Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 1 of 12 PageID #: 505
`Case 2:17-cv—00140-RWS—RSP Document 27-3 Filed 07/14/17 Page 1 of 12 PageID #: 505
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`EXHIBIT C
`EXHIBIT C
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`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 2 of 12 PageID #: 506
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
`
`2010 WL 2846086 (N.D.Cal.) (Trial Motion, Memorandum and Affidavit)
`United States District Court, N.D. California.
`
`BARNES,
`v.
`AT&T PENSION BENEFIT PLAN-NONBARGAINED PROGRAM.
`
`No. 308CV04058.
`May 18, 2010.
`
`Date: June 28, 2010
`Time: 2:00 p.m.
`Place: Courtroom 15, 18th Floor
`
`Plaintiff's Notice of Motion and Motion to Strike Defendants Affirmative Defenses to the Amended Complaint
`
`R. Joseph Barton CA Bar No. 212340, Email: jbarton@cohenmilstein.com, Bruce F. Rinaldi CA Bar No. 55133, Email:
`brinaldi@cohenmilstein.com, Cohen Milstein Sellers & Toll PLLC, 1100 New York Avenue, N.W., Suite 500, West
`Tower, Washington, DC 20005, Telephone: (202) 408-4600, Facsimile: (202) 408-4699.
`
`Michelle L. Roberts, CA Bar No. 239092, Email: mlr@ssrlawgroup.com, Claire Kennedy-Wilkins, CA Bar No. 231897,
`Email: css@ssrlawgroup.com, Springer-Sullivan & Roberts LLP, 410-12th Street, Suite 325, Oakland, CA 94607, Tel:
`510.992.6130, Fax: 510.280.7564, Attorneys for Plaintiff.
`
`Hon. Marilyn H. Patel.
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .............................................................................................................
`I. BACKGROUND ............................................................................................................................
`II ARGUMENT .................................................................................................................................
`A. Defendant Fails To Adequately Allege Any of Their Twenty-Four Affirmative Defenses ..............
`B. Certain of Defendant's “Defenses“ Should Be Struck With Prejudice Because They Are Not
`Affirmative Defenses ...........................................................................................................................
`1. “Defenses” That Merely Negate An Element Of Plaintiffs' Proof Are Not Affirmative Defenses
`And Should Be Stricken As Redundant .............................................................................................
`2. “Defenses” Asserting That Plaintiff's Claims Should Not Be Certified As A Class Action Are Not
`Defenses To Plaintiff's Claims And Are Redundant ...........................................................................
`3. Failure To State A Claim Is Not An Affirmative Defense And Should Be Stricken As Redundant .
`4. “Defenses“ That Merely Limit Damages Are Not Affirmative Defenses And Should Be Stricken
`as Redundant ......................................................................................................................................
`C. Defendant Has Failed To Properly Answer Portions Of The Complaint .......................................
`1. Defendant's Refusal To Respond Because A Document Purportedly Speaks For Itself” Is
`Improper .............................................................................................................................................
`2. Defendant's Refusal To Respond To A Legal Conclusion Is Improper ..........................................
`III. CONCLUSION ............................................................................................................................
`
`Cases
`Ashcroft v. lqbal, 129 S. Ct. at 1937, 1949 (2009) ...........................................
`Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................
`California v. United States, 512 F. Supp. 36 (N.D. Cal. 1981) ........................
`
`TABLE OF AUTHORITIES
`
`ii
`2
`3
`4
`10
`
`11
`
`12
`
`12
`13
`
`16
`16
`
`16
`17
`
`3, 4, 16
`3, 4, 16
`3
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
`
`1
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`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 3 of 12 PageID #: 507
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
`
`CTF Dev., Inc. v. Penta Hospitality, LLC, No. 09-02429, 2009 WL 3517617
`(N.D. Cal. Oct 26, 2009) ...............................................................................
`Dardaganis v. Grace Capital, Inc., 889 F.2d 1237 (2d Cir. 1989) ....................
