# Good v. Triton Steel Group, LLC

> District Court, M.D. Tennessee · December 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10438337

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** December 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10438337

## How later opinions describe it (automated extraction)

- holding that employee benefit fund was intended third-party beneficiary of a collective bargaining agreement

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

RODNEY GOOD, IRON WORKERS OF )
TENNESSEE VALLEY AND VICINITY )
WELFARE FUND, IRON WORKERS OF )
TENNESSEE VALLEY AND VICINITY )
PENSION FUND, and IRON WORKERS )
OF TENNESSEE VALLEY AND )
VICINITY ANNUITY FUND, )
)
Plaintiffs, )
)
v. ) Case No. 3:21-cv-00337
) Judge Aleta A. Trauger
TRITON STEEL GROUP, LLC a/k/a )
TRITON INDUSTRIES, LLC, and )
CHRISTOPHER ELLENBERGER, )
)
Defendants. )

MEMORANDUM

Defendants Triton Steel Group, LLC (“Triton”) and Christopher Ellenberger have filed a
Motion to Reconsider and Dissolve Preliminary Injunction (Doc. No. 63), to which plaintiffs
Rodney Good, Iron Workers of Tennessee Valley and Vicinity Welfare Fund, Iron Workers of
Tennessee Valley and Vicinity Pension Fund, and Iron Workers of Tennessee Valley and Vicinity
Annuity Fund have filed a Response (Doc. No. 65), and the defendants have filed a Reply (Doc.
No. 69). The plaintiffs have filed a Motion to Strike Defendants’ Affirmative Defenses (Doc. No.
75), to which the defendants have filed a Response (Doc. No. 78), and the plaintiffs have filed a
Reply (Doc. No. 79). For the reasons set out herein, the defendants’ motion will be denied, and the
plaintiffs’ motion will be granted in part and denied in part.
I. BACKGROUND
A. Procedural History
Because timing is important here, the court will begin with a chronology of the underlying
litigation.

On April 27, 2021, Good and three multiemployer benefit plans associated with Iron
Worker Local Unions of Tennessee Valley1 and Vicinity filed a Complaint in this court pursuant
to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
(Doc. No. 1.) The Complaint asserts that Triton, at the direction of Ellenberger as an officer of the
company, failed to make required contributions to the plaintiff plans in violation of 29 U.S.C. §
1145, also known as Section 515 of ERISA. (Id. ¶¶ 11–14.) The plaintiffs request (1) injunctive
relief requiring Triton to make all required future contributions and (2) damages representing “all
contributions that are owed as of the date of the judgment plus the greater of double interest or
single interest plus liquidated damages, and all attorney fees and costs incurred in connection with
this action.” (Id. at 5.)

On April 28, 2021, Summonses were issued to Ellenberger individually and to Triton
through Ellenberger as its registered agent. (Doc. No. 4.) The same day, the court entered a Notice
setting the initial case management conference for June 28, 2021. (Doc. No. 5 at 1.)
On June 15, 2021, the plaintiffs filed a Proof of Service stating that Ellenberger (and Triton
through Ellenberger) had been served by certified mail. (Doc. No. 6.) The receipt of delivery,
however, had no recipient signature. Instead, the signature block merely contained the handwritten
characters “COV 19,” presumably indicating that an in-person physical signature was not obtained
due to pandemic-related safety measures—an issue that has arisen in other cases, as well. See, e.g.,

1 For convenience, the court will refer to this collective group of local unions as “the union.”
Brown v. Pepper & Peach, LLC, No. 3:20-CV-01092, 2022 WL 179127, at *2 (M.D. Tenn. Jan.
19, 2022) (Hill, Clerk) (describing similar situation and noting that “[t]his type of notation is
consistent with the USPS’s COVID-era modification of its signature requirements for Certified
Mail receipts”).

