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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
CINDY ALEGRE, et al., 
Plaintiffs, 
v. 
UNITED STATES OF AMERICA, et al., 
Defendants. 

Consolidated with 

 
ORDER GRANTING IN PART AND 
DENYING IN PART PLAINTIFFS’ 
MOTION TO STRIKE 
DEFENDANTS’ AFFIRMATIVE 
DEFENSES TO PLAINTIFFS’ FIFTH 
AMENDED COMPLAINT 
 
(Doc. No. 286) 
 
Before the Court is Plaintiffs’ 1 Motion to Strike Defendant s’ Affirmative Defenses 
to Plaintiffs’ Fifth Amended Complaint. (Doc. No. 286.) The motion is fully briefed. (Doc. 
Nos. 286; 288; 289.) Pursuant to Local Rule 7.1.d.1, the Court finds this matter suitable for 
disposition without oral argument. 
 
1 The list of Plaintiffs in these consolidated actions spans five pages of the Fifth Amended 
Complaint. (See Doc. No. 254-1 at 1–5.) Accordingly, the Court will not endeavor to name all Plaintiffs 
in this footnote. Nevertheless, the Order refers to all Plaintiffs collectively as “Plaintiffs.” 
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For the following reasons, the Court GRANTS IN PART AND DENIES IN PART 
Plaintiffs’ motion. 
I. Background 
This action arises from Plaintiffs’ long -standing desire for federal recognition as 
members of the San Pasqual Band of Mission Indians (“San Pasqual” or the “Tribe”). 
On February 3, 2006, in the “2006 Decision,” the United States
2 denied the Tribe’s 
request for the United States to correct its records to recognize that Modesta Martinez 
Contreras (“Contreras”) possessed 4/ 4 San Pasqual Blood. (Doc. No. 254-1 ¶  41.) In the 
course of the present litigation, the parties ag reed that the United States would reconsider 
the 2006 Decision. (Id. ¶ 8.) 
On October 31, 2024, the United States issued its reconsideration or “2024 Decision” 
that, again, denied the Tribe’s request. (Id. ¶¶ 9, 41.) 
On February 5, 2025, Plaintiffs filed a Fifth Amended Complaint that challenges 
only the 2024 Decision. (Doc. No. 254-1.) On Ap ril 24, 2026, following the resolution of 
a motion to dismiss, the United States answered the operative complaint after the Court set 
a briefing schedule for the parties’ anticipated cross-motions for summary judgment. (Doc. 
Nos. 281–82.) In its Answer to the Fifth Am ended Complaint, the United States alleged 
twelve “affirmative and other defenses.” (Doc. No. 282 at 22–23 ¶¶ 1–12.) 
Plaintiffs seek to strike all of the United States’ affirmative defenses. (Doc. No. 286.) 
Further background can be found in the Court’s prior orders. (Doc. Nos. 43; 98; 99; 
121; 212; 277.) 
 
2 Defendants in these consolidated actions are th e United States of Americ a; the U.S. Department 
of Interior (“DOI”); Doug Burgum, in his official capacity as Secretar y of DOI; Bryan Mercier, in his 
official capacity as Direct or of the Bureau of Indian Affairs; Lance Wenger, in his official capacity as 
Regional Solicitor for DOI’s Office of the Solicitor’s Pacific Southwest Region; Amy Dutschke, in her 
official capacity as Regional Director for DOI’s Indian Affairs’ Pacific Region; Javin Moore, in his official 
capacity as Superintendent for DOI’s Indian Affairs’ Southern California Agency; and 200 Doe 
Defendants. (Doc. No. 254-1 at 6.) This Order refers to all Defendants collectively as the “United States.” 
 Additionally, page citations refe r to the pagination generated by the Case Management/Electronic 
Case Files system. 
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II. Legal Standard 
Federal Rule of Civil Procedure 12(f) authorizes courts to strike “an insufficient 
defense or any redundant, immaterial, impertinent, or scanda lous matter.” The purpose of 
this authorization is “to avoid the expenditu re of time and money that must arise from 
litigating spurious issues by disposing of those i ssues prior to trial.” Whittlestone, Inc. v. 
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 
F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 
U.S. 517 (1994)). 
In ruling on a Rule 12(f) motion, courts review the pleading “in the light most 
favorable to the pleader.” In re New Century, 588 F. Supp. 2d 1206, 1220 (C.D. Cal. 2008) 
(citation omitted). “Motions to strike are ‘generally disfavored because they are often used 
as delaying tactics and because of the limited importance of pleadings in federal practice.’” 
Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales 
v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001 )). “Before a motion to strike is 
granted[,] the court must be convinced that there are no questions of fact, that any questions 
of law are clear and not in dispute, and that under no set of circumstances could the claim 
or defense succeed.” RDF Media Ltd. v. Fox Broad. Co. , 372 F. Supp. 2d 556, 561 (C.D. 
Cal. 2005) (citations omitted). 
III. Discussion 
A. Pleading requirements for defenses. 
Pursuant to Federal Rule of Civil Procedure 8(b)(1)(A), a defendant must “state in 
short and plain terms its defenses to each cl aim asserted against it.” Defendants are also 
required to “affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 
8(c)(1). “Every defense to a claim for relief in any pleading must be asserted in the 
responsive pleading if one is required.” Fed. R. Civ. P. 12(b). Howe ver, some defenses 
must be made by motion before a responsive pleading is filed. Fed. R. Civ. P. 
12(h)(1)(B)(i). Others may be raised in an answer. Fed. R. Civ. P. 12(h)(2)(A); see also 
Fed. R. Civ. P. 7(a)(2). 
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A defense can fall into one of two categories. A defe ndant can raise a “negative 
defense,” which “negates an element that [the plaintiff] was required to prove.” Zivkovic v. 
S. Cal. Edison Co. , 302 F.3d 1080, 1088 (9th Cir. 2002). Alternatively, a defendant can 
raise an “affirmative defense,” which consists of “allegations unrelated to the plaintiff’s 
prima facie case that deny the plaintiff’s right to relief, even if all allegations in the 
complaint are true.” Kohler v. Staples the Office Superstore, LLC (“Staples”), 291 F.R.D. 
464, 471 (S.D. Cal. 2013). 
When an affirmative defense is raised, it “may be insufficient as a matter of pleading 
or as a matter of law.” Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 564 (S.D. Cal. 
2012) (citation omitted). The Court reviews the sufficiency of affirmative defenses using 
the “fair notice” pleading standard.
3 Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 
1979). Fair notice generally requires that a defendant articulate an affirmative defense 
clearly enough that the plaintiff is “not a victim of unfair surprise.” Bd. of Trustees of San 
Diego Elec. Pension Trust v. Bigley Elec., Inc., No. 07-cv-00634-IEG-LSP, 2007 WL 
2070355, at *2 (S.D. Cal. July 12, 2007) (quoting Woodfield v. Bowman , 193 F.3d 354, 
362 (5th Cir. 1999)); see also Wyshak, 607 F.2d at 827. 
B. The majority of the United States’ defenses are properly presented. 
In light of the pleading requirements, the United States alleges the following 
“affirmative and other defenses”: 
1. Plaintiff has failed to state a claim for which relief can be granted. 
2. The Court lacks jurisdiction over some or all of Plaintiff’s claims and/or 
over some or all of the individual Defendants. 
3. Plaintiff’s claims are barred by the statute of limitations. 
 
