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Dairy Employees Union Local No. 17 Christian Labor Association of United States of America Pension Trust v. Ferreira Dairy

United States District Court, C.D. California

February 6, 2015

DAIRY EMPLOYEES UNION LOCAL NO. 17 CHRISTIAN LABOR ASSOCIATION OF THE UNITED STATES OF AMERICA PENSION TRUST and BOARD OF TRUSTEES OF THE DAIRY EMPLOYEES UNION LOCAL NO. 17 CHRISTIAN LABOR ASSOCIATION OF THE UNITED STATES OF AMERICA PENSION TRUST, Plaintiffs,
v.
FERREIRA DAIRY, Defendant.

ORDER RE: PLAINTIFFS' MOTION TO STRIKE AFFIRMATIVE DEFENSES & IMMATERIAL & IMPERTINENT ALLEGATIONS [13]

RONALD S.W. LEW, Senior District Judge.

INTRODUCTION

Currently before the Court is Plaintiffs'[1] Motion to Strike Affirmative Defenses and Immaterial and Impertinent Allegations [13] in Defendant Ferreira Dairy's Answer [9].

The Court, having reviewed all papers submitted and pertaining to this motion, NOW FINDS AND RULES AS FOLLOWS: The Court GRANTS Plaintiffs' Motion to Strike Affirmative Defenses and Immaterial and Impertinent Allegations [13] as follows.

BACKGROUND

A. Factual Background

This is an action by an alleged ERISA pension fund, Dairy Employees Union Local No. 17 Christian Labor Association of the United States of American Pension Trust ("Plaintiff Fund"), and its Board of Trustees ("Board") (collectively "Plaintiffs") to collect withdrawal liability from Defendant Ferreira Dairy ("Defendant") pursuant to ERISA, 29 U.S.C. § 1381 et seq. Compl. ¶ 1.

Plaintiffs allege that Plaintiff Fund is a trust fund and an employee benefit plan, maintained for the purpose of providing retirement and related benefits to eligible participants. Compl. ¶ 5. Plaintiffs allege that Plaintiff Fund is also a multi-employer pension plan within the meaning of Section 1002(37) of ERISA, 29 U.S.C. § 1002(37). Id . Plaintiffs bring this Action on behalf of themselves and on behalf of plan participants and beneficiaries pursuant to Sections 502 and 4301 of ERISA, 29 U.S.C. §§ 1132, 1451. Id . ¶ 8.

Plaintiffs allege that Defendant is an employer in an industry affecting commerce within the meaning of Sections 3(5), 3(11), and 3(12) of ERISA, 29 U.S.C. §§ 1002(5), (11), (12). Id . ¶ 9. Plaintiffs allege that Defendant was, until March 31, 2012, a signatory to a collective bargaining agreement with Plaintiff Fund that required Defendant to make contributions to the Fund to provide pension and related benefits to Defendant's employees performing work described in the collective bargaining agreement. Id . ¶ 11.

Plaintiffs allege that Defendant withdrew from Plaintiff Fund in March 2012. Id . ¶ 13. Plaintiff alleges that, as a result of Defendant's "complete withdrawal" from the Plaintiff Fund, Defendant is "jointly and severally liable for withdrawal liability, as required by the Pension [Trust's] Restated Pension Plan and Trust Agreement" and by Section 4001(b)(1) and 4201(a) of ERISA, 29 U.S.C. §§ 1301(b) and 1381(a). Id . ¶ 14.

Plaintiffs allege that, after notifying Defendant of its withdrawal liability and a quarterly payment scheme, Plaintiffs, to date, have not received any payments from Defendant. Id . ¶¶ 15-18. Plaintiffs allege that because Defendant has failed and refused to pay its withdrawal liability, Defendant is in default (as defined by 29 U.S.C. § 1399(c)(5)), which entitles Plaintiffs to accelerate the withdrawal liability debt and receive interest and liquidated damages. Id . ¶ 17. Plaintiffs allege that Defendant has not requested review or initiated arbitration pursuant to 29 U.S.C. §§ 1399(b)(2)(A) and 1401. Id . ¶ 19.

In Defendant's Answer, Defendant denies that it owes any sum to Plaintiffs and pleads fifteen affirmative defenses. Def.'s Answer ("Answer"), ECF No. 9. Plaintiffs request the Court to strike Defendants First, Second, Third, Fourth, Ninth, Tenth, Eleventh, Twelfth, and Thirteenth Affirmative Defenses, [2] as well as the allegations in paragraphs five through seven of Defendant's Answer, except for the first sentence in each of those paragraphs. Pl.'s Reply ("Reply") 7:9-13.

B. Procedural Background

On June 25, 2014, Plaintiffs filed this Action [1]. On September 29, 2014, Defendant filed its Answer [9]. On October 20, 2014, Plaintiffs filed the present Motion to Strike ("Motion") [13]. On October 28, 2014, Defendant filed its Opposition to the Motion [18]. On November 4, 2014, Plaintiffs filed its Reply [19]. Defendant properly filed a Supplemental Opposition on November 14, 2014 [21]. The hearing was set for November 18, 2014 [13], and the Motion was taken under submission on November 13, 2014 [20].

DISCUSSION

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(f), the Court may, on its own or on a party's motion, strike "an insufficient defense or any redundant, immaterial, impertinent or scandalous" matter from a pleading. Fed.R.Civ.P. 12(f); Amini Innovation Corp. v. McFerran Home Furnishings Inc., No. CV-13-6496-RSWL, 2014 WL 360048, at *2 (C.D. Cal. Jan. 31, 2014). The function of Rule 12(f) is "to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).

Before a motion to strike affirmative defenses may be granted, the Court "must be convinced 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." Jones v. Sweeney, No. CV-F-04-6214-AWI-DLB, 2006 WL 1439080, at *1 (E.D. Cal. May 24, 2006) (citing SEC v. Sands, 902 F.Supp. 1149, 1165 (C.D. Cal. 1995)). "[C]ourts may not resolve disputed and substantial factual or legal issues in deciding a motion to strike." Whittlestone, 618 F.3d at 973 (internal quotation marks and alterations omitted).

The grounds for a motion to strike must appear on the face of the pleading under attack. Id . When ruling on a motion to strike, the Court must view the pleading under attack in the light most favorable to the pleader. Amini, 2014 WL 360048, at *2. If a motion to strike is granted, leave to amend should be freely given unless leave to amend would not be in the interest of justice. Id . (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979)).

B. Insufficient Defense

"An affirmative defense may be insufficient as a matter of pleading or as a matter of law." Empl. Painters' Trust v. P. N.W. Contractors, Inc., No. C13-05018-BHS, 2013 WL 1774628, at *4 (W.D. Wash. Apr. 25, 2013).

1. Legal Insufficiency

"[A]n affirmative defense is legally insufficient only if it clearly lacks merit under any set of facts the defendant might allege.'"[3] Empl. Painters' Trust, 2013 WL 1774628, at *4 (quoting McArdle v. AT&T Mobility LLC, 657 F.Supp.2d 1140, 1149-50 (N.D. Cal. 2009), rev'd on other grounds, 474 F.Appx. 515 (9th Cir. 2012)). When determining the legal sufficiency of an affirmative defense on a motion to strike, the court "may not resolve disputed and substantial... legal issues." Whittlestone, 618 F.3d at 973. Any questions of law must be "clear and not in dispute." Sands, 902 F.Supp. at 1165.

The legal sufficiency of an affirmative defense is determined in light of the related claim. See, e.g., Amini, 2014 WL 360048, at *3-*5. Here, Plaintiff Fund, an alleged ERISA pension plan, and its Board file the instant Action pursuant to ERISA to collect withdrawal liability from Defendant. Compl. ¶ 1.

ERISA regulates pension plans, and the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) amended ERISA to allow plans to impose proportional liability on withdrawing employers for the unfunded vested benefit obligations of multiemployer plans.[4] Carpenters Pension Trust Fund for N. Cal. v. Underground Constr. Co., 31 F.3d 776, 778 (9th Cir. 1994); see Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 720-25 (1984). "Congress enacted the MPPAA to protect the financial solvency of multiemployer pension plans, "[5] and the MPPAA "requires most employers who withdraw from underfunded multiemployer pension plans to pay withdrawal liability.'" Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferber Corp. of Cal., Inc., 522 U.S. 192, 195 (1997).