`Donovan v. Cunningham, 716 F.2d 1455 (5th Cir. 1983) .................................
`Donovan v. Schmoutey, 592 F.Supp. 1361 (D. Nev. 1984) ..............................
`E. & J. Gallo Winery v. Encana Energy Servs., Inc., No. 03-5412. 2008 WL
`2489887 (E.D. Cal. Jun 18, 2008) ..................................................................
`Facebook v. Power Ventures, Inc., No. 08-5780, 2009 WL 3429568 (N.D. Cal.
`Oct. 22, 2009) ................................................................................................
`Fed. Trade Comm‘n v. Think All Publ'g, L.L.C, 564 F. Supp. 2d 663 (E.D.
`Tex. 2008) ......................................................................................................
`Fleming v. Kane County, 636 F. Supp. 742 (N.D. Ill. 1986) ............................
`Frank v. Wilbur-Ellis Co. Salaried Employees LTD Plan, No. 08-02084, 2008
`WL 4370095 (E.D. Cal. Sept. 24, 2008) .........................................................
`Gaudiello v. Allied-Signal, Inc., No. 90-20097, 1990 WL 304271 (N.D. 111.
`Nov. 15, 1990) ...............................................................................................
`Gilbert v. Eli Lilly & Co., 56 F.R.D. 116 (D. P.R. 1972) ................................
`Hart v. Baca, 204 F.R.D. 456 (C.D. Cal. 2001) .............................................
`Hayne v. Green Ford Sales, 263 F.R.D. 647 (D. Kan. 2009) ..........................
`Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608, 2007 WL
`2412834 (S.D. Fla. Aug. 21, 2007) .................................................................
`In re Fleming Packaging Corp., 351 B.R. 626 (Bankr. C.D. Ill. 2006) .............
`In re Nat'l Lumber and Supply, Inc. 184 B.R. 74 (B.A.P. 9th Cir. 1995) ........
`King Vision Pay Per View, Ltd. v. J.C. Dimitri's Rest., Inc., 180 F.R.D. 332
`(N.D. Ill. 1998) ..............................................................................................
`Lemery v. Duroso, No. 2009 WL 1684692 (E.D. Mo. June 16, 2009) .............
`Mag Instrument, Inc. v. JS Prods., Inc., 595 F.Supp.2d 1102 (C.D. Cal. 2008)
`........................................................................................................................
`Monster Cable Prods., Inc. v. Avalanche Corp., No. 08-4792, 2009 WL
`650369 (N.D. Cal. Mar 11, 2009) ..................................................................
`Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046 (N.D. Cal. 2004) ........
`Quintana v. Baca, 233 F.R.D. 562 (C.D. Cal. 2005) .......................................
`Reis Robotics USA Inc. v. Concept Indus., Inc., 462 F. Supp. 2d (N.D. Ill.
`2006) ..............................................................................................................
`Renalds v. S,R.G. Rest. Group, 119 F. Supp. 2d 800 (N.D. Ill. 2000) ..............
`Solis v. Couturier, No. 8-2732, 2009 WL 3055207 (E.D. Cal. Sept. 17, 2009) ..
`Solis v. Zenith Capital, LLC, No. 08-4854, 2009 WL 1324051 (N.D. Cal.
`May 8, 2009) .................................................................................................
`T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC. No. 08-0340, 2008 WL
`2600016 (N.D. Tex. July 1, 2008) ..................................................................
`State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) .......
`Taylor v. United States, 821 F2d 1428 (9th Cir. 1987) ...................................
`Thomas v. Oregon Fruit Prods. Co., 228 F.3d 991 (9th Cir. 2000) ..................
`Tome Engenharla E Transportes, Ltd. v. Malki, No. 94-7427, 1996 WL
`172286 (N.D. Ill Apr. 11, 1996) .....................................................................
`Voeks v. Wal-Mart Stores, Inc., No. 07-0030. 2008 WL 89434 (E.D. Wis.
`Jan. 7, 2008) ..................................................................................................
