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Joe Hand Promotions, Inc. v. Havens

United States District Court, Sixth Circuit

July 25, 2013



NORAH McCANN KING, Magistrate Judge.

This matter is before the Court on Plaintiff Joe Hand Promotions, Inc.'s Motion to Strike Defendant's Affirmative Defenses, Doc. No. 11 (" Motion to Strike "). For the reasons that follow, the Motion to Strike is GRANTED in part and DENIED in part.


Plaintiff, a California corporation with its principal place of business in Pennsylvania, was granted, pursuant to a contract ("the contract"), exclusive nationwide television distribution rights to a mixed martial arts event ("the Program") to take place on February 26, 2011. Complaint, Doc. No. 1, ¶¶ 6, 9. Under the contract, plaintiff entered into subleasing agreements "with various commercial entities throughout North America, including entities within the State of Ohio, by which it granted these entities limited subleasing rights, specifically the rights to publicly exhibit the Program[.]" Id. at ¶ 10. Plaintiff, asserting claims under the Communications Act of 1934, 47 U.S.C. § 605 et seq., and the Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553 et seq., alleges that defendant intercepted and published the Program without a license or authorization. Id. at ¶¶ 12-21. Plaintiff also asserts a supplemental state law claim of conversion. Id. at ¶¶ 22-25.

In responding to the Complaint, defendant raised three affirmative defenses. Answer Containing Affirmative Defenses, Doc. No. 7, ¶¶ 26-28 (" Answer "). Plaintiff has moved to strike the affirmative defenses as legally insufficient. Motion to Strike. Defendant opposes the Motion to Strike. Defendant Michael C. Havens' Memorandum in Opposition to Plaintiff Joe Hand Promotions, Inc.'s Motion to Strike Affirmative Defenses, Doc. No. 15 (" Memo. in Opp. "). Plaintiff has not filed a reply.


A court, on its own or upon motion, "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). According to the United States Court of Appeals for the Sixth Circuit, "the action of striking a pleading should be sparingly used by the courts" and should be "resorted to only when required for the purposes of justice" and when "the pleading to be stricken has no possible relation to the controversy." Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). See also Morrow v. South, 540 F.Supp. 1104, 1111 (S.D. Ohio 1982) ("Motions under Rule 12(f) are not favored, and should not be granted unless it is apparent that the matter has no possible relation to the controversy.") (citing United States v. Firestone Tire & Rubber Co., 374 F.Supp. 431, 434 (N.D. Ohio 1974)).

In addition, "a motion to strike will not be granted if the insufficiency of the defense is not clearly apparent, or if it raises factual issues that should be determined on a hearing on the merits." United States v. Pretty Prod., Inc., 780 F.Supp. 1488, 1498 (S.D. Ohio 1999) (citing 5A C. Wright & A. Miller, Federal Practice and Procedure § 1380, at 672-78 (1990)). See also id. ("[T]his Court may only strike those defenses so legally insufficient that it is beyond cavil that defendants could not prevail on them.'" (quoting United States v. Kramer, 757 F.Supp. 397, 410 (D. N.J. 1991)). Nevertheless, motions to strike "serve a useful purpose by eliminating insufficient defenses and saving the time and expense which would otherwise be spent in litigating issues which would not affect the outcome of the case." Id. (quoting United States v. Marisol, Inc., 725 F.Supp. 833, 836 (M.D. Pa. 1989)).


Plaintiff seeks to strike defendant's three affirmative defenses, which the Court shall address in turn.

A. Statute of Limitations

Defendant first asserts that "the applicable statute of limitations" bars plaintiff's claims. Complaint, ¶ 26. In seeking to strike this affirmative defense, plaintiff initially suggests that a heightened standard, i.e., the standard applicable to a Rule 12(b)(6) motion, applies to the assertion of affirmative defenses. Motion to Strike, p. 2 (citing, inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 555 n.3 (2007)). Applying Twombly, plaintiff argues that, inter alia, the statute of limitations defense is simply a "boilerplate recitation[] of legal conclusions[.]" Id. Plaintiff next contends that a four-year statute of limitations applies to claims under 47 U.S.C. §§ 553 and 605. Id. at 4 (explaining that, because the federal statutes do not provide a limitations period, the appropriate state statute of limitations for conversion claims - in this instance, four years - applies). Plaintiff alleges that the Program was broadcast on February 26, 2011, Complaint, ¶ 9, and notes that this action was filed on February 1, 2013. Motion to Strike, p. 4. Plaintiff therefore contends that this defense fails as a matter of law because plaintiff filed its claims "within two years of their accrual (and two years prior to the expiration of the statute of limitations for conversion)." Id. (arguing that, even if the two-year statute of limitations for O.R.C. § 2933.65 (addressing unlawful interceptions of electronic communications) applies, plaintiff's claims are nevertheless timely).

In response, defendant first contends that plaintiff wrongly extends the Twombly pleading standard to the assertion of affirmative defenses. Memo. in Opp., pp. 1-4. Defendant concedes that claims of conversion in Ohio must be brought within four years, id. at 4, but argues that it is the two-year statute of limitations established by O.R.C. § 2933.65 that applies to plaintiff's claims and that application of that statute bars those claims. Id. at 4-5. Defendant specifically reasons that O.R.C. § 2933.65(C) requires that claims be brought within two years after the date on which the claimant "first has a reasonable opportunity to discover the violation.'" Id. at 4 (quoting O.R.C. § 2933.65(C)). Even though the Program was televised on February 26, 2011 and the Complaint was filed on February 1, 2013, defendant argues that plaintiff may "have had reason to know of the alleged violation for more than two years before February 1, 2011." Id. at 4-5.

Under Rule 8 of the Federal Rules of Civil Procedure, a party must state defenses "in short and plain terms" and pleadings must be "simple, concise, and direct." Fed.R.Civ.P. 8(b)(1), (d)(1). According to the United States Court of Appeals for the Sixth Circuit, "[a]n affirmative defense may be pleaded in general terms and will be held to be sufficient... as long as it gives plaintiff fair notice of the nature of the defense.'" Lawrence v. Chabot, Nos. 05-1082, 05-1397, 182 F.Appx. 442, at *456 (6th Cir. May 16, 2006) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1274)). See also Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998) (finding that a defense alleging that "Plaintiffs' claims are barred by the doctrine of res judicata " adequately put plaintiffs on notice). Plaintiff has not persuaded this Court that a heightened pleading standard applies to the assertion of affirmative defenses. Cf. Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009) ("The Federal Rules of Civil Procedure do not require a heightened pleading standard for a statute of repose defense.") (citing Fed.R.Civ.P. 8(b)(1), (d)(1)). See also Chiancone v. City of Akron, No. 5:11CV337, 2011 U.S. Dist. LEXIS 108444, at *12 (N.D. Ohio Sept. 23, 2011) ("Indeed, the Sixth Circuit does not require that affirmative defenses show that the pleader is entitled to relief.") (citing Montgomery, 580 F.3d at 468). Here, ...

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