To state a claim for withdrawal liability, Plaintiffs must establish that:

(1) Plaintiff is/was a multiemployer pension plan under 29 U.S.C. § 1002(37);

(2) Defendant is/was an "employer" under 29 U.S.C. § 1381(a), which requires showing that Defendant had an obligation to contribute to the plan;

(3) Defendant "withdrew" from the plan under 29 U.S.C. § 1381(a);

(4) Plaintiff notified Defendant of the assessed liability in compliance with the MPPAA;

(5) Defendant failed to make a payment on the schedule set by the plan; and

(6) Defendant failed to initiate arbitration in a timely manner.[6]

a. Not an Affirmative Defense

An affirmative defense "plead[s] matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true." G & G Closed Circuit Events, LLC v. Nguyen, No. 10-CV-00168-LHK, 2010 WL 3749284, at *5 (N.D. Cal. Sept. 23, 2010) (internal quotation marks omitted). If an allegation labeled as an "affirmative defense" is not an affirmative defense, the improper "affirmative defense" should be stricken as a matter of law, but the allegation itself may still be properly plead or asserted in a different manner, such as a specific denial or in a motion to dismiss. See, e.g., Vogel v. OM ABS, Inc., No. CV 13-01797 RSWL, 2014 WL 340662, at *3 (C.D. Cal. Jan. 30, 2014) (stating that when an affirmative defense challenges "an element of plaintiff's prima facie case, it is properly addressed through denial or a motion to dismiss" and fails as a matter of law). An affirmative defense that fails as a matter of law should be stricken with prejudice, as leave to amend would be futile. See, e.g., id.

Defendant's First Affirmative Defense asserts that Plaintiffs lack standing to bring their claims. Answer 5:1-18. Because "standing is an element of plaintiff's prima face case, it is properly addressed through denial or a motion to dismiss" and cannot as a matter of law operate as an affirmative defense. Vogel, 2014 WL 340662, at *3. Thus, Plaintiffs' Motion to Strike this affirmative defense is GRANTED, and Defendant's First Affirmative Defense is STRICKEN WITH PREJUDICE. See, e.g., id. Defendant may assert the allegations in Defendant's First Affirmative Defense in any other proper manner, but not as an affirmative defense.

Defendant's Fifteenth Affirmative Defense asserts that "Plaintiffs' claims are alleged against the wrong employer." Answer 13:3-8. This allegation challenges an element of Plaintiffs' prima facie case, as Plaintiffs bear the burden of establishing that Defendant had an obligation to contribute to Plaintiff Fund. Thus, Defendant's Fifteenth Affirmative Defense is not a proper affirmative defense and fails as a matter of law. Vogel, 2014 WL 340662, at *3. Though Plaintiffs did not request the Court to strike this affirmative defense, the Court will sua sponte STRIKE WITH PREJUDICE Defendant's Fifteenth Affirmative Defense for legal insufficiency. See, e.g., Baker v. Ensign, No. 11-cv-2060-BAS(WVG), 2014 WL 4161994, at *4 (S.D. Cal. Aug. 20, 2014) (striking an affirmative defense " sua sponte " pursuant to Fed.R.Civ.P. 12(f)). Defendant may assert this allegation in any other proper manner, but not as an affirmative defense. See, e.g., Vogel, 2014 WL 340662, at *3.

b. Committed to Mandatory Arbitration

Under ERISA, as amended by the MPPAA, the express terms of § 1401(a)(1) state that " any dispute over withdrawal liability as determined under the enumerated statutory provisions [Sections 1381 through 1399] shall be arbitrated." Teamsters Pension Trust Fund-Bd. of Trs. of W. Conference v. Allyn Transp. Co., 832 F.2d 502, 504 (9th Cir. 1987) (quoting 29 U.S.C. § 1401(a)(1)) (internal quotations and alterations omitted).

The Ninth Circuit explained that the congressional purpose of § 1401(a) was to make arbitration "the initial stage of the dispute resolution process" and to make judicial consideration merely "a proceeding to enforce, vacate, or modify the arbitrator's award'" so as to prevent "lengthy, costly and complex litigation'" in the courts. Id . Under § 1401(a), "[i]f an employer fails to initiate arbitration, the employer waives the opportunity to assert any defenses that could have been raised before the arbitrator, " which are any defenses creating a "dispute over withdrawal liability as determined" by sections 1381 through 1399 of ERISA. Auto. Indus. Pension Trust Fund v. Tractor Equipment Sales, Inc., ___ F.Supp. 3d. ___, No. 13-cv-03703-WHO, 2014 WL 5810336, at *6 (N.D. Cal. Nov. 7, 2014) (internal quotation marks omitted); 29 U.S.C. § 1401(a)(1).