`Wyshak v. City Nat'l Bank, 607 F.2d 824 (9th Cir. 1979) ...............................
`Zivkovic v. S, California Edison Co., 302 F.3d 1080 (9th Cir. 2002) ................
`Statutes
`ERISA §502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) ............................................
`ERISA §502(a)(3), 29 U.S.C. § 1132(a)(3) .....................................................
`ERISA §502(a)(204(g), 29 U.S.C. § 1054(g) ...................................................
`ERISA § 404(a)(1)(D), 29 U.S.C. 1104 (a)(1)(D) ...........................................
`Other Authorities
`Fed. R. Civ. P. 8(b)(6) ...................................................................................
`Fed. R.Civ. P. 12(f) .......................................................................................
`Fed. R. Civ. P. Rule 8 ...................................................................................
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
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`4, 5
`
`14
`14
`5
`10
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`3, 4
`
`9, 10, 16
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`12
`15
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`9
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`10
`2, 3
`4
`4
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`9, 12
`9
`15
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`11
`5
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`4
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`3
`10, 11
`5
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`12
`9
`2
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`4, 5
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`15, 16
`12
`13
`11
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`4
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`3, 8
`10
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`13
`13
`14
`14
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`15
`passim
`3, 15, 16
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`2
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`

`

`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 4 of 12 PageID #: 508
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
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`Fed. R. Civ. P. Rule 8(b) ..............................................................................
`Fed. R. Civ. P. Rule 11 .................................................................................
`Fed. R. Civ. P. Rule 23 .................................................................................
`Fed. R. Civ. P. Rule 33 .................................................................................
`
`15, 16
`8
`7, 11
`9
`
`NOTICE IS HEREBY GIVEN that Plaintiff Quiller Barnes, by and through his attorneys, will and hereby does move
`the Court to strike the First through Twenty-Fourth Affirmative Defenses contained in the Answer of Defendant AT&T
`Pension Benefit Plan -Nonbargained Program To Plaintiff's Amended Complaint, to order that certain allegations that
`Defendant has failed to admit, deny or state that it is without sufficient knowledge are deemed admitted and to order
`that Defendant respond to Plaintiff's legal conclusions. This motion is based on the accompanying Memorandum of
`Points and Authorities.
`
`Dated: May 18, 2010
`
`COHEN MILSTEIN SELLERS & TOLL PLLC
`
`By: /s/ R. Joseph Barton
`
`R. Joseph Barton CA Bar No. 212340
`
`Attorney for Plaintiff
`
`MEMORANDUM AND POINTS OF AUTHORITIES IN SUPPORT OF PLAINTIFF'S
`MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES AND
`DEFENDANT'S IMPROPER RESPONSES TO THE AMENDED COMPLAINT
`
`Pursuant to Federal Rule of Civil Procedure 12(f), Plaintiff Quiller Barnes (“Plaintiff”) respectfully moves this Court to
`strike the twenty-four affirmative defenses asserted by Defendant AT&T Pension Benefit Plan - NonBargained Program
`(“Defendant“) in the Answer of Defendant AT&T Pension Benefit Plan -NonBargained Program To Plaintiff's Amended
`Complaint (“Answer “) and other portions of Defendant's Answer that fails to adequately respond to Plaintiff's Amended
`Complaint. Many of the Defendant's “defenses” are not actually affirmative defenses to Plaintiff's three claims, but
`simply repeat Defendant's denials of Plaintiff's allegations from earlier in their Answer or seek to limit Plaintiffs recovery.
`Other “defenses” fail as a matter of law. Additionally, all of Defendant's affirmative defenses are comprised of bare bones
`legal conclusions and are devoid of factual allegations and thus do not meet the applicable pleading requirements or
`provide Plaintiff with fair notice of the defenses asserted against him. Finally, Defendant has failed to properly respond
`to certain allegations in the Amended Complaint because it did not admit, deny or state that it was without sufficient
`knowledge or information to admit or deny the claims. Striking these defenses and improper responses will not only
`ensure that Plaintiff is provided with the requisite fair notice, but it will streamline this case so that discovery can focus
`on legitimate issues in dispute.
