| Date Filed |
Document # |
Attachment # |
Short Description |
Long Description |
Upload date |
SHA1 hash |
| 2004-02-12 |
1 |
0 |
Complaint |
COMPLAINT for copyright infringement; (Summons(es) issued) (eps) |
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| 2004-02-12 |
2 |
0 |
Order |
ORDER by Judge David A. Ezra rule 16 conference set for 9:00 5/10/04 before Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-02-18 |
3 |
0 |
Ex Parte Motion and order |
APPLICATION for pro hac vice admission for Kyla Harriel, J William Wigert, Jr and Jenny K Hong; declaration of Seong-Kun Oh; declaratio of Kyla L Harriel; declaration of J William Wigert; declaration of Jenny K Hong and Order; certificate of service - GRANTED by Mag Judge Leslie E. Kobayashi as to plaintiff Charles Thorne for attorney Kyla Harriel to appear pro hac vice , for attorney J William Wigert Jr. to appear pro hac vice , for attorney Jenny K Hong to appear pro hac vice (eps) |
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| 2004-03-01 |
4 |
0 |
Original Signature submitted |
ORIGINAL SIGNATURE PAGE for declaration of J William Wigert, Jr in support of application for pro hac vice by plaintiff Charles Thorne (eps) |
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| 2004-03-29 |
5 |
0 |
Certificate of Service |
CERTIFICATE of service by defendant Maui Dive Shop, Inc., defendant Robert Chambers (eps) |
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| 2004-03-30 |
6 |
0 |
Stipulation and Order |
STIPULATION for extension of time to respond to complaint and ORDER by Mag Judge Leslie E. Kobayashi : extending time to answer 30 days, up to & including April 12, 2004 (eps) |
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| 2004-04-12 |
7 |
0 |
Answer to Complaint |
ANSWER by defendant Maui Dive Shop, Inc., defendant Robert Chambers to complaint for copyright infringement filed February 12, 2004 [1-1]; certificate of service (eps) |
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| 2004-04-12 |
8 |
0 |
Certificate of Service |
CERTIFICATE of service by defendant Maui Dive Shop, Inc., defendant Robert Chambers (eps) |
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| 2004-04-13 |
9 |
0 |
Minutes - Miscellaneous |
EO: continued [Rule 16 scheduling conference] from 5/10/04 9:00 a.m. to 6/1/04 9:00 a.m. before LEK; Richard Lesser to notify all parties by Mag Judge Leslie E. Kobayashi (gs) |
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| 2004-04-27 |
10 |
0 |
Minutes - Miscellaneous |
EO : Rule 16 Scheduling Conference set for 06/01/2004 09:00:00 AM is moved to 09:30:00 AM before LEK. Kyla Harriel to notify all parties ( Ct Rptr : ) Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-04-29 |
11 |
0 |
Motion to Strike |
NOTICE OF MOTION and motion by plaintiff Charles Thorne to strike several affirmative defenses in defendants' answer ; proposed order granting plaintiff's motion; certificate of service - set for 9:30 6/1/04 before Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-05-12 |
12 |
0 |
Minutes - Miscellaneous |
EO : Plaintiff's Motion to Strike Affirmative Defenses in Defendant's Answer set for 06/01/2004 09:30:00 AM before LEK is Vacated and terminated. Withdrawal of Motion to be filed.[11-1] () JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-05-12 |
13 |
0 |
Minutes - Miscellaneous |
EO : Continued Rule 16 Scheduling Conference] from 06/01/2004 09:30:00 AM to 07/01/2004 09:00:00 AM before LEK. Kyla Harriel to notify all parties. ( Ct Rptr : ) JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-05-27 |
14 |
0 |
Notice of Change of Address |
NOTICE by plaintiff Charles Thorne of change of address; certificate of service - 900 Fort Street Mall, Suite 1110, Honolulu, HI 96813 (eps) |
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| 2004-05-28 |
15 |
0 |
Stipulation and Order |
STIPULATION and ORDER to file amended complaint and withdraw plaintiff's motion to strike several affirmative defenses in defendants' answer by Mag Judge Leslie E. Kobayashi : withdrawing motion to strike several affirmative defenses without prejudice to re-file and granting leave to file an amended complaint defendants' answer [11-1] (eps) |
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| 2004-05-28 |
16 |
0 |
Amended Complaint |
AMENDED COMPLAINT for copyright infringement; certificate of service [1-1] by plaintiff Charles Thorne (eps) |
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| 2004-06-04 |
17 |
0 |
Minutes - Miscellaneous |
EO : Rule 16 Scheduling Conference set for 07/01/2004 at 9:00 AM is moved to 10:00:00 AM before LEK. cc: all counsel ( Ct Rptr : ) JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-06-23 |
