United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
BRAMLETTE UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Live Face on Web, LLC's Motion to
Strike [Doc. 9] the Affirmative Defenses of Natchez Board of
Face on Web, LLC (“Live Face”) owns a copyright
to software that allows a company to display on its website
an image of a walking, talking host. This “website
spokesperson” introduces a company's website to
Natchez Board of Realtors, Inc. (the “Board”) and
its director, Joe Stedman, run a website that uses a website
spokesperson video to promote the Board's services.
Face sued Stedman and the Board, alleging the Board's
website spokesperson video infringes on Live Face's
copyright. In its Answer, the Board raised twelve affirmative
defenses -- six of which Live Face moves to strike.
raised by responsive pleading must be stated in short and
plain terms. Fed.R.Civ.P. 8(b). If a defense is insufficient,
the Court may strike it from an answer. Fed.R.Civ.P. 12(f). A
defense can be insufficient as a matter of pleading or as a
matter of law.
defense is insufficient as a matter of pleading if it fails
to provide the plaintiff with fair notice of the defense
raised.Woodfield v. Bowman, 193 F.3d 354, 362 (5th
Cir. 1999). Fair notice will ordinarily require a defendant
to do more than “baldly name” an affirmative
defense. Id. at 362. But “bald naming”
may suffice for discovery-dependent defenses like
contributory negligence. Id. at 362 (citing American
Motorists Ins. Co. v. Napoli, 166 F.2d 24, 26 (5th Cir.
defense is insufficient as a matter of law if it cannot
succeed under any circumstances. United States v. Renda, 709
F.3d 472, 479 (5th Cir. 2013).
Face asks the Court to strike six of the Board's twelve
affirmative defenses. Four defenses, Live Face argues, are
insufficient as a matter of pleading. And the remaining two
defenses, Live Face contends, are insufficient as a matter of
law. The Court addresses each challenged defense in turn.
Face asks the Court to strike the Board's second
affirmative defense, laches, because it is pleaded
insufficiently. That defense reads, “Plaintiff's
claims are barred by the doctrine of laches.” See Doc.