Case 2:18-cv-02524-JAR-GEB Document 25 Filed 02/13/19 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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` Case No. 2:18-CV-02524
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`BRIAN DOLEZAL and
`LAURA DOLEZAL,
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`Plaintiffs,
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`v.
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`STARR HOMES, LLC; JERRY BAIN;
`JENNIFER BAIN; and CASTROP DESIGN
`GROUP, LLC,
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`Defendants.
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`MEMORANDUM & ORDER
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`Plaintiffs and Counterclaim Defendants Brian and Laura Dolezal (“Plaintiffs”) initiated
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`this action for Copyright Infringement, 17 U.S.C. § 501, against Defendants and Counterclaim
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`Plaintiffs Starr Homes, LLC, Jerry and Jennifer Bain, and Castrop Design Group, LLC
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`(“Defendants”). This matter is before the Court on Plaintiffs’ Motion to Strike (Doc. 15). For
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`the reasons set forth below, the motion is denied in its entirety.
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`I.
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`Standard to Strike Pleading
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`Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a
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`pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
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`matter.”1 Striking a pleading is a drastic measure, and may often be brought as a dilatory tactic,
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`thus motions to strike under Rule 12(f) are generally disfavored.2 Because motions to strike are
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`disfavored, a court “‘should decline to strike material from a pleading unless that material has no
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`1 Fed. R. Civ. P. 12(f).
`2 Nwakpuda v. Falley’s, Inc., 14 F. Supp. 2d 1213, 1215 (D. Kan. 1998); RMD, L.L.C. v. Nitto Ams., Inc.,
`No. 09–2056, 2012 WL 1033542, at *2 (D. Kan. Mar. 27, 2012) (citing Thompson v. Jiffy Lube Int’l, Inc., No. 05–
`1203, 2005 WL 2219325, at *1 (D. Kan. Sept. 13, 2005)).
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`Case 2:18-cv-02524-JAR-GEB Document 25 Filed 02/13/19 Page 2 of 7
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`possible relation to the controversy and may prejudice the opposing party.’”3 The decision to
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`grant a motion to strike is within the district court’s sound discretion.4
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`Plaintiffs move to strike portions of Defendants’ Answer to Complaint, Affirmative
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`Defenses, and Counterclaim (Doc. 11) on the grounds that (1) Paragraphs 59–106 describing
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`individual features are redundant, immaterial, and impertinent; (2) Paragraphs 33–39 include
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`scandalous, false statements which unfairly prejudice plaintiffs; (3) Defendants’ affirmative
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`defenses are insufficient as a matter of law; and (4) Paragraphs 11, 13, and 14 are immaterial.
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`Further, Plaintiffs move to strike, or in the alternative dismiss, Defendants’ counterclaim for
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`copyright misuse for failure to state a claim. Defendants assert that Plaintiffs’ motion is merely a
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`lengthy denial based on unsupported arguments of Plaintiffs’ counsel. The Court addresses
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`Plaintiffs’ objections in turn.
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`II.
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`Discussion
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`A. Motion to Strike Individual Features from Copyright Misuse Claim
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`Plaintiffs move to strike paragraphs 59–106. In each of these paragraphs, Defendants list
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`a separate, individual feature of the Dolezal home. Plaintiffs assert that Defendants have
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`“repeatedly attempted to confuse the issues of the case and separate Plaintiffs’ copyright
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`infringement claims into individual features.”5 Defendants respond that prior to filing this
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`lawsuit, Plaintiffs represented to Defendants that they had rights to various common architectural
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`features, which are now named here in paragraphs 59–106, and the list is necessary to
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`demonstrate the scope of Plaintiffs’ allegedly improper representations. The list of features is
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`3 Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1257 (D. Kan. 2011) (quoting Wilhelm v. TLC Lawn Care,
`Inc., No. 07-2465, 2008 WL 474265, at *2 (D. Kan. Feb. 19, 2008)).
`4 See Kendall State Bank v. W. Point Underwriters, L.L.C., No. 10–2319–JTM, 2012 WL 3890264, at *2
`(D. Kan. Sept. 7, 2012).
`5 Doc. 16 at 6.
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`2
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`included as factual support for Defendants’ copyright misuse counterclaim. “Copyright misuse
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`forbids the use of a copyright ‘to secure an exclusive right or limited monopoly not granted by
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`the copyright office and is contrary to public policy to grant.’”6 “The court ‘should decline to
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`strike material from a pleading unless that material has no possible relation to the controversy
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`and may prejudice the opposing party.’”7 The list of features is factual support for Defendants’
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`claim that Plaintiffs attempted to secure an exclusive right over something beyond the rights
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`granted in their copyright, and accordingly the material is plausibly related to the copyright
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`dispute. Further, Plaintiffs have not shown prejudice from these paragraphs, an explicit
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`consideration in a motion to strike.8 The Court finds that responding to paragraphs
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`59–106 is not an “undue burden”9 as Plaintiffs allege, but rather part and parcel of litigation.
