Case 8:16-cv-01062-JVS-JCG Document 48 Filed 10/07/16 Page 1 of 16 Page ID #:386

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Michael J. Niborski (State Bar No. 192111)
mniborski@pryorcashman.com
Benjamin S. Akley (State Bar No. 278506)
bakley@pryorcashman.com
PRYOR CASHMAN LLP
1801 Century Park East, 24th Floor
Los Angeles, California 90067-2302
Tel: (310) 556-9608; Fax: (310) 556-9670
Ilene S. Farkas (admitted pro hac vice)
ifarkas@pryorcashman.com
Andrew M. Goldsmith (pro hac vice application pending)
agoldsmith@pryorcashman.com
PRYOR CASHMAN LLP
7 Times Square
New York, New York 10036-6569
Tel: (212) 421-4100; Fax: (212) 798-6306
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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)
)
)
)
)
)
Plaintiffs,
)
vs.
)
)
)
EDWARD CHRISTOPHER SHEERAN
)
p/k/a ED SHEERAN, ED SHEERAN
)
LIMITED, NATHAN CABLE TOURING )
)
LLP, JOHN “JOHNNY” MCDAID,
)
SONY/ATV SONGS LLC, SONY/ATV
)
MUSIC PUBLISHING (UK) LIMITED,
)
POLAR PATROL MUSIC LIMITED d/b/a )
POLAR PATROL MUSIC PUBLISHING, ))
WARNER MUSIC UK LTD., WARNER
)
)
MUSIC GROUP CORPORATION d/b/a
)
ASYLUM RECORDS, and ATLANTIC
)
RECORDING CORPORATION d/b/a
)
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ATLANTIC,
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Defendants.
)
---------------------------------------------------------------------------------------------------------------------------------------------------------------------

HALOSONGS, INC.,
MARTIN HARRINGTON, and
THOMAS LEONARD,

Case No. 8:16-cv-01062 JVS-JCG
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF MOTION TO
DISMISS FIRST AMENDED
COMPLAINT PURSUANT TO
FRCP 8(a)(2) AND 8(d)(1), OR, IN
THE ALTERNATIVE, TO
STRIKE PORTIONS OF THE
FIRST AMENDED COMPLAINT
PURSUANT TO FRCP 12(f)(2)

 Case 8:16-cv-01062-JVS-JCG Document 48 Filed 10/07/16 Page 2 of 16 Page ID #:387

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES ..................................................................................... ii

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I.

PRELIMINARY STATEMENT ..................................................................... 1

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II.

STATEMENT OF FACTS.............................................................................. 3

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A. Background .............................................................................................. 3

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B.

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III.

The FAC Violates Rules 8(a)(2), 8(d)(1) and 12(f)(2)............................ 3

ARGUMENT .................................................................................................. 9

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A. Legal Standard ......................................................................................... 9

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B.

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IV.

The Court Should Dismiss the FAC ...................................................... 11

CONCLUSION ............................................................................................. 12

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i

 Case 8:16-cv-01062-JVS-JCG Document 48 Filed 10/07/16 Page 3 of 16 Page ID #:388

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CASES

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Design Art v. National Football League Properties,

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PAGE(s)

No. 00-cv-0593(JM), 2000 WL 1919787 (S.D. Cal. Nov. 27, 2000) ........... 10, 12
Gold Glove Prods., LLC v. Handfield,

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No. 13-cv-7247 (DSF)(RZx), 2014 U.S. Dist. LEXIS 184988

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(C.D. Cal. Feb. 24, 2014) ............................................................................... 10, 12

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McHenry v. Renne,
84 F.3d 1172 (9th Cir. 1996) ................................................................... 10, 11, 12
Membreno v. Fu Wei,

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No. 2:15-cv-06322 (ODW)(RAOx), 2015 WL 5567763

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(C.D. Cal. Sept. 22, 2015) ................................................................................ 9, 11

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Nevijel v. North Coast Life Ins. Co.,
651 F.2d 671 (9th Cir. 1981) ............................................................................... 10
Sherman v. Stryker Corp.,
No. 09-cv-224 (JVS)(ANx), 2009 WL 2241664 (C.D. Cal. Mar. 30, 2009) ....... 10

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Survivor Productions LLC v. Fox Broadcasting Co.,

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No. 01-cv-3234 (LGB)(SHx), 2001 WL 35829267

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(C.D. Cal. Jun. 12, 2001) ................................................................................... 10, 12

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Toro v. Earl,

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No. 13-cv-00872 (DSF)(DFM), 2015 WL 179792

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(C.D. Cal. Jan. 14, 2015) .................................................................................. 9, 12

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STATUTES

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Fed. R. Civ. P. 8 ................................................................................................ passim

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Fed. R. Civ. P. 8(a)(2)........................................................................................ 1, 3, 9

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Fed. R. Civ. P. 8(d)(1) ....................................................................................... 1, 3, 9

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Fed. R. Civ. P. 12(b)(2) ......................................................................................... 3, 9

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Fed. R. Civ. P. 12(f) ................................................................................................. 10

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ii

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STATUTES

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Fed. R. Civ. P. 12(f)(2) ................................................................................ 1, 2, 3, 12

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Fed. R. Civ. P. 41(b) .................................................................................................. 1

PAGE(s)

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MEMORANDUM OF POINTS AND AUTHORITIES

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Defendants Edward Christopher Sheeran (“Sheeran”), Sony/ATV Songs LLC

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(“SATV US”), Warner Music Group Corp. (incorrectly sued herein as Warner Music

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Corporation d/b/a Asylum Records) (“Warner US”), Atlantic Recording Corporation

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d/b/a Atlantic (“Atlantic Records”), and Kobalt Music Publishing America, Inc.

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(“Kobalt US,” together with the aforementioned defendants, the “Defendants”)

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respectfully submit this memorandum of points and authorities in support of their

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motion for an Order:

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(i)

pursuant to Fed. R. Civ. P. 41(b), dismissing the First Amended
Complaint (the “FAC”) of HaloSongs, Inc. (“HaloSongs”), Martin
Harrington (“Harrington”) and Thomas Leonard (“Leonard,”
together with HaloSongs and Harrington, the “Plaintiffs”), for
failure to comply with Fed. R. Civ. P. 8(a)(2) and 8(d)(1); or

(ii)

in the alternative, striking from the FAC certain matter, described
more fully herein, that is redundant, immaterial, impertinent and/or
scandalous pursuant to Fed. R. Civ. P. 12(f)(2).1

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I.

PRELIMINARY STATEMENT

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Defying the most fundamental pleading requirement of providing short, concise

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and plain statements, the First Amended Complaint consists of 44 sprawling pages of

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prolix, repetitive, argumentative and scandalous allegations, made mostly on

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“information and belief.”

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paragraphs, some of which go on for pages and contain upwards of 25 or 30 different

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sentences — against eleven distinct Defendants. But for Plaintiffs’ ardent desire to

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manufacture bases to sweep into this case foreign defendants having nothing to do with

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any alleged infringing activity in California or even the United States, the Amended

It makes sweeping, generalized allegations — in 156

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Defendants Ed Sheeran Limited, Nathan Cable Touring LLP, John “Johnny”
McDaid, Sony/ATV Music Publishing (UK) Limited, Polar Patrol Music Limited d/b/a
Polar Patrol Music Publishing, and Warner Music UK Ltd. have moved to dismiss the
FAC for lack of personal jurisdiction.
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Complaint could have and should have been a straightforward, concise one-count

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complaint for copyright infringement.

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Even a cursory review of the FAC shows that it does not contain a “short and

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plain statement” of what should be a straightforward copyright infringement claim.

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Nor does it contain “simple, concise, and direct” allegations. Responding in any

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meaningful way to the improper FAC is impossible – nor should eleven different

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Defendants be put to the task and expense of having to draft responses to this

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massively improper pleading. The Courts in this Circuit take seriously the mandate

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contained in Rule 8 of the Federal Rules, even to the point of dismissing complaints

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that violate the Rule with prejudice.

Defendants are not at this time seeking a

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dismissal with prejudice but instead, a dismissal granting Plaintiffs leave to actually try

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to file a complaint that comports with the Federal Rules and enables the Defendants to

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read it, understand it and respond to it. At minimum, the Court should strike the FAC

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pursuant to Rule 12(f)(2) to the extent it contains redundant, immaterial, impertinent,

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and scandalous matter.

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It appears that the primary purpose of the redundancy and breathtakingly long

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paragraphs is Plaintiffs’ attempt to allege sufficient “facts” (most “upon information

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and belief”) to support personal jurisdiction over the seven defendants that reside in the

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United Kingdom. The point of this, of course, is that Plaintiffs hope to employ a local

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statute to reach for alleged foreign infringements when it is indisputable that the U.S.

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Copyright Act has no extraterritorial reach. If there were a viable basis for jurisdiction

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here over the foreign defendants, Plaintiffs would have said it plainly and not been

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forced to dump strings of sentences on “information and belief” into multiple page-

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long paragraphs in an effort to substitute bulk for facts.

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jurisdiction over the UK-based defendants is addressed in the motion being filed

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contemporaneously herewith pursuant to Fed. R. Civ. P. 12(b)(2).

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This Court’s lack of

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II.

STATEMENT OF FACTS

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A.

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This case centers around Plaintiffs’ allegation that the platinum-selling song

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entitled “Photograph” infringes Plaintiffs’ copyright in a song allegedly co-written by

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plaintiffs Harrington and Leonard, entitled, “Amazing” (“Plaintiffs’ Song”), a song

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which was never commercially released. Photograph was co-written by Sheeran and

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McDaid and recorded by Sheeran. By any standards, Sheeran and McDaid are two

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extremely successful songwriters and recording artists, with dozens of hit songs

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between them.

Background

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Photograph was released in 2015 by Atlantic Records as the fifth single from

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Sheeran’s highly successful album, x, an album released nearly a year before the

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Photograph single. Photograph was published in the United States by SATV US and

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Kobalt US. Sheeran’s publisher is SATV UK and McDaid’s publisher is Polar UK.

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Neither Sheeran nor McDaid has any direct relationship with either SATV US or

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Kobalt US. Rather, SATV US is the United States subpublisher for SATV UK, and

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Kobalt US is the administrator for a United Kingdom affiliate of Kobalt, which in turn

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has an administration agreement with Polar UK.

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B.

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Plaintiffs’ claim for copyright infringement, while disputed, is simple and

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straightforward. Plaintiffs could easily plead their claim in a clear and complete

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manner in less than 10 or 15 pages – as many copyright plaintiffs have done before

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them. Yet, after the foreign defendants advised that they intended to move to dismiss

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the original complaint for lack of personal jurisdiction, when given the chance to

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amend their original complaint in an attempt to “cure” its jurisdictional deficiencies

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over the UK-based Defendants, Plaintiffs instead filed an amended complaint

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consisting of 44 pages of prolix, vague, disorganized, redundant, argumentative,

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scandalous and utterly baseless allegations, which, in many cases, Plaintiffs allege on

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“information and belief.”

The FAC Violates Rules 8(a)(2), 8(d)(1) and 12(f)(2)

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We start with the simplest and most obvious problem with the FAC. It contains

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paragraph after paragraph that go on for pages, filled with dozens of vague and

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conclusory allegations. It is literally impossible for Defendants to sift through this

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morass of allegations to meaningfully respond.

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Compounding the problem, these massively long paragraphs filled with

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sweeping allegations are, for the most part, alleged against, generally, the

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“Defendants” – even though Plaintiffs have sued 11 different Defendants – individuals,

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U.S. and U.K. based music publishers, and U.S. and U.K. based record companies –

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without any effort to differentiate between who is the target of these allegations and

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who is not. Which is, of course, precisely Plaintiffs’ purpose. Blurring who is alleged

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to have done what and where enables the Plaintiffs to pretend that they have a basis for

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suing the foreign defendants. They do not.

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The FAC is a manifestly improper pleading, and 11 different Defendants should

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not be put to the task and expense of attempting to parse its massively long paragraphs

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in order to figure out which allegations, if any, pertain to them and separately respond

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to those allegations that do pertain to them (assuming it can be determined). For

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example, the section of the FAC titled “Jurisdiction and Venue” (Paragraphs 1-28),

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makes multiple all-encompassing allegations that “Certain Defendants” engaged in

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certain widespread infringing acts – with no effort to identify who did what and where

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they did it, much less any effort to keep these allegations “short and plain.”

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The gross deviation of the FAC from the requirements of Rule 8 is illustrated by

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Paragraph 41, which is just one of many paragraphs that goes on for pages. It is set

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forth in full below:

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Defendant Warner UK is a U.K. affiliate of Warner Music Group with
its principal place of business at 90 High Holborn, Seventh Floor,
London, WC1V 6XX, United Kingdom. Warner UK is the owner of the
copyright of the infringing sound recording “Photograph.” Warner UK
is listed as the copyright claimant and author of the infringing sound
recording “Photograph” on the U.S. Copyright application registration

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number SR0000766377, wherein Warner UK is listed as an employer
for hire domiciled in the United States and a citizen of the United
States. Warner UK is the music label responsible for coordinating,
among other things, the production, manufacture, distribution,
marketing, promotion, and exploitation, of the infringing sound
recording “Photograph.” Warner UK released the album Multiply that
contained the Infringing Works. Upon information and belief, Sheeran
is signed to Warner UK, and was recording “Photograph” in the U.S.,
and in California, on Warner UK’s behalf and at its instance and
expense. Upon information and belief, at least the final version of the
infringing sound recording was produced by Bhasker at his studio,
Enormous Studios, located in Los Angeles. Upon information and
belief, Warner UK, directly and through its agents, enters into
contractual relationships in, and with residents of, California, including
with Bhasker for his work in producing “Photograph.” Upon
information and belief, Warner UK has an intercompany license
agreement (the “ILA”) with Warner Music Group’s U.S. affiliates,
including the other Warner Defendants herein, in which it licenses the
sound recordings it owns to them for U.S. distribution, including
distribution in California. The ILA also, on information and belief,
provides how much the U.S. affiliates keep for the exploitation of the
infringing sound recording in the U.S., and how much revenue from
such exploitation in the U.S. is provided to Warner UK. The ILA is not
an arms-length transaction, and the percentages of receipts kept by the
various Warner Music Group affiliates for various exploitations is
arbitrary. Warner UK authorized the creation of “Photograph” in the
U.S., and California specifically, as well as the manufacture and
distribution of the infringing sound recording “Photograph” throughout
the U.S., including California. On information and belief, to the extent
Warner UK did not directly manufacture or distribute the Infringing
Works itself in the United States, it specifically authorized and directed
its affiliated entities, Asylum and Atlantic, to manufacture and
distribute the Infringing Works in California. A coordinated plan exists
among all Defendants to exploit the Infringing Works throughout the
U.S., and specifically directed at California. Warner UK has therefore
offered for sale, and caused others to offer for sale, the Infringing
Works in California. Warner UK has sold, and benefited from the sale
of, the Infringing Works in California. Warner UK entered into
contracts with other Defendants which caused widespread exploitation
of the Infringing Works in the U.S., including California, with a
significant amount of the harm directed to California and its residents.
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These activities include, but are not limited to, the entering into of
contracts by Warner UK, or its agents, with (1) California based movie
companies for inclusion of the infringing sound recording
“Photograph” to appear in the movies Mother’s Day and Me Before
You and (2) California based music digital distribution services for
nationwide distribution of the infringing sound recording “Photograph”
on these services to customers, including California residents. Warner
UK and/or its agents also promoted and advertised the infringing sound
recording throughout California, and distributed the Infringing Works
throughout California to California consumers. The harm from the
exploitation of the Infringing Works was felt nationwide, consistent
with the coordinated plan of exploitation, but was also targeted towards
California specifically, as California is a major hub of the music and
entertainment industries. Each of these contacts arising from Warner
UK’s exploitation of the Infringing Works evidence express aiming at
California. Upon information and belief, Warner UK has continued to,
directly and through its agents, exploit the Infringing Works in
California despite having received notice of infringement from
Plaintiffs, and knowing Plaintiffs reside in California, as discussed fully
above, and will continue to do so if not a party to this suit. Warner UK
has received substantial amounts of money from the exploitation of the
Infringing Works in California. Upon information and belief, Warner
UK is part of the Warner Music Group Corporation, a Delaware
corporation with its principal place of business at 1633 Broadway, New
York, NY 10019, and with offices in Los Angeles County at 3400 W
Olive Ave, Burbank, CA 91505. Upon information and belief, the
various Warner Music entities are alter egos of each other and operate
as part of a single enterprise, namely Warner Music Group Corporation.
Upon further information and belief, the various Warner Music entities
share offices and employees, and are managed by some of the same
directors and officers. By way of example, Paul M. Robinson,
Executive Vice President and General Counsel of Warner Music Group
Corporation, is one of four Directors of Warner UK. Additionally,
Bloomberg lists Stephen F. Cooper as one of the key executives for
Warner UK, and Mr. Cooper is CEO and Director of Warner Music
Group Corporation. Also included within Warner Music Group
Corporation’s corporate governance and management is Max Lousada,
Chairman & CEO of Warner UK. Upon information and belief, in
addition to those officers, managers, and directors discussed above, the
roles of many members of Warner Music Group Corporation’s
management team is worldwide in scope and includes oversight of
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Warner UK. Additional facts supporting the alter ego nature of these
companies will be developed in discovery. It would be unjust to allow
Warner Music Group Corporation to escape liability in part simply
because some of the infringing acts in the U.S. were orchestrated by its
U.K. subsidiary, rather than one of its U.S. subsidiaries. California
maintains a strong interest in its courts providing an effective means of
redress for its residents who are tortuously injured by Warner UK’s
knowing and willful exploitation of the Infringing Works in California.
As discussed above, on information and belief, Warner UK, was aware
of the identity of Plaintiffs, and that they were residents of California
since shortly after December 2015, but did not do anything to cease the
infringing sales or other exploitation of the Infringing Works thereafter.
Upon knowledge, information, and belief, Plaintiffs assert the basis for
specific personal jurisdiction over Warner UK will be further supported
after a reasonable opportunity for discovery.

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This paragraph, which spews out dozens of unlinked allegations against multiple

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defendants goes on for pages, as do other paragraphs in the FAC. Such paragraphs

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include, without limitation, Paragraph 25, Paragraphs 34-41 and Paragraph 44.

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Paragraph 41 contains 31 separate sentences, spanning 3 pages; Paragraph 40 contains

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26 separate sentences, spanning almost 3 pages; Paragraph 37 contains 19 separate

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sentences, spanning over two pages in length. 2

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The FAC is also riddled with repetitive allegations. For example, on seven

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separate occasions, Plaintiffs copy and paste the vague, and entirely conclusory

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allegation that “[a] coordinated plan existed among all Defendants” to exploit

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Photograph in the U.S. and California.” See FAC ¶¶ 15, 34, 35, 36, 38, 40 and 41.

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Likewise, on five separate occasions, Plaintiffs make the equally vague (and equally

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baseless) assertion that Defendants “participated in” the unlawful exploitation of

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Photograph. Id. ¶¶ 16, 17, 28, 35, and 36. When not copying-and-pasting certain

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Nearly half of the 156 paragraphs in the FAC contain more than a single sentence;
few, if any, contain a single factual averment or are “concise.” But the issue is not
whether the majority of the paragraphs of the FAC are short and concise. The issue is
whether there are impossibly dense paragraphs that do not remotely satisfy Rule 8.
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allegations verbatim, Plaintiffs restate previously articulated facts in slightly different

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language. See, e.g., id. at ¶¶ 5-22, 34-44. While it may serve Plaintiffs’ purpose to

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blur the distinctions between “Defendants,” that is not proper pleading even if the FAC

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did not consist of numbered paragraphs extending for pages. Each Defendant is

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entitled to have allegations that are directed at it or him. Simply lumping Defendants

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together is not proper.

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While a lesser offense, the FAC also impermissibly advances dozens of legal

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contentions, which have no place in a complaint. Such contentions, of course, should

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be relegated to memoranda of law.3

For instance, on three separate occasions,

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Plaintiffs contend that “California maintains a strong interest in its courts providing an

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effective means of redress for its residents who are tortuously [sic] injured … .” Id. ¶¶

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39, 40 and 41. Other examples can be found, without limitation, at Paragraphs 118-

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121.

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Moreover, in a tacit admission that they lack any real basis for personal

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jurisdiction over the foreign defendants and instead hope to persuade the Court to

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permit them to conduct jurisdictional discovery, Plaintiffs also improperly predict, on

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six separate occasions, that the “basis for specific personal jurisdiction” over certain

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Defendants “will be further supported after a reasonable opportunity for discovery.”

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Id. ¶¶ 35, 36, 37, 40, 41, 44; see also id. ¶¶ 38, 39, 41 (“Further evidence of elements

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showing the alter ego status will be developed in discovery”).4 In fact, Plaintiffs have

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already served three sets of document requests which include sweeping jurisdictional

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discovery requests.

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3

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This Court has not authorized jurisdictional discovery, and

Plaintiffs allege that each of the Defendants is “essentially at home” in California,
that each of the Defendants “participated in” the unlawful exploitation of Photograph,
and that certain Defendants “operate as part of a single enterprise.” See, e.g., id. at ¶¶
2, 16, 38. These are conclusory allegations, not facts.
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Seeking jurisdictional discovery in a pleading admits that Plaintiffs lacked a good
faith basis for having sued the foreign defendants. The accompanying 12(b)(2) motion
shows that there is no basis for personal jurisdiction over the UK Defendants.
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Plaintiffs have yet to show a good faith basis for having haled the foreign defendants

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into Court here.

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Finally, the FAC includes a bevy of scandalous, offensive and insulting

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accusations which have no place in a pleading. Specifically, the FAC alleges that

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Sheeran and McDaid “unabashedly [took] credit” for Plaintiffs’ Song, that Sheeran and

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McDaid exhibited “breathtaking” “hubris” in allegedly copying and “unabashedly

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taking credit” for Plaintiffs’ Song, that Defendants “intentionally” copied Plaintiffs’

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Song, that Defendants engaged in “willful, knowing, and malicious” conduct, and that

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Polar UK was “brazenly acquired” by another company. Id. ¶¶ 29, 83, 96, 132 and

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134. These sensational allegations, lacking in the slightest factual support, serve no

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legitimate purpose in the pleading. They are included solely for the press and to

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embarrass Defendants and to besmirch their reputations. The Court should strike these

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allegations to the extent that any portion of Plaintiffs’ FAC survives this motion.

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III.

ARGUMENT

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A.

Legal Standard

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Rule 8 of the Federal Rules of Civil Procedure addresses the “general rules of

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pleading.” “To satisfy Rule 8, a complaint must contain a ‘short and plain statement’

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of the plaintiff’s claim,” and “‘[e]ach allegation must be simple, concise, and direct.’”

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Membreno v. Fu Wei, No. 2:15-cv-06322 (ODW)(RAOx), 2015 WL 5567763, at *1

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(C.D. Cal. Sept. 22, 2015), citing, Fed. R. Civ. P. 8(a)(2) and 8(d)(1); see also Toro v.

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Earl, No. 13-cv-00872 (DSF)(DFM), 2015 WL 179792, at *6 (C.D. Cal. Jan. 14, 2015)

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(dismissing complaint under Rule 8 since it was “argumentative, prolix, replete with

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redundancy and largely irrelevant” allegations and “so lengthy, verbose, and redundant

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that it [was] neither ‘short’ nor ‘plain’”); Gold Glove Prods., LLC v. Handfield, No.

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13-cv-7247 (DSF)(RZx), 2014 U.S. Dist. LEXIS 184988, at *19-20 (C.D. Cal. Feb. 24,

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2014) (dismissing and striking amended complaint because it was not “short and plain”

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and because “[m]uch of the FAC [was] spent touting Plaintiffs’ irrelevant accolades …

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and insulting Defendants”).
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Thus, because “[p]rolix, confusing complaints,” such as the FAC, “impose

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unfair burdens on litigants and judges,” (McHenry v. Renne, 84 F.3d 1172, 1179 (9th

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Cir. 1996)), a complaint that fails to comply with Rule 8 “may be dismissed with

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prejudice pursuant to rule 41(b).” Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,

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673 (9th Cir. 1981); see also Gold Glove Prods., 2014 U.S. Dist. LEXIS 184988 at *20

6

(“Defendants should not bear the burden of answering such a pleading”). Importantly,

7

“[t]he propriety of dismissal for failure to comply with Rule 8 does not depend on

8

whether the complaint is wholly without merit,” and Rule 8 “applies to good claims as

9

well as bad, and is a basis for dismissal independent of Rule 12(b)(6).” McHenry, 84

10

F.3d at 1179 (citations omitted).

11

In addition to Rule 8, Fed. R. Civ. P. 12(f) also provides that a court, either sua

12

sponte or upon motion, “may strike from a pleading … any redundant, immaterial,

13

impertinent, or scandalous matter.” In that regard, “[t]he essential function of a 12(f)

14

motion is to avoid the expenditure of time and money that must arise from litigating

15

spurious issues by dispensing with those issues prior to trial.” Sherman v. Stryker

16

Corp., No. 09-cv-224 (JVS)(ANx), 2009 WL 2241664, at *3 (C.D. Cal. Mar. 30, 2009)

17

(citation & internal quotation omitted); see also Design Art v. National Football

18

League Properties, No. 00-cv-0593 (JM), 2000 WL 1919787, at *4-5 (S.D. Cal. Nov.

19

27, 2000) (striking “immaterial” and “impertinent” allegations set forth in complaint);

20

Survivor Productions LLC v. Fox Broadcasting Co., No. 01-cv-3234 (LGB)(SHx),

21

2001 WL 35829267, at *4 (C.D. Cal. Jun. 12, 2001) (striking “redundant,”

22

“scandalous” allegations, which did “not assist in the Court’s understanding of the

23

parties’ dispute”).

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B.

The Court Should Dismiss the FAC

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The FAC consists of 44 pages of prolix, vague, disorganized, redundant,

26

argumentative and scandalous allegations. As demonstrated above, the FAC contains

27

sweeping, unduly vague allegations that “Certain Defendants” performed certain

28

unspecific acts without any effort to distinguish between the eleven different
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 Case 8:16-cv-01062-JVS-JCG Document 48 Filed 10/07/16 Page 15 of 16 Page ID #:400

1

Defendants; many paragraphs contain over ten discrete sentences (and many over

2

twenty sentences), and many exceed one full page in length (in fact, some paragraphs

3

span two or even three full pages in length); the FAC parrots the same baseless

4

allegations over and over again, often using identical copy-and-pasted language from

5

earlier paragraphs; the FAC is impermissibly argumentative insofar as it advances pure

6

assertions of law; and the FAC contains a series of scandalous and insulting allegations

7

and name-calling, which serve no purpose other than to seek to embarrass Defendants

8

and tarnish their reputations.

9

Simply put, the FAC does not contain a “short and plain statement” of Plaintiffs’

10

claim. Indeed, one strains to locate a single allegation that is “simple, concise and

11

direct.” Eleven separate Defendants should not be required to each bear the burden

12

and expense of parsing these impossibly long paragraphs in order to determine how to

13

respond or even if it or he is required to respond. Nor should this Court bear the

14

burden of having to parse paragraphs consisting of dozens of sentences that go on for

15

pages, which would require Defendants to similarly file answers that, of necessity,

16

would also have to go on for pages just to respond. See, e.g., Membreno, 2015 WL

17

5567763, at *2 (a violation of Rule 8 impermissibly “requires all parties—plaintiff,

18

defendant, and the court—to expend resources just trying to decipher the prose”);

19

McHenry, 84 F.3d at 1179 (“As a practical matter, the judge and opposing counsel, in

20

order to perform their responsibilities, cannot use a complaint such as the one plaintiffs

21

filed … ”).

22

Accordingly, the Court should dismiss the FAC because it patently violates Rule

23

8’s minimal pleading requirements. See, e.g., Toro, 2015 WL 179792 at *6 (“lengthy”

24

“verbose” “redundant” “rambling” and “argumentative” complaint dismissed for

25

violation of Rule 8); Gold Glove Prods., 2014 U.S. Dist. LEXIS 184988 at *19-20

26

(dismissing complaint that “egregiously violate[d]” Rule 8 owing to its many

27

“irrelevant” “unnecessary” “insulting” “argumentative” and “prolix” allegations);

28

McHenry, 84 F.3d at 1179 (dismissing “[p]rolix, confusing” complaint since it
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1

“impose[d] unfair burdens” on the defendants and the court).

At minimum, the

2

offensive portions of the FAC should be stricken pursuant to Fed. R. Civ. P. 12(f)(2).

3

See, e.g., Design Art, 2000 WL 1919787 at *4-5; Survivor Productions LLC, 2001

4

WL 35829267 at *4.5

5

IV.

CONCLUSION

6

For the reasons set forth herein, it is respectfully submitted that the FAC be

7

dismissed; at minimum, it is respectfully submitted that the Court strike the offending

8

portions of the FAC.

9
PRYOR CASHMAN LLP

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Dated: October 7, 2016

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By:

/s/ Ilene S. Farkas
Ilene S. Farkas
ifarkas@pryorcashman.com

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Michael J. Niborski
mniborski@pryorcashman.com

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Attorneys for Defendants

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Defendants submit that dismissal is more appropriate because this Court should not
be forced to “waste its time attempting to determine what should remain in the FAC
and what should be stricken.” Gold Glove Prods., 2014 U.S. Dist. LEXIS 184988 at
*20. Rather, Plaintiffs should bear the burden of submitting a pleading that complies
with the minimal pleading requirements of the Federal Rules of Civil Procedure.
12