Here, Plaintiffs allege that Defendant "has not requested review or initiated arbitration with the Pension Fund pursuant to 29 U.S.C. [§§ 1399(b)(2)(A), 1401], " Compl. ¶ 19, and that Defendant's "Ninth, Tenth, Eleventh, and Thirteenth" affirmative defenses are "committed to mandatory arbitration" by § 1401(a) of ERISA, Mot. P&A 4:13-5:18; Reply 4:22-27. Defendant does not respond to or rebut Plaintiffs' § 1401(a) arguments.[7]

Defendant's failure to respond to Plaintiffs' § 1401(a) arguments will be construed as a concession by Defendant and, as such, Defendant is deemed to have abandoned its Ninth, Tenth, Eleventh, and Thirteenth affirmative defenses. See Stichting Pensioenfonds, 802 F.Supp.2d at 1132 (stating that in general, "failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue"). Plaintiff's Motion to Strike these affirmative defenses is GRANTED. The Court STRIKES WITH PREJUDICE Defendant's Ninth, Tenth, Eleventh, and Thirteenth affirmative defenses for legal insufficiency.

Though Plaintiffs do not assert that Defendant's Second and Third affirmative defenses are committed to mandatory arbitration by § 1401(a) of ERISA, [8] the Court will sua sponte consider whether these affirmative defenses are legally insufficient under § 1401(a). See Fed.R.Civ.P. 12(f).

Defendant's Second Affirmative Defense asserts that Plaintiffs should be barred from recovery because Plaintiffs "failed to timely provide notice of withdrawal liability, ... failed to provide review to Defendant, ... failed to submit funding notices...., [and] refused to allow Defendant to exhaust administrative remedies, as Plaintiffs prevented Defendant from entering arbitration by imposing an unconscionable and invalid arbitration clause on Defendant." Answer 5:19-6:1. As Sections 1382 through 1399 govern notice and review procedures for plans, such disputes must be submitted to arbitration under § 1401(a). See, e.g., Sept. 15, 2014 Order, Vander Poel, No. CV 12-4550-FMO(OPx), Dckt # 116, at *5 (C.D. Cal. Sept. 15, 2014) (unpub. civil minutes) (striking defendant's affirmative defense of estoppel because, among other reasons, it "should have been raised before an arbitrator" pursuant to ERISA's Section 1401(a)).

Defendant's allegation that the arbitration clause is "unconscionable and invalid" is a legally insufficient affirmative defense because in the context of withdrawal liability, arbitration is statutorily required and thus does not depend on the validity of an arbitration clause in a contract. July 10, 2013 Order, Vander Eyk, No. CV 12-4545 DSF (Spx), Dckt. # 72, at *5 (C.D. Cal. July 10, 2013) ("Defendant spends considerable energy attacking the arbitration provision in the collective bargaining agreement as unconscionable, but, in the context of withdrawal liability, arbitration is statutorily required."). Here, Defendant "could have moved within the time allotted for arbitration to have a court... decide whether [the arbitration clause]... was unconscionable." Id . In other words, even if the arbitration clause is unconscionable or invalid, "arbitration could have proceeded under the default arbitration rules provided by regulation." Id .; see Teamsters Pension Trust Fund-Bd. v. Allyn Trans. Co., 832 F.2d 502, 505 (9th Cir. 1987) (" In this case, the duty to arbitrate arose not from an agreement of the parties, but from the statute.").

As such, the Court GRANTS Plaintiffs' Motion to Strike this affirmative defense and STRIKES WITH PREJUDICE Defendant's Second Affirmative Defense for legal insufficiency under § 1401(a) of ERISA.

