Practice Tip #2: Defendant did not file a response to Malibu Media’s motion to strike Defendant’s affirmative defenses. An affirmative defense that fails to meet any of these standards must be stricken. When faced with a motion to strike affirmative defenses under Rule 12(f), Indiana federal courts apply a three-part test: (1) whether the matter is properly pled as an affirmative defense (2) whether the affirmative defense complies with Federal Rules of Civil Procedure 8 and 9 and (3) whether the affirmative defense can withstand a Rule 12(b)(6) challenge. Such motions will generally be denied unless the portion of the pleading at issue is prejudicial. Practice Tip #1: Generally speaking, motions to strike portions of pleadings are disfavored as they consume scarce judicial resources and may be used for dilatory purposes. As such, Defendant could not also argue that he had downloaded the copyrighted work with a license.
#Judicial consent torrent download license#
” The court held that Defendant’s Answer foreclosed the possibility of an implied license defense, as Defendant had denied downloading the copyrighted work. Defendant had asserted that “Plaintiff’s claims are barred by Plaintiff’s implied license, consent, and acquiescence to Defendant because Plaintiff authorized use via Bit Torrent. It further held that Defendant was incorrect in asserting that joinder was necessary, holding that the court would be able to adjudicate the matter and “accord complete relief to Plaintiff regardless of whether any other allegedly infringing members were joined in the action.įinally, Plaintiff asked that Defendant’s eighth affirmative defense as be struck as conclusory. The court held that Defendant’s assertion that he had not engaged in any improper activity was not an affirmative defense but rather a mere denial of liability. Defendant asserted that he had not engaged in any infringing activity and Plaintiff has not joined those who had. The court also struck Defendant’s seventh affirmative defense, in which Defendant argued that Plaintiff had failed to join an indispensable party. The court agreed that a copyright plaintiff’s exclusive pursuit of statutory damages invalidates a failure-to-mitigate defense and struck this affirmative defense. Malibu Media argued that this defense was improper because it had elected to pursue only statutory, rather than actual, damages. Plaintiff next moved to strike Defendant’s fifth affirmative defense–that Plaintiff did not mitigate its damages. The court ordered that defense stricken, stating “erely stringing together a long list of legal defenses…does not do the job of apprising opposing counsel and this Court of the predicate for the claimed defense–which is after all the goal of notice pleading.” Plaintiff first moved to strike Defendant’s second affirmative defense–that “Plaintiff’s claims are barred by the equitable doctrines of laches, unclean hands, waiver and estoppel”–as a bare conclusory allegation unsupported by any factual basis. Malibu Media sought to strike four of those defenses–laches, unclean hands, waiver, and estoppel failure to mitigate damages failure to join an indispensable party and implied license, consent, and acquiescence. Defendant answered with ten affirmative defenses. Plaintiff Malibu Media, LLC, filed a copyright infringement action against Defendant John Doe. Cosbey struck four affirmative defenses asserted by anonymous Defendant John Doe in Plaintiff Malibu Media’s lawsuit in the Northern District of Indiana for copyright infringement. Fort Wayne, Indiana – District Magistrate Judge Roger B.