Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 1 of 15 Page ID#: 397
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF OREGON
`
`VOLTAGE PICTURES, LLC, and
`MAXCON PRODUCTIONS, INC.,
`
`No. 3:13-cv-00839-AA
`
`Plaintiffs,
`
`OPINION AND ORDER
`
`v.
`
`HUNTER HARWOOD,
`
`Defendant.
`
`Carl D. Crowell
`Crowell Law
`P.O. Box 923
`Salem, OR 97308
`Attorney for Plaintiff
`
`David H. Madden
`Mersenne Law LLP
`9600 S.W. Oak Street, Suite 500
`Tigard, Oregon .97223
`Attorney for Defendant
`
`AIKEN, Chief Judge:
`
`On
`
`January 9, 2014, defendant Hunter Harwood moved for
`
`partial
`
`summary
`
`judgment
`
`(doc.
`
`36)
`
`and plaintiffs, Voltage
`
`Pictures LLC
`
`(Voltage)
`
`and Maxcon Productions
`
`Inc.
`
`(Maxcon)
`
`1 - OPINION AND ORDER
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF OREGON
`
`VOLTAGE PICTURES, LLC, and
`MAXCON PRODUCTIONS, INC.,
`
`No. 3:13-cv-00839-AA
`
`Plaintiffs,
`
`OPINION AND ORDER
`
`v.
`
`HUNTER HARWOOD,
`
`Defendant.
`
`Carl D. Crowell
`Crowell Law
`P.O. Box 923
`Salem, OR 97308
`Attorney for Plaintiff
`
`David H. Madden
`Mersenne Law LLP
`9600 S.W. Oak Street, Suite 500
`Tigard, Oregon .97223
`Attorney for Defendant
`
`AIKEN, Chief Judge:
`
`On
`
`January 9, 2014, defendant Hunter Harwood moved for
`
`partial
`
`summary
`
`judgment
`
`(doc.
`
`36)
`
`and plaintiffs, Voltage
`
`Pictures LLC
`
`(Voltage)
`
`and Maxcon Productions
`
`Inc.
`
`(Maxcon)
`
`1 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 2 of 15 Page ID#: 398
`
`moved to dismiss for failure to state a claim (doc. 37) .
`
`On
`
`January 16, 2014, plaintiffs also moved to strike defendant's
`
`First Motion for Partial Summary Judgment
`
`(doc. 41) .
`
`For the
`
`reasons set forth below, defendant's motion (doc. 36) is denied,
`
`plaintiffs' motion
`
`(doc. 37)
`
`is granted in part and denied in
`
`part, and plaintiffs' motion (doc. 41) is denied.
`
`BACKGROUND
`
`Plaintiff Voltage Pictures is a movie distribution company
`
`and plaintiff Maxcon is a California corporation that owns, or
`
`at one
`
`time owned,
`
`the copyright
`
`to Maximum Conviction,
`
`the
`
`movie
`
`that
`
`is
`
`the subject of this case.
`
`Defendant Hunter
`
`Harwood became involved in the suit when plaintiffs filed the
`
`First Amended Complaint (doc. 14) on August 20, 2013, naming him
`
`as the defendant.
`
`On December
`
`06, 2013, plaintiffs
`
`filed the
`
`Second Amended Complaint
`
`(doc.
`
`30), which
`
`is
`
`the
`
`operative
`
`complaint.
`
`In
`
`the Second Amended Complaint, plaintiffs allege
`
`that
`
`defendant copied and published
`
`the motion picture,· Maximum
`
`Conviction, via a Bi tTorrent client. Accordingly, plaintiffs
`
`allege defendant willfully
`
`infringed plaintiffs'
`
`exclusive
`
`rights under the Copyright Act. Defendant denies doing this and
`
`alleges that plaintiffs cannot prevail because they do not own
`
`the exclusive rights they claim to have.·· Defendant argues that
`
`2 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 3 of 15 Page ID#: 399
`
`there are no disputed issues of material fact and that he is,
`
`therefore, entitled to summary judgment.
`
`Defendant also made
`
`two counterclaims.
`
`First, defendant
`
`alleges that plaintiffs engaged in a variety of unethical or
`
`illegal practices in connection with this and previous lawsuits,
`
`particularly, that plaintiffs' subpoena issuance was
`
`improper.
`
`Consequently, defendant argues he
`
`is entitled to relief and
`
`compensation under Fed. R. Civ. P. 11, 28 U.S.C.
