Opinion
NO. CIV. 2:12-02899 WBS EFB
07-24-2013
J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. BLANCA E. MARAVILLA, individually and d/b/a LAS PALMAS MEXICAN RESTAURANT, Defendant.
MEMORANDUM AND ORDER RE:
MOTION TO STRIKE AFFIRMATIVE
DEFENSES
Plaintiff J & J Sports Productions, Inc., brought suit against defendant Blanca E. Maravilla asserting claims arising from defendant's allegedly wrongful interception of a television program. Currently before the court is plaintiff's motion to strike defendant's amended affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f).
Because oral argument would not be of material assistance, the court ordered this matter submitted on the briefs pursuant to Eastern District Local Rule 230(g). (Docket No. 40.)
The court granted plaintiff's first motion to strike defendant's affirmative defenses as to defendant's first, second, third, fourth, and eighth defenses. (May 21, 2013 Order at 6 (Docket No. 29).) It granted defendant leave to amend the third defense and gave her fourteen days to file an amended answer consistent with the May 21, 2013 Order. (Id.) It denied the motion as to defendant's fifth, sixth, and seventh defenses. (Id.)
On June 3, 2013, defendant filed an amendment to her answer. (Docket No. 30.) She amended her fifth and seventh affirmative defenses and withdrew her sixth affirmative defense. (Id.) She did not seek to amend the third affirmative defense. These amendments are inconsistent with the court's May 21, 2013 Order. As the court did not strike plaintiff's fifth, sixth, or seventh defense, it did not offer plaintiff a chance to amend those defenses. It only granted defendant leave to amend her third affirmative defense.
Federal Rule of Civil Procedure 15 provides that a party may amend its pleading once within twenty-one days after serving it and in all cases may amend only with the opposing party's consent or the court's leave. Fed. R. Civ. P. 15(a). Defendant did not request plaintiff's consent or leave of the court to file the amendment. Thus, because defendant's amendments went beyond the scope allowed by the court's May 21, 2013 Order and are otherwise not allowed under Rule 15, they must be stricken. (See also June 18, 2013 Order at 2 (providing that after June 24, 2013 no further amendments to pleadings will be permitted except with leave of the court) (Docket No. 33).)
IT IS THEREFORE ORDERED that plaintiff's motion to strike defendant's amended affirmative defenses be, and the same hereby is, GRANTED without prejudice to defendant's filing a noticed motion for leave to amend.
______________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE