Case 1:13-cv-02707-WYD-MEH Document 41 Filed 08/13/14 USDC Colorado Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 13-cv-02707-WYD-MEH
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`MALIBU MEDIA, LLC,
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`Plaintiff,
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`v.
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`JOHN BUTLER,
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`Defendant.
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`RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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`Michael E. Hegarty, United States Magistrate Judge.
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`Before the Court is Plaintiff’s Motion to Strike Affirmative Defenses [filed August 7, 2014;
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`docket #36]. In accordance with 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1C, the motion
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`is referred to this Court for recommendation. Docket #37. Pursuant to Fed. R. Civ. P. 12(f), the
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`Court may act without awaiting a Defendant’s response. For the reasons that follow, the Court
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`RECOMMENDS Plaintiff’s Motion be granted.1
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`BACKGROUND
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`Plaintiff initiated this action on October 3, 2013, alleging that then-John Doe Defendant,
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`1Be advised that all parties shall have fourteen (14) days after service hereof to serve and file
`any written objections in order to obtain reconsideration by the District Judge to whom this case is
`assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or
`recommendations to which the objections are being made. The District Court need not consider
`frivolous, conclusive or general objections. A party’s failure to file such written objections to
`proposed findings and recommendations contained in this report may bar the party from a de novo
`determination by the District Judge of the proposed findings and recommendations. United States v.
`Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written
`objections to the proposed findings and recommendations within fourteen (14) days after being served
`with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge
`that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); In re
`Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).
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`Case 1:13-cv-02707-WYD-MEH Document 41 Filed 08/13/14 USDC Colorado Page 2 of 5
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`identified only by his Internet Protocol (“IP”) address, infringed on Plaintiff’s copyrighted work
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`by using the internet and a “BitTorrent” protocol to reproduce, distribute, display, or perform
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`Plaintiff’s protected films. In an effort to identify the alleged infringer, Plaintiff requested
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`permission from the Court to serve limited, immediate discovery on the Doe Defendant’s Internet
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`Service Provider (“ISP”) prior to the Rule 26(f) conference. Docket #6. The Court determined that
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`Plaintiff had shown good cause for limited expedited discovery and granted Plaintiff’s motion in
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`part. Docket #9. In particular, the Court authorized Plaintiff to serve a third-party subpoena
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`pursuant to Fed. R. Civ. P. 45 on the identified ISP for the limited purpose of ascertaining the
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`identity of the Doe Defendant as set forth in Plaintiff’s Complaint. The Court directed that the
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`subpoena be limited to providing Plaintiff with the true name, address, telephone number, and email
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`address of the Defendant to whom the ISP had assigned an IP address. With the subpoena, the Court
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`directed Plaintiff to serve a copy of its order. Finally, the Court emphasized that Plaintiff could only
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`use the information disclosed in response to the subpoenas for the purpose of protecting and
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`enforcing its rights as set forth in its Complaint (docket #1). The Court cautioned Plaintiff that
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`improper use of this information could result in sanctions.
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`In accordance with the Court’s order, Plaintiff served a Rule 45 subpoena on Defendant’s
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`ISP and obtained his identity. Thereafter, Plaintiff filed an Amended Complaint on December 23,
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`2013, naming Mr. Butler as a Defendant. Docket #12. Defendant filed a Motion to Dismiss on
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`Feburary 12, 2014 (docket #20); the District Court adopted this Court’s Report and
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`Recommendation that the Motion to Dismiss be denied on July 8, 2014. Docket #34. Defendant
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`filed an Answer to Plaintiff’s Amended Complaint on July 17, 2014, asserting five (5) affirmative
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`defenses. Docket #35. Plaintiff filed the present motion on August 7, 2014 seeking to strike certain
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`affirmative defenses listed in the Answer. Docket #21. The Court has dealt with numerous issues
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`Case 1:13-cv-02707-WYD-MEH Document 41 Filed 08/13/14 USDC Colorado Page 3 of 5
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`concerning appropriate affirmative defenses in BitTorrent cases and is sufficiently advised and
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`recommends as follows.
