Opinion
CV-21-02173-PHX-DGC
03-16-2022
Duffy Archive Limited, Plaintiff, v. AZ Board Source, LLC, Defendant.
ORDER
David G. Campbell, Senior United States District Judge
Plaintiff Duffy Archive Limited has filed a motion to strike the affirmative defenses in Defendant AZ Board Source's answer. Doc. 16; see Doc. 13 at 4-5. The Court will grant the motion.
A. Background.
In 1973, photographer Brian Duffy created this “Aladdin Sane” photograph of rock star David Bowie:
(Image Omitted)Doc. 1 ¶¶ 2, 10. Duffy registered the photograph with the United States Copyright Office on June 12, 2009. Id. ¶ 11; Doc. 1-2 at 2. At all relevant times, Plaintiff owned the copyrighted photograph. Doc. 1 ¶ 12.
Defendant manufactures and sells cornhole games, and owns and operates the internet website at www.azboardsource.com. Id. ¶ 3. Plaintiff alleges that Defendant copied the “Aladdin Sane” photograph from the internet and has used the photograph to advertise, market and promote its business activities. Id. ¶ 4; Doc. 1-3.
Plaintiff brought this copyright infringement action in December 2021. Doc. 1. In January 2022, Defendant filed an answer that includes seventeen affirmative defenses. Doc. 13.
B. Plaintiff's Motion to Strike.
On February 4, Plaintiff moved to strike each affirmative defense. Doc. 16.Plaintiff argues that many of the affirmative defenses are simply “negative” defenses aimed at Plaintiff's prima facie case of copyright infringement. Doc. 16 at 9 (citing Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (“AT&T's affirmative defenses simply provide a basis to negate an element of Barnes' prima facie case for relief and are restatements of denials present in earlier parts of the complaint. Accordingly, these affirmative defenses, which, in fact, are merely rebuttal to plaintiff's claims[, ] are stricken.”)). Plaintiff contends that other affirmative defenses are not supported by any legal authority or factual basis. Id. (citing Wyshak v. City Nat. 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”)); see Pepsico, Inc. v. J.K. Distribs., Inc., No. 8:07CV00657, 2007 WL 2852647, at *2 (C.D. Cal. Sept. 14, 2007) (“Insufficient defenses may be stricken when they are insufficient as a matter of law or fail to give the plaintiff ‘fair notice' of the defense being asserted.”); see also Doc. 16 at 10-20 (addressing each affirmative defense). Defendant has filed no response to the motion, and the time for doing so has passed. See LRCiv 7.2(c) (providing fourteen days to file a response).
Before filing the motion, Plaintiff sought to meet and confer with Defendant about the affirmative defenses, but received no response. See Id. at 7; Docs. 16-2, 16-3.
Local Rule 7.2 provides that a party's failure to respond to a motion “may be deemed a consent to the . . . granting of the motion and the Court may dispose of the motion summarily.” LRCiv 7.2(i). Because the motion to strike has been pending for more than a month without a response from Defendant, the Court will deem Defendant's failure to respond as consent to the granting of the motion. See Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir. 1994) (explaining that “the district court has discretion to determine whether noncompliance should be deemed consent to the motion”); United States v. Brown, No. CV-18-04213-PHX-DLR, 2019 WL 5549174, at *3 (D. Ariz. Oct. 28, 2019) (granting motion to strike pleading pursuant to LRCiv 7.2(i)); Goins v. Wells Fargo Bank LLC NA, No. CV-21-01219-PHX-DGC, 2021 WL 5908207, at *3 (D. Ariz. Dec. 14, 2021) (same).
IT IS ORDERED:
1. Plaintiffs unopposed motion to strike affirmative defenses in Defendant's answer (Doc. 16) is granted.
2. The seventeen affirmative defenses in Defendant's answer (Doc. 13 at 4-5) are deemed stricken.