Defendant's Third Affirmative Defense, waiver, asserts that Plaintiffs have waived any right to withdrawal liability because Plaintiffs "failed to timely provide notice of withdrawal liability and demand payment of withdrawal liability within the applicable statute of limitations." Answer 6:6-9. Because notice, demand procedures, and time lines are governed by Sections 1382 through 1399 of ERISA, such disputes must be arbitrated under Section 1401(a). As such, Plaintiffs' Motion to Strike this affirmative defense is GRANTED, and the Court STRIKES WITH PREJUDICE Defendant's Third Affirmative Defense for legal insufficiency under § 1401(a) of ERISA. See, e.g., Sept. 15, 2014 Order, Vander Poel, No. CV 12-4550-FMO(OPx), Dckt # 116, at *7 (C.D. Cal. Sept. 15, 2014) (unpub. civil minutes) (striking defendant's affirmative defense of waiver because "defendant's failure to initiate arbitration precludes a waiver defense premised on plaintiff's failure to provide timely notice").

2. Pleading Insufficiency

A defense is insufficiently pled if it fails to give the plaintiff fair notice of the nature of the defense. Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1170 (N.D. Cal. 2010) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)). "Fair notice generally requires that the defendant state the nature and grounds for the affirmative defense, " but a "detailed statement of facts is not required." Amini, 2014 WL 360048, at *2 (internal quotation marks omitted). Because the defendant bears the burden of proof on affirmative defenses, the defendant must plead "at least some valid factual basis" in support of its affirmative defense. Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, at *7 (N.D. Cal. Mar. 26, 2012).

Defendant's Fourth Affirmative Defense asserts "unclean hands, " and for support, Defendant alleges only that this defense is "based upon their [Plaintiffs'] own fault or misconduct." Answer 4:12. Such pleading clearly falls short of providing Plaintiffs with "notice of the underlying factual bases of the defense." Perez, 2012 WL 1029425, at *7. As such, the Court GRANTS Plaintiff's Motion to Strike this affirmative defense and STRIKES WITHOUT PREJUDICE Defendant's Fourth Affirmative Defense, granting twenty (20) days leave to amend. See, e.g., Amini, 2014 WL 360048, at *3 (striking affirmative defense without prejudice for failure to "put Plaintiff on fair notice of the defense" and granting twenty days leave to amend).

Defendant's Twelfth Affirmative Defense alleges that Plaintiffs have failed to mitigate damages. Answer 11:2-13. Defendant asserts that "Plaintiffs failed to timely provide notice of withdrawal liability." Id. at 11:6. As Sections 1382 through 1399 of ERISA govern notice procedures, see supra, this ground is legally insufficient under § 1401(a) of ERISA. Defendant also asserts under its Twelfth Affirmative Defense that Plaintiffs have failed to mitigate damages "by failing to take such actions as are reasonably necessary to minimize any loss which may have, or in the future may be, sustained." Answer 11:2-6. Such an allegation does not give Plaintiffs "fair notice" of the "underlying factual bases" of this defense. Amini, 2014 WL 360048, at *2; Perez, 2012 WL 1029425, at *7. The rest of Defendant's "grounds" for its Twelfth Affirmative Defense are various contract defenses, and none allege facts showing "how the plaintiffs could have avoided the accumulation of damages." Iron Workers' Local No. 25 Pension Fund v. Klassic Servs., Inc., 913 F.Supp. 541, 546 (E.D. Mich. 1996); cf. Operating Eng'rs' Pension Trust Fund v. Clark's Welding & Machine, 688 F.Supp.2d 902 (N.D. Cal. 2010). Because Defendant has failed to allege sufficient factual allegations to support its Twelfth Affirmative Defense, Plaintiffs' Motion to Strike this affirmative defense is GRANTED, and Defendant's Twelfth Affirmative Defense is STRICKEN WITHOUT PREJUDICE with twenty (20) days leave to amend.

C. Immaterial/Impertinent

An allegation 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). An allegation is impertinent if it does not pertain, or is not necessary, to the issues in question. Id.

Defendant's allegations in paragraphs five through seven of its Answer, also included in some of Defendant's affirmative defenses, allege that Plaintiff Fund is "not a valid Taft-Hartley pension fund" because the Fund is operating "in direct violation of the LMRA" (also known as the Taft-Hartley Act). Answer ¶¶ 5-7. Such allegations are impertinent and immaterial, as Defendant provides no legal support for its allegations, see Opp'n 5:1-23, and nothing in ERISA requires Plaintiffs to be a "valid Taft-Hartley pension fund" or denies an award of withdrawal liability if a plaintiff is operating "in direct violation of the LMRA."