`
`§ 1927, and
`
`this court's equitable power.
`
`Second,
`
`defendant alleges
`
`a
`
`counterclaim for declaratory judgment of non-infringement.
`
`Plaintiffs moved to dismiss for failure to state a claim
`
`and moved to strike portions of defendant's counterclaims on the
`
`grounds that the allegations lack sufficient particularity, were
`
`made prematurely, are
`
`immaterial and impertinent, fail comply
`
`with the mandatory requirements of Fed. R. Civ. P. 11, and were
`
`made only to harass and burden plaintiffs.
`
`STANDARD OF REVIEW
`
`Summary Judgment is appropriate "if the movant shows that
`
`there is no genuine dispute as to any material fact and the
`
`movant is entitled to judgment as a matter of law."
`
`Fed. R.
`
`Civ. P. 56(a). Whether or not a fact is material is determined
`
`by the substantive law on the issue.
`
`T.W. Elec. Serv., Inc. v.
`
`Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630
`
`(9th Cir. 1987).
`
`3 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 4 of 15 Page ID#: 400
`
`There
`
`is a genuine dispute if the evidence
`
`is such
`
`that a
`
`reasonable jury would return a verdict for the nonmoving party.
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
`
`(1986)
`
`The
`
`moving party has the burden of establishing the absence of a
`
`genuine issue of material fact. Celotex Corp. V. Catrett, 4 77
`
`u.s. 317, 323 (1986)
`
`Special rules of construction apply to evaluating summary
`
`judgment motions:
`
`(1) all reasonable doubts as to the existence
`
`of genuine issues of material facts should be resolved against
`
`the moving party; and
`
`(2) all inferences must be drawn in the
`
`light most favorable to the nonmoving party.
`
`T.W. Elec., 809
`
`F. 2d at 630-31.
`
`DISCUSSION
`
`The only matters that are still at issue are whether either
`
`plaintiff has standing and capacity
`
`to sue and plaintiffs'
`
`motions to dismiss and to strike (docs. 37 and 41) . 1
`
`Defendant's Motion for Summary Judgment on the Issue of
`A.
`Standing and Capacity to Sue.
`
`Plaintiffs seek to strike defendant's motion for summary
`
`judgment because it seeks relief under Fed. R. Ci v. P. 56 and
`
`Fed. R. Civ. P. 11.
`
`As noted, defendant has withdrawn his
`
`1 Defendant withdrew his motion for summary judgment with regard
`to his claims for relief under Fed. R. Civ. P. 11 and 28 U.S.C.
`§ 1927.
`
`4 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 5 of 15 Page ID#: 401
`
`request for
`
`summary
`
`judgment under Fed. R. Civ. P.
`
`11 and
`
`accordingly, plaintiffs' motion to strike is denied.
`
`Defendant argues that plaintiffs Maxcon and Voltage
`
`lack
`
`standing to bring suit in this case because neither plaintiff
`
`owns exclusive rights in Maximum Conviction. Capacity to sue or
`
`be sued in federal court is determined by the law under which
`
`the corporation was organized. Fed. R. Civ. P. 17 (b) (2).
`
`Defendant asserts that
`
`the entity that originally owned
`
`exclusive rights to Maximum Conviction, Maxcon, was a California
`
`corporation and as
`
`such, California
`
`laws apply.
`
`Defendant
`
`argues that Maxcon was
`
`formed on October 11, 2011, as entity
`
`3416008
`
`(Maxcon I) and dissolved when it filed a Certificate of
`
`Election
`
`to Wind Up
`
`and Dissolve
`
`and
`
`a Certificate of
`
`Dissolution on December 6, 2012.
`
`Memorandum of Points and
`
`Auths. in Support of Defendant's Rule 56 Motion (doc. 36-1), at
`
`10.
`
`Defendant argues
`
`that under California
`
`law,
`
`once
`
`a
`
`dissolved corporation files a Certificate of Dissolution, its
`
`winding up is complete and it ceases to be a proper party.
`
`Mongols National Motorcycle Club, Inc. V. City of Lancaster, 145
`
`Cal. Rptr. 3d 122
`
`(Cal. Ct. App. 2010) .
`
`Thus, defendant argues
`
`that
`
`as
`
`a dissolved corporation with
`
`no possibility
`
`for
`
`restatement, Maxcon I lacks standing to bring suit.