`
`I. BACKGROUND
`
`This putative class action arises out of Defendant's failure to pay Plaintiff and the putative class benefits they are entitled
`to under the terms of the Pacific Telesis Group Cash Balance Pension Plan for Salaried Employees (“the Plan”), effective
`July 1, 1996 (the “PTG Pension Plan Document”) after being terminated and then rehired by Pacific Bell Telephone
`Company (“Pacific Bell”) and meeting certain conditions. Amended Complaint ¶¶ 1 (“Complaint”). Plaintiff's Amended
`Complaint alleges three causes of action: (1) failure to provide adequate notice of reasons for benefit denial in violation
`of ERISA § 503(a)(1) and the terms of the Plan, (2) a claim for benefits under ERISA § 502(a)(1)(B), and (3) violation
`of ERISA § 204(g)‘s anti-cutback provision. Id. ¶¶ 124-25. The Amended Complaint details the specific legal claims
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
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`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 5 of 12 PageID #: 509
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
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`asserted against Defendant under ERISA and the specific factual basis for these claims. Id. ¶¶24- 123 (factual allegations),
`124-45 (legal claims). In its answer, Defendant fails to properly respond to certain of the allegations by claiming that a
`document “speaks for itself” or are legal conclusions. E.g. Ans. ¶¶127, 129, 130, 142. In addition to denying allegations
`that Defendant violated ERISA, Defendant asserts twenty four boilerplate affirmative defenses to Plaintiff's three claims.
`Ans. ¶¶146-169. Yet, none of these “defense” - some of which are not affirmative defenses - contain no factual allegation
`and some are so vaguely pled, it is difficult to ascertain what defense is claimed. As such, these affirmative defenses
`should be struck and the improper responses should be deemed admitted or struck.
`
`II. ARGUMENT
`
`Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a “court may strike from a pleading an insufficient
`defense.” Fed. R. Civ. P. 12 (f). “The function of a Rule 12(f) motion to strike is to avoid the expenditure of time and
`money that will arise from litigating spurious issues by dispensing with those issues prior to trial.” Solis v. Zenith Capital,
`LLC, No. 08-4854, 2009 WL 1324051, at *3 (N.D. Cal. May 8, 2009) (citing Sidney-Vinstein v. A.H. Robins Co., 697
`F.2d 880, 885 (9th Cir. 1983)). Where the asserted defense fails to meet the applicable legal standards, that determination
`should be made upon a motion to strike “in order to avoid the needless expenditures of time and money in litigating“
`the defense. Hart v. Baca, 204 F.R.D. 456, 457 (C.D. Cal. 2001). Where such a motion “may have the effect of making
`the trial of the action less complicated, or have the effect of otherwise streamlining the ultimate resolution of the action,
`the motion to strike will be well taken.” Id. (citing California v. United States, 512 F. Supp. 36, 38 (N.D.Cal. 1981)).
`
`A. Defendant Fails To Adequately Allege Any of Their Twenty-Four Affirmative Defenses
`
`“Affirmative defenses are governed by the same pleading standard as complaints.” Facebook v. Power Ventures, Inc.,
`No. 08-5780, 2009 WL 3429568, at *2 (N.D. Cal. Oct. 22, 2009) (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827
`(9th Cir. 1979) and striking affirmative defenses pled without factual allegations). In order for an affirmative defense to
`be sufficiently pled under Rule 8, an affirmative defense must give plaintiffs fair notice of the defenses being advanced.
`Wyshak, 607 F.2d at 827 (“The key to determining the sufficiency of pleading an affirmative defense is whether it gives
`plaintiff fair notice of the defense.”); Qarbon.com Inc v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004)
`(concluding that affirmative defenses are governed by the same pleading standard as complaints, and therefore must
`give plaintiff “fair notice” of the defense being advanced).