The same day—June 15, 2021—the plaintiffs filed a Request for Entry of Default Pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure. (Doc. No. 7.) The plaintiffs asserted that the
defendants’ deadline for filing a responsive pleading or motion had been May 22, 2021, but the
defendants had failed to comply. (Doc. No. 7 at 1–2.) The plaintiffs argued that the court should
therefore enter default on behalf of all defendants. (Id.) The plaintiffs also moved for the court to
cancel the initial case management conference, which it did. (Doc. Nos. 9–10.)
On July 27, 2021, the Clerk of the Court denied the request for entry of default, citing the
plaintiffs’ failure to obtain a signature from Ellenberger or establish any adequate alternative basis
for finding effective service. (Doc. No. 14 at 6–7.)
On July 30, 2021, the plaintiffs filed an additional Proof of Service, asserting, this time,

that the process server effected personal service on Ellenberger on June 19, 2021. (Doc. No. 16.)
On August 2, 2021, the plaintiffs filed a Second Motion for Entry of Default (Doc. No. 17),
followed shortly by an Amended Second Motion for Entry of Default (Doc. No. 19). Those
motions requested default only against Ellenberger, not Triton. (Id.)
On September 14, 2021, the Clerk granted the Amended Motion and issued an Entry of
Default against Ellenberger. (Doc. No. 26.) In the ensuing months, the plaintiffs continued efforts
to perfect service against Triton. They sought and received extensions of time in which to do so.
(Doc. Nos. 29, 31, 33–34.) The plaintiffs have filed a Declaration of Leann LaRose, a paralegal
for plaintiffs’ counsel, describing her communications with Ellenberger throughout this period:
From this matter’s inception, I have communicated with Christopher Ellenberger
by telephone, electronic mail, and via the USPS. The email address provided to me
by Mr. Ellenberger and his assistant, Sarah Berkley, in May 2021 was
chris@tritongrouptn.com.

From May through December 2021, Mr. Ellenberger regularly corresponded with
me from chris@tritongrouptn.com; however, he ceased all communications in
January 2022 and only responded via electronic mail again (from the same email
account) after . . . April 12, 2022 . . . .2

(Doc. No. 66 at 1.)
In the meantime, on January 10, 2022, the plaintiffs filed a Motion for Entry of Default
against Triton. (Doc. No. 36.) The plaintiffs explained:
Plaintiffs have attempted to serve Triton via process server, certified mail, and the
Secretary of State, as well as by communicating directly with the registered agent
[Ellenberger] asking him to sign an acknowledgement of service, which he refused
to do. As confirmed by the process server and supported by this history, Triton is
evading service.

(Id. at 2 n.1.) The plaintiffs maintained that service through the Secretary of State was effective
pursuant to Tenn. Code Ann. § 48-208-104(b), which permits a plaintiff to rely on the Secretary
as the default agent of a defendant entity for the purposes of service of process in certain situations,
including “whenever its registered agent cannot be found with reasonable diligence.” Tenn. Code
Ann. § 48-208-104(b).
On February 17, 2022, the Clerk issued an Entry of Default as to Triton. (Doc. No. 38.)
On February 21, 2022, the plaintiffs filed a Motion for Preliminary Injunction, asking the
court to require the defendants “to submit reports and payments required under a collective
bargaining agreement, since without payment of contributions, Triton’s employees have been

2 The defendants argue that the court should disregard Rose’s Declaration because, although it is signed
and states that it was made under penalty of perjury, it does not expressly state that the facts therein are true
and correct or based on LaRose’s personal knowledge. The Declaration, however, expressly deals with
LaRose’s own actions, of which she would necessarily have been aware. The court therefore finds no fatal
deficiency in the Declaration.
harmed due to being deprived of retirement benefits.” (Doc. No. 40 at 1.) On the same day, LaRose
“served Mr. Ellenberger with copies of [the relevant filings] via electronic mail to
chris@tritongrouptn.com . . . .” (Doc. No. 66 at 2.)
On February 22, 2022, the court granted the motion and entered an Order “requiring the