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`LEGAL STANDARDS
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`Rule 12(f) permits the Court to “strike from a pleading an insufficient defense or any
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`redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The purpose of
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`Rule 12(f) is to save the time and money that would be spent litigating issues that will not affect the
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`outcome of the case.” Kimpton Hotel & Rest. Group, LLC v. Monaco Inn, Inc., No. 07-cv-01514-
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`WDM, 2008 WL 140488, at *1 (D. Colo. Jan. 11, 2008) (citing United States v. Shell Oil Co., 605
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`F. Supp. 1064, 1085 (D. Colo. 1985)). Striking a portion of a pleading is a drastic remedy; the
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`federal courts generally view motions to strike with disfavor and infrequently grant such requests.
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`5C Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1380 (3d ed. 2011).
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`Whether to strike an affirmative defense rests within the discretion of the trial court. Anderson v.
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`Van Pelt, No. 09-cv-00704-CMA, 2010 WL 5071998, at *1 (D. Colo. Dec. 7, 2010) (citing
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`Vanderhurst v. Colo. Mountain Coll. Dist., 16 F. Supp. 2d 1297, 1303 (D. Colo. 1998)).
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`“An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed
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`under any circumstance.” Unger v. US West, Inc., 889 F. Supp. 419, 422 (D. Colo. 1995). The
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`standard articulated in Unger continues to be the appropriate standard. For the reasons stated herein,
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`the Court holds that an affirmative defense is sufficient if stated “in short and plain terms” pursuant
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`to Rule 8(b)(1)(A), and if the movant fails to demonstrate that the defense cannot succeed under any
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`circumstance.
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`ANALYSIS
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`Plaintiff seeks an order striking three of Defendant’s five affirmative defenses. Plaintiff
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`contends Defendant’s defenses are insufficient as a matter of law because they cannot succeed under
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`3
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`any circumstance. With the foregoing legal principles in mind, the Court will consider each of the
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`challenged defenses in turn.
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`I.
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`First Defense: Failure to State a Claim
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`Defendant’s“failure to state a claim” defense was denied by the District Court on July 8,
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`2014 when it adopted this Court’s Report and Recommendation to deny Defendant’s Motion to
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`Dismiss. See docket ##20, 31. For the same reasons outlined in that Report and Recommendation
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`(docket #31), the Court finds that this defense cannot succeed under any circumstances and should
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`be stricken.
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`II.
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`Second Defense: Assumption of Risk
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`Defendant’s second affirmative defense states: “Plaintiff assumed the risk that its movies
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`might be copied or reproduced when the movies were published on the internet.” Docket #35 at ¶
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`17. An assumption of risk defense is an affirmative defense to a tort claim. See Harris v. The Ark,
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`810 P.2d 226 (Colo. 1991); see also Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711
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`(Colo. App. 2008). Because an “assumption of risk” defense does not apply to copyright
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`infringement claims, this defense cannot succeed as a matter of law and should be stricken.
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`III.
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`Fifth Defense: Intervening Cause
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`Defendant’s fifth affirmative defense states: “The alleged distribution of copyrighted works,
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`if any, was the action or result of a third party instrumentality over which this Defendant had no
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`control.” Docket #35 at ¶ 17. To establish a claim of copyright infringement, Plaintiff must prove
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`“(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are
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`original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). By arguing that a
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`third party engaged in any copyright infringement, Defendant denies that he copied the original
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`work, which is the second element of Plaintiff’s claim. Such a denial of Plaintiff’s prima facie case
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`and is not a proper affirmative defense. See Isringhausen Import, Inc. v. Nissan N.A., Inc., No. 10-
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`CV-3253, 2011 WL 6029733, at *6 (C.D. Ill. Dec. 5, 2011) (striking defense that merely attacked
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`element of copyright infringement claim). By its nature, an affirmative defense “does not negate
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`the elements of a plaintiff’s claim, but instead precludes liability even if all of the elements of a
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`plaintiff’s claim are proven.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011). Where a so-called
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`“affirmative defense” does nothing more than rebut a plaintiff’s claims directly, the defense should
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`be stricken. Id.
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`Thus, the fifth affirmative defense should be stricken as redundant.
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`CONCLUSION
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`The Court finds that Defendant’s First, Second, and Fifth Defenses should be stricken.
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`Accordingly, this Court respectfully RECOMMENDS that Plaintiff’s Motion to Strike Affirmative
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`Defenses [filed August 7, 2014; docket #36] be granted.
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`Entered and dated at Denver, Colorado, this 13th day of August, 2014.
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`BY THE COURT:
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`Michael E. Hegarty
`United States Magistrate Judge
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