 24 (D. Mass. 1998)
(“Motions to strike defenses are disfavored and should
be granted only when it is beyond cavil that the defendants
could not prevail on them.”) (quotations omitted).
Plaintiff has not met its burden of demonstrating that there
is no issue of law or fact which might allow these defenses
to succeed, nor has it shown how it would be prejudiced by
the inclusion of these defenses. See Kennebec Scrap Iron,
Inc., 2016 WL 6651302, at *3.
aforementioned reasons, Plaintiff's Motion to Strike