timely future payment of contributions and submission of all monthly payroll reports, as required
under 29 U.S.C. § 1145,” as well as requiring that “[a]ll payments presently owing, and all payroll
reports presently due shall be submitted to Plaintiff Funds within twenty (20) days of the date of
entry of this order.” (Doc. No. 43 at 2.)
On March 15, 2022, the plaintiffs filed a Motion to Conduct Hearing to Determine if
[Triton] and its Agent, Christopher Ellenberger, Are in Civil Contempt. (Doc. No. 44.) The
plaintiffs asserted that the defendants had failed to comply with the terms of the preliminary
injunction. (Id. at 1–2.) The court granted the motion and set a show cause hearing for April 12,
2022. (Doc. No. 47 at 1.)
On April 12, 2022, the court held the hearing. The plaintiffs appeared through counsel, and
Ellenberger appeared pro se.3 Ellenberger told the court, “I do 100 percent wholeheartedly owe

money, and I’m going to pay it. I just need to figure out how much that is and make sure these are
correct.” (Doc. No. 50 at 6.) Ellenberger indicated that he was willing to work with the plaintiffs
in an attempt to come to terms regarding payments. (Id. at 9–10.)
The parties failed to resolve the matter between themselves, and, on April 26, 2022, the
court held another hearing. Ellenberger, who again proceeded pro se, acknowledged that he had

3 “[C]orporations or other forms of business entity . . . are not permitted to appear pro se in federal court
litigation.” B.R.-S.O.H. LLC (Sons of Hemp) v. City of Detroit, No. CV 17-11093, 2017 WL 2436029, at
*1 n.1 (E.D. Mich. Apr. 24, 2017), report and recommendation adopted, No. 17-11093, 2017 WL 2436025
(E.D. Mich. June 5, 2017). Accordingly, Ellenberger’s presence—though sufficient for his own personal
appearance in court—did not satisfy Triton’s distinct obligation to appear as well.
an obligation to comply with the preliminary injunction. He complained, however, that the full
payments required would be too onerous. (Doc. No. 53 at 3–4.) The court did not hold Ellenberger
or Triton in contempt at that time, but it held that the plaintiffs would be permitted to engage in
discovery regarding the defendants’ available assets. The court urged Ellenberger to obtain

counsel. (Id. at 7–9.)
On May 18, 2022, an attorney, Roland W. Baggott III, filed a Notice of Appearance on
behalf of Triton and Ellenberger. (Doc. No. 52 at 1.)
On June 9, 2022, Baggott filed a Motion to Set Aside Clerk’s [Entry of] Default. (Doc. No.
56.) The defendants argued that they had potentially meritorious defenses to liability and that the
court should afford them some lenience in light of the fact that they had been, until May of 2022,
unrepresented by counsel. (Id. at 3–6.) As part of their briefing of the motion, the defendants
indicated that they intended to dispute “[w]hether the Preliminary Injunction was merited.” (Id. at
4.) Specifically, they wrote:
On February 21, 2022, a mere four days after the Clerk’s Entry of Default against
Ellenberger, plaintiffs moved for a Preliminary Injunction, which motion was
granted the very next day. There is no evidence in the record that either defendant
was served with the Motion for Preliminary Injunction as required by Rule 4 or
Rule 5 (as applicable) prior to it being granted summarily. There is no evidence in
the record that either defendant had notice of the Motion as required by Rule
65(a)(1) prior to it being granted. There was no hearing, evidentiary or otherwise,
on the Motion for Preliminary Injunction. The Court entered the plaintiffs’
proposed order without making independent findings of fact or conclusions of law.

(Id. (citations omitted).) However, the defendants did not formally request any modification or
reconsideration of the preliminary injunction at that time.
On June 23, 2022, the plaintiffs filed a Response indicating that they did not oppose the
motion to set aside the defaults. (Doc. No. 61 at 1.)
On June 24, 2022, the court granted the motion and set aside the Entries of Default. (Doc.
No. 62 at 1.)
On June 29, 2022, the defendants filed their Motion to Reconsider and Dissolve
Preliminary Injunction (Doc. No. 63), which is now under consideration. The defendants have not

