The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE AT DOCKET 151
Before the Court is Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor, with a motion at Docket 151 to strike the second through thirteenth affirmative defenses asserted by Defendants David R. Johanson and Johanson Berenson LLP (collectively, the "Johanson Defendants") in their Answer to the Secretary's Amended Complaint at Docket 74. Plaintiff brings this motion under Rule 12(f) of the Rules of Civil Procedure, which permits the Court to strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
The Johanson Defendants oppose at Docket 156, requesting that this Court deny the Secretary's motion or, in the alternative, permit them to amend their Answer to correct any defects in the pleading.
As the parties are familiar with the facts of this case, the facts will only be cited within this Order insofar as they relate to the Court's ruling.
Rule 12(f) of the Federal Rules of Civil Procedure provides that the court, "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter." To strike an affirmative defense, the moving party must convince the court "'that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed.'"*fn1 The Ninth Circuit has held that the inclusion of a legally insufficient affirmative defense may result in "prejudice . . . delay, and confusion of the issues."*fn2
The Secretary asserts the Johanson Defendants' second through thirteenth affirmative defenses are "redundant or legally deficient."*fn3 The Court will address the sufficiency of each of the challenged defenses in turn.
A. The Second Affirmative Defense for Lack of Standing and Jurisdiction is Sufficient
The Johanson Defendants' Second Affirmative Defense alleges that the Secretary lacks standing and jurisdiction to sue David Johanson under ERISA because "the alleged conduct of David R. Johanson was not in connection with his status as fiduciary of any ERISA plan and Mr. Johanson did not receive ill gotten plan assets."*fn4
The Secretary objects to this defense on the grounds that it simply restates the denial of liability contained within Johanson's answer, making it a redundancy.*fn5 The Court disagrees. Although this affirmative defense adds nothing by way of factual allegations, it restates the denial of a fiduciary duty as an argument against standing and jurisdiction. Lack of standing is a recognized affirmative defense,*fn6 and it was therefore proper for Johanson to restate his denial of fiduciary duty as a defense for lack of standing and jurisdiction.
B. The Third Affirmative Defense for Lack of Standing and Jurisdiction is Legally Insufficient
The Third Affirmative Defense alleges that the Secretary lacks standing "to sue Johanson Berenson LLP because it is not a proper defendant under ERISA as a Johanson Berenson is not a party in interest that received ill gotten plan assets nor an ERISA fiduciary."*fn7 As the Secretary correctly notes, this Court has already rejected this argument in its ruling on the Johanson Defendants' Motion to Dismiss.*fn8 The Court decided that Johanson Berenson LLP need not be a party in interest or fiduciary, nor ...