18 |
0 |
Scheduling Conference Statement |
SCHEDULING CONFERENCE STATEMENT; certificate of service - by plaintiff Charles Thorne (eps) |
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| 2004-06-24 |
19 |
0 |
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Defendants Maui Dive Shop, Inc. and Robert Chambers Initial DISCLOSURES pursuant to Rule 16 of the Federal Rules of Civil Procedure; Certificate of Service (gs) |
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| 2004-06-24 |
20 |
0 |
Certificate of Service |
CERTIFICATE of service by defendant Maui Dive Shop, Inc., defendant Robert Chambers (gs) |
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| 2004-06-28 |
21 |
0 |
Certificate of Service |
CERTIFICATE of service by defendant Maui Dive Shop, Inc., defendant Robert Chambers (eps) |
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| 2004-06-28 |
22 |
0 |
Answer to Complaint |
ANSWER by defendant Maui Dive Shop, Inc., defendant Robert Chambers to amended complaint for copyright infringement filed May 28, 2004 [16-1] ; certificate of service (eps) |
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| 2004-07-01 |
23 |
0 |
Minutes - Miscellaneous |
EP : Rule 16 Scheduling Conference held. All parties participated by phone. 1. Jury trial on May 3, 2005 at 9:00 a.m. before HG 2. Final Pretrial Conference on March 22, 2005 at 9:00 a.m. before LEK 3. Final Pretrial Conference before District Judge Helen Gillmor on April 22, 2005 at 8:30a.m. 4. Final Pretrial Statement by March 15, 2005 5. File motions to Join/Add Parties/Amend Pleadings by October 1, 2004 6. File other Non-Dispositive Motions by February 2, 2005 7. File Dispositive Motions by December 1, 2004 8a. File Motions in Limine by April 12, 2005 8b. File opposition memo to a Motion in Limine by April 19, 2005 11a. Plaintiff's Expert Witness Disclosures by November 1, 2004 11b. Defendant's Expert Witness Disclosures by December 1, 2004 12. Discovery deadline March 4, 2005 13. Settlement Conference set for December 6, 2004 at 1:30 p.m. before LEK 14. Settlement Conference statements by November 29, 2004 20. Submit Voir Dire Questions, Special Verdict Form, Concise Statement of Case and Jury Instructions by April 19, 2005 21. File Final witness list by April 12, 2005 24. Exchange Exhibit and Demonstrative aids by April 5, 2005 25. Stipulations re: Authenticity/Admissibility of Proposed Exhibits by April 12, 2005 26. File objections to the Exhibits by April 19, 2005 28a. File Deposition Excerpt Designations by April 12, 2005 28b. File Deposition Counter Designations and Objections by April 19, 2005 29. File Trial Brief by April 19, 2005 30. File Findings of Fact & Conclusions of Law by N/A Other Matters: Order Re: Mediation to be issued by the Court. A copy of the Rule 16 Scheduling Order mailed to all parties ; Jury Trial set for 9:00 5/3/05 ; Pretrial conference set for 8:30 4/22/05 before Judge Helen Gillmor , ; final pretrial conference set for 9:00 3/22/05 ; Discovery ddl set for 3/4/05 ; Motion filing ddl set for 12/1/04 ; settlement conference set for 1:30 12/6/04 before Mag Judge Leslie E. Kobayashi ( Ct Rptr : C7 no record) JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-07-01 |
24 |
0 |
Order |
ORDER directing mediation by Mag Judge Leslie E. Kobayashi (cc: all counsel); court will appoint a mediator by the selection process; each party shall simultaneously submit by telecopier 7/12/04 @ 9 am (eps) |
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| 2004-07-02 |
25 |
0 |
Scheduling Order |
Rule 16 SCHEDULING ORDER Mag Judge Leslie E. Kobayashi (cc: all counsel) (eps) |
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| 2004-07-08 |
26 |
0 |
Motion to Strike |
NOTICE OF MOTION and motion by plaintiff Charles Thorne to strike several affirmative defenses in defendants' answer of June 25, 2004 ;[proposed order] granting plaintiff's motion; certificate of service - set for 10:30 8/23/04 before Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-07-27 |
27 |
0 |
Order |
ORDER directing mediation and appointimg mediator by Mag Judge Leslie E. Kobayashi adding party mediator Ellen Godbey Carson (cc: all counsel) (eps) |
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| 2004-08-10 |
28 |
0 |
Minutes - Miscellaneous |
