LumaSense Technologies, Inc. v. Advanced Engineering Services, LLC

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LUMASENSE TECHNOLOGIES, INC., Case No. 20-cv-07905-WHO

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO STRIKE 10 ADVANCED ENGINEERING SERVICES, LLC, Re: Dkt. No. 48 11 Defendant.

12 13 The purpose of an answer in federal court is to clarify for the parties what is at issue in the 14 case. Lawyers are usually able to address ambiguities or insufficiencies in an answer without 15 litigating motions to strike, which are rarely cost-effective unless directed at an important legal 16 issue. 17 Before me is plaintiff LumaSense Technologies, Inc. (“LumaSense”) motion to strike four 18 of Defendant Advanced Engineering Services, LLC’s (“AES”) responses in its answer to 19 LumaSense’s complaint, for insufficient denial of allegations, and six of AES’s affirmative 20 defenses on the grounds that the affirmative defenses are either not affirmative defenses or 21 insufficiently pleaded under Twombly and Iqbal. I find that two of AES’s denials of knowledge or 22 information are insufficiently pleaded and one of AES’s denials of knowledge or information is 23 immaterial and impertinent to resolving the matter as it stands. The other response is a sufficient 24 denial of allegations. Three of the disputed affirmative defenses are not proper affirmative 25 defenses because they attack the sufficiency of the plaintiff’s prima facie case. Finally, the three 26 remaining disputed affirmative defenses fail to meet the applicable Twombly/Iqbal pleading 27 requirement because they are mere conclusory statements with no indication of factual support. I 1 BACKGROUND 2 LumaSense operates its business of providing temperature and gas sensing solutions in 3 Santa Clara County, California. Complaint ¶ 1 [Dkt. No. 1] (“Compl.”). On or around late 2013, 4 Akhil Seth, the president of AES, proposed a joint business venture to LumaSense. Id. ¶ 16. 5 Shortly after, LumaSense and AES entered the Value Added Reseller Agreement (“VAR 6 Agreement”). Id. ¶ 17. The VAR Agreement granted AES a license to access and use 7 LumaSense’s sensor products for resale. Id. ¶ 17. 8 After the joint venture failed to materialize, AES filed suit in state court against 9 LumaSense for several claims, including breach of contract and misappropriation of trade secrets. 10 Id. ¶¶ 20–22. AES alleged that LumaSense impermissibly used confidential trade secret 11 information obtained under the VAR Agreement and disclosed exhibits identifying the trade 12 secrets at issue. Id. ¶¶ 22, 24. The content of AES’s exhibits, however, prompted LumaSense to 13 file suit against AES for four claims: (1) copyright infringement; (2) trademark infringement; (3) 14 false designation of origin, false description and representation; and (4) unfair competition. Id. 15 ¶ 25. LumaSense alleges that AES improperly used LumaSense’s trademarks as its own and 16 removed LumaSense’s trademark identifiers and registered symbols. Id. ¶ 26. 17 The original suit between AES and LumaSense was removed to federal court and 18 consolidated with this case on May 14, 2021. Order Granting Joint Administrative Motion to 19 Consolidate [Dkt. No. 45]; see Advanced Engineering Services, LLC v. LumaSense Technologies, 20 Inc., Case No. 21-CV-03279-WHO (“Related Action”). On February 8, 2021, AES filed a motion 21 to strike LumaSense’s complaint under California’s Anti-SLAPP rule and to dismiss the action 22 under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Defendant’s Motion to Dismiss and 23 Motion to Strike [Dkt. No. 23]. On March 30, 2021, I denied both of AES’s motions. Order 24 Denying Motion to Strike and Motion to Dismiss [Dkt. No. 35]. On April 13, 2021, AES filed an 25 answer to LumaSense’s complaint that included ten affirmative defenses (“Affirmative 26 Defenses”). Answer [Dkt. No. 39]. 27 LumaSense now moves to strike four of AES’s answers and six of AES’s affirmative 1 alternative, if leave to amend is granted, LumaSense requests that I order AES to file its amended 2 answer in no more than ten calendar days after the order on this motion is issued. Id. at 9. 3 LEGAL STANDARD 4 Federal Rule of Civil Procedure 8(b) requires that “[i]n responding to a pleading, a party 5 must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) 6 admit or deny the allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1). 7 Rule 8(b)(6) states that: “An allegation – other than one relating to the amount of damages – is 8 admitted if a responsive pleading is required and the allegation is not denied.” Fed. R. Civ. P. 9 8(b)(6). 