supported their motion with any substantive evidence or argument based on the plaintiffs’
likelihood of success or any of the other conventional preliminary injunction factors. See Wilson
v. Williams, 961 F.3d 829, 836 (6th Cir. 2020) (listing factors) (citation omitted). Rather, the
defendants argue that the court should dissolve the injunction without prejudice on the ground that
the defendants—who were unrepresented and in default at the time—received insufficient notice
of the plaintiffs’ request and were not afforded the typical 14-day response period before the
motion was granted. (Doc. No. 63 at 4.) As the defendants envision matters, the plaintiffs could
then file a new motion seeking the same preliminary relief.
B. Triton’s Answer and Affirmative Defenses
On August 12, 2022, the defendants each filed an Answer. (Doc. Nos. 71–72.) In addition

to denying various of the plaintiffs’ assertions, the defendants each pleaded nine largely identical
affirmative defenses. Six of those affirmative defenses are at issue in the plaintiffs’ Motion to
Strike:
• The First Affirmative Defense is that “Triton is not an employer who is engaged in
commerce or in any industry or activity affecting commerce” and that, therefore, “ERISA
does not apply.” (Doc. No. 71 at 3; Doc. No 72 at 3.)
• The Fourth Affirmative Defense is that there is no “live contract” between Triton and the
union, because the contract was terminated. (Doc. No. 71 at 4; Doc. No. 72 at 4.)
• The Fifth Affirmative Defense is that the late fees associated with Triton’s plan
contributions represent an unlawfully usurious interest rate under Tenn. Code Ann. § 47-
14-103(2) and that the contract between Triton and the union therefore “is not enforceable.”
(Doc. No. 71 at 4; Doc. No. 72 at 4–5.)

• The Sixth Affirmative Defense is that the plaintiffs failed to provide a contractually
required notice of delinquency before filing suit. (Doc. No. 71 at 5; Doc. No. 72 at 5.)
• The Seventh Affirmative Defense it that the plaintiffs “did not provide notice of material
breach and a reasonable opportunity to cure.” (Doc. No. 71 at 5; Doc. No. 72 at 5.)
• The Eighth Affirmative Defense is that the plaintiffs failed to comply with the contractually
mandated grievance procedure, including the requirement to submit the grievance to
arbitration. (Doc. No. 71 at 5–6; Doc. No. 72 at 5–6.)
The plaintiffs argue that the court should strike each of those six defenses as incapable of
succeeding. Striking the defenses at this stage, the plaintiffs argue, would conserve the resources

of the parties and the court by limiting the scope of discovery.
II. LEGAL STANDARD
A. Motion to Reconsider
While the Federal Rules of Civil Procedure fail to explicitly address motions to reconsider
interlocutory orders, “[d]istrict courts have authority both under common law and Rule 54(b) to
reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.”
Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004) (citing
Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)); see also In re Life Investors Ins. Co. of
Am., 589 F.3d 319, 326 n.6 (6th Cir. 2009) (“[A] district court may always reconsider and revise

its interlocutory orders while it retains jurisdiction over the case.”) (citing Rodriguez, 89 F. App’x
at 959; Mallory, 922 F.2d at 1282). Thus, district courts may “afford such relief from interlocutory
orders as justice requires.” Rodriguez, 89 F. App’x at 959 (quoting Citibank N.A. v. FDIC, 857 F.
Supp. 976, 981 (D.D.C.1994)) (internal brackets omitted). Courts traditionally will find
justification for reconsidering interlocutory orders when there is (1) an intervening change of

controlling law; (2) new evidence available; or (3) a need to correct clear error or prevent manifest
injustice. Louisville/Jefferson Cty. Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir.
2009) (citing Rodriguez, 89 F. App’x at 959). This standard “vests significant discretion in district
courts.” Rodriguez, 89 F. App’x at 959 n.7.
B. Motion to Strike
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may “order any
redundant, immaterial, impertinent, or scandalous matter stricken from any pleading, motion, or
other paper.” Fed R. Civ. P. 12(f). However, courts construing and applying Rule 12(f) have
followed the rule that “[a] motion to strike is a drastic remedy that should be used sparingly and
only when the purposes of justice require.” Driving Sch. Assoc. of Ohio v. Shipley, No. