United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
SECOND MOTION TO STRIKE CERTAIN OF DEFENDANTS'
AFFIRMATIVE DEFENSES 
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Second Motion to Strike Certain
of Defendants' Affirmative Defenses, filed on May 3, 2018
(“Motion”). ECF No. 18. Defendants filed their
Opposition on May 17, 2018. ECF No. 28. Plaintiff filed his
Reply on May 21, 2018. ECF No. 29. The Court found this
matter suitable for disposition without a hearing pursuant to
Local Rule 7.2(d). ECF No. 19. After carefully reviewing the
parties' submissions and the relevant legal authority,
the Court FINDS AND RECOMMENDS that the district court DENY
filed this action against Defendants on February 13, 2018,
asserting claims for copyright infringement, contributory
copyright infringement, and Digital Millennium Copyright Act
violations related to Plaintiff's 12 photographic works.
ECF No. 1. In the present Motion, Plaintiff asks the Court to
strike Defendants' Third Affirmative Defense (waiver) and
Eighth Affirmative Defense (fair use) asserted in
Defendants' First Amended Answer to Complaint, filed on
May 2, 2018. ECF No. 18.
12(f) of the Federal Rules of Civil Procedure provides that
the court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). The purpose of
a Rule 12(f) motion is to “avoid the expenditure of
time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010) (citations omitted).
defense is insufficiently pleaded if it fails to give the
plaintiff fair notice of the nature of the defense.
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1023
(9th Cir. 2010); Wyshak v. City Nat'l Bank, 607
F.2d 824, 827 (9th Cir. 1979). Fair notice generally requires
that the defendant simply state the nature and grounds for
the affirmative defense. Kamakeeaina v. City & Cty.
of Honolulu, No. CIV.A. 11-00770 SOM, 2013 WL 816411, at
*3 (D. Haw. Feb. 15, 2013), adopted by, 2013 WL
816090 (D. Haw. Mar. 5, 2013).
12(f) motions are “generally regarded with disfavor
because of the limited importance of pleading in federal
practice, and because they are often used as a delaying
tactic.” Kohler v. Islands Rests., LP, 280
F.R.D. 560, 563-64 (S.D. Cal. 2012) (quoting Neilson v.
Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D.
Cal. 2003)). When ruling on a motion to strike, the court
must view the pleading in question in the light most
favorable to the non-moving party. In re Facebook PPC
Adver. Litig., 709 F.Supp.2d 762, 772 (N.D. Cal. 2010).
Defendants' Third Defense - Waiver
asks the Court to strike Defendants' third defense, which
states that Plaintiff's claims are barred by waiver. ECF
No. 18-1 at 3-4; ECF No. 17 at 24. In general, waiver is the
“intentional relinquishment or abandonment of a known
right.” United States v. Perez, 116 F.3d 840,
845 (9th Cir. 1997). In copyright infringement actions,
waiver “occurs only if there is an intent by the
copyright proprietor to surrender rights in his work.”
See A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1026 (9th Cir. 2001).
the Court finds that the allegations in the Complaint and in
the First Amended Answer are sufficient to provide notice to
Plaintiff of the basis for Defendants' waiver defense.
Specifically, the Complaint alleges that Plaintiff made most
of the works at issue available to the public by uploading
them to Wikipedia and that Plaintiff agreed to make the works
available for distribution and display pursuant to the
Creative Commons Licenses. See ECF No. 1. Defendants
allege that they republish articles that incorporated
Plaintiff's works consistent with the Creative Commons
License. ECF No. 17. Based on these allegations, the Court
finds that Plaintiff has sufficient information to ascertain
the basis for the affirmative defense of waiver. See
Wyshack, 607 F.2d at 827. Accordingly, the Court FINDS
and RECOMMENDS that the district court DENY Plaintiff's
request to strike Defendants' third affirmative defense.
Defendants' Eighth Affirmative Defense - Fair
requests that the Court strike Defendants' eighth
affirmative defense, which states that Plaintiff's claims
are barred by the doctrine of fair use. ECF No. 18-1 at 4.
Fair use is an affirmative defense that “presumes that
unauthorized copying has occurred, and is instead aimed at
whether the defendant's use was fair.” Monge v.
Maya Magazines, Inc., 688 F.3d 1164, 1170 (9th Cir.
2012). The Copyright Act provides that various factors should
be considered in determining whether the use of a work in a
particular case is fair use. See 17 U.S.C. §
107. Among the factors to be considered is the purpose of the
use including whether such use is commercial or for nonprofit
educational purposes. Id. In the Complaint,
Plaintiff alleges that Defendant is a nonprofit corporation
and that Defendants' website promotes itself as a
learning tool for students. ECF No. 1 ¶¶ 6, 20. The
Court will not address the substantive arguments made by the
parties regarding the sufficiency of this defense. However,