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`Accordingly, the Court denies Plaintiffs’ motion to strike paragraphs 59–106.
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`B. Motion to Strike Paragraphs 33–39
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`Plaintiffs move to strike Paragraphs 33–39 as “scandalous, false statements which
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`unfairly prejudice Plaintiffs [and] disingenuously question the moral character of plaintiffs and
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`plaintiffs’ counsel.”10 Defendants respond that the paragraphs are simply factual support for
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`Defendants’ view of the case. “‘Scandalous’ matter is that which improperly casts a derogatory
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`light on someone, most typically a party to the action.”11 Scandalous allegations “degrade [a
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`6 Energy Intelligence Grp., Inc. v. CHS McPherson Refinery, Inc., 300 F. Supp. 3d 1356, 1372 (D. Kan.
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`2018).
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`7 Falley, 787 F. Supp. 2d at 1257 (citing Wilhelm, 2008 WL 474265, at *2).
`8 See id.
`9 Doc. 22 at 8.
`10 Doc. 16 at 8.
`11 5A C. Wright and A. Miller, Federal Practice and Procedure (Civil) 2d § 1382, at 712 (1990).
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`party’s] moral character, contain repulsive language, or detract from the dignity of the court.”12
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`The court finds that these factual contentions do not rise to the level of scandalous matter.
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`The factual allegations in these paragraphs include:
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`33. Scott Bickford, the designer and architect of the Bickford
`technical drawings depicting the Dolezal home, reviewed the
`accused drawings and told the Dolezals and their attorneys that the
`accused drawings were not a copy of his drawings;
`34. The Dolezals’ attorneys were given unfettered access to the
`accused home under construction to openly show and prove to
`them and the Dolezals that their claims were unfounded and to
`avoid a costly and baseless lawsuit.
`35. No reasonable person would claim copyright infringement of
`the Bickford technical drawings for a house after being advised by
`the architect for those plans that the accused plans were not a copy.
`36. No reasonable person would claim copyright infringement of
`the architectural work built from the Bickford plans after walking
`through the accused home.
`37. The Dolezals and their attorneys ignored Mr. Bickford, and
`disregarded the indisputable evidence, filing this suit for an
`improper purpose.
`38. The Dolezals’ and their attorneys’ claim for copyright
`infringement is not warranted by existing law.
`39. The Dolezals’ and their attorneys’ factual contentions are
`without evidentiary support.13
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`Plaintiffs assert that these statements are untrue, as well as irrelevant hearsay. Plaintiffs’
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`conclusory assertion that these statements are untrue does not justify a motion to strike. As
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`discussed above, “[t]he court ‘should decline to strike material from a pleading unless that
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`material has no possible relation to the controversy and may prejudice the opposing party.’”14
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`This is a copyright dispute, and these factual contentions regarding the validity of the dispute are
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`clearly material. Further, hearsay is a statement that “a party offers in evidence.”15 As
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`12 Miller v. Pfizer, Inc., CIV.A. 99-2326-KHV, 1999 WL 1063046, at *3 (D. Kan. Nov. 10, 1999).
`13 Doc. 11 ¶¶ 33–39.
`14 Falley, 787 F. Supp. 2d at 1257 (citing Wilhelm, 2008 WL 474265, at *2).
`15 Fed. R. Evid. 801(c)(2).
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`Defendants have not attempted to enter this statement into evidence, a hearsay objection is
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`improper. Accordingly, Plaintiffs’ motion to strike paragraphs 33–39 is denied.
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`C.
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`Defendants’ Affirmative Defenses
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`Plaintiffs move for the court to strike Defendants’ affirmative defenses as insufficient as
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`a matter of law. Plaintiffs contend that under the “indisputable facts,”16 Defendants cannot show
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`waiver, estoppel, acquiescence, or laches. Further, Plaintiffs state that because they have alleged
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`facts supporting a claim of copyright infringement, Defendants’ preserved affirmative defense of
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`failure to state a claim should be stricken. Defendants respond that this request is both factually
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`and legally unsound. The Court agrees.
