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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

G & G Closed Circuit Events LLC,

Plaintiff,

v. 

Samuel Almeda, et al.,

Defendants.

No. CV-18-00672-PHX-ESW

ORDER 

Pending before the Court is G&G Closed Circuit Events, LLC’s (“Plaintiff”) 

“Motion to Strike Defendants’ Affirmative Defenses” (Doc. 19). For the reasons set 

forth herein, the Court will deny Plaintiff’s Motion (Doc. 19).

I. BACKGROUND

This action concerns Defendants’ alleged unauthorized and unlawful exhibition of 

a televised broadcast of Saul Alvarez v. Julio Cesar Chavez, Jr. Super Middleweight 

Championship Fight Program (the “Program”) to which Plaintiff held the exclusive 

nationwide commercial distribution rights. (Doc. 1 at 7, § 21). Plaintiff alleges that

Defendants violated (i) the Communications Act of 1934 (47 U.S.C. § 605 et seq.) and

(ii) the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. 

§ 553 et seq.). (Id. at 2, ¶ 1). Defendants timely answered Plaintiff’s two-count 

Complaint on April 24, 2018. (Doc. 12). Defendants raise three affirmative defenses. 

The first affirmative defense alleges that if a violation of 47 U.S.C. § 605 is 
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proven, then Defendants “were not aware and had no reason to believe that the alleged 

acts constituted a violation of 47 U.S.C. § 605.” (Doc. 12 at 3, ¶ 35). Defendants assert

that damages may be reduced to a sum of not less than $250.00 in accordance with 47 

U.S.C. § 605(e)(3)(C)(iii). (Id.).

In the second affirmative defense, Defendants allege that if a violation of 47 

U.S.C. § 553 is proven, then Defendants “were not aware and had no reason to believe 

that the alleged acts constituted a violation of 47 U.S.C. § 553.” (Doc. 12 at 3, ¶ 36). 

Defendants assert that damages therefore may reduced to a sum of not less than $100.00 

pursuant to 47 U.S.C. § 553(c)(3)(C). (Id.). 

The final affirmative defense alleges that “the Program, if exhibited at the

business, was a taped-delayed match from Mexico City, and not a live broadcast.” (Id. at

4, ¶ 37). Defendants further assert that the broadcast was a legitimate broadcast of

Defendants’ provider, SKY Television. (Id.).

On May 15, 2018, Plaintiff filed the pending “Motion to Strike Defendants’ 

Affirmative Defenses” (Doc. 19). Defendants have responded (Doc. 29), and Plaintiff

has replied (Doc. 30).

II. DISCUSSION

Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a 

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 

matter.” “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time 

and money that must arise from litigating spurious issues by dispensing with those issues 

prior to trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.

1983). In general, motions to strike a defense are disfavored. Kaiser Aluminum & Chem. 

Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); see also 5C 

C. Wright, A. Miller, et al., FEDERAL PRACTICE & PROCEDURE § 1380 (3d ed. 1998)

(“Both because striking a portion of a pleading is a drastic remedy and because it often is 

sought by the movant simply as a dilatory or harrassing tactic, numerous judicial 

decisions make it clear that motions under Rule 12(f) are viewed with disfavor by the 
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federal courts and are infrequently granted.”). 

Affirmative defenses “deny plaintiff’s right to recover, even if the allegations of 

the complaint are true.” Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 

262 (E.D. Cal. 1987). “By contrast, denials of a plaintiff's allegations or allegations that 

the plaintiff cannot prove the elements of her claims are 

not affirmative defenses.” Hartford Underwriters Ins. Co. v. Kraus USA, Inc., 313 

F.R.D. 572, 575 (N.D. Cal. 2016). The Court may strike an affirmative defense if it fails 

to give “fair notice” of the defense or if it is insufficient as a matter of law. See Wyshak 

v.. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (“The key to determining the 

sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of 

the defense.”). 

In support of its Motion to Strike, Plaintiff asserts that all three of Defendants’

asserted affirmative defenses are actually denials. (Doc. 19-1 at 4, 6). Yet the “sparse 

authority addressing the subject has concluded that denials that are improperly pled as 

defenses should not be stricken for that reason alone.” Mattox v. Watson, No. CV 07–

5006, 2007 WL 4200213, at *3 (C.D. Cal. Nov. 15, 2007); see also 5 Charles Alan 

Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 1269 (2d Ed.

1990) (observing that “the federal courts have accepted the notion of treating a specific 

denial that has been improperly denominated as an affirmative defense as though it was 

correctly labeled.”); see also Smith v. Wal-Mart Stores, No. C 06-2069 SBA, 2006 WL 

2711468, at *9 (N.D. Cal. Sept. 20, 2006) (“[W]hile denials which negate elements of 

Plaintiffs’ claims should not be pled as affirmative defenses, Plaintiffs fail to show that 

this alleged pleading error provides adequate grounds for striking pleadings.”).

In addition, contrary to Plaintiff’s assertion, the Court finds that Defendants’

affirmative defenses provide Plaintiff with fair notice of the bases for Defendants’

arguments. See, e.g., J & J Sports Prods. Inc. v. Mosqueda, No. CV-12-0523 PHX DGC, 

2013 WL 951366, at *1 (D. Ariz. Mar. 12, 2013) (finding that affirmative defenses that

quoted statutes specifying the appropriate damages for violations of the statutes provided 
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the plaintiff with fair notice of the basis for the defendants’ argument). Finally, the Court

does not find that Plaintiff would be prejudiced by the denial of their Motion (Doc. 19). 

Hernandez v. Balakian, No. CV–F–06–1383 OWW DLB, 2007 WL 1649911, at *1 (E.D.

Cal. June 1, 2007) (“[E]ven when technically appropriate and wellfounded, Rule 12(f) motions often are not granted in the absence of a showing of 

prejudice to the moving party.”) (internal quotation marks and citation omitted).

Plaintiff’s Motion to Strike (Doc. 19) will be denied. 

III. CONCLUSION

Based on the foregoing, 

IT IS ORDERED denying Plaintiff’s “Motion to Strike Defendants’ Affirmative 

Defenses” (Doc. 19). 

Dated this 21st day of September, 2018.