`
`5 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 6 of 15 Page ID#: 402
`
`Next, defendant argues that the Maxcon Productions,
`
`Inc.
`
`that exists
`
`today as entity 3543585
`
`(Maxcon II), wh~ch was
`
`formed through new articles of incorporation filed on March 13,
`
`2013, bears no legal relation to Maxcon I for the purposes of
`
`ownership rights
`
`in Maximum Conviction and,
`
`thus, also
`
`lacks
`
`standing.
`
`Finally, defendant argues that because Maxcon I failed to
`
`transfer exclusive rights in Maximum Conviction to Voltage prior
`
`to dissolution and winding up, Voltage also lacks standing.
`
`Only the owner of an exclusive right under the copyright is
`
`entitled to sue for
`
`infringement.
`
`Silvers v. Sony Pictures
`
`Entertainment, Inc., 402 F. 3d 881, 889
`
`(9th Cir. 2005).
`
`The
`
`owner of the bare right to sue, without any ability to reproduce
`
`Maximum Conviction, distribute
`
`it,
`
`or
`
`exploit
`
`any other
`
`exclusive right under the Copyright Act, would leave such an
`
`entity without standing under the Act.
`
`See Righthaven LLC v.
`
`Hoehn,
`
`71 6 F . 3d 116 6 ,
`
`11 7 0
`
`( 9th C i r .
`
`2 0 13 ) .
`
`In this case,
`
`defendant shows that Maxcon assigned to Voltage
`
`all rights and interest in the work Maximum Conviction
`only to the extent necessary to make claims by
`itself against
`illegal downloads,
`uploads
`and/ or
`claims by itself against illegal downloads, uploads
`and/or streaming the work via the internet or wireless
`worldwide and to undertake such actions as it believes
`necessary or appropriate to protect against piracy of
`any rights in the work ...
`
`6 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 7 of 15 Page ID#: 403
`
`Assignment of Copyright Interest, attached to Defendant's First
`
`Motion
`
`for Partial Summary
`
`Judgment
`
`(doc.
`
`36-1)
`
`as Ex. A
`
`(emphasis added) .
`
`To use
`
`the
`
`language "only to
`
`the extent
`
`necessary" creates an ambiguity in the assignment such that it
`
`is unclear
`
`if all
`
`rights
`
`to exploit
`
`the work have been
`
`transferred or only the right to sue for illegal distribution.
`
`Thus,
`
`the court cannot
`
`resolve
`
`such ambiguity,
`
`i.e.,
`
`the
`
`parties' intent, on the record before it.
`
`Nonetheless,
`
`the presence of Maxcon
`
`in
`
`this
`
`litigation
`
`effectively moots
`
`the issue.
`
`Under
`
`the California Corporate
`
`Code:
`
`nevertheless
`dissolved
`is
`corporation which
`A
`continues to exist for the purpose of winding up its
`affairs, prosecuting and defending actions by or
`against it and enabling it to collect and discharge
`obligations, dispose of and convey its property and
`collect and divide its assets, but not for the purpose
`of continuing business except so far as necessary for
`the winding up thereof.
`
`Cal. Corp. Code§ 2010(a). Further, "Any assets inadvertently or
`
`otherwise omitted from the winding up continue in the dissolved
`
`corporation for the benefit of the persons entitled thereto upon
`
`dissolution of
`
`the corporation and on realization shall be
`
`distributed
`
`accordingly."
`
`Cal.
`
`Corp.
`
`Code
`
`§
`
`2010 (c).
`
`Accordingly, Defendant's First Motion
`
`for Partial
`
`Summary
`
`Judgment (doc. 36) on the issue of standing and capacit~ to sue
`
`is denied.
`
`7 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 8 of 15 Page ID#: 404
`
`B.
`
`Plaintiffs' Motion to Strike Defendant's Fed. R. Civ. P. 11
`
`Counterclaim.
`
`Plaintiffs argue that defendant's counterclaim for relief
`
`under Fed. R. Civ. P. 11 is grossly improper and was done for no
`
`purpose other than to harass, burden, and deter plaintiffs from
`
`pursuing legitimate claims.
`
`Consequently, plaintiffs move
`
`to
`
`strike the portions of defendant's counterclaim that seek relief
`
`under Fed. R. Ci v. P. 11.
