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Live Face on Web, LLC v. Natchez Board of Realtors, Inc.

United States District Court, S.D. Mississippi, Western Division

March 9, 2018

LIVE FACE ON WEB, LLC PLAINTIFF
v.
NATCHEZ BOARD OF REALTORS, INC., and JOE W. STEDMAN DEFENDANTS

          ORDER AND OPINION

          DAVID BRAMLETTE UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Live Face on Web, LLC's Motion to Strike [Doc. 9] the Affirmative Defenses of Natchez Board of Realtors, Inc.

         Background

         Live 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 online visitors.

         The 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.

         Live 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.

         I

         Defenses 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.

         A defense is insufficient as a matter of pleading if it fails to provide the plaintiff with fair notice of the defense raised.[1]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. 1948)).

         A 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).

         II

         Live Face asks the Court to strike six of the Board's twelve affirmative defenses.[2] 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.

         A

         Live 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. 5, ...


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