Meta Platforms, Inc. v. Judang Team LLC et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
META PLATFORMS, INC.,
Plaintiff,
v.
JUDANG TEAM LLC, et al.,
Defendants.
Case No. 25-cv-05156-TSH
ORDER RE: PLAINTIFF’S MOTION
TO STRIKE AFFIRMATIVE
DEFENSES
Re: Dkt. No. 71
I. INTRODUCTION
Plaintiff Meta Platforms, Inc. (“Meta”) brings this action against Defendants Judang Team
LLC (“Judang”), Perfeos LLC (“Perfeos”), Jot & Journeys (“J&J”), and Antonio Jose Liévano,
alleging that Defendants operated a deceptive and misleading advertising scheme on Meta’s social
media platforms and improperly obtained advertising credit lines from Meta. ECF No. 1.
Defendants Perfeos, J&J, and Liévano (collectively, “Defendants”) filed an Answer.1 ECF No.
59. Pending before the Court is Meta’s Motion to Strike Affirmative Defenses. ECF No. 71
(“Mot.”). The Court finds this matter suitable for disposition without oral argument pursuant to
Civil Local Rule 7-1(b) and VACATES the April 9, 2026, hearing. For the reasons stated below,
the Court GRANTS the motion.2
1 The Clerk of Court entered default against Judang on February 20, 2026. ECF No. 68.
2 The parties consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos.
13, 32.
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II. BACKGROUND
A. Factual Background
Meta, a Delaware corporation with its principal place of business in California, owns and
operates multiple social media platforms—including Facebook, Instagram, and WhatsApp—and
various business and advertising services. Compl. ¶¶ 4, 15–18 (ECF No. 1). Facebook is “an
online service that is available on computers and mobile devices” used to “discover and connect to
interests.” Id. ¶ 15. Instagram is “a free photo and video sharing service and mobile application.”
Id. ¶ 16. And WhatsApp is “an encrypted communication service available on mobile devices and
desktop computers.” Id. ¶ 17.
Defendant Judang, a Florida limited liability company, “promotes itself as a social media
manager” on its website, judangteam.com. Id. ¶ 5. Defendant Perfeos, a Florida limited liability
company, “purports to sell various merchandise” on its website, shopatmars.com. Id. ¶ 6.
Defendant J&J, an unincorporated Florida business, “purports to sell various consumer goods
including stationary products and energy drinks” on its website, jotandjourney.com. Id. ¶ 7.
Defendant Liévano, a resident of Florida, is the founder and sole member of Judang and Perfeos
and operates J&J. Id. ¶ 8. Meta alleges Liévano acted individually and through his entities. Id. ¶
1.
Overall, Meta alleges that Defendants (1) “used fraudulent financial documents to
improperly obtain more than $8 million in advertising credit lines from Meta for which they never
paid,” and (2) “used the fraudulently obtained advertising credit lines to purchase ads on Facebook
and Instagram” to facilitate Defendants’ “bait-and-switch” and “subscription fraud” schemes. Id.
¶ 2.
B. Procedural Background
On June 18, 2025, Meta filed its complaint against Defendants Judang, Perfeos, J&J, and
Liévano, alleging two causes of action under California law: (1) Breach of Contract; and (2)
Fraud. Compl. ¶¶ 75–91 (ECF No. 1). Meta seeks, inter alia, “a permanent injunction that
prohibits Defendants from continuing their bait and switch and subscription schemes” and
damages. Id. at 3, 24.
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On November 6, 2025, Judang, Perfeos, J&J, and Liévano filed a motion to dismiss
pursuant to Rule 12(b)(6). ECF No. 33. On January 20, 2026, the Court denied the motion to
dismiss. ECF No. 56. That same day, the Court granted, with conditions, the motion to withdraw
filed by counsel for the four original defendants. ECF No. 57.
On February 5, 2026, Defendants filed an Answer through new counsel. ECF No. 59
(“Answer”). In their Answer, Defendants assert twenty-seven affirmative defenses. Id. at 7–11.
The Court granted a substitution of counsel for Defendants (Perfeos, J&J, and Liévano). ECF No.
63. On February 20, 2026, the Clerk of Court entered default against Judang. ECF Nos. 64, 68.
On February 26, 2026, Meta filed the instant Motion to Strike Affirmative Defenses. ECF
No. 71 (“Mot.”). On March 12, 2026, Defendants filed an Opposition.3 ECF No. 80 (“Opp.”).
On March 19, 2026, Meta filed a Reply. ECF No. 83 (“Reply”).
III. LEGAL STANDARD
A “court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of a Rule 12(f) motion to
strike is “to avoid the expenditure of time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial[.]” Whittlestone, Inc. v. Handi-Craft Co., 618
F.3d 970, 973 (9th Cir. 2010) (quotation omitted). Motions to strike are generally disfavored and
“should not be granted unless the matter to be stricken clearly could have no possible bearing on
the subject of the litigation. If there is any doubt whether the portion to be stricken might bear on
an issue in the litigation, the court should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc.,
352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (internal citations omitted).
“A court should only grant a motion to strike material for the five reasons specifically
discussed in the rule—namely, if it is ‘(1) an insufficient defense; (2) redundant; (3) immaterial;
(4) impertinent; or (5) scandalous.’” Hernandez v. Aramark Food & Support Servs. Grp., Inc.,
No. 20-cv-03633-EJD, 2020 WL 5507219, at *1 (N.D. Cal. Sept. 11, 2020) (quoting Whittlestone,
3 On March 13, 2026, Defendants filed another Opposition. ECF No. 81. Because the
Oppositions filed at ECF Nos. 80 and 81 are identical, the Court considers only the timely filed
Opposition at ECF No. 80.