EO : COURT'S INCLINATION: Plaintiff's Motion to Strike Affirmative Defenses in Defendants' Answer. The court, having reviewed the instant motion hereby informs the parties of its inclination to grant in part and deny in part this motion. Specifically, the court is inclined to find that Defendants Maui Dive Shop, Inc., and Robert Chambers' (collectively "Defendants") Fourth Affirmative Defense, which states Defendants give notice that they intend to rely upon any other matter constituting an avoidance or affirmative defense," is merely a "catch-all" phrase which does not put Plaintiff Charles Thorne ("Plaintiff") on notice as to any particular theory of defense. The court is inclined to deny the motion in all other respects. By the instant Motion, filed July 8, 2004, Plaintiff, seeks an order striking Defendants' First, Second, Third, Fourth and Fifth affirmative defenses, which include, in order: (1) failure to state a claim upon which relief may be granted; (2) waiver, laches and estoppel; (3) failure to mitigate damages; (3) "inten[t] to rely upon any other matter constituting an avoidance or affirmative defense"; and (5) "Defendants previously reached an accord and satisfaction with Plaintiff as to all disputed claims." (Ans. 30-34.) Federal Rule of Civil Procedure 12(f) allows a court to "order stricken from any pleading any . . . redundant, immaterial, impertinent, or scandalous matter." Federal courts generally disfavor motions to strike, because the striking of a portion of a pleading is a drastic measure. See, e.g., Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991) ("[M]otions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation."). A motion to strike will not be granted if the insufficiency of the defense is not clearly apparent, or if it raises factual issues that should be determined by a hearing on the merits. Stated otherwise, defenses generally will not be stricken if they are sufficient as a matter of law or if they present questions of law or fact. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). The Federal Courts have developed a three-part test for determining whether a motion to strike an affirmative defense should be granted. See, e.g., County Vanlines Inc. v. Experian Information Solutions, Inc., 205 F.R.D. 148, 153 (S.D.N.Y. 2002); Estee Lauder, Inc. v. Fragrance Counter, Inc., 189 F.R.D. 269, 271-72 (S.D.N.Y. 1999); SEC v. Toomey, 866 F. Supp. 719, 722 (S.D.N.Y. 1992). First, a motion to strike an affirmative defense "will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984) (citation and internal quotation marks omitted), vacated on other grounds, 478 U.S. 1015 (1986); see also Morse/Diesel Inc. v. Fidelity & Dep. Co., 763 F. Supp. 28, 34 (S.D.N.Y. 1991). To this end, defendants' pleadings must be construed liberally. Second, "even when the facts are not disputed, .. . a motion to strike for insufficiency was never intended to furnish an opportunity for the determination of disputed and substantial questions of law[,] . . . particularly [when] there has been no significant discovery." Salcer, 744 F.2d at 939; see also Toomey, 866 F. Supp. at 722 ("It is particularly important to refrain from considering disputed questions of law when . . . there has been no significant discovery."). Finally, absent a showing by plaintiff that it is prejudiced by inclusion of the defense, the motion to strike must be denied. See County Vanlines, 205 F.R.D. at 153; Oliner v. McBride's Indus., Inc., 106 F.R.D. 14, 17 (S.D.N.Y. 1985); Tektel, Inc. v. Maier, 813 F. Supp. 1331, 1334 (N.D. Ill. 1992) ("Furthermore, pleadings are generally not stricken unless the moving party will be prejudiced otherwise."). I. First Affirmative Defense: Failure to State a Claim Though it certainly is not necessary for Defendants to have pled failure to state a claim as an affirmative defense to Plaintiff's cause of action, a plain reading of Fed. R. Civ. P. 12(b) indicates that it was clearly permissible for Defendants to do so. See Fed. R. Civ. P. 12(b) ("[T]he following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted . . . ."). Indeed, courts have consistently allowed such an affirmative defense to stand, finding that "[a] failure-to-state-a-claim defense is akin to a general denial' and is widely accepted as . . . permissible[.]" Simon v. Mfctrs Hanover Trust Co., 849 F. Supp. 880, 882 (S.D.N.Y. 1994); see also County Vanlines, 205 F.R.D. at 153 ("The language of Fed. R. Civ. P. 12(b)(6) can be used on a motion to dismiss or as an affirmative defense, at the pleader's option."); Toomey, 866 F. Supp. at 723 ("[I]t is well settled that the failure-to-state-a-claim defense is a perfectly appropriate affirmative defense to include in the answer."). Likewise, the court is inclined to find the defense permissible here, especially given that "there is no prejudicial harm to [P]laintiff." Oppel