10 Federal Rule of Civil Procedure 12(f) allows the Court to strike from a pleading an 11 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. 12 P. 12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of time and money 13 that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 14 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation and alteration 15 omitted). Motions to strike, however, “are generally disfavored by courts because the motions 16 may be used as delaying tactics and because of the strong policy favoring resolution on the 17 merits.” Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 18 1170 (N.D. Cal. 2010) (citation omitted). Such motions should only be granted if “the matter has 19 no logical connection to the controversy at issue and may prejudice one or more of the parties to 20 the suit.” New York City Employees’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128 (N.D. Cal. 21 2009). “Ultimately, whether to grant a motion to strike lies within the sound discretion of the 22 district court.” Cruz v. Bank of New York Mellon, No. 12-CV-00846-LHK, 2012 WL 2838957, at 23 *2 (N.D. Cal. July 10, 2012) (citing Whittlestone, 618 F.3d at 973). 24 DISCUSSION 25 I. SUFFICIENCY OF ANSWERS TO THE COMPLAINT 26 A. Failure to Deny Under Rule 8(b) 27 LumaSense argues that Paragraph 19 of AES’s answer adequately responds to allegations “Importantly, LumaSense and AES did not enter into the VAR 1 Agreement to develop a new sensor in LumaSense’s product lines. Rather, AES was a value-added reseller—performing only the 2 integration step for specific customers. LumaSense retained its exclusive ownership in the intellectual property rights, including the 3 copyright, patent, trademark, and trade secret rights in its Original Hardware.” 4 Compl. ¶ 19. 5 In Paragraph 19 of its Answer, AES responds: 6 “Answering paragraph 19 of the Complaint, said paragraph contains 7 conclusions of law and argument which do not require an answer. To the extent that said paragraph may be deemed to require an answer 8 and the allegations of paragraph 19 seek to paraphrase or characterize the contents of the VAR Agreement, the document speaks for itself 9 and AES denies the allegations to the extent that they are inconsistent with that document.” 10 Answer ¶ 19. 11 1. “Contains conclusions of law” 12 LumaSense contends that AES refuses to answer the allegation from LumaSense’s 13 Complaint and that refusing to do so on grounds that the allegations are “conclusions of law” is 14 inexcusable. Mot. 4–5. As explained above in the legal standard section, a party’s failure to 15 respond to an allegation that requires a responsive pleading results in a default admission of the 16 allegation. Fed. R. Civ. P. Rule 8(b)(6). To be sure, refusing to answer an allegation merely on 17 the basis that it contains a legal conclusion may be an insufficient reason for evading the 18 requirements of Rule 8(b). Guifu Li v. A Perfect Franchise, Inc., No. 10-CV-01189-LHK, 2011 19 WL 2971046, at *3 (N.D. Cal. July 21, 2011). But “[w]here defendants deny factual allegations in 20 addition to identifying legal conclusions, Ninth Circuit district courts generally decline to strike 21 defendants’ answers.” Id. 22 For example, when parties dispute the underlying facts of the allegations in the complaint, 23 the answer may properly deny the paragraph to the extent that the legal conclusion relies on the 24 factual allegation. See, e.g., Barnes, 718 F. Supp. 2d at 1175 (denying plaintiff’s motion to deem 25 allegations admitted where defendant failed to answer the legal conclusions but defendant plainly 26 denied the underlying factual allegations of the legal conclusions); San Francisco Herring Ass’n 27 v. Pac. Gas & Elec. Co., No. 14-CV-04393-WHO, 2015 WL 8482187, at *3 (N.D. Cal. Dec. 10, 1 2015) (finding that defendant’s denial of allegations “to the extent any of these allegations are 2 incomplete and/or inconsistent with the sources from which they originate” was an adequate 3 response to plaintiff’s legal conclusions). Generally, such a conditional denial satisfies the 4 standard under Rule 8(b). 