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618 F.3d at 973). A matter is immaterial if it “has no essential or important relationship to the
claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th
Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). Similarly, “‘[i]mpertinent’ matter
consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. A
matter is redundant if it needlessly duplicates other material in the complaint. Whittlestone, 618
F.3d at 974; see Figy v. Lifeway Foods, Inc., No. 13-cv-04828-TEH, 2016 WL 4364225, at *3
(N.D. Cal. Aug. 16, 2016) (“Redundant matter is defined as allegations that constitute a needless
repetition of other averments or are foreign to the issue.”). “‘Scandalous’ includes allegations that
cast a cruelly derogatory light on a party or other person.” In re 2TheMart.com, Inc. Sec. Litig.,
114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) (citation omitted).
“With a motion to strike, just as with a motion to dismiss, the court should view the
pleading in the light most favorable to the nonmoving party.” Platte, 352 F. Supp. 2d at 1057.
“Ultimately, whether to grant a motion to strike lies within the sound discretion of the district
court.” Cruz v. Bank of New York Mellon, No. 12-cv-00846-LHK, 2012 WL 2838957, at *2 (N.D.
Cal. July 10, 2012) (citing Whittlestone, 618 F.3d at 973). When striking a claim or defense, leave
to amend should be freely given if doing so does not cause prejudice to the opposing party.
Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).
IV. DISCUSSION
Meta moves to strike all twenty-seven affirmative defenses raised by Defendants, asserting
that they are not specific to this case, not properly characterized as affirmative defenses, and not
properly pleaded with the necessary level of detail. Mot. at 2. Defendants contend that the Court
should deny Meta’s Motion because “the substance of the affirmative defenses provides adequate
notice to Meta and raises legitimate legal issues for resolution through discovery and at trial.”
Opp. at 2. In the alternative, Defendants request leave to file an amended answer.4 Id. at 10.
In sum, the Court concludes that it is appropriate to strike each of Defendants’ affirmative
4 Defendants state that they “are prepared to file an amended answer within twenty-one days of
any order identifying specific pleading deficiencies, supplying the additional factual detail the
Court may require.” Opp. at 10:9–17.
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defenses. As discussed, below, the Court grants Defendants leave to amend some defenses.
A. Propriety Of Affirmative Defenses
Meta argues that Affirmative Defense Nos. 1–2, 4–8, 19–20, 22–23, and 27 are not proper
affirmative defenses that should be stricken without leave to amend. Mot. at 3:18–4:26.
“A defense which demonstrates that plaintiff has not met its burden of proof is not an
affirmative defense.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).
“Such a defense is merely rebuttal against the evidence presented by the plaintiff.” Barnes v. AT
& T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173 (N.D. Cal. 2010). In
other words, an affirmative defense is not one that negates elements of the plaintiff’s claim, “but
instead precludes liability even if all of the elements of the plaintiff’s claim are proven.” Id.
(citation omitted); see also Jacobson v. Persolve, LLC, No. 14-cv-00735-LHK, 2014 WL
4090809, at *6 (N.D. Cal. Aug. 19, 2014) (“denials of a plaintiff’s allegations or allegations that
the plaintiff cannot prove the elements of her claims are not affirmative defenses”).
1. Affirmative Defense #1: Failure To State A Claim
Meta argues that Affirmative Defense No. 1 should be stricken because “failure to state a
claim” is not a proper affirmative defense. Mot. at 3:18–28. Defendants do not oppose the
striking of this defense, “which is arguably better characterized as a denial rather than an
affirmative defense.” Opp. at 2:10–12.
Here, Affirmative Defense No. 1 states: “Plaintiff fails to state facts sufficient to constitute
any claim against Answering Defendants upon which relief can be granted.” Answer at 7.
“Failure to state a claim is not a proper affirmative defense” but, rather, asserts a defect in the
plaintiff’s prima facie case. Barnes, 718 F. Supp. 2d at 1174.
Accordingly, the Court STRIKES Affirmative Defense No. 1 and DENIES Defendants
leave to amend this defense.
2. Affirmative Defense #4: Failure To Plead Fraud With Particularity
Meta argues that Affirmative Defense No. 4 should be stricken because it merely restates
issues the Court has already addressed and rejected in denying Defendants’ motion to dismiss.
Mot. at 3:18–28. Further, Meta argues that failing to meet a pleading standard asserts a defect in
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the plaintiff’s case but is not actually an affirmative defense. Id. Defendants contend that the
defense is proper under Rule 12(h) and “preserves Defendants’ right to contest the sufficiency of
proof at trial.” Opp. at 4:14–5:2.
Here, Affirmative Defense No. 4 states: “Plaintiff’s fraud claim fails to satisfy the
heightened pleading requirements of Rule 9(b), including failure to plead who made alleged
misrepresentation, when and where it was made, and how it was false.” Answer at 8. This is
simply not an affirmative defense. Further, Defendants’ argument that this defense is permitted
under Rule 12(h) fails. “Rule 12(h) explicitly permits certain negative defenses to be pled in an
answer, specifically, the defenses enumerated in Rule 12(b)(2)–(5): lack of personal jurisdiction,
improper venue, insufficient process, and insufficient service of process.” Ear v. Empire
Collection Authorities, Inc., No. 12-1695-SC, 2012 WL 3249514, at *2 (N.D. Cal. Aug. 7, 2012)
(citing Fed. R. Civ. P. 12(h)(1)). Thus, failure to comply with Rule 9(b) is not on the list of
enumerated defenses in Rule 12(h). Moreover, Defendants retain the right “to contest the
sufficiency of proof at trial”—there is no need to plead defenses to preserve the argument that the
plaintiff failed to prove its case. Opp. at 4:14–5:2; see Reply at 2 n.1; Jacobson, 2014 WL
4090809, at *7 (“However, Defendants may still assert this claim as an ordinary defense to
liability.”).