`
`Plaintiffs also seek an award of
`
`reasonable attorney fees pursuant to Or. Rev. Stat. §§ 31.150
`
`and 31.152, Oregon's anti-SLAPP
`
`(strategic
`
`lawsuits against
`
`public participation)
`
`laws, which allow movants
`
`to quickly
`
`strike meritless causes of action arising
`
`from
`
`speech or
`
`petition at the outset of litigation.
`
`Defendant challenges the applicability of Or. Rev. Stat. §§
`
`31.150 and 31.152 on two fronts. First, defendant asserts that
`
`Or. Rev. Stat. §§ 31.150 and 31.152 collide with Fed. R. Civ. P.
`
`56(c) and are, therefore, inapplicable. Next, defendant argues
`
`that Or. Rev. Stat. § 31. 150 ( 1) only authorizes a defendant to
`
`make a special motion to strike a plaintiff's claim (emphasis
`
`added).
`
`Thus, defendant argues that the applicability of the
`
`anti-SLAPP statutes to plaintiffs, who are moving to strike a
`
`defendant's counterclaim, is inappropriate.
`
`Substantive provisions of state anti-SLAPP motions have
`
`been allowed in Ninth Circuit federal courts since 1999 because
`
`8 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 9 of 15 Page ID#: 405
`
`"important substantive state interests [are] furthered by anti(cid:173)
`
`SLAPP statutes," United States Ex. Rel Newsham v. Lockheed
`
`Missiles & Space Co., 190 F. 3d 963, 970-73
`
`(9th Cir. 1999), and
`
`the Erie doctrine requires that anti-SLAPP statutes be available
`
`in federal court to discourage forum-shopping.
`
`Id. at 972-73.
`
`Further, state anti-SLAPP provisions and
`
`the Federal Rules,
`
`specifically, Fed. R. Civ. P. 8, 12, and 56, can coexist with
`
`"each controlling its own
`
`intended sphere of coverage without
`
`conflict," Id. at 972 (quoting Walker v. Armco Steel Corp., 446
`
`U.S. 740,
`
`752
`
`(1980)),
`
`and with "no direct collision." Id.
`
`Thus, defendant's first argument that Or. Rev. Stat. §§ 31. 150
`
`and 31.152 collide with Fed. R. Civ. P. 56(c) fails. Also,
`
`there is no restriction on the use of anti-SLAPP statutes to
`
`counterclaims. Makaeff v. Trump University, LLC, 715 F.3d 254
`
`( 9th C i r . 2 0 13 ) .
`
`Oregon's Anti-SLAPP statutes follow a
`
`two part process.
`
`First,
`
`to receive anti-SLAPP protection,
`
`the movant has
`
`the
`
`initial burden of demonstrating a prima facie case that
`
`the
`
`challenged claims arise out of the categories identified in ORS
`
`31.150(2), which encompasses acts in furtherance of the right to
`
`petition or of free speech in connection with a public issue or
`
`an
`
`issue of public interest.
`
`Or. Rev. Stat.
`
`§ 31.150(3).
`
`Second, if the movant meets its burden in the first step,
`
`the
`
`burden then shifts to the non-moving party, who must establish
`
`9 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 10 of 15 Page ID#: 406
`
`that
`
`there is a probability of prevailing on
`
`the claim by
`
`presenting substantial evidence to support a prima facie case.
`
`Or. Rev. Stat. § 31.150(3).
`
`If the non-moving party meets this
`
`burden,
`
`the court shall deny
`
`the motion.
`
`Or. Rev. Stat.
`
`§
`
`31.150(3).
`
`If plaintiffs prevail on a special motion to strike
`
`made under Or. Rev. Stat. § 31.150, they are awarded reasonable
`
`attorney fees and costs. 2 Or. Rev. Stat. § 31.152(3).
`
`Although
`
`possibly
`
`applicable
`
`to
`
`alleged
`
`discovery
`
`violations in the first counterclaim,
`
`the Anti-SLAPP
`
`laws are
`
`not applicable
`
`to challenge allegations of standing
`
`in
`
`the
`
`counterclaim.
`
`See Kajima Engineering and Const., Inc. v. City
`
`of Los Angeles, 95 Cal. App. 4th 921, 929-32
`
`(Cal. Ct. App.