v. Empire Mut. Ins. Co., 92 F.R.D. 494, 498 (D.C.N.Y. 1981). II. Second Affirmative Defense: Waiver, Laches and Estoppel In light of the liberal pleading standards, the court is inclined to conclude that this defense has been pled with sufficient specificity. See Carpenter v. Ford Motor Co., 761 F. Supp. 62, (N.D. Ill. 1991) ("[T]he Federal Rules of Civil Procedure generally require only notice pleading . . . Notice pleadings need only apprise a party fo the nature of a claim or defense to satisfy the pleading requirements."). Moreover, the Court is aware that ordinarily the applicability of laches and estoppel type defenses involve a fact intensive inquiry, thus making it improper to consider a motion such as this, which is confined to a review of the pleadings. See Carrell v. Shubert Organization, Inc., 104 F. Supp. 2d 236, 263 (S.D.N.Y.). While at this stage of the proceedings it is entirely unclear what forms the basis of these affirmative defenses, the court is inclined not to be convinced that these defenses are "patently defective" such that they should be stricken. Mobley v. Kelly Kean Nissan, Inc., 864 F. Supp. 726, 732 (N.D. Ill. 1993). III. Third Affirmative Defense: Failure to Mitigate Although the court is inclined to decline to hold as a matter of law at this time that the defense is applicable to the current situation, it is inclined to find that Plaintiff has failed to demonstrate that it is not. Plaintiff has not provided this court with any legal authority in support of its position. By contrast, the court's limited research on the issue revealed at least one district court in this circuit that considered mitigation of damages in this context. See Magnuson v. Video Yesteryear, No. C-92-4049 DLJ, 1996 WL 784564, at *4 (N.D. Cal. Dec. 26, 1996) ("Court also notes that the defendant did take timely and positive steps to mitigate the extent of the damage from the infringement."). Further, the court notes that pleading requirements in mitigation defenses are lenient. See Gorwin v. Local 282, I.B.T., 838 F. Supp. 116, 123 (S.D.N.Y. 1993). IV. Fifth Affirmative Defense: Accord and Satisfaction In light of the heavy standard with which this court reviews motions to strike, the court is inclined to find that it is unable to hold as a matter of law based on the pleadings that there are no questions of fact or law which would allow this affirmative defense to succeed, or that Plaintiff would suffer prejudice from its inclusion. See Salcer, 744 F.2d at 939 (noting that motion to strike will only be granted if it "appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense"). The parties should appear at the August 23, 2004 hearing prepared to discuss the inclination and/or to direct the court to controlling case law that either supports or contradicts it. The court notes, this inclination is intended only to help the parties prepare for oral argument and is not the court's final decision in the matter. Rather, the parties are encouraged to raise relevant case law and/or facts to show the court why its inclination is mistaken or correct. Cc: all counsel [26-1] ( Ct Rptr : ) JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-08-10 |
29 |
0 |
Stipulation and Order |
STIPULATION and ORDER to amend defendants' answer of June 25, 2004 by Mag Judge Kevin S. Chang : re [22-1] (eps) |
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| 2004-08-23 |
30 |
0 |
Minutes - Miscellaneous |
EP : Plaintiff's Motion to Strike Several Affirmative Defenses in Defendant's Answer filed June 25, 2004 - J. William Wigert, and Kyla Harriel and Richard A. Lesser participated by phone. No opposition filed. Motion Granted. Plaintiff to prepare Order [26-1] ( Ct Rptr : C7 CD22 10:34-10:40) JUDGE Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-08-25 |
31 |
0 |
Order |
ORDER by Mag Judge Leslie E. Kobayashi granting plaintiff's motion to strike several affirmative defenses in defendants' answer [26-1] (eps) |
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| 2004-10-05 |
32 |
0 |
Protective Order |
STIPLATED PROTECTIVE ORDER by Mag Judge Leslie E. Kobayashi (eps) |
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| 2004-10-18 |
33 |
0 |
Certificate of Service |
CERTIFICATE of service by defendant Maui Dive Shop, Inc., defendant Robert Chambers (afc) |
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| 2004-11-24 |
34 |
0 |
Notice of Dismissal |
DISMISSAL WITH PREJUDICE; certificate of service by plaintiff Charles Thorne - approved and so ordered; HELEN GILLMOR, US DISTRICT JUDGE (eps) |
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