Plaintiffs argue that "nothing in either ERISA or the MPPAA make a pension plan's status as a multiemployer plan' depend on its compliance with the LMRA, " and "remedies for any violations of the LMRA are specified in the LMRA, and do not include relieving an employer of its withdrawal liability under ERISA." 3:24-4:7. Defendant does not rebut these arguments.

Thus, Defendant's allegations in paragraphs five through seven of its Answer (except for the first sentence in each paragraph), as well as any similar allegations in Defendant's affirmative defenses asserting Plaintiffs' invalidity under the LMRA or Plaintiffs' violations of the LMRA, are "impertinent" and "immaterial" to the issues in this Action.

Plaintiffs' Motion to Strike these allegations is GRANTED, and Defendant's allegations in paragraphs five through seven (except the first sentence in each paragraph), as well as any similar allegations in Defendant's affirmative defenses, are STRICKEN WITH PREJUDICE. Leave to amend would be futile: no new facts would make Plaintiffs' invalidity under the LMRA pertinent or material to this Action.

D. Redundant

An allegation is redundant if it is "needlessly repetitive or wholly foreign to the issues involved in the action." Cal. Dep't of Toxic Substances Control v. Aloco Pac., Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002). Defendant's Fifth Affirmative Defense, that no valid collective bargaining agreement exists, is effectively identical to Defendant's Fourteenth Affirmative Defense, and the grounds for Defendant's Fifth Affirmative Defense are recited in their entirety within Defendant's Fourteenth Affirmative Defense. See Answer 6:16-19, 12:1-13:1. Defendant's Sixth Affirmative Defense, that "there is no provision in any valid collective bargaining agreement, " is effectively identical to Defendant's Fifth and Fourteenth affirmative defenses, and the grounds for Defendant's Sixth Affirmative Defense are recited in their entirety within Defendant's Fourteenth Affirmative Defense. Answer 7:11-14, 12:1-13:1. Thus, Defendant's Fifth and Sixth affirmative defenses are "needlessly repetitive."

As such, the Court will sua sponte STRIKE WITH PREJUDICE Defendant's Fifth and Sixth affirmative defenses. Leave to amend is not appropriate when a defendant's allegation needlessly repeats another allegation, as leave to amend in such a circumstance would cause undue delay and is thus not in the interests of justice. See Kuschner v. Nationwide Credit, Inc., 256 F.R.D. 684, 688 (E.D. Cal. 2009) ("Leave to amend should be freely granted under Rule 15 unless the amendment would be improper or otherwise unjust, considering bad faith, undue delay, prejudice to the opposing party, and the futility of the amendment.").

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiffs' Motion to Strike [13] as follows:

(1) Defendant's First Affirmative Defense is STRICKEN WITH PREJUDICE in so far is it an affirmative defense; Defendant may assert this allegation in any other proper manner, but not as an affirmative defense;

(2) Defendant's Second Affirmative Defense is STRICKEN WITH PREJUDICE;

(3) Defendant's Third Affirmative Defense is STRICKEN WITH PREJUDICE;

(4) Defendant's Fourth Affirmative Defense is STRICKEN WITHOUT PREJUDICE, with twenty (20) days leave to amend;

(5) Defendant's Fifth Affirmative Defense is STRICKEN WITH PREJUDICE;

(6) Defendant's Sixth Affirmative Defense is STRICKEN WITH PREJUDICE;

(7) Defendant's Ninth Affirmative Defense is STRICKEN WITH PREJUDICE;

(8) Defendant's Tenth Affirmative Defense is STRICKEN WITH PREJUDICE;

(9) Defendant's Eleventh Affirmative Defense is STRICKEN WITH PREJUDICE;

(10) Defendant's Twelfth Affirmative Defense is STRICKEN WITHOUT PREJUDICE, with twenty (20) days leave to amend;

(11) Defendant's Thirteenth Affirmative Defense is STRICKEN WITH PREJUDICE;

(12) Defendant's Fifteenth Affirmative Defense is STRICKEN WITH PREJUDICE in so far as it is an affirmative defense; Defendant may assert this allegation in any other proper manner, but not as an affirmative defense.

IT IS SO ORDERED.


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