`
`The Supreme Court recently clarified the pleading requirements in Rule 8. In Bell Atl. Corp. v. Twombly, 550 U.S. 544
`(2007), the Supreme Court held that fulfilling the “obligation to provide the ‘grounds' of his “entitle[ment] to relief”
`requires more than labels and conclusions, and a formulaic recitation of [the] elements.” Id. at 545. Under the Twombly
`standard, “a wholly conclusory statement” (id. at 561) is insufficient; instead, there must be “enough factual matter“ so
`as to “possess enough heft to ‘sho[w] that the pleader is entitled to relief.”’ Id. at 545; see Ashcroft v. lqbal, 129 S. Ct. at
`1937, 1949 (2009). Subsequently, in lqbal, the Supreme Court made clear that the Twombly decision was based on its
`interpretation and application of Rule 8 of the Federal Rules of Civil Procedure, which governs the pleading standard
`in all civil actions. Id. at 1953.
`
`Post-Twombly, the overwhelming majority of district courts addressing the issue have concluded that the pleading
`standard announced in Twombly and clarified in Iqbal likewise applies to affirmative defenses. Hayne v. Green Ford
`Sales, 263 F.R.D. 647, 649-50, (D. Kan. 2009). 1 Likewise, numerous courts in this District have also concluded that
`“bare statements reciting mere legal conclusions do not provide plaintiff with fair notice of the defense being asserted.”
`CTF Dev., Inc. v. Penta Hospitality, LLC, No. 09-02429, 2009 WL 3517617, at *7 (N.D. Cal. Oct 26, 2009); Monster Cable
`Prods., Inc. v. Avalanche Corp., No. 08-4792, 2009 WL 650369, at *1 (N.D. Cal. Mar 11, 2009) (striking defense because
`defendant failed to allege any supporting facts). As another court in this District explained, “[u]nder the Iqbal standard,
`the burden is on the defendant to proffer sufficient facts and law to support an affirmative defense, and not on the plaintiff
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
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`to gamble on interpreting an insufficient defense in the manner defendant intended.” CTF Dev., 2009 WL 3517617 at
`*8 (concluding that “affirmative defenses that are mere statements of legal conclusions with no supporting facts” do not
`meet lqbal pleading requirements). Where the defendants' affirmative defenses contain no factual allegations, they are
`appropriately stricken from the answer under Rule 12(f). Id.; Facebook, 2009 WL 3429568 at *2 (granting motion to strike
`where affirmative defenses contained “no factual allegations” and instead “the pleading refers back to the ‘Introduction
`and Background’ section with the phrase ‘conduct, as described herein”).
`
`1
`
`See e.g., T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC, No. 08-0340, 2008 WL 2600016, at *2 (N.D. Tex. July I, 2008)
`(striking affirming defenses); see Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608, 2007 WL 2412834, at *2 (S.D.
`Fla. Aug. 21, 2007) (determining affirmative defenses must be more than “barebones conclusory” recitations).
`
`Moreover, numerous courts have held that equitable defenses are subject to heightened pleading standards. See Voeks v.
`Wal-Mart Stores, Inc., No. 07-0030, 2008 WL 89434, at *7 (E.D. Wis. Jan. 7, 2008) (“[e]quitable defenses ‘must be pled
`with the specific elements required to establish the defense’ [and] ‘require at least some direct or inferential allegations
`as to each element of the defense”’); Reis Robotics USA Inc. v. Concept Indus., Inc., 462 F. Supp. 2d at 897, 907 (N.D.
`Ill. 2006) (explaining “equitable defenses that must be pled with the specific elements required to establish the defense”);
`T-Mobile, 2007 WL 2600016 at *3; see also CTF Dev., 2009 WL 3517617 at *7, (“simply stating that a claim fails due to
`plaintiffs ‘unclean hands' is not sufficient to notify the plaintiff what behavior has allegedly given them ‘unclean hands')
`(emphasis in original); Qarbon, 315 F. Supp. 2d at 1050, (striking affirmative defenses of waiver, estoppel and unclean
`hands where defendant did “not provide any factual basis” for the defenses); Mag Instrument, Inc. v. JS Prods., Inc., 595
`F.Supp.2d 1102, 1108 (C.D. Cal. 2008) (holding that all elements of estoppel defense must be pled and striking defense
`where it was ‘vague and fail [ed] to provide adequate notice of its factual basis”); Donovan v. Schmoutey, 592 F.Supp.