3 District courts within the Ninth Circuit are spl it on whether Rule 8(c) affirmative defenses must 
be pled to the “fair notic e” standard articulated in Conley v. Gibson , 355 U.S. 41 (1957), or to the more 
stringent pleading standard that the Supreme Court applied to Rule 8(a) “claims for relief” in Bell Atlantic 
Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Compare, e.g., 
Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Cal. 2013) (finding the case law “strongly suggests 
that the Ninth Circuit does not believe the more stringent Twombly/Iqbal standard should be applied to 
affirmative defenses”), with Hernandez v. County of Monterey, 306 F.R.D. 279, 284 (N.D. Cal. 2015). 
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4. Plaintiff’s claims are barred by waiver. 
5. To the extent the Court concludes Pl aintiff is entitled to [Administrative 
Procedure Act (“APA”)] relief, the onl y appropriate remedy is for the 
Court to compel agency action unl awfully withheld or unreasonably 
delayed or to hold unlawful and set aside agency action, findings, and 
conclusion that violate the law or are otherwise arbitrary and capricious. 
6. Money damages are not available under the APA. 
7. Review under the APA, and under similar standards, is limited to “final 
agency action” that is not preclude d from review by another statute or 
legally committed to the agency’s discretion. 
8. To the extent Plaintiff challenges actions appropriately considered 
informal adjudication, any such review should allow the agency significant 
discretion in the formulation of its procedures. 
9. To the extent Plaintiff demands a jury trial, Defendant objects on the 
ground that the APA does not provide a right to a trial by jury, and the 
United States and its agencies have not waived sovereign immunity and 
consented to a jury trial in APA cases. See W. Radio Serv s. Co. v. U.S. 
Forest Serv. , 578 F.3d 1116, 1123 (9th Cir. 2009); see also Lehman v. 
Nakshian, 453 U.S. 156, 160 (1981). 
10. To the extent Plaintiffs have failed to join, pursuant to Fed. R. Civ. P. 19, 
persons required to be joined if feasible and/or persons in whose absence 
the action should not proceed, incl uding the Tribe, the Court should 
dismiss the claims affected or deny relief that should not be granted in the 
third party’s absence. 
11. To the extent Plaintiffs seek the Cour t to order that they are members of 
the Tribe, the Court lacks jurisdiction to do so. 
12. To the extent Plaintiffs seek the C ourt to determine the qualifications to 
join the Tribe are different than th e Tribe’s Constitution states, the Court 
lacks jurisdiction to do so. 
 
