United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Plaintiff's Motion to Strike Defendant's Affirmative Defenses [filed January 30, 2014; docket #36]. In accordance with 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1C, the motion is referred to this Court for recommendation. (Docket #30.) For the reasons that follow, the Court RECOMMENDS that Plaintiff's motion be granted.
Plaintiff initiated this action on June 14, 2013, alleging that then-Doe Defendant, identified only by his Internet Protocol ("IP") address, infringed on Plaintiff's copyrighted work by using the internet and a "BitTorrent" protocol to reproduce, distribute, display, or perform Plaintiff's protected films. In an effort to identify the alleged infringer, Plaintiff requested permission from the Court to serve limited, immediate discovery on the Doe Defendant's Internet Service Provider ("ISP") prior to the Rule 26(f) conference. (Docket # 6.) The Court determined that Plaintiff had shown good cause for limited expedited discovery and granted Plaintiff's motion in part. (Docket # 10.) In particular, the Court authorized Plaintiff to serve a third-party subpoena pursuant to Fed.R.Civ.P. 45 on the identified ISP for the limited purpose of ascertaining the identity of the Doe Defendant as set forth in Plaintiff's Complaint. The Court directed that the subpoena be limited to providing Plaintiff with the true name, address, telephone number, and email address of the Defendant to whom the ISP had assigned an IP address. With the subpoena, the Court directed Plaintiff serve a copy of its order. Finally, the Court emphasized that Plaintiff could only use the information disclosed in response to the subpoenas for the purpose of protecting and enforcing its rights as set forth in its Complaint [docket # 1]. The Court cautioned Plaintiff that improper use of this information could result in sanctions.
In accordance with the Court's order, Plaintiff served a Rule 45 subpoena on Defendant's ISP and obtained his identity. Thereafter, Plaintiff filed an Amended Complaint as a matter of course on September 9, 2013. (Docket # 13.) Defendant filed his Answer to Plaintiff's Amended Complaint on January 9, 2014, asserting eight (8) affirmative defenses. (Docket # 35.)
On January 30, 2014, Plaintiff filed the present motion seeking to strike five of Defendant's affirmative defenses. (Docket # 36.) Although provided the opportunity to do so (D.C. Colo. LCivR 7.1(c)), Defendant filed no response to the present motion. The Court is now sufficiently advised and recommends as follows.
Rule 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "The purpose of Rule 12(f) is to save the time and money that would be spent litigating issues that will not affect the outcome of the case." Kimpton Hotel & Restaurant Group, LLC v. Monaco Inn, Inc., No. 07-cv-01514-WDM, 2008 WL 140488, at *1 (D. Colo. Jan. 11, 2008) (citing United States v. Shell Oil Co., 605 F.Supp. 1064, 1085 (D. Colo. 1985)). Striking a portion of a pleading is a drastic remedy; the federal courts generally view motions to strike with disfavor and infrequently grant such requests. 5C Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1380 (3d ed. 2011). Whether to strike an affirmative defense rests within the discretion of the trial court. Anderson v. Van Pelt, No. 09-cv-00704-CMA, 2010 WL 5071998, at *1 (D. Colo. Dec. 7, 2010) (citing Vanderhurst v. Colo. Mountain Coll. Dist., 16 F.Supp.2d 1297, 1303 (D. Colo. 1998)).
"An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance." Unger v. U.S. West, Inc., 889 F.Supp. 419, 422 (D. Colo. 1995). The standard articulated in Unger continues to be the appropriate standard. For the following reasons, the Court holds that an affirmative defense is sufficient if stated "in short and plain terms" pursuant to Rule 8(b)(1)(A), and if the movant fails to demonstrate that the defense cannot succeed under any circumstance.
Plaintiff's motion seeks to strike Defendant's first, second, fourth, sixth, and seventh affirmative defenses. With the aforementioned legal principles in mind, the Court will consider each of the challenged defenses in turn.
I. First Defense: Contributory Negligence
Defendant's first defense states simply "Contributory Negligence." Answer, docket # 35 at 5. First, the Court questions whether Defendant's stated defense complies with Fed.R.Civ.P. 8(b)(1)(A), particularly because Defendant fails to include any facts in support of his defense in any portion of the Answer. Furthermore, in Colorado, "the contributory negligence of a plaintiff shall not bar recovery in any action for negligence resulting in death or injury to persons or property as long as such contributory negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.'" Colo. Rev. Stat. § 13-21-111(1). Plaintiff's Amended Complaint alleges a single claim for direct copyright infringement, not for negligence and, thus, there can be no defense of contributory negligence. See Malibu Media, LLC v. House, No. 13-12218, 2013 WL 5954571, at *2 (E.D. ...