`1361, 1403 (D. Nev. 1984) (“The estoppel defense raised by the defendant fails as a matter of law because defendants
`failed to allege its necessary elements.”).
`
`Defendant's twenty four affirmative defenses are comprised of brief legal conclusions and are entirely devoid of any
`factual allegations. See Answ. ¶¶ 146-169. 2 Without even the most basic factual allegations to rely on, Plaintiff has
`no means of assessing the “defenses” asserted against him and is instead left to speculate as to Defendant's intended
`defenses. For example:
`
`2
`
`Defendant's Second, Third and Fifth Affirmative Defenses contain the barest of factual allegations, in that they refer to the
`existence of “the PTG Pension Plan” and the “AT&T Pension Plan” (Third Aff. Def.), the “terms and conditions of those
`plans” (Second Aff. Def.) and “internal deadlines set forth in” those plans (Fifth Aff. Def.). Ans. ¶¶ 147, 148 and 150. However,
`Defendant makes no allegations about what the plan terms at issue are or what is alleged to have occurred that was contrary to
`those unnamed plan terms. To the extent that these constitute factual allegations, they fall far short of the applicable pleading
`standards.
`
`• Defendant's Sixth Affirmative Defense claims that “as to Plaintiff and each member of the class he purports to represent,
`the amended Complaint, and/or each claim for relief contained therein, is barred in whole or in part by the doctrine of
`laches.” Ans. ¶ 151. Defendant's Seventh, Eighth and Ninth Affirmative defenses are identical, except the word “laches”
`is replaced by the words “estoppels,” “waiver,” and “unclean hands,” respectively. Ans. ¶¶ 152-54. Defendant's Twenty-
`Fourth Affirmative Defense is identical except that the claims are barred “because any recovery from Defendant would
`result in unjust enrichment.” Ans. ¶ 169. Defendant fails to make a single factual allegation regarding these equitable
`defenses. Defendant does not even identify a broad category of behavior that the Plaintiff and every putative class
`member is alleged to have engaged in to give rise to these defenses. Plaintiff is therefore provided with no notice of the
`basis for these affirmative defenses and can only speculate as to the bases for Defendant's defenses.
` Defendant's Fourth, Fifth, Tenth, Eleventh, Twentieth and Twenty-First Affirmative Defenses allege that all claims
`asserted by Plaintiff and the putative class members are “barred in whole or in party by any and all applicable statutes
`of limitation,” “barred by their failure to comply with internal deadlines set forth in the PTG Pension Plan and/or the
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
`
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`

`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 7 of 12 PageID #: 511
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
`
`AT&T Pension Plan,” “moot,” “barred ... to the extent each [class member] lacks standing,” “barred by the failure ...
`to exhaust their administrative remedies with respect to each claim, and “barred by their execution of an Election of
`Distribution, a release, a waiver or an acknowledgement that no further benefits would be paid to them.” Ans. ¶¶ 149,
`150, 155, 156, 165, 166. Defendant fails to allege any facts in support of these defenses other than the existence of the
`two plans referenced in ¶ 150. Defendant provides no clues as to which statutes of limitation or internal plan deadlines it
`contends were violated, nor does defendant provide any clues as to why all Plaintiffs claims are moot or why Plaintiff and
`the entire putative class lack standing. Likewise, Defendant fails to indicate what alleged defect there was in Plaintiff's
`administrative exhaustion process, or what form, release, waiver or acknowledgement Plaintiff is alleged to have signed.
`Plaintiff is again left to speculate as to the basis for the defenses asserted against him and Defendant has fallen well short
`of providing Plaintiff with fair notice or satisfying Twombly/Iqbal.