5 AES’s answer is sufficient, notwithstanding its response that Paragraph 19 of the 6 Complaint “calls for a legal conclusion,” because AES denies the factual allegations on which 7 LumaSense’s legal conclusions rest. LumaSense argues that AES failed to respond to its 8 allegation because AES failed to provide fair notice of AES’s intentions in entering the VAR 9 Agreement or of AES’s perception of LumaSense’s ownership rights of the disputed intellectual 10 property. Mot. at 5. But AES contends that its response is proper in part because the phrase 11 “contains conclusions of law” was only directed at the legal dispute over the scope and nature of 12 the VAR agreement. Opposition to Motion to Strike 6 [Dkt. No. 51] (“Oppo.”). Further, when 13 read in its entirety, although AES’s Answer admits that it entered the VAR Agreement with 14 LumaSense, it denies the remaining factual allegations to the extent that they are inconsistent with 15 the VAR agreement. See Answer ¶ 19. To read AES’s response as a nonanswer would therefore 16 mischaracterize AES’s response because AES explicitly denies the factual allegations on which 17 LumaSense’s legal conclusions rest. LumaSense can easily clarify any ambiguity in discovery. 18 2. “Document speaks for itself” 19 LumaSense argues that AES’s answer that the “document speaks for itself” does not meet 20 the good faith requirement under Federal Rule of Civil Procedure 8(b). Mot. 4–5. An answer that 21 states that “the document speaks for itself” is sufficient under Rule 8(b) if the answer also 22 expressly includes an admission or denial of the allegation. Barnes, 718 F. Supp. 2d at 1175. This 23 issue has already been settled by courts in this district. The court in Barnes found the defendant’s 24 statement that the “document speaks for itself” accompanied by admission or denial of the factual 25 allegations met the pleading requirements under Rule 8(b)(1). Id. The court reasoned that the 26 conditional denial allowed both parties to “dispute the contents of the referenced document as the 27 litigation progresse[d].” Id.; see also San Francisco Herring Ass’n, 2015 WL 8482187 at *2 1 was paired with the denial of the characterization of the documents or admission of allegations 2 only to the extent that they reflected the documents in dispute). 3 Like the answers in Barnes and San Francisco Herring, Paragraph 19 of AES’s Answer 4 does not merely assert that the VAR Agreement speaks for itself without further clarification. 5 AES plainly denies the allegations and characterizations “to the extent that they are inconsistent 6 with [the VAR Agreement].” Answer ¶ 19. The VAR Agreement rests at the center of the dispute 7 between LumaSense and AES. Following the approach from Barnes, I conclude that AES’s 8 conditional denial “satisfies its burden under Rule 8(b)(1) by providing partial admission or denial 9 and then a more generalized denial.” Barnes, 718 F. Supp. 2d at 1175. Paragraph 19 of AES’s 10 answer satisfies the standard of Rule 8(b). Accordingly, I DENY the motion to strike Paragraph 11 19 of the Answer. 12 B. Lack of Knowledge Under Rule 8(b) 13 LumaSense next argues that Paragraphs 11, 12, and 33 constitute insufficient denials under 14 Rule 8(b). It asserts that a response that the defendant has no information or belief to be able to 15 answer the allegations is insufficient when such information is easily obtained as a matter of 16 public record. Mot. at 5–6. But LumaSense misinterprets the case it cites in support. Id. In 17 Chung v. U.S. Bank, N.A., 2016 WL 9525594, at *4 (D. Haw. Sept. 6, 2016), the court 18 acknowledged that other courts have held that, “Normally, a party may not assert a lack of 19 knowledge or information if the necessary facts or data involved are within his knowledge or 20 easily brought within his knowledge, a matter of general knowledge in the community, or a matter 21 of public record.” The court then explained that the Ninth Circuit, however, has held that “courts 22 cannot examine statements in an answer or other pleading and decide, on the basis of their own 23 intuition that the statements are implausible or a sham and thus can be disregarded. Factual 24 allegations in a pleading, as opposed to legal conclusions, must be presumed to be true.” In re 25 Mortgs. Ltd., 771 F.3d 623, 632 (9th Cir. 2014). 26 Under this precedent, “a court cannot disregard statements in a pleading unless the court 27 specifically determines that the statement was made in bad faith under Federal Rule of Civil 1 motion for sanctions pursuant to Rule 11, nor would I grant one. Instead, I will consider whether 2 it is appropriate to strike AES’s answers as insufficient defenses, redundant, immaterial, 3 impertinent, or scandalous under FRCP 12(f). 4 Here, Paragraphs 11 and 33 of LumaSense’s Complaint allege that LumaSense owns 5 registered trademarks and copyrights. Compl. ¶¶ 11, 33. LumaSense argues that because the 6 Complaint includes specific registration numbers that correspond to a public database, Compl. 