Accordingly, the Court STRIKES Affirmative Defense No. 4 and DENIES Defendants
leave to amend this defense.
3. Affirmative Defense #2, 5–8, 19–20, 22–23
Meta argues that Affirmative Defense Nos. 2, 5–8, 19–20, and 22–23 should be stricken
because they are not affirmative defenses—“they are rebuttals directed toward elements of
[Meta’s] claims.” Mot. at 4:1–17.
a. Affirmative Defense #2: Failure To State A Claim
Defendants contend that this defense “is a non-waivable jurisdictional defense that must be
preserved.” Opp. at 5:3–14.
Here, Affirmative Defense No. 2 states: “Plaintiff lacks standing to assert one or more
claims because it has not suffered a concrete, particularized, or legally cognizable injury traceable
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to Answering Defendants’ conduct.” Answer at 7. Standing is not a proper affirmative defense.
See J & J Sports Prods., Inc. v. Vizcarra, No. 11-1151-SC, 2011 WL 4501318, at *2 (N.D. Cal.
Sept. 27, 2011) (“Because a plaintiff must plead and ultimately prove standing, lack of standing is
not an affirmative defense under federal law.”) (cleaned up). Defendants are correct that a party
may raise standing under Rule 12(h)(3) at any time. See Opp. at 5:3–14; Wood v. City of San
Diego, 678 F.3d 1075, 1082 (9th Cir. 2012) (“[T]he deadline for making a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction is prolonged by Rule 12(h)(3).”); see also Arbaugh
v. Y&H Corp., 546 U.S. 500, 506 (2006) (explaining that a party or a court may inquire into
federal subject matter jurisdiction at any stage in the litigation). However, lack of standing must
be raised in a proper motion—not as an affirmative defense. Reply at 2:23–3:2; cf. Goobich v.
Excelligence Learning Corp., No. 19-cv-6771-EJD, 2020 WL 1503685, at *3–4, n.3 (N.D. Cal.
Mar. 30, 2020) (striking standing defense with prejudice and noting that “Defendant will not be
precluded from arguing that Plaintiff lacks standing at a later time because issues of standing are
jurisdictional and therefore, may be raised at any time”).
Accordingly, the Court STRIKES Affirmative Defense No. 2 and DENIES Defendants
leave to amend this defense.
b. Affirmative Defense #5: Absence Of False Representation
Defendants contend that this defense is “expressly permitted by Rule 12(h) and properly
pleaded in the Answer.” Opp. at 5:15–6:8.
Here, Affirmative Defense No. 5 states: “Answering Defendants made no false,
misleading, or fraudulent representations to Plaintiff.” Answer at 8. “No false representation” is
not a proper affirmative defense because it is directed towards an element of Meta’s prima facie
case. See Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004) (explaining that under
California law, “a misrepresentation” is element of fraud claim); cf. Sec. & Exch. Comm’n v.
Christian Stanley, Inc., No. CV-11-7147-GHK(MANx), 2012 WL 13009138, at *6 (C.D. Cal.
Apr. 4, 2012) (striking “no false or misleading statements” defense because “this defense is merely
a denial of Plaintiff’s allegations”). Moreover, lack of a false representation is not on the list of
enumerated defenses in Rule 12(h). See Reply at 3:3–11; Ear, 2012 WL 3249514, at *2.
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Accordingly, the Court STRIKES Affirmative Defense No. 5 and DENIES Defendants
leave to amend this defense.
c. Affirmative Defense #6: No Scienter Or Intent
Defendants contend that this defense is “expressly permitted by Rule 12(h) and properly
pleaded in the Answer.” Opp. at 5:15–6:8.
Here, Affirmative Defense No. 6 states: “Answering Defendants did not act knowingly,
intentionally, recklessly, or with intent to deceive.” Answer at 8. “No scienter” is not a proper
affirmative defense because it is directed towards an element of Meta’s prima facie case. See
Helicopter, 34 Cal. 4th at 990 (explaining that under California law, “knowledge of falsity (or
scienter)” is element of fraud claim); cf. United States v. Ogden, No. 20-cv-01691-DMR, 2021
WL 858467, at *4 (N.D. Cal. Mar. 8, 2021) (striking scienter defense because it directly
challenges an element of plaintiff’s claim). Moreover, lack of scienter is not on the list of
enumerated defenses in Rule 12(h). See Reply at 3:3–11; Ear, 2012 WL 3249514, at *2.
Accordingly, the Court STRIKES Affirmative Defense No. 6 and DENIES Defendants
leave to amend this defense.
d. Affirmative Defense #7: No Reasonable Or Justifiable Reliance
Defendants contend that this defense is “expressly permitted by Rule 12(h) and properly
pleaded in the Answer.” Opp. at 5:15–6:8.
Here, Affirmative Defense No. 7 states: “Plaintiff did not reasonably or justifiably rely on
any alleged representation or omission by Answering Defendants.” Answer at 8. “No reliance” is
not a proper affirmative defense because it is directed towards an element of Meta’s prima facie
case. See Helicopter, 34 Cal. 4th at 990 (explaining that under California law, “justifiable
reliance” is element of fraud claim); cf. Fed. Trade Comm’n v. Loss Mitigation Servs., No. SACV-
09800-DOC(ANx), 2010 WL 11519447, at *3 (C.D. Cal. Feb. 17, 2010) (striking lack of
justifiable reliance defense because the defense “serves as a denial on the merits of the Plaintiff’s
claim that consumers acted reasonably in relying upon Defendants’ representations”). Moreover,
lack of reliance is not on the list of enumerated defenses in Rule 12(h). See Reply at 3:3–11; Ear,
2012 WL 3249514, at *2.
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Accordingly, the Court STRIKES Affirmative Defense No. 7 and DENIES Defendants
leave to amend this defense.
e. Affirmative Defense #8: Failure Of Causation
Defendants contend that this defense is “expressly permitted by Rule 12(h) and properly
pleaded in the Answer.” Opp. at 5:15–6:8.
Here, Affirmative Defense No. 8 states: “Plaintiff’s alleged damages were not proximately
caused by any act or omission of Answering Defendants.” Answer at 8. “No causation” is not a
proper affirmative defense because it is directed towards an element of Meta’s prima facie case.
See Helicopter, 34 Cal. 4th at 990 (explaining that under California law, “resulting damage” is
element of fraud claim); cf. LumaSense Technologies, Inc. v. Advanced Engineering Services,
LLC, No. 20-cv-7905-WHO, 2021 WL 2953237, at *5 (N.D. Cal. July 14, 2021) (striking no
causation defense); Jansen v. Travelers Com. Ins. Co., No. 16-cv-04834-JST, 2017 WL 607610, at
*3 (N.D. Cal. Feb. 15, 2017) (same). Moreover, lack of causation is not on the list of enumerated
defenses in Rule 12(h). See Reply at 3:3–11; Ear, 2012 WL 3249514, at *2.
Accordingly, the Court STRIKES Affirmative Defense No. 8 and DENIES Defendants
leave to amend this defense.
f. Affirmative Defense #19: No Irreparable Harm
Defendants do not respond to Meta’s argument that this defense is not a proper affirmative
defense. Reply at 3:12–13; see generally Opp.
Here, Affirmative Defense No. 19 states: “Plaintiffs have an adequate remedy at law and
cannot establish irreparable harm necessary to support injunctive relief.” Answer at 10. Because
Defendants do not respond to Meta’s argument that the defense is improper, Defendants concede
that it is. See Ardente, Inc. v. Shanley, No. C-07-4479-MHP, 2010 WL 546485, at *6 (N.D. Cal.
Feb. 10, 2010) (“Plaintiff fails to respond to this argument and therefore concedes it through
silence.”).
Accordingly, the Court STRIKES Affirmative Defense No. 19 and DENIES Defendants
leave to amend this defense.
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g. Affirmative Defense #20: Overbreadth Of Injunctive Relief
Defendants do not respond to Meta’s argument that this defense is not a proper affirmative
defense. Reply at 3:12–13; see generally Opp.
Here, Affirmative Defense No. 20 states: “The injunctive relief sought is impermissibly
broad, punitive, vague, and not narrowly tailored to any proven harm.” Answer at 10. Because
Defendants do not respond to Meta’s argument that the defense is improper, Defendants concede
that it is. Ardente, 2010 WL 546485, at *6.
Accordingly, the Court STRIKES Affirmative Defense No. 20 and DENIES Defendants
leave to amend this defense.
h. Affirmative Defense #22: Independent Contractor / No Agency
Defendants do not respond to Meta’s argument that this defense is not a proper affirmative
defense. Reply at 3:12–13; see generally Opp.
Here, Affirmative Defense No. 22 states: “Answering Defendants did not act as agents of
one another, and no joint venture, partnership, or conspiracy existed.” Answer at 10–11. Because
Defendants do not respond to Meta’s argument that the defense is improper, Defendants concede
that it is. Ardente, 2010 WL 546485, at *6.
Accordingly, the Court STRIKES Affirmative Defense No. 22 and DENIES Defendants
leave to amend this defense.
i. Affirmative Defense #23: Economic Loss Rule
Defendants contend that this defense “is preserved for the record and for potential
appellate review.” Opp. at 6:26–7:11.
Here, Affirmative Defense No. 23 states: “Plaintiff’s tort claims are barred by the
economic loss rule.” Answer at 11. Under California law, “the economic loss rule is not
a defense to a cause of action.” Greystone Homes, Inc. v. Midtec, Inc., 168 Cal. App. 4th 1194,
1215 (2008) (emphasis in original). Defendants contend that they raise this defense to preserve it
“for summary judgment, and if necessary, for appeal.” Opp. at 7:8–11. The Court agrees with
Meta that “being able to raise a legal doctrine later does not convert the doctrine into an
affirmative defense.” Reply at 3:14–17; see Espitia v. Mezzetti Fin. Servs., Inc., No. 18-cv-02480-
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VKD, 2019 WL 359422, at *5 (N.D. Cal. Jan. 29, 2019) (striking pleaded affirmative defense with
prejudice and noting the ruling is without prejudice to defendant raising the defense in a motion at
trial).
Accordingly, the Court STRIKES Affirmative Defense No. 23 and DENIES Defendants
leave to amend this defense.
4. Affirmative Defense #27: Reservation Of Rights
Meta argues that Affirmative Defense No. 27 should be stricken because it “is not a
defense at all but a reservation of rights to assert unspecified additional defenses at a later date.”
Mot. at 4:18–24. Defendants contend this defense “provides notice that Defendants do not intend
their current answer to be exhaustive, and it preserves flexibility consistent with the spirit of Rule
15(a).” Opp. at 7:13–8:11.
Here, Affirmative Defense No. 27 states: “Answering Defendants reserve the right to
assert additional defenses as discovery and investigation continue.” Answer at 11. Contrary to
Defendants’ assertion, courts routinely strike “reservation-of-rights defenses” because they are not
proper affirmative defenses. Opp. at 7:15–17; see Solis v. Zenith Cap., LLC, No. C-08-4854-PJH,
2009 WL 1324051, at *7 (N.D. Cal. May 8, 2009) (“An attempt to reserve affirmative defenses for
a future date is not a proper affirmative defense in itself.”); Snap! Mobile, Inc. v. Croghan, No. 18-
cv-04686-LHK, 2019 WL 884177, at *11 (N.D. Cal. Feb. 22, 2019) (striking “additional
defenses” defense with prejudice). If at some later date Defendants seek to add affirmative
defenses, “they must comply with Rule 15 of the Federal Rules of Civil Procedure.” Solis, 2009
WL 1324051, at *7.
Accordingly, the Court STRIKES Affirmative Defense No. 27 and DENIES Defendants
leave to amend this defense.
B. Waiver
Meta argues that Defendants have waived Affirmative Defense Nos. 3 and 25. Mot. at
5:1–13.
Under the Federal Rules of Civil Procedure:
A party waives any defense listed in Rule 12(b)(2)–(5) by:
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(A) omitting it from a motion in the circumstances described
in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of
course.
Fed. R. Civ. P. 12(h)(1). Rule 12(g)(2) states:
Except as provided in Rule 12(h)(2) or (3), a party that makes a
motion under this rule must not make another motion under this rule
raising a defense or objection that was available to the party but
omitted from its earlier motion.
Id. at 12(g)(2). As such, “most jurisdictional objections—such as defects in personal
jurisdiction, venue or service of process—are waived unless asserted early in the litigation.” City
of S. Pasadena v. Mineta, 284 F.3d 1154, 1156 (9th Cir. 2002).
1. Affirmative Defense #3: Improper Venue
Meta argues that Defendants waived Affirmative Defense No. 3 because they failed to
raise the defense in their motion to dismiss. Mot. at 5:1–13. Defendants contend that this defense
is “preserved in the Answer as a responsive pleading under Rule 12(h)(1)(B).” Opp. at 6:10–24.
Here, Affirmative Defense No. 3 states: “Venue is improper in this District, and the action
should be dismissed or transferred.” Answer at 7. “Improper venue” is one of the defenses “listed
in Rule 12(b)(2)–(5)” that is subject to waiver under Rule 12(h)(1). See Fed. R. Civ. P. 12(b)(3)
(improper venue defense). Thus, improper venue is waived under Rule 12 “if a defendant moves
to dismiss on one or more of the other grounds specified by Rule 12 while failing to raise venue in
the same motion.” King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) (citing Fed. R. Civ. P.
12(g), (h)). Prior to filing their Answer, Defendants moved to dismiss the Complaint under Rule
12(b)(6); however, Defendants did not raise improper venue in their motion to dismiss. See ECF
Nos. 33, 59. Therefore, Defendants waived the defense of improper venue. Cf. King, 963 F.2d at
1305 (“[Defendants’] failure to raise the defense of improper venue in conjunction with their
12(b)(6) motion constituted a waiver of that defense.”); Am. Home Assurance Co. v. TGL
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Container Lines, Ltd., 347 F. Supp. 2d 749, 765 (N.D. Cal. 2004) (“Under Rule 12(h) of the
Federal Rules of Civil Procedure, a defense of improper venue is waived unless it is included in
the defendant’s first Rule 12 motion or, if no such motion is filed, in the answer to the
complaint.”).
Defendants request leave to amend this defense to raise arguments “regarding the
enforceability of forum selection provisions and the interests of justice under 28 U.S.C. §
1404(a).” Opp. at 6:21–24. But “[a] motion to enforce a forum selection clause is treated as a
motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).” Am.
Home, 347 F. Supp. 2d at 755. As such, because Defendants failed to raise improper venue in
their motion to dismiss, they have waived any venue defense based on a forum selection clause.
See id. at 765 (“This principle applies to motions to dismiss for improper venue based on
contractual forum selection clauses as well as on statutory venue issues.”).
Accordingly, the Court STRIKES Affirmative Defense No. 3 and DENIES Defendants
leave to amend this defense.
2. Affirmative Defense #25: Failure To Join Necessary Parties
Meta argues that Defendants waived Affirmative Defense No. 25 because they failed to
raise the defense in their motion to dismiss. Mot. at 5:1–13. Defendants do not respond to Meta’s
argument that they waived this defense. Reply at 3:24–4:9; see generally Opp.
Here, Affirmative Defense No. 25 states: “Plaintiff failed to join indispensable parties
whose absence bars or limits relief.” Answer at 11. Because Defendants do not respond to Meta’s
argument that the defense is waived, Defendants concede that it is. Ardente, 2010 WL 546485, at
*6.
Accordingly, the Court STRIKES Affirmative Defense No. 25 and DENIES Defendants
leave to amend this defense.
C. Sufficiency Of Pleading
Meta argues that Affirmative Defense Nos. 9–18, 21, 24, and 26 are insufficiently pleaded
under the Twombly/Iqbal heightened pleading standard. Mot. at 2:18–3:2, 5:14–7:27. Defendants
contend that the Twombly/Iqbal standard does not apply to pleading affirmative defenses;
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alternatively, Defendants request leave to amend for any insufficient pleading. Opp. at 3:24–4:11,
8:13–22, 10:9–17.
The Federal Rules of Civil Procedure require a defendant to “state in short and plain terms
its defenses to each claim asserted against it” and “admit or deny the allegations asserted against it
by an opposing party.” Fed. R. Civ. P. 8(b)(1). “Although the Ninth Circuit has not spoken
directly on pleading standards for affirmative defenses, the majority of courts in the Northern
District of California have held that the heightened pleading standard of Twombly and Iqbal is
now the correct standard to apply to affirmative defenses.” Tongsui LLC v. LecocoLove LLC, No.
21-cv-2806-DMR, 2022 WL 541179, at *4 (N.D. Cal. Feb. 23, 2022) (cleaned up); see also
LumaSense, 2021 WL 2953237, at *6 (“I will apply the Twombly/Iqbal standard to affirmative
defenses in this case.”); Williams v. Apple, Inc., No. 19-cv-4700-LHK, 2021 WL 9181936, at *3
(N.D. Cal. June 17, 2021) (“This Court, as well as a vast majority of courts in this district, has held
that the heightened pleading standard for complaints articulated in Twombly and extended to all
civil complaints in Iqbal applies to affirmative defenses.”); Fishman v. Tiger Natural Gas Inc.,
No. C-17-05351-WHA, 2018 WL 4468680, at *3 (N.D. Cal. Sept. 18, 2018) (“This order finds
persuasive the reasoning of the district courts of this circuit and those across the country that apply
the Twombly/Iqbal standard to affirmative defenses[.]”); Finjan, Inc. v. Bitdefender Inc., No. 17-
cv-4790-HSG, 2018 WL 1811979, at *3 (N.D. Cal. Apr. 17, 2018) (“The Court agrees, and
continues to find that the Twombly/Iqbal standard applies.”); Murphy v. Trader Joe’s, No. 16-cv-
2222-SI, 2017 WL 235193, at *2 (N.D. Cal. Jan. 19, 2017) (“[I]n the absence of clear controlling
authority, the Court will follow numerous decisions in this district applying the Twombly/Iqbal
standard to affirmative defenses.”).
Accordingly, Defendants’ “affirmative defenses must contain sufficient facts to state a
defense that is plausible on its face.” Goobich, 2020 WL 1503685, at *2 (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “This standard does not require extensive factual allegations, but bare
statements reciting mere legal conclusions may not be sufficient.” Fishman, 2018 WL 4468680,
at *3 (cleaned up). Simply put, it is appropriate to summarily strike “affirmative defenses that are
nothing more than one-sentence recitations that fail to specify any factual basis for the defenses.”
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Williams, 2021 WL 9181936, at *5 (cleaned up).
1. Affirmative Defense #9: Failure To Mitigate
Meta argues that Affirmative Defense No. 9 is insufficiently pleaded because “Defendants
do not allege what steps should have been taken to mitigate damages.” Mot. at 5:25–26.
Defendants do not respond to Meta’s argument that this defense is insufficiently pleaded. Reply at
5:3–4; see generally Opp.
Here, Affirmative Defense No. 9 states: “Plaintiff failed to take reasonable steps to
mitigate its alleged damages.” Answer at 8. This bare reference to the doctrine of mitigation,
without any discussion of how it might apply to this case, is insufficient under Rule 8. Cf. Luo v.
Vuong, No. 22-cv-02981-TSH, 2022 WL 16924449, at *2 (N.D. Cal. Nov. 14, 2022) (striking
mitigation defense); Espitia, 2019 WL 359422, at *3 (same). And by silence, Defendants concede
the defense’s insufficiency. Ardente, 2010 WL 546485, at *6.
Accordingly, the Court STRIKES Affirmative Defense No. 9 and GRANTS Defendants
leave to amend this defense.
2. Affirmative Defense #10: Waiver
Meta argues that Affirmative Defense No. 10 is insufficiently pleaded because
“Defendants do not allege when Meta allegedly knew of the Defendants’ conduct or how its
failure to detect Defendants’ fraud constitutes waiver.” Mot. at 6:1–4. Defendants contend that
this defense is “not a bare legal label” but instead “alleges specific conduct.” Opp. at 8:25–9:1.
Here, Affirmative Defense No. 10 states: “Plaintiff waived one or more claims by its
conduct, including by continuing to extend credit, approving advertising, or permit platform
access despite alleged knowledge of the complained-of conduct.” Answer at 8–9. “Waiver is the
intentional relinquishment of a known right with knowledge of its existence and the intent to
relinquish it.” Fishman, 2018 WL 4468680, at *4 (citation omitted). This defense is insufficient
under Rule 8 because it “fails to point to any facts that would suggest [Meta] ever intended to
relinquish a known right or even what the right was that [Meta] supposedly waived.” Cf. id.
(striking waiver defense); see also Catch a Wave, Inc. v. Sirius XM Radio, Inc., No. C-12-05791-
WHA, 2013 WL 1996134, at *2 (N.D. Cal. May 13, 2013) (striking waiver defense where
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“[d]efendant makes no attempt to explain how or when plaintiff intentionally relinquished any
known right”).
Accordingly, the Court STRIKES Affirmative Defense No. 10 and GRANTS Defendants
leave to amend this defense.
3. Affirmative Defense #11: Estoppel
Meta argues that Affirmative Defense No. 11 is insufficiently pleaded because
“Defendants do not allege what acts, omissions, representations, or course of dealing purportedly
estopped Meta from bringing its claims.” Mot. at 6:6–9. Defendants contend that this defense
“arises from the same course of dealing” as in the waiver defense. Opp. at 9:2–5.
Here, Affirmative Defense No. 11 states: “Plaintiff is estopped from asserting its claims
by its own acts, omissions, representations, and course of dealing.” Answer at 9. This bare
reference to the doctrine of estoppel, without any discussion of how it might apply to this case, is
insufficient under Rule 8. Cf. Williams, 2021 WL 9181936, at *5–6 (striking estoppel defense that
failed “to specify any factual bases, let alone factual bases that satisfy Twombly/Iqbal’s
‘plausibility’ pleading standard”).
Accordingly, the Court STRIKES Affirmative Defense No. 11 and GRANTS Defendants
leave to amend this defense.
4. Affirmative Defense #12: Unclean Hands
Meta argues that Affirmative Defense No. 12 is insufficiently pleaded because
“Defendants do not identify any supposedly inequitable conduct.” Mot. at 6:10–11. Meta further
argues that this defense is not pleaded with particularity as required under Rule 9(b). Id. at 7:19–
23. Defendants contend that this defense need not be pleaded with particularity; however,
Defendants do not respond to Meta’s arguments under Rule 8. Opp. at 9:6–11; see Reply 5:19–25.
