Case 2:25-cv-00978-APG-BNW Document 42 Filed 08/04/25 Page 23 of 26
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Wyshak v. City Nat’l Bank , 607 F.2d 824, 827 (9th Cir. 1979), overruled on other grounds by Castro v. Cnty. of L.A. , 833 F.3d 1060 (9th Cir. 2016). Fair notice requires the defendant to “describ[e] the defense in ‘general terms.’” Kohler v. Flava Enters., Inc ., 779 F.3d 1016, 1019 (9th Cir. 2015) (citation omitted). It requires Plaintiffs to at least “allege [] facts identifying how the doctrine of [the defense] would apply in this case.” SEC v. Markman Biologics Corp. , 2024 WL 1075358, at *3–4 (D. Nev. Mar. 11, 2024) (Gordon, J.) (striking affirmative defenses for failure to plead any facts illustrating how the defenses would apply). The Answer is silent as to what could possibly estop CDNA from pursuing its claims. See Ganley , 2007 WL 902551, at *5 (striking res judicata and collateral estoppel defense because there were no allegations regarding “any prior judicial proceeding . . . which would carry preclusive effect”). Similarly, Defendants have pled no facts that give notice of the basis for their eighth defense , asserting CDNA’s claims are “barred by the doctrine of unclean hands.” Answer at 16. This defense should be struck on insufficient pleading grounds alone. Even had Defendants alleged some facts illustrating how it might apply, the doctrine of unclean hands would be no bar to Plaintiff’s preemption claim because “the clean hands doctrine should not be strictly enforced when to do so would frustrate a substantial public interest.” E.E.O.C. v. Recruit U.S.A., Inc ., 939 F.2d 746, 753 (9th Cir. 1991). Enjoining Defendants serves the public interest. California , 921 F.3d at 893 (“[P]reventing a violation of the Supremacy Clause serves the public interest.”). Defendants’ ninth defense asserts that CDNA “cannot show that it will suffer irreparable harm.” Answer at 16. Like Defendants’ first defense, this is not an affirmative defense that would preclude judgment on the pleadings. See supra pp. 21–22. Rather, it is a claim that CDNA cannot meet its burden of proving its case-in-chief. See id. In any event, this defense fails as a matter of law for the reasons stated above—CDNA has demonstrated irreparable harm as a matter of law from the threatened enforcement of preempted state law. See supra pp. 19–21. Defendants’ tenth defense , that CDNA “has failed to mitigate any alleged harm,” Answer at 16, is likewise not an affirmative defense—it is a legal doctrine that may reduce damages which CDNA does not seek, and, therefore, it is impertinent. See Hope Med. Enters., Inc. v. Fagron Compounding Servs., LLC , 2021 WL 2941546, at *6 (C.D. Cal. July 12, 2021) (“[F]ailure to
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