Case 2:25-cv-00978-APG-BNW Document 42 Filed 08/04/25 Page 24 of 26
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mitigate . . . [is] not an affirmative defense.”); Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds , 510 U.S. 517 (1994) (defining impertinent allegations as those “that do not pertain, and are not necessary, to the issues in question.”) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (1990)). Defendants’ eleventh, twelfth, and thirteenth defenses , are all merely legal arguments about the applicability of preemption. Answer at 16–17. None of these are affirmative defenses that might preclude judgment on the pleadings, and all are incorrect as a matter of law for the reasons discussed above. See supra pp. 9–17. Defendants’ fourteenth defense purports to “incorporate and assert any and all affirmative defenses advanced by Intervenors in this action.” Answer at 17. But there is no intervenor in this action, much less one that has asserted any defenses, nor could any intervenor assert a defense on behalf of Defendants that they have not pled themselves. Defendants’ fifteenth defense is a catch-all—one that “incorporate[s] and assert[s] the affirmative defenses enumerated in Rule 8 of the Federal Rules of Civil Procedure.” Answer at 17. Again, pleading requires more than general invocation of a rule—there must be some allegations sufficient to give notice of the basis for any affirmative defenses. See Wyshak , 607 F.2d at 827. A mere citation to the list of affirmative defenses in Rule 8 does not suffice. Moreover, several of the defenses listed in Rule 8, such as “injury by fellow servant,” “failure of consideration,” and “statute of frauds,” should be dismissed as impertinent because they have nothing to do with the claims at issue here. See Fantasy, Inc. , 984 F.2d at 1527. This catch-all should be struck as both insufficiently pled and impertinent. The defenses pled in the Answer either are not affirmative defenses, are insufficiently pled, fail as a matter of law, or are completely irrelevant to the instant suit. Accordingly, the Court should strike or disregard these defenses and rule on the pleadings without further fact development. CONCLUSION For the foregoing reasons, the Court should grant Plaintiff’s Motion for Judgment on the Pleadings and Motion to Strike.
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