`
`2002)
`
`(in interpreting California's anti-SLAPP statute similarly
`
`to Oregon,
`
`the California courts require a cross-complaint to
`
`allege acts in furtherance of plaintiff's right of petition or
`
`free speech in connection with a public issue to be actionable
`
`under anti-SLAPP provision) . 3
`
`Nonetheless, defendant has fulfilled his burden of a prima
`
`facie case because he produced evidence that the court quashed
`
`the subpoena and the defendant has presented sufficient evidence
`
`2 The attorney fees provision applies in federal court. Northon
`v. Rule, 637 F.3d 937 (9th Cir. 2011).
`3 Plaintiffs' filing of the underlying complaint is the sort of
`right protected by anti-SLAPP statutes and the discovery conduct
`allegedly in violation of Rule 11 in the parent case could be
`construed as arising from plaintiffs' use of the litigation
`process itself.
`
`10 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 11 of 15 Page ID#: 407
`
`regarding Voltage's standing to sue and Maxcon' s capacity to
`
`sue, even
`
`though
`
`the court has resolved the latter issue in
`
`favor of Maxcon. 4
`
`Consequently, plaintiffs' motion to strike
`
`defendant's Fed. R. Civ. P. 11 counterclaim is denied. 5
`
`C.
`
`Plaintiffs' Motion to Strike Allegations of Fraud.
`
`Plaintiffs move
`
`to
`
`strike all allegations of
`
`fraud,
`
`pursuant to Fed. R. Civ. P. 9(b), for failing to allege elements
`
`with sufficient particularity. To the extent the claim needs to
`
`be pleaded with particularity,
`
`the defendant's counterclaim
`
`stated with particularity the circumstances that surrounded the
`
`allegations of discovery violations and allegations of lack of
`
`standing or capacity
`
`to sue.
`
`See, e.g. Defendant's First
`
`Amended Answer to the Second Amended Complaint (doc. 33), at]]
`
`137-166 and Exhibits A-F.
`
`Thus, plaintiffs' motion to strike
`
`allegations of fraud,
`
`to the extent such allegations exist, is
`
`denied.
`
`D.
`
`Plaintiffs' Motion to Dismiss all Counterclaims.
`
`Pursuant to Fed. R. Civ. P. 12 (b) (6), plaintiffs move to
`
`dismiss
`
`both
`
`counterclaims
`
`plead
`
`by
`
`defendant
`
`because,
`
`4 However, the court does not decide at this stage whether the
`alleged discovery violation occurred because defendant withdrew
`his motion for summary judgment on the Fed. R. Civ. P. 11
`claims.
`5 To the extent defendant alleges a claim for relief under 28
`U.S.C. § 1927 for actions preceding the filing of the parent
`complaint, such action is not viable.
`
`11 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 12 of 15 Page ID#: 408
`
`plaintiffs allege, the allegations of the counterclaims fail to
`
`state plausible claims.
`
`Federal Rule of Civil Procedure 12 (b) (6)
`
`requires that a
`
`complaint contain sufficient factual matter to state a claim
`
`that is plausible on its face. Bell Atl. Corp. V. Twombly, 550
`
`u.s. 554, 570
`
`(2007). When reviewing a motion to dismiss, a
`
`court considers only allegations contained in
`
`the pleadings,
`
`exhibits attached to the complaint, and matters properly subject
`
`to judicial notice.
`
`Swartz v. KPMG LLP, 476 F.3d 756, 763
`
`(9th
`
`Cir. 2007).
`
`First, plaintiff moves to dismiss defendant's counterclaim
`
`for relief under Fed. R. Civ. P. 11, 28 U.S.C. §1927, and the
`
`inherent authority of this court. However,
`
`the allegations if
`
`true, plausibly demonstrate that Voltage lacks capacity to sue 6
`
`and that plaintiff Voltage engaged in misconduct with regard to
`
`the subpoena in the parent case. 7
`
`Second, pursuant to Fed. R. Civ. P. 12 (b) (6), plaintiffs
`
`move
`
`to dismiss defendant's
`
`counterclaim
`
`for declaratory
`
`judgment because, plaintiffs argue, defendant's counterclaim for
`
`non-infringement is a the mirror image of plaintiffs' claim for
`
`infringement and as such, seeks no new relief.
`
`6 However, as the court already noted, Maxcon has capacity to sue.
`7 The court does not decide the issue. At this point in the
`proceedings, defendant merely plausibly pleaded such issue.