`
` Defendants First, Second, Third, Eighteenth, and Twenty-Second Affirmative Defenses attempt to negate elements
`of Plaintiff's prima facie case regarding the claims asserted against Defendant. Not only are these improperly pled as
`affirmative defenses, but Defendant fails to allege its factual basis for these alleged holes in Plaintiff's case. Specifically,
`Defendant does not shed any light on (1) what alleged deficiency in the complaint renders all of Plaintiff's claims ones
`upon which no relief can be granted (Ans. ¶146), (2) what provision of the referenced pension plans allegedly render
`Plaintiff and the putative class ineligible for a “redetermined” Accelerated Transition Benefit (Ans. ¶ 147), (3) when
`payment for the benefits due was allegedly made (Ans. ¶148), (4) what relevant conduct allegedly conformed with which
`Plan terms (Ans. ¶163), or (5) what aspects of the Rule 23 standard Plaintiff allegedly cannot meet (Ans. ¶ 167). Because
`these defenses are comprised of legal conclusions and devoid of facts, they fail to meet the applicable pleading standards.
`
` Defendant's Fourteenth, Seventeenth, Eighteenth and Nineteenth Affirmative Defenses all contain cursory allegations
`about Defendant's alleged conduct. Specifically, Defendant alleges that it acted (1) with good cause, justification and
`good faith and without malice (Ans. ¶ 159), (2) as “would a prudent person familiar with such matters,” (Ans. ¶ 162),
`(3) in accordance with the governing plan documents and instruments (Ans. ¶ 163), and (4) “solely in the interest of
`the participants and beneficiaries“ of the plans (Ans. ¶ 164). Yet, Defendant does not make a single factual allegation
`supporting these legally significant conclusions. Instead, Plaintiff is again left to speculate about what conduct Defendant
`is referring. Thus, these allegations provide no notice to Plaintiff regarding these defenses and the applicable pleading
`standards are not met.
`
` Defendant's Twelfth, Sixteenth, and Twenty-Third Affirmative Defenses seek to limit the relief Plaintiff seeks in this
`case. (Ans. ¶¶ 157, 161 and 168.) Again, Defendant alleges no basis for these purported limits on Plaintiff's ability to
`recover or any factual allegations. Absent factual allegations explaining these defenses, these bare-bones allegations
`provide Plaintiff with no notice regarding these defenses.
`
` Defendant's Thirteenth Affirmative Defense alleges that Defendant is entitled to attorneys' fees under ERISA's
`attorney's fees provision and/or Rule 11. Ans. ¶ 158. Such allegations, in addition to failing to meet the definition of
`an affirmative defense, are unfounded and unsupported by any factual allegations suggesting how it is that Plaintiff's
`conduct has supposedly given rise to a Rule 11 violation or a legitimate attorney fee claim under ERISA. Such allegations
`should not be made without a factual basis, and as that is entirely lacking here, the pleading standard is not met and
`the “defense” should be stricken.
`
`By failing to plead any factual allegations, Defendant has failed to put Plaintiff on notice about what defenses are
`being advanced and thus failed to meet the applicable pleading requirements under Wyshak and Twombly/Iqbal. Unless
`Defendant is required to amend their answer and plead affirmative defenses with the requisite specificity, Plaintiff will
`be forced to conduct extensive discovery to determine what, if anything, forms the basis for the twenty four affirmative
`defenses asserted against him. 3 Given that the asserted defenses appear to be a boilerplate laundry list of affirmative
`defenses that have little to do with the actual factual underpinnings of this dispute about Plaintiff's entitlement to benefits,
`
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`Case 2:17-cv-00140-RWS-RSP Document 27-3 Filed 07/14/17 Page 8 of 12 PageID #: 512
`BARNES, v. AT&T PENSION BENEFIT..., 2010 WL 2846086...
