1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 KAOTICA IP CORP, Case No.: 21-CV-433-CAB-DEB

9 Plaintiff, ORDER GRANTING MOTION TO 10 v. DISMISS COUNTERCLAIM AND TO STRIKE AFFIRMATIVE 11 ICONIC MARS CORPORATION and DEFENSES OLUSEYI JAMES OLALEYE, 12 Defendants. [Doc. No. 19] 13

14 This matter is before the Court on Plaintiff’s motion to dismiss Defendants’ 15 counterclaims and to strike several affirmative defenses. The motion is fully briefed and 16 the Court deems it suitable for submission without oral argument. For the reasons set forth 17 below, the motion is granted. 18 I. Background 19 According to the complaint, Plaintiff Kaotica IP Corporation (“Kaotica”) owns 20 United States Patent Numbers 8,737,662 and D733,690, both of which are entitled “Noise 21 Mitigating Microphone Attachment (the “‘662 Patent” and “‘690 Patent”, respectively). 22 [Doc. No. 1 at ¶¶ 9, 12.] Kaotica also owns a copyright on packaging for the “Kaotica 23 Eyeball” noise mitigating microphone attachment. [Id. at ¶ 15.] The complaint alleges 24 that Defendants have infringed both Patents and the copyright and trade dress related to the 25 Kaotica Eyeball. 26 Defendants filed an answer along with eleven affirmative defenses and 27 counterclaims for declaratory judgment of patent non-infringement, patent invalidity, and 28 1 copyright non-infringement . [Doc. No. 14.] Plaintiffs move to dismiss the counterclaims 2 for non-infringement and invalidity of the ‘662 Patent and to strike affirmative defenses 3 two through seven. 4 II. Legal Standards 5 A. Motion to Dismiss Counterclaims 6 “A motion to dismiss a counterclaim brought pursuant to Federal Rule of Civil 7 Procedure 12(b)(6) is analyzed under the same standard as a Rule 12(b)(6) motion to 8 dismiss a plaintiff's complaint.” Leadership Studies, Inc. v. Blanchard Training & Dev., 9 Inc., No. 15CV1831-WQH-KSC,

, at *4 (S.D. Cal. Aug. 2, 2017). To 10 survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 12 Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550

, 570 (2007)). Thus, the Court “accept[s] factual allegations in the complaint as 14 true and construe[s] the pleadings in the light most favorable to the nonmoving party.” 15 Manzarek v. St. Paul Fire & Marine Ins. Co.,

(9th Cir. 2008). On the 16 other hand, the Court is “not bound to accept as true a legal conclusion couched as a factual 17 allegation.” Iqbal,

(quoting Twombly, 550 U.S. at 555). Nor is the Court 18 “required to accept as true allegations that contradict exhibits attached to the Complaint or 19 matters properly subject to judicial notice, or allegations that are merely conclusory, 20 unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. 21 Ass’n,

(9th Cir. 2010). “In sum, for a complaint to survive a motion to 22 dismiss, the non-conclusory factual content, and reasonable inferences from that content, 23 must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 24 Serv.,

(9th Cir. 2009) (internal quotation marks omitted). 25 B. Motion to Strike 26 Under Federal Rule of Civil Procedure 12(f), a court “may order stricken from any 27 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous 28 matter.” Fed. R. Civ. P. 12(f). “Motions to strike are generally disfavored and ‘should not 1 be granted unless the matter to be stricken clearly could have no possible bearing on the 2 subject of the litigation.’” Synopsys, Inc. v. Ubiquiti Networks, Inc., No. 17-CV-00561- 3 WHO,

, at *6 (N.D. Cal. Aug. 15, 2017) (quoting Platte Anchor Bolt, 4 Inc. v. IHI, Inc.,

(N.D. Cal. 2004)). “[C]ourts often require a 5 showing of prejudice by the moving party as a condition to granting such relief.” Nestle 6 USA, Inc. v. Crest Foods, Inc., No. LACV1607519JAKAFMX,

, at *22 7 (C.D. Cal. July 28, 2017) (internal quotation marks and citation omitted). “[T]he key to 8 determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff 9 fair notice of the defense.” Wyshak v. City Nat’l Bank,

(9th Cir. 1979) 10 (citing Conley v. Gibson,

, 47–48 (1957)). “[T]he ‘fair notice’ required by the 11 pleading standards only requires describing the defense in ‘general terms.’” Kohler v. 12 Flava Enterprises, Inc.,

(9th Cir. 2015) (citing 5 Charles Alan Wright 13 & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed. 1998)). 14 III. Discussion 15 “[T]o be entitled to the presumption of truth, allegations in a complaint or 16 counterclaim may not simply recite the elements of a cause of action, but must contain 17 sufficient allegations of underlying facts to give fair notice and to enable the opposing party 18 to defend itself effectively.” Starr v. Baca,

(9th Cir. 2011). Here, 19 Defendants’ counterclaims for declaratory judgment of non-infringement and invalidity of 20 the ‘662 Patent contain no factual allegations whatsoever, asserting only legal conclusions. 21 Accordingly, the counterclaims do not contain sufficient factual matter to state plausible 22 claims for relief. 23 Kaotica also moves to strike Defendants’ affirmative defenses of non-infringement 24 of the ‘662 Patent and ‘690 Patent (defenses 2 and 3), prosecution history estoppel (defense 25 4), invalidity (defense 5), laches, equitable estoppel, waiver, acquiescence or unclean hands 26 (defense 6), and lack of causation of damages (defense 7). Unlike with their counterclaims, 27 “Defendants must merely provide [Kaotica] fair notice of the issue involved through their 28 affirmative defenses.” Ameranth, Inc. v. Pizza Hut, Inc., No. 11-CV-1810 JLS (NLS), 1 } }

, at *7 (S.D. Cal. June 26, 2012) (citing Wyshak,

). 2 || Nevertheless, the boilerplate affirmative defense allegations here fail to satisfy even this 3 stringent standard. See Zissa v. County of Los Angeles, No. 2:18-cv-101745-CJC 4 ||(JDEx),

at *2 (C.D. Cal. Mar. 7, 2019) (finding that “boilerplate 5 ||recitations are not sufficient to put Plaintiff on fair notice of the basis of each affirmative 6 || defense’). 7 IV. Conclusion 8 For the reasons set forth above, it is hereby ORDERED as follows: 9 1. The motion to dismiss Defendants’ counterclaims is GRANTED; 10 2. The motion to strike Defendants’ affirmative defenses is GRANTED; 11 3. Defendants’ counterclaims for non-infringement and invalidity of the’662 Patent 12 are DISMISSED WITHOUT PREJUDICE 13 4. Affirmative defenses two through seven are STRICKEN with leave to amend; 14 and 15 5. Defendants may file an amended answer and counterclaims on or before 16 September 15, 2021. 17 It is SO ORDERED. 18 ||Dated: August 23, 2021 € Z 19 Hon. Cathy Ann Bencivengo 20 United States District Judge 21 22 23 24 25 26 27 28