Case 2:25-cv-00978-APG-BNW Document 42 Filed 08/04/25 Page 22 of 26
1 2 3 4 5 6 7 8 9
affirmative defense.”); see also Vogel v. Huntington Oaks Del. Partners, LLC , 291 F.R.D. 438, 442 (C.D. Cal. 2013) (“An attack on a plaintiff’s case-in-chief is not an affirmative defense,” and “failure to state a claim is not an affirmative defense.”); Hernandez v. Cnty. of Monterey , 306 F.R.D. 279, 283 (N.D. Cal. 2015) (“An affirmative defense . . . does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.”). As such, it must be struck. Defendants’ second, third, and fourth defenses raise sovereign immunity under the Eleventh Amendment and immunities under Nevada state law. Answer at 16. This Court has already held these immunity defenses as applied to the individuals named in the Complaint fail as a matter of law under Supreme Court doctrine set forth in Ex parte Young , 209 U.S. 123 (1908). See KalshiEX, LLC v. Hendrick , 2025 WL 1587682, at *4 (D. Nev. June 3, 2025) (hereinafter “ Kalshi v. Hendrick II ”). Regardless of whether the Eleventh Amendment applies to the NGCB itself, this case would proceed against the officials in their official capacities who cannot be immunized under any legal doctrine named in the Answer. See id. at *2 n.2 (noting that the case would proceed against individuals named in their official capacities regardless of immunity claims). These defenses are therefore insufficient as a matter of law. See Ganley v. Cnty. of San Mateo , 2007 WL 902551, at *1 (N.D. Cal. Mar. 22, 2007) (holding a defense is insufficient as a matter of law whenever “there are no questions of fact . . . any questions of law are clear and not in dispute, and . . . under no set of circumstances could the defense succeed.”) (citation omitted). Defendants’ fifth defense , asserting CDNA’s “claim is barred by the Tenth Amendment,” Answer at 16, is similarly insufficient as a matter of law. This Court has already dismissed this defense in Kalshi v. Hendrick II , agreeing with Kalshi both that the Tenth Amendment does not apply because Congress enacted the CEA lawfully under the interstate commerce clause and that the anti-commandeering principle does not apply because preemption of Nevada law “would not compel the State to implement a federal regulatory program.” 2025 WL 1587682, at *6–7. Defendants’ sixth and seventh defenses assert that CDNA’s claims are “barred by the doctrine of judicial estoppel” and “collateral estoppel.” Answer at 16. These defenses are insufficiently pled because they fail to provide the “plaintiff fair notice of the defense” asserted.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
22
Made with FlippingBook - Online catalogs