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`Plaintiff suspects that once Defendant is required to appropriately plead their affirmative defenses, the issues in this
`case will be drastically limited. Striking these insufficient defenses will streamline this case so that discovery can focus
`on legitimate issues in dispute. Accordingly, Defendant's affirmative defenses should be stricken as insufficient with
`instruction that Defendant replead only those defenses for which it is able to assert a sufficient factual basis
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`Given the sheer number of purported affirmative defenses and the lack of any factual allegations, Plaintiff would have to
`issue at least 24 interrogatories just to gain a basic understanding of what Defendant is claiming as its defenses. As a result,
`Plaintiff would need to exceed the presumptive limit of 25 interrogatories under Rule 33. Even if Defendant provides sufficient
`information in these interrogatories, Plaintiff would likely have to propound request for documents and potentially take
`depositions and waste countless time and expense to refute these defenses for which there is perhaps no factual basis.
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`B. Certain of Defendant's “Defenses” Should Be Struck With Prejudice Because They Are Not Affirmative Defenses
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`Affirmative defenses admit allegations in the complaint, but assert additional facts that would defeat recovery. Solis v.
`Couturier, No. 8-2732, 2009 WL 3055207, at *4 (E.D.Cal. Sept. 17, 2009) (“An affirmative defense is ‘[a] defendant's
`assertion of facts and arguments that, if true, will defeat the plaintiffs or prosecution's claim, even if all the allegations
`in the complaint are true.”); see In re Nat'l Lumber and Supply, Inc. 184 B.R. 74, 77 (B.A.P. 9th Cir. 1995) (“Affirmative
`defenses plead matters extraneous to plaintiff's prima facie case which deny the plaintiff's right to recover even if the
`allegations in the complaint are true“) (emphasis added). By contrast, labeling contentions that only attack the sufficiency
`of plaintiffs' proof or allegations as affirmative defenses is improper. Fed. Trade Comm'n v. Think All Publ'g, L.L.C, 564
`F. Supp. 2d 663, 665-66 (E.D. Tex. 2008) (striking such defenses); In re Fleming Packaging Corp., 351 B.R. 626, 638
`(Bankr. C.D. Ill. 2006) (same); Gaudiello v. Allied-Signal, Inc., No. 90-20097, 1990 WL 304271, at *1 (N.D. Ill. Nov. 15,
`1990) (same). Such “negative defenses” should likewise be struck here as improper.
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`1. “Defenses” That Merely Negate An Element of Plaintiffs' Proof
`Are Not Affirmative Defenses And Should Be Stricken As Redundant
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`Defenses that merely negate an element of plaintiffs' proof are not affirmative defenses because they merely controvert an
`element of plaintiffs' prima facie case. Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002); Quintana
`v. Baca, 233 F.R.D. 562, 564 (C.D. Cal. 2005) (same). When Defendants have elsewhere in their answer denied the
`allegations, allowing these “negative defenses” to be asserted again by an affirmative defense will be redundant under
`Rule 12(f). Fed. Trade Comm'n, 564 F. Supp. at 665; Quintana, 233 F.R.D. at 564-565 (striking such “defenses”); see
`also E. & J. Gallo Winery v. Encana Energy Servs., Inc., No. 03-5412, 2008 WL 2489887, at *5 (E.D. Cal. Jun 18, 2008)
`(same); Gilbert v. Eli Lilly & Co., 56 F.R.D. 116, 125 (D. P.R. 1972) (same).
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`Although it is difficult to assess the nature of many of Defendant's affirmative defenses due to the lack of detail and
`supporting allegations, it appears that Defendant's Second, Third, Eighteenth and Twenty-Second Affirmative Defenses
`simply negate an element of Plaintiff's prima facie case. For example, the Second and Third Affirmative Defenses are
`comprised of cursory allegations that Plaintiff and the class are barred from receiving the benefits they seek because, first,
`they are not entitled to the requested benefits under the terms of the applicable plans, and second, that all benefits due
`under those plans have been paid. Ans. ¶¶ 147-48. Similarly, the Eighteenth Affirmative Defense alleges that Defendant
`acted in accordance