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Trustees of the Local 464A United Food and Commercial Workers Union Pension Fund v. Wachovia Bank

November 24, 2009

RE: TRUSTEES OF THE LOCAL 464A UNITED FOOD AND COMMERCIAL WORKERS UNION PENSION FUND, ET AL.
v.
WACHOVIA BANK, N.A. ET AL.



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURT HOUSE 50 WALNUT STREET, P.O. BOX 419 NEWAR K, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

This matter comes before the Court on Plaintiffs' motion to strike certain of Defendants' affirmative defenses pursuant to Fed. R. Civ. P. 12(f). There was no oral argument. Fed. R. Civ. P. 78. For the reasons that follow, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This is an ERISA action brought by union pension funds against their investment managers. Plaintiffs are the trustees of the Local 464A United Food and Commercial Worker Union's pension, retirement, welfare and building funds, as well as the Union itself. Defendants are Wachovia Bank, N.A. ("Wachovia"), Evergreen Investment Management ("Evergreen"), and Tattersall Advisory Group ("Tattersall").*fn1

In their complaint, Plaintiffs bring Employee Retirement Income Security Act ("ERISA") and common law breach of fiduciary duty claims. Specifically, Plaintiffs claim that investment losses suffered in their fixed-income portfolios were due to Defendants' investment in mortgage-backed securities and collateralized mortgage obligations.

After this Court denied Defendants' motion to dismiss, see Docket No. 21, Defendants filed their answer, which included seventeen affirmative defenses. Plaintiffs now move to strike eleven of Defendants' affirmative defenses.

II. DISCUSSION

Plaintiffs put forth three general arguments in support of their motion to strike: (1) Defendants' affirmative defenses are improperly pled because they merely deny allegations in the complaint; (2) the affirmative defenses are legally insufficient; and (3) the affirmative defenses are "bare bones conclusory allegations" that fail to provide plaintiffs with notice and an opportunity to respond.

A. Rule 12(f) Standard

An affirmative defense constitutes a "defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." BLACK'S LAW DICTIONARY 451 (8th ed. 2004). Federal Rule of Civil Procedure 12(f) provides, in relevant part, that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Generally, courts are reluctant to grant motions to strike affirmative defenses since they require a premature evaluation of a defense's merits, before the necessary factual background is developed. See United States v. Sentient Colors, Inc., 580 F. Supp. 2d 369, 374 (D.N.J. 2008). Nonetheless, a motion to strike will be granted where the insufficiency of the defense is clearly apparent. Sentient Colors, 580 F. Supp. 2d at 374.

An affirmative defense is legally insufficient where it cannot succeed under any set of facts which may be inferred from the allegations of the pleading. Glenside West Corp. v. Exxon Corp., 761 F. Supp. 1100, 1115 (D.N.J. 1991). However, an affirmative defense pled in general terms will not be deemed insufficient as long as it gives plaintiffs fair notice of the nature of the defense. See Huertas v. U.S. Dep't of Educ., Civ. No. 08-3959, 2009 WL 2132429, at *2 (D.N.J. July 13, 2009) (citation omitted). On the other hand, where defenses pled are nothing ...


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