Duffy Archive Limited v. AZ Board Source LLC

• Court: District Court, D. Arizona
• Decided: March 16, 2022
• Docket: 2:21-cv-02173
• Status: Unknown

Opinion

1; WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9| Duffy Archive Limited, No. CV-21-02173-PHX-DGC 10 Plaintiff, ORDER 11} v. 12 | AZ Board Source, LLC, 13 Defendant. 14 15 16 Plaintiff Duffy Archive Limited has filed a motion to strike the affirmative 17 | defenses in Defendant AZ Board Source’s answer. Doc. 16; see Doc. 13 at 4-5. The 18 | Court will grant the motion. 19 A. Background. 20 In 1973, photographer Brian Duffy created this “Aladdin Sane” photograph of 21] rock star David Bowie: 22 ail 23 ‘

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1 Doc. 1 ¶¶ 2, 10. Duffy registered the photograph with the United States Copyright Office 2 on June 12, 2009. Id. ¶ 11; Doc. 1-2 at 2. At all relevant times, Plaintiff owned the 3 copyrighted photograph. Doc. 1 ¶ 12. 4 Defendant manufactures and sells cornhole games, and owns and operates the 5 internet website at www.azboardsource.com. Id. ¶ 3. Plaintiff alleges that Defendant 6 copied the “Aladdin Sane” photograph from the internet and has used the photograph to 7 advertise, market and promote its business activities. Id. ¶ 4; Doc. 1-3. 8 Plaintiff brought this copyright infringement action in December 2021. Doc. 1. In 9 January 2022, Defendant filed an answer that includes seventeen affirmative defenses. 10 Doc. 13. 11 B. Plaintiff’s Motion to Strike. 12 On February 4, Plaintiff moved to strike each affirmative defense. Doc. 16.1 13 Plaintiff argues that many of the affirmative defenses are simply “negative” defenses 14 aimed at Plaintiff’s prima facie case of copyright infringement. Doc. 16 at 9 (citing 15 Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174 16 (N.D. Cal. 2010) (“AT&T’s affirmative defenses simply provide a basis to negate an 17 element of Barnes’ prima facie case for relief and are restatements of denials present in 18 earlier parts of the complaint. Accordingly, these affirmative defenses, which, in fact, are 19 merely rebuttal to plaintiff’s claims[,] are stricken.”)). Plaintiff contends that other 20 affirmative defenses are not supported by any legal authority or factual basis. Id. (citing 21 Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979) (“The key to determining 22 the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice 23 of the defense”)); see Pepsico, Inc. v. J.K. Distribs., Inc., No. 8:07CV00657, 2007 WL 24 2852647, at *2 (C.D. Cal. Sept. 14, 2007) (“Insufficient defenses may be stricken when 25 they are insufficient as a matter of law or fail to give the plaintiff ‘fair notice’ of the 26 defense being asserted.”); see also Doc. 16 at 10-20 (addressing each affirmative

27 1 Before filing the motion, Plaintiff sought to meet and confer with Defendant 28 about the affirmative defenses, but received no response. See id. at 7; Docs. 16-2, 16-3. 1 | defense). Defendant has filed no response to the motion, and the time for doing so has 2| passed. See LRCiv 7.2(c) (providing fourteen days to file a response). 3 Local Rule 7.2 provides that a party’s failure to respond to a motion “may be 4| deemed a consent to the... granting of the motion and the Court may dispose of the 5 | motion summarily.” LRCiv 7.2(i). Because the motion to strike has been pending for 6 | more than a month without a response from Defendant, the Court will deem Defendant’s 7 | 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) 11 | (granting motion to strike pleading pursuant to LRCiv 7.2(1)); Goins v. Wells Fargo Bank 12| LLC NA, No. CV-21-01219-PHX-DGC, 2021 WL 5908207, at *3 (D. Ariz. Dec. 14, 13 | 2021) (same). 14 IT IS ORDERED: 15 1. Plaintiffs unopposed motion to strike affirmative defenses in Defendant’s 16 | answer (Doc. 16) is granted. 17 2. The seventeen affirmative defenses in Defendant’s answer (Doc. 13 at 4-5) 18 | are deemed stricken. 19 Dated this 16th day of March, 2022. 20 21 gered ©, Cater plhel 22 David G. Campbell 23 Senior United States District Judge 24 25 26 27 28