Painters Joint Committee et al v. J.L. Wallco, Inc. et al

Filing 51

ORDER Denying 22 Plaintiffs' Motion to Strike. IT IS FURTHER ORDERED that 44 plaintiffs' Motion to File Amended Complaint is GRANTED. Plaintiff shall file and serve the second amended complaint. Signed by Judge James C. Mahan on 6/14/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PAINTERS JOINT COMMITTEE, et
al.,

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2:10-CV-1385 JCM (PAL)

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Plaintiffs,

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v.

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J.L. WALLCO, INC. Dba
Wallternatives, et al.,

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Defendants.

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ORDER

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Presently before the court is plaintiffs Employee Painters Trust Health & Welfare Fund’s,

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IUPAT Industry Pension Fund’s, Painters Apprentice Training Trust Fund’s, Painters Industry

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Promotion Fund’s, Painters JCIP Fund’s, Painters Joint Committee’s, Painters Labor Management

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Contract Fund’s, Painters Organizing Fund’s, and Painters Vacation-Holiday Savings Fund’s motion

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to strike defenses. (Doc. #22). The defendants Claudia Bammer, Genuine Quality Coatings, Inc.,

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Great American Insurance Company, Richard Rejan Nieto, Richard Raoul Nieto, and Sunrise

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Painting/RCH, Inc., have responded (doc. #23), and plaintiffs have replied (doc. #24).

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Also before the court is plaintiffs’ motion to file amended complaint. (Doc. #44). To date,

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no response has been filed.

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I.

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James C. Mahan
U.S. District Judge

Motion to Strike
Plaintiffs move the court pursuant to Federal Rule of Civil Procedure 12(f) to strike certain

defenses asserted in defendants’ answer (doc. #19).

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A.

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First, plaintiffs contend that the defenses are generic, unsupported by the facts, and should

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be stricken for failure to comply with the Twombly pleading standard. See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007) (holding that facts must state a claim that is plausible on its

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face). Although the Ninth Circuit has not had occasion to address whether Twombly applies to the

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pleading of affirmative defenses, this court sees no need to address the issue here, as plaintiffs have

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identified no resulting prejudice from the court’s decision to allow the defenses to stand until the

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parties have completed discovery. Accordingly, the motion to strike is denied on this ground.

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B.

Factual Basis for the Defenses

Multiemployer Pension Plan Amendments Act of 1980

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Second, plaintiffs allege that all contract defenses asserted in the answer are inapplicable

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under the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”). Defendants retort that

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only Employee Retirement Income Security Act (“ERISA”) employers are precluded from bringing

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such defenses. Although plaintiffs have alleged that defendants GQC, RCH, Richard, Rick, and

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Claudia are alter-egos of Wallternatives, that is an issue to be proved by the evidence and should not

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be the basis for a motion to dismiss.

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The court agrees with defendants. Plaintiffs are seeking to strike the defenses on the grounds

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that the defenses are not available to ERISA employers, even though the burden rests on the

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plaintiffs to prove that the defendants are ERISA employers by way of their alter-ego claim in the

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first place. Whereas this argument goes to the merits of the complaint, rather than the pleading

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standard, the court denies the motion to strike on this ground.

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C.

Negative Defenses

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Third, plaintiffs allege that defenses 15, 16, 17, 18, 19, and 20 are “negative defenses” rather

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than “affirmative defenses” and should be stricken because they merely restate facts already denied

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in defendants’ answer. Defendants retort that “[a]n improper designation of a denial as an affirmative

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defense should be disregarded and plaintiff put to his proof as if defendant’s negative averment had

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been properly labeled a specific denial.” (Doc. #23 at 8:28–9:1–2) (citing 5 Charles Alan Wright &

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Arthur R. Miller, Federal Practice and Procedure, § 1269 (2d ed. 1990)).

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James C. Mahan
U.S. District Judge

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The court agrees with defendants that these defenses should not be stricken. Again, the

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plaintiffs have identified no harm in allowing the defenses to remain in the answer until the parties

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have completed discovery, at which time the court will be better informed and able to determine

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which defenses are viable. Accordingly, the court denies the motion to strike on this ground.

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II.

Motion to File Amended Complaint

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Plaintiffs move the court for leave to file a second amended complaint to: (1) add general

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contractor defendant Schrader and Martinez Construction, Inc., and its license and bonding company

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Merchants Bonding Company; and (2) to add general contractor defendant William Nyles Ross d.b.a.

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Quality Choice Construction and license bonding company Western Surety Company. (Doc. #44).

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Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given

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when justice so requires.” The local rules of federal practice in the District of Nevada qualify this

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rule, and require that a plaintiff submit a proposed, amended complaint along with a motion to

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amend. LR 15-1(a).

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Here, plaintiff has complied with the local rule and attached the proposed, amended

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complaint. Whereas the defendants have failed to respond to the motion, the court sees no reason to

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depart from the general rule, which provides leave to amend freely when justice so requires.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion to strike

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defenses (doc. #22) be, and the same hereby is, DENIED;
IT IS FURTHER ORDERED that plaintiffs’ motion to file amended complaint (doc. #44)
is hereby GRANTED. Plaintiff shall file and serve the second amended complaint.
DATED June 14, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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