7 ¶¶ 11, 33, AES’s argument that it could not evaluate the veracity of these statements without 8 proper discovery of LumaSense’s documentation, Oppo. 7, is unpersuasive. Mot. at 6. AES 9 contends that its denials pertain to the validity of the trademarks and copyrights rather than the 10 ownership. Oppo. at 7. But that is not how AES responded in the answer. Paragraphs 11 and 33 11 are insufficiently denied under Rule 8(b). 12 LumaSense further asserts that I should not grant AES leave to amend. Mot. at 9. That is 13 ridiculous. “In the absence of prejudice to the opposing party, leave to amend should be freely 14 given.” Wyshak v. City Nat. Bank, 607 F.2d 824, 826 (9th Cir. 1979). LumaSense argues that it 15 will face prejudice if “it must proceed with discovery without the benefit of understanding AES’s 16 position on key issues in dispute.” Reply in Support of Motion to Strike (“Reply”) [Dkt. No. 57] 17 at 10. Nonsense. LumaSense does not argue that the conditional denials would cause prejudice if 18 they were to be properly amended. Requiring AES to properly respond to these allegations may 19 help in a modest way to streamline litigation and narrow the dispute. I GRANT the motion to 20 strike Paragraphs 11 and 33 of the Answer with leave to amend. 21 As for Paragraph 12 of the Complaint, LumaSense alleges that it has attached true and 22 correct copies of the trademark registrations to the record. Compl. ¶ 12. AES’s answer denies 23 “each and every allegation of said paragraph.” Answer ¶ 12. While it seems implausible that AES 24 lacks knowledge of whether LumaSense attached documents to its complaint, whether LumaSense 25 attached the trademarks to the complaint is unnecessary to resolve the issues in this case, rendering 26 the sufficiency of AES’s denial immaterial or impertinent pursuant to Rule 12(f). See 27 Whittlestone, 618 F.3d at 974 (defining matter as immaterial and impertinent if it has no essential 1 the documents, AES fails again to plead with sufficient specificity as required under Rule 8(b). 2 Again, LumaSense does not argue that the conditional denial would cause prejudice if it were to 3 be properly amended. I GRANT LumaSense’s motion to strike Paragraph 12 of the Answer with 4 leave to amend. 5 II. SUFFICIENCY OF AFFIRMATIVE DEFENSES 6 A. AES’s First, Sixth, and Seventh Defenses are Not Affirmative Defenses 7 The next issue is whether three of AES’s affirmative defenses are proper affirmative 8 defenses, and if not, whether the three defenses should be struck. Mot. 7. LumaSense moves to 9 strike the First, Sixth, and Seventh affirmative defenses of failure to state a claim, no damages, and 10 no causation, respectively. Mot. at 7; see Answer at 9–10. 11 Defenses that target a deficiency of an element of the plaintiff’s prima facie case are not 12 affirmative defenses. See Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 13 2002) (“A defense which demonstrates that plaintiff has not met its burden of proof is not an 14 affirmative defense.”). Moreover, the sturdiness of a defendant’s affirmative defense does not rest 15 on the weakness of an element of the plaintiff’s prima facie case. See E.E.O.C. v. California 16 Psychiatric Transitions, Inc., 725 F. Supp. 2d 1100, 1118 (E.D. Cal. 2010) (“An affirmative 17 defense is an assertion raising new facts and arguments that, if true, will defeat plaintiff's claim, 18 even if all allegations in complaint are true.”). 19 Failure to state a claim is not an affirmative defense. See Thorium Cyber Sec., LLC v. 20 Nurmi, No. 19-CV-07669-WHO, 2020 WL 7260507, at *8 (N.D. Cal. Dec. 10, 2020) (“A 12(b)(6) 21 defense is not an affirmative defense because it seeks to show a defect in the plaintiff’s prima facie 22 case”) (citing Zivkovic, 302 F.3d at 1080). “No damages” is not an affirmative defense because it 23 attacks an element of the plaintiff’s prima facie case. See Vogel v. Huntington Oaks Delaware 24 Partners, LLC, 291 F.R.D. 438, *442 (C.D. Cal. 2013) (finding that “no damage or injury” was 25 not an affirmative defense “because it merely points to a defect in [plaintiff’s] case”); see also 26 Tattersalls Ltd. v. Wiener, 2019 WL 669640, at *3 (S.D. Cal. Feb. 19, 2019) (finding that no 27 damages was not an affirmative defense because it did not introduce an “additional set of facts that 1 recovery.”). And “no causation” is not a proper affirmative defense because it is also directed 2 towards an element of plaintiff’s prima facie case. See Jansen v. Travelers Com. Ins. Co., No. 16- 3 CV-04834-JST, 2017 WL 607610, at *3 (N.D. Cal. Feb. 15, 2017) (striking defense that 4 defendants were not the cause of any damages because such an argument merely “allege[d] that 5 Plaintiffs have not met their burden of proof,” which is not an affirmative defense). 