`
`12 - OPINION AND ORDER
`
`
`
`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 13 of 15 Page ID#: 409
`
`Defendant made a counterclaim for declaratory judgment of
`
`non-infringement and award of his costs and attorney fees as a
`
`prevailing party in a copyright cases pursuant
`
`to 17 U.S.C.
`
`§505.
`
`Defendant argues that mere dismissal from the lawsuit
`
`with or without prejudice is inadequate to vindicate defendant's
`
`rights·.
`
`Defendant's First Amended Answer
`
`to Second Amended
`
`Complaint, at 26.
`
`Further, ~the declaration that defendant
`
`seeks is not just that plaintiffs did not make their case, but
`
`that plaintiffs cannot make their case. 8
`
`Id. at 10. However, as
`
`the court has determined that at least one of the plaintiffs may
`
`enforce the copyright, plaintiffs' motion to dismiss defendant's
`
`counterclaim for declaratory judgment is granted. In addition,
`
`for the reasons already stated, plaintiffs' motion to dismiss
`
`defendant's counterclaim for relief under Fed. R. Civ. P. 11, 28
`
`U.S.C. §1927,
`
`and
`
`the
`
`inherent authority of
`
`this court
`
`is
`
`denied.
`
`E.
`
`Plaintiffs' Motion to Strike Statements and Defenses in
`
`Defendant's Answer.
`
`Pursuant
`
`to Fed. R. Civ. P. 12(f), plaintiffs move
`
`to
`
`strike
`
`improper
`
`statements
`
`and
`
`affirmative
`
`defenses
`
`in
`
`defendant's Answer for being immaterial and impertinent.
`
`The
`
`Federal Rules of Civil Procedure permit the court to ~strike
`
`8 The issue of whether plaintiff has the right to enforce the
`copyright is distinct from the issue of whether defendant
`infringed the copyright.
`
`13 - OPINION AND ORDER
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`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 14 of 15 Page ID#: 410
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`from
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`a pleading an
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`insufficient defense or any
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`redundant,
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`immaterial, impertinent, or scandalous matter." Fed. R. Civ. P.
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`12 (f) .
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`First, plaintiffs assert that references to being a troll
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`or committing acts of
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`trolling are prejudicial,
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`immaterial,
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`impertinent,
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`and
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`scandalous and are,
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`thus, properly struck
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`pursuant to Fed. R. Civ. P. 12(f). Plaintiffs also assert that
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`any reference to Maxcon being currently dissolved or
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`lacking
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`capacity to be a party is false, misleading,
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`immaterial and
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`impertinent and as such, properly struck pursuant to Fed. R.
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`Civ. P. 12(f). However, defendant's allegations of Maxcon being
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`currently dissolved or lacking capacity to be a party are not
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`immaterial and are,
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`therefore, not properly struck pursuant to
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`Fed. R. Civ. P. 12(f)
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`Furthermore,
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`the court declines
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`to
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`strike allegations of trolling. 9 Thus, plaintiffs' motion
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`to
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`strike improper statements in defendant's Answer is denied.
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`Second, plaintiffs move to strike affirmative defenses in
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`defendant's Answer
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`(doc. 33)
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`Plaintiffs argue that a court
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`"may strike from a pleading an insufficient defense."
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`Fed. R.
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`Ci v. P. 12 (f) .
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`. However, as defendant correctly points out, "if
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`a party mistakenly designates a defense as a counterclaim, or a
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`counterclaim as a defense, the court must, if justice requires,
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`9 The issue is more appropriately addressed closer to trial in a
`motion in limine.
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`14 - OPINION AND ORDER
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`
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`Case 3:13-cv-00839-AA Document 48 Filed 05/08/14 Page 15 of 15 Page ID#: 411
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`treat the pleadings as
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`though it were correctly designated."
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`Fed. R. Ci v. P. 8 (c) ( 2) .
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`Thus, plaintiffs' motion to strike
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`affirmative defenses in defendant's Answer is denied.
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`CONCLUSION
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`For
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`the foregoing reasons, defendant's First Motion for
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`Partial Summary Judgment (doc. 36) is denied, plaintiffs' Motion
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`to Dismiss for Failure to State a Claim (doc. 37) is denied in
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`part and granted
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`in part, and plaintiffs' Motion
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`to Strike
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`Defendant's First Motion for Partial Summary Judgment
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`(doc. 41)
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`is denied.
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`IT IS SO ORDERED.
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`Dated this
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`Ann Aiken
`United States District Judge
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`15 - OPINION AND ORDER
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