(Doc. No. 282 at 22–23 ¶¶  1–12.) The remainder of this Order will refer to an individual 
“Defense” or to multiple “Defenses” as appropriate. 
Plaintiffs contend that these “affirmative defenses” should be stricken because the 
United States “simply pri
nted out a list of ‘b oiler plate’ affirmative defenses” to which 
“Plaintiffs have no idea how to respond.” (Doc. No. 286-1 at 2.) 
The United States does not meaningfully c ontest Plaintiffs’ characterization of the 
Defenses as “affirmative defenses,” but object to Plaintiffs’ motion. ( See generally Doc. 
No. 288.) 
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Plaintiffs’ contentions encounter two obstacles. 
First, the Federal Rules of Civil Procedure explicitly authorize several of the United 
States’ Defenses, even if they are improperl y characterized as affirmative defenses. In 
particular, Rule 12(h)(2)(A) explains that the defenses of “[f]ailure to state a claim upon 
which relief can be granted [and] to join a person required by Rule 19(b) . . . may be raised 
. . . in any pleading allowed or ordered under Rule 7(a).” Pleadings allowed under Rule 
7(a) include “answer[s] to a complaint.” Fed. R. Civ. P. 7(a)(2). This covers Defenses One 
and Ten. 
Further, contrary to their initial claim that they “have no idea how to respond” to 
these Defenses, Plaintiffs articulate specific responses to the Defenses. (Compare Doc. No. 
286-1 at 2, with id. at 3, 10.) By articulating specific responses to each Defense, Plaintiffs 
demonstrate that they have received fair notice of the substance of these Defenses and will 
not be “victim[s] of unfair surprise.” San Diego Elec. Pension Trust , No. 07-cv-00634-
IEG-LSP, 2007 WL 2070355, at *2 (citation omitted). 
Thus, Defenses One and Ten are expressly permitted and the Court sees no basis to 
strike either Defense. 
Second, the majority of the United States’ remaining Defenses are not affirmative 
defenses and, in any event, Plaintiffs have not been deprived of fair notice. Again, an 
affirmative defense consists of “allegations unrelated to the plaintiff’s prima facie case that 
deny the plaintiff’s right to relief, even if all allegations in the complaint are true.” Staples, 
291 F.R.D. at 471. Rather than presenting factual allegations that would deny Plaintiffs any 
right to relief, the United States concedes that Defenses Five through Nine are 
“restatements of applicable APA law and, as such, are not traditional affirmative defenses.” 
(Doc. No. 288 at 4–6.) Plaintiffs reply that “these are not defenses, but simply restatements 
of the law” that must be stricken. (Doc. No. 289 at 3.) 
Plaintiffs’ conclusory reply is unavailing. Plaintiffs do not cite any authority to 
support the proposition that a statement of law can constitute a defense. (See generally id.) 
Regardless, a defen
se is, at its crux, a “def endant’s stated reason why the plaintiff or 
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prosecutor has no valid case.” Defense, Black’s Law Dictionary (12th ed. 2024). Applying 
this definition, statements of law can constitute a defense when they identify elements that 
a plaintiff must prove and indicate the plain tiff has not or cannot carry this burden. For 
example, a plaintiff who brings an APA challenge to an agency decision must demonstrate 
that the challenged agency action is made reviewable by statute or final. 5 U.S.C. §  704; 
see also Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007). Defenses Five 
through Nine, in turn, ar e better categorized as negative defenses that identify and negate 
elements that Plaintiffs must prove. See Zivkovic, 302 F.3d at 1088. Defenses Two, Eleven, 
and Twelve—addressing the Court’s subject-matter jurisdiction—similarly seek to negate 
elements that Plaintiffs must prove. See id. The United States’ ambiguous identifications 
of these Defenses as “affirmative and other defenses” (Doc. No. 282 at 22 (emphasis 
added)) and “not traditional af firmative defenses” (Doc. No. 288 at 6) do not provide a 
basis to strike these Defenses. Staples, 291 F.R.D. at 471. 
Additionally, similar to Defenses One and Ten, Plaintiffs provide specific responses 
to Defenses Two, Five through Nine, Elev en, and Twelve. (Doc. No. 286-1 at 4, 6–12.) 
The Court consequently cannot say that Plaintiffs have been deprived of fair notice of these 
Defenses such that they are insufficient. San Diego Elec. Pension Trust, No. 07-cv-00634-
IEG-LSP, 2007 WL 2070355, at *2 (citation omitted). 
Under these circumstances, the Court sees no reason to strike Defenses Two, Five, 
Six, Seven, Eight, Nine, Eleven, and Twelve. 
This leaves Defenses Three and Four, which the Court will strike. In contrast to the 
United States’ other Defenses, Defenses Three and Four are affirmative defenses. See Fed. 
R. Civ. P. 8(c)(1) (“In responding to a plead ing, a party must affirmatively state any .  . . 
affirmative defense, including: . . . statute of limitations[] and waiver.”). The United States 
“admit[s] that these [D]efenses are inapplicable” to Counts On e and Five solely as those 
Counts “relate[] to an APA challenge” of the 2024 Decision. (Doc. No. 288 at 3–4.) Given 
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that Plaintiffs’ only surviving claims are APA claims, the Court accepts the United States’ 
concession and STRIKES Defenses Three and Four. (See Doc. No. 277 at 7–8, 12–13.)
4 
C. There is no reason to grant the United States leave to amend. 
The United States notes that leave to ame nd should be “freely given if it would not 
prejudice the opposing party” and requests an opportunity to amend if the Court grants the 
motion to strike in whole or in part. (Doc. No. 288 at 8 (citing Wyshak, 607 F.2d at 826).) 
However, given that the Court strikes Defenses Three and Four based on the United States’ 
concession, the Court sees no reason to grant the United States leave to amend. 
IV. Conclusion 
For the foregoing reasons, the Court VACATES the hearing set for August 27, 2026. 
(Doc. No. 287.) The Plaintiffs’ Motion to Stri ke Defendants’ Affirmative Defenses to 
Plaintiffs’ Fifth Amended Complaint is GRANTED IN PART AND DENIED IN PART. 
(Doc. No. 286.) The Court STRIKES Defenses Three and Four from the United States’ 
Answer to Fifth Amended Complaint. (Doc. No. 282.) 
IT IS SO ORDERED. 
Dated: June 4, 2026 
 
 
4 The United States notes a concer n that “Plaintiffs have repeatedly sought to augment their claims” 
and “have invented a standalone Equal Protection claim for which th ey demand a jury trial and money 
damages.” (Doc. No. 288 at 3–4; see also Doc. Nos. 286-1 at 7, 9; 288 at 5.) The Court previously 
dismissed without leave to amend such a claim. (Doc. No. 121.) The Court will not entertain any attempt 
to resurrect a bare Equal Protection Clause claim that demands a jury trial or monetary damages. (Id.; see 
also Doc. No. 277 at 12–13.) 
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