6 AES argues that even if its affirmative defenses are not properly affirmative defenses, I 7 should not strike them unless LumaSense can demonstrate that the defenses would cause 8 prejudice. As a pragmatist, I could agree with that sentiment, but not as a judge. Granting a 9 motion to strike under Rule 12(f) does not turn on whether the moving party can show prejudice if 10 the pleading itself is insufficient under Rule 8(b). See Barnes, 718 F. Supp. 2d at 1173 (holding 11 defendant’s “arguments regarding prejudice cannot rescue its otherwise legally insufficient 12 affirmative defenses”); cf. New York City Employees’ Ret. Sys., 667 F. Supp. 2d at 1128 (N.D. Cal. 13 2009) (finding that “[w]here the moving party cannot adequately demonstrate such prejudice, 14 courts frequently deny motions to strike even though the offending matter literally was within one 15 or more of the categories set forth in Rule 12(f),” i.e., redundant, immaterial, impertinent, or 16 scandalous, as opposed to insufficient defenses). If it did, I would also have to consider the 17 cascading inefficiency of researching redundant matters. See, e.g., Barnes, 718 F. Supp. at 1173 18 (finding that insufficiently pleaded affirmative defenses may in fact cause prejudice by provoking 19 the parties to engage in “expensive and potentially unnecessary and irrelevant discovery”); Perez 20 v. Gordon & Wong L. Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, at *8 n.6 (N.D. 21 Cal. Mar. 26, 2012) (“prejudice may arise solely from a plaintiff’s being required to engage in 22 discovery on frivolous issues”). And AES could simply have stipulated that those are not 23 affirmative defenses, sparing it and me the energy it has taken to address this issue. 24 Failure to state a claim, no damages, and no causation simply attempt to negate portions of 25 the prima facie case, for which LumaSense already bears the burden of proof at trial. “Defenses 26 [that] are redundant pursuant to Rule 12(f) [] should be struck so as to simplify and streamline the 27 litigation.” Barnes, 718 F. Supp. 2d at 1174. I GRANT the motion to strike Affirmative Defenses 1 One, Six, and Seven without leave to amend.1 2 B. Twombly/Iqbal’s Heightened Pleading Standard Applies to Affirmative Defenses And Affirmative Defenses Three, Four, and Eight are Insufficient Under 3 Twombly/Iqbal 4 The final issue is whether three other affirmative defenses are sufficiently pleaded under 5 Rule 8(b). Mot. at 8. As a threshold matter, the parties dispute the legal standard for the 6 sufficiency of affirmative defenses. AES asserts that the standard for pleading affirmative 7 defenses is fair notice, relying on the fact that the Ninth Circuit has not explicitly overruled 8 Wyshak’s holding that “[t]he key to determining the sufficiency of pleading an affirmative defense 9 is whether it gives plaintiff fair notice of the defense,” Wyshak, 607 F.2d at 827. Oppo. at 7–8. 10 According to AES, requiring its affirmative defenses to provide any more factual detail than 11 already included would improperly subject AES to a heightened pleading standard akin to that of 12 Rule 9(b) for claims of fraud or even Rule 26(a)(2) for expert disclosures. Id. at 8. In contrast, 13 LumaSense points to modern case law employing the heightened pleading standard set forth by 14 Twombly and Iqbal. Mot. at 3, 8. 15 Although some courts in this circuit have declined to apply the heightened pleading 16 standard, courts in this district have consistently held that the heightened pleading standard under 17 Twombly/Iqbal applies to affirmative defenses in order to provide fair notice. See, e.g., Barnes, 18 718 F. Supp. 2d at 1172 (“Applying the standard for heightened pleading to affirmative defenses 19 serves a valid purpose in requiring at least some valid factual basis for pleading an affirmative 20 defense and not adding it to the case simply upon some conjecture that it may somehow apply.”); 21 Barnes & Noble, Inc. v. LSI Corp., 849 F. Supp. 2d 925, 929 (N.D. Cal. 2012) (“Twombly’s 22 rationale of giving fair notice to the opposing party would seem to apply as well to affirmative 23 defenses given the purpose of Rule 8(b)’s requirements for defenses”); Blackberry Limited v. Typo 24 Prod. LLC, No. 14-CV-00023-WHO, 2014 WL 1867009, at *5 (N.D. Cal. May 8, 2014) (“[T]he 25 Twombly/Iqbal standard properly applies to affirmative defenses”). As I have done previously, I 26