Here, Affirmative Defense No. 12 states: “Plaintiff’s claims are barred by the doctrine of
unclean hands due to its own inequitable conduct.” Answer at 9. This bare reference to the
doctrine of unclean hands, without any discussion of how it might apply to this case, is insufficient
under Rule 8. Cf. Luo, 2022 WL 16924449, at *2 (striking unclean hands defense); see also
Espitia, 2019 WL 359422, at *3 (“Mezzetti fails to identify any conduct by Mr. Espitia that would
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provide grounds for such a defense [of unclean hands].”).
Accordingly, the Court STRIKES Affirmative Defense No. 12 and GRANTS Defendants
leave to amend this defense.
5. Affirmative Defense #13: Contractual Defenses
Meta argues that Affirmative Defense No. 13 is insufficiently pleaded because
“Defendants do not identify what terms, limitations, disclaimers, or conditions of the governing
agreements are at issue.” Mot. at 6:13–15. Defendants contend that this defense is “directly
responsive to Meta’s breach of contract claim.” Opp. at 9:12–17.
Here, Affirmative Defense No. 13 states: “Plaintiff’s claims are barred, in whole or in
part, by the terms, limitations, disclaimers, and conditions of the governing agreements, including
limitation-of-liability provisions.” Answer at 9. This one-sentence recitation, that fails to specify
any factual basis for the defense, is insufficient under Rule 8. See Illumina, Inc. v. BGI Genomics
Co., No. 19-cv-03770-WHO, 2020 WL 571030, at *5 (N.D. Cal. Feb. 5, 2020) (“[T]he simple
listing of a series of conclusory statements asserting the existence of an affirmative defense
without stating a reason why that affirmative defense might exist is not sufficient.”) (citation
omitted).
Accordingly, the Court STRIKES Affirmative Defense No. 13 and GRANTS Defendants
leave to amend this defense.
6. Affirmative Defense #14: Lack Of Mutual Assent
Meta argues that Affirmative Defense No. 14 is insufficiently pleaded because
“Defendants allege no basis for asserting lack of mutual assent, unconscionability, or unilateral
modification of terms.” Mot. at 6:18–20. Defendants contend that this defense is “directly
responsive to Meta’s breach of contract claim.” Opp. at 9:12–17.
Here, Affirmative Defense No. 14 states: “No enforceable contract existed as alleged
because of lack of mutual assent, unconscionability, or unilateral modification of terms by
Plaintiff.” Answer at 9. This one-sentence recitation, that fails to specify any factual basis for the
defense, is insufficient under Rule 8. Illumina, 2020 WL 571030, at *5.
Accordingly, the Court STRIKES Affirmative Defense No. 14 and GRANTS Defendants
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leave to amend this defense.
7. Affirmative Defense #15: Failure Of Consideration
Meta argues that Affirmative Defense No. 15 is insufficiently pleaded because
“Defendants do not allege what consideration was allegedly not provided.” Mot. at 6:22–23.
Defendants contend that this defense is “directly responsive to Meta’s breach of contract claim.”
Opp. at 9:12–17.
Here, Affirmative Defense No. 15 states: “Plaintiff failed to provide the consideration
allegedly required under the purported agreements.” Answer at 9. This one-sentence recitation,
that fails to specify any factual basis for the defense, is insufficient under Rule 8. Cf. Williams,
2021 WL 9181936, at *5 (striking “failure of consideration” defense); Facebook, Inc. v. Rankwave
Co., No. 19-cv-03738-JST, 2020 WL 4460550, at *2–3 (N.D. Cal. May 1, 2020) (striking “lack of
consideration” defense where defendant “failed to plead any facts to put [plaintiff] on notice of the
basis of this affirmative defense”).
Accordingly, the Court STRIKES Affirmative Defense No. 15 and GRANTS Defendants
leave to amend this defense.
8. Affirmative Defense #16: Statute Of Limitations
Meta argues that Affirmative Defense No. 16 is insufficiently pleaded because
“Defendants do not identify what statute of limitations supposedly bars the claims.” Mot. at 6:25–
26. Defendants contend that this defense is one that by its very name provides fair notice. Opp. at
9:19–23.
Here, Affirmative Defense No. 16 states: “Plaintiff’s claims are barred, in whole or in
part, by applicable statutes of limitation.” Answer at 10. This bare reference to the statute of
limitations, without any discussion of how it might apply to this case, is insufficient under Rule 8.
Cf. Fishman, 2018 WL 4468680, at *3 (striking statute of limitations defense where defendant did
not point plaintiff to the “allegedly applicable statute”). And contrary to Defendants’ assertion,
the “specific statutes of limitations applicable to each claim” are not “matters to be developed in
discovery.” Opp. at 9:21–23; see Murphy, 2017 WL 235193, at *3 (striking statute of limitations
defense where “defendant neither cites a particular statute nor references particular dates”).
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Accordingly, the Court STRIKES Affirmative Defense No. 16 and GRANTS Defendants
leave to amend this defense.
9. Affirmative Defense #17: Laches
Meta argues that Affirmative Defense No. 17 is insufficiently pleaded because
“Defendants do not allege any basis for the assertion of unreasonable delay or what prejudice
resulted to Defendants.” Mot. at 7:1–3. Meta further argues that this defense is not pleaded with
particularity as required under Rule 9(b). Id. at 7:19–23. Defendants contend that this defense
need not be pleaded with particularity; however, Defendants do not respond to Meta’s arguments
under Rule 8. Opp. at 9:6–11; see Reply 5:19–25.
Here, Affirmative Defense No. 17 states: “Plaintiff’s claims are barred by laches due to
unreasonable delay and resulting prejudice.” Answer at 10. This bare reference to the doctrine of
laches, without any discussion of how it might apply to this case, is insufficient under Rule 8. Cf.
Hartford Underwriters Ins. Co. v. Kraus USA, Inc., 313 F.R.D. 572, 576 (N.D. Cal. 2016)
(striking laches defense as “not sufficiently pleaded, as Defendant provides no factual or legal
explanation of the claims”).
Accordingly, the Court STRIKES Affirmative Defense No. 17 and GRANTS Defendants
leave to amend this defense.
10. Affirmative Defense #18: Intervening And Superseding Causes
Meta argues that Affirmative Defense No. 18 is insufficiently pleaded because
“Defendants do not allege what intervening or superseding events were supposedly beyond the
Answering Defendants’ control.” Mot. at 7:4–6. Defendants contend that this defense is one that
by its very name provides fair notice. Opp. at 9:19–23.
Here, Affirmative Defense No. 18 states: “Plaintiff’s alleged damages were caused by
intervening or superseding events beyond Answering Defendants’ control.” Answer at 10. This
bare reference to intervening and superseding causes, without any discussion of how it might
apply to this case, is insufficient under Rule 8. Cf. Espitia, 2019 WL 359422, at *3 (striking
proximate causation defense where defendants failed “to identify any third parties or intervening
or superseding conduct of third parties on which they base this defense”).
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Accordingly, the Court STRIKES Affirmative Defense No. 18 and GRANTS Defendants
leave to amend this defense.
11. Affirmative Defense #21: First Amendment / Lawful Speech
Meta argues that Affirmative Defense No. 21 is insufficiently pleaded because
“Defendants do not allege how removing Defendants from [Meta’s] platforms due to the
commission of fraud in violation of the contractual terms the Defendants agreed to impermissibly
restrain lawful speech.” Mot. at 7:8–12. Defendants contend that this defense “must be preserved
to ensure the Court considers constitutional limitations on the scope of any injunctive remedy.”
Opp. at 9:24–10:1.
Here, Affirmative Defense No. 21 states: “To the extent Plaintiff seeks to restrict
advertising or communications, such relief would impermissibly restrain lawful speech.” Answer
at 10. This one-sentence recitation, which fails to specify any factual basis for the defense, is
insufficient under Rule 8. Cf. Polk v. Legal Recovery L. Offs., 291 F.R.D. 485, 492 (S.D. Cal.
2013) (striking First Amendment defense because “[d]efendants provide no basis for these claims
in their answers, and a reference to a doctrine is insufficient notice”) (cleaned up). Defendants
assert that this defense protects against an overbroad injunction. Opp. at 9:24–10:1. But
injunction overbreadth is not a proper affirmative defense. See Rutherford v. Evans Hotels, LLC,
No. 18-CV-435-JLS(MSB), 2019 WL 1900889, at *4 (S.D. Cal. Apr. 29, 2019) (striking
“Defendant’s affirmative defenses for vague, overbroad, and unduly subjective and no injunctive
relief” because they are not affirmative defenses).
Accordingly, the Court STRIKES Affirmative Defense No. 21 and GRANTS Defendants
leave to amend this defense.
12. Affirmative Defense #24: Comparative Fault
Meta argues that Affirmative Defense No. 24 is insufficiently pleaded because
“Defendants allege no acts or omissions by [Meta] that supposedly caused or contributed to
[Meta’s] damages.” Mot. at 7:13–15. Defendants contend that this defense provides “fair notice
of legal doctrines that may affect the scope of liability and damages as the factual record
develops.” Opp. at 10:2–7.
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Here, Affirmative Defense No. 24 states: “Plaintiff’s damages, if any, were caused or
contributed to by Plaintiff’s own acts or omissions.” Answer at 11. This bare reference to the
doctrine of comparative fault, without any discussion of how it might apply to this case, is
insufficient under Rule 8. Cf. Fishman, 2018 WL 4468680, at *4 (striking comparative fault
defense where defendant did “not indicate what conduct by plaintiff or third parties allegedly
caused the damages”)
Accordingly, the Court STRIKES Affirmative Defense No. 24 and GRANTS Defendants
leave to amend this defense.
13. Affirmative Defense #26: Preemption
Meta argues that Affirmative Defense No. 26 is insufficiently pleaded because
“Defendants do not identify what federal law(s) supposedly bar [Meta’s] claims.” Mot. at 7:16–
17. Defendants contend that this defense provides “fair notice of legal doctrines that may affect
the scope of liability and damages as the factual record develops.” Opp. at 10:2–7.
Here, Affirmative Defense No. 26 states: “Plaintiff’s claims are barred, in whole or in
part, by federal law governing online platforms and electronic commerce.” Answer at 11.
Defendants argue that they may “assert federal preemption” to defend against Meta’s state law
theories “that conflict with or are displaced by federal law governing online platforms or computer
related conduct.” Opp. at 10:4–7. While that may be true, Defendants’ bare reference to
preemption, without any discussion of how it might apply to this case, is insufficient under Rule 8.
Cf. Hartford, 313 F.R.D. at 576–77 (striking preemption defense where “defendant does not
explain the basis for preemption”).
Accordingly, the Court STRIKES Affirmative Defense No. 26 and GRANTS Defendants
leave to amend this defense.
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V. CONCLUSION
For the reasons stated above, the Court GRANTS Meta’s Motion to Strike Affirmative
Defenses. If Defendants choose to amend any of the defenses for which leave to amend has been
granted, Defendants must file an amended answer no later than April 16, 2026.
IT IS SO ORDERED.
Dated: March 25, 2026
THOMAS S. HIXSON
United States Magistrate Judge
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