This matter comes before the Court on plaintiff's Motion to Strike Defendants' Affirmative Defenses to Plaintiff's Complaint (Doc. #17) filed on June 3, 2011. Defendants filed an Opposition (Doc. #20) on June 16, 2011.
Plaintiff filed a Verified Complaint (Doc. #1) alleging copyright infringement and violations of the Digital Millennium Copyright Act.*fn1 In response, defendants filed an Answer and Affirmative Defenses (Doc. #11) that includes six affirmative defenses, which plaintiff now seeks to strike.
Under Fed. R. Civ. P. 12(f), "the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are disfavored, and will be denied unless the allegations have no possible relation to the controversy, may confuse the issues, or may cause prejudice to one of the parties. Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).
"An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence." Wright v. Southland Corp., 187 F.3d 1287, 1302 (11th Cir. 1999). Affirmative defenses are subject to the general pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Rule 8(b)(1)(A) requires that a party "state in short and plain terms its defenses to each claim asserted against it." Fed. R. Civ. P. 8(b)(1)(A). As with any pleading, an affirmative defense must give the plaintiff "fair notice" of the nature of the defense and the grounds upon which it rests, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553 (2007), and state a plausible defense. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
First Affirmative Defense:
Plaintiff seeks to strike the First Affirmative Defense because it provides no factual basis and simply points out deficiencies in the Complaint. The First Affirmative Defense states in its entirety: "Failure to state a claim. Plaintiff fails to state a claim upon which any relief can be granted." (Doc. #11, p. 10.) A complaint fails to state a claim if the allegations, taken as true, show plaintiff is not entitled to relief. Jones v. Bock, 549 U.S. 199, 215 (2007). Such an assertion may be the basis of a motion to dismiss and/or an affirmative defense. Id. The motion to strike the First Affirmative Defense is denied.
Second Affirmative Defense:
Plaintiff seeks to strike the Second Affirmative Defense because it is conclusory and does nothing more than allege a defect in plaintiff's case. The Second Affirmative Defense provides in its entirety: "Plaintiff's photographs are not copyrightable, as they do not reach the minimal level of originality required for copyright protection." (Doc. #11, p. 11.) The Court finds that this is an affirmative defense, and that there are sufficient facts alleged to provide adequate notice and state a plausible defense.
Therefore, the motion to strike will be denied.
Third Affirmative Defense:
Plaintiff seeks to strike the Third Affirmative Defense, which states in its entirety: "Plaintiff engaged in copyright misuse through its actions and of the filing of this Complaint." (Doc. #11, p. 11.) Plaintiff asserts that the defense is inadequately pled. The Court agrees. The doctrine of copyright misuse is a "judicially crafted affirmative defense to copyright infringement" that has been recognized or applied only sparingly by some circuits, including the Fourth Circuit and Ninth Circuit. Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1157 (9th Cir. 2011). The Fifth Circuit has addressed its "likely" application, Mitchell Bros. Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 864 n.27 (5th Cir. 1979)*fn2 , and the Eleventh Circuit has not accepted or rejected it as a defense, Telecom Technical Servs., Inc. v. Rolm Co., 388 F.3d 820, 831 (11th Cir. 2004). ...