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`“The court ‘should decline to strike material from a pleading unless that material has no
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`possible relation to the controversy and may prejudice the opposing party.’”17 “Striking an
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`affirmative defense is considered a ‘drastic remedy,’ and the court should only utilize the legal
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`tool where the challenged allegations cannot succeed under any circumstances.”18
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`Here, Plaintiffs’ conclusory assertion that there are “indisputable facts” which preclude
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`waiver, estoppel, acquiescence, or laches is unconvincing. At the pleading stage, Defendants
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`need not show that their affirmative defenses will succeed on the merits.19 Plaintiffs have not
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`shown that Defendants’ affirmative defenses—based on disputed factual allegations that
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`occurred prior to the filing of the Complaint—“cannot succeed under any circumstance.”20
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`Defendants allege that Plaintiffs made representations prior to the filing of the litigation which
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`16 Doc. 16 at 7.
`17 Falley, 787 F. Supp. 2d at 1257 (citing Wilhelm, 2008 WL 474265, at *2).
`18 Id. at 1259 (citing Wilhelm, 2008 WL 474265, at *2).
`19 Id. (citing Fed. R. Civ. P. 8(c)).
`20 Id.
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`are material to each of their affirmative defenses. At the pleading stage, these factual allegations
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`are sufficient to support the pleading of these affirmative defenses. Further, the Court will not
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`strike Defendants’ preservation of their affirmative defense of failure to state a claim simply
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`because Plaintiffs assert that they have “clearly stated a claim for copyright infringement.”21
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`Accordingly, Plaintiffs’ motion to strike Defendants’ affirmative defenses is denied.
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`D.
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`Puffery in Paragraphs 11, 13, and 14
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`Plaintiffs move to strike paragraphs 11, 13, and 14, alleging that Defendants’ statements
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`regarding the awards and reputation of Defendant Starr Homes is immaterial, impertinent, and
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`should be stricken. Defendants contend that this information is relevant background
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`demonstrating expertise and professionalism. Once again, the Court agrees. Motions to strike
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`are “disfavored,” and Plaintiffs have not met the high bar of showing that these facts are
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`“redundant, immaterial, impertinent, or scandalous.”22 Further, Plaintiffs have not shown
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`prejudice from these paragraphs, an explicit consideration in a motion to strike.23 Plaintiffs
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`claim prejudice insofar as these statements cause “confusion as to the real issues in the case.”24
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`The Court finds that these three paragraphs containing background information do not cause
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`confusion as to the copyright issues in the case. Accordingly, Plaintiffs’ motion to strike
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`paragraphs 11, 13, and 14 is denied.
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`E. Motion to Strike or Dismiss Counterclaim for Copyright Misuse
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`Plaintiffs move to strike, or in the alternative dismiss, Defendants’ counterclaim for
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`copyright misuse. Plaintiffs summarily argue that Defendants’ counterclaim “includes mere
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`21 Doc. 16 at 8.
`22 Fed. R. Civ. P. 12(f).
`23 See Falley, 787 F. Supp. 2d at 1257 (quoting Wilhelm, 2008 WL 474265, at *2).
`24 Doc. 22 at 13.
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`conclusory allegations without factual support” because “Plaintiffs have not claimed exclusive
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`ownership of any of the 45 separate features” in their Complaint.25 However, Defendants’
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`counterclaim is not simply based on Plaintiffs’ Complaint, but rather representations Plaintiffs
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`made to Defendants “prior to filing this lawsuit.”26 As discussed above, Paragraphs 59–106 are
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`Defendants’ factual support of these alleged representations. A motion to dismiss is improper
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`unless “it appears that the facts alleged fail to state a plausible claim for relief.”27 “Copyright
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`misuse forbids the use of a copyright ‘to secure an exclusive right or limited monopoly not
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`granted by the copyright office and is contrary to public policy to grant.’”28 To the extent
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`Defendants allege that Plaintiffs used their copyright to secure an exclusive right beyond that
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`granted by the copyright office, they have alleged a plausible claim. Plaintiffs’ motion to strike,
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`or in the alternative dismiss, the counterclaim is denied.
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`IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion to Strike
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`(Doc. 15) is denied.
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`IT IS SO ORDERED.
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`Dated: February 13, 2019
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`S/ Julie A. Robinson
`JULIE A. ROBINSON
`CHIEF UNITED STATES DISTRICT JUDGE
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`25 Doc. 16 at 11.
`26 Doc. 19 at 11.
`27 Tackett v. Univ. of Kan., 234 F. Supp. 3d 1100, 1105 (D. Kan. 2017).
`28 Energy Intelligence Grp., Inc. v. CHS McPherson Refinery, Inc., 300 F. Supp. 3d 1356, 1372 (D. Kan.
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`2018).
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