27 1 But this does not preclude AES from filing a motion to dismiss so long as it does not repeat the 1 will apply the Twombly/Iqbal standard to affirmative defenses in this case. See Illumina, Inc. v. 2 BGI Genomics Co., No. 19-CV-03770-WHO, 2020 WL 571030, at *5 (N.D. Cal. Feb. 5, 2020). 3 As LumaSense argues, AES’s Third, Fourth, and Eighth Affirmative Defenses are “bare 4 statements reciting mere legal conclusions” and are insufficiently pleaded under the 5 Twombly/Iqbal standard.2 Mot. 8. AES’s response that LumaSense is well aware of the factual 6 bases for its asserted affirmative defenses and that AES has provided sufficient factual detail by 7 attaching various filings throughout this action is inadequate.3 Oppo. at 10–12. There is no 8 authority supporting the notion that the opposing party’s knowledge of the general facts of the 9 case excuses the omission of factual bases of pleading affirmative defenses. Nor do prior filings 10 suffice, except to the extent that specific, material portions of them are incorporated by reference 11 into the defense. 12 The purpose of the pleading requirements is to ensure that both parties are properly 13 informed of the factual basis of the opposing party’s arguments. See Hernandez v. Cty. of 14 Monterey, 306 F.R.D. 279, 284 (N.D. Cal. 2015) (“[A] defendant’s pleading of affirmative 15 defenses must put a plaintiff on notice of the underlying factual bases of the defense”). 16 Affirmative defenses that simply reel off a list of legal doctrines without any factual support do 17 not satisfy the heightened plausibility pleading standard under Twombly/Iqbal. See, e.g., Perez, 18 2012 WL 1029425, at *10 (“Each of the fifteen affirmative defenses recites a legal conclusion but 19 fails to point to the existence of some identifiable fact that if applicable to [Plaintiff] would make 20 the affirmative defense plausible on its face”) (internal quotation marks omitted); Illumina, Inc. v. 21 22 2 The Third Affirmative Defense states, “The claims made in the Complaint are barred, in whole or in part, by the doctrines of fair use, nominative fair use, and/or descriptive use.” Answer at 9. 23 The Fourth Affirmative Defense states, “Each of the purported claims made in the Complaint are barred by the doctrines of waiver, acquiescence, and estoppel.” Id. The Eighth Affirmative 24 Defense states, “AES is informed and believes, and based on such information and belief, alleges LumaSense is barred from the relief sought in its Complaint by breaching the alleged agreement 25 VAR Agreement.”

26 3 AES seeks judicial notice of Exhibits 1–4 attached to its opposition brief, which are briefings and orders in the Related Action. Request for Judicial Notice [Dkt. No. 52]. LumaSense argues that 27 AES may not properly use the attached exhibits as the factual basis of AES’s affirmative defenses. 1 BGI Genomics Co., 2020 WL 571030, at *5 (finding that a “one-sentence assertion of each 2 || defense” was insufficient under the Twombly/Iqgbal pleading standard for affirmative defenses). 3 AES’s Third, Fourth, and Eighth Affirmative Defenses closely resemble the mere recitations of 4 || legal doctrines struck down in Perez and Illumina. AES fails to “provide even a brief statement as 5 to how [Plaintiffs] claims are barred by th[ese] doctrine[s].” [/Jumina, Inc., 2020 WL 571030, at 6 |] *5. 7 The Third, Fourth, and Eighth Affirmative Defenses are insufficiently pleaded. AES must 8 describe why it asserts that a particular legal doctrine applies as an affirmative defense in order to 9 || provide fair notice. It may incorporate pertinent portions of prior pleadings and memoranda if that 10 || is helpful in delineating what is at issue. I GRANT the motion to strike with leave to amend. 11 CONCLUSION 12 LumaSense’s motion to strike is GRANTED in part with leave to amend with respect to 13 Paragraphs 11, 12, and 33 of the Answer and the Third, Fourth, and Eighth Affirmative Defenses. 14 The motion to strike is GRANTED in part without leave to amend with respect to the First, Sixth, 3 15 and Seventh Affirmative Defenses. The motion to strike is DENIED in part with respect to a 16 || Paragraph 19 of the Answer. AES may file an amended Answer by July 26, 2021. IT IS SO ORDERED. 18 || Dated: July 14, 2021

. 20 . Orric 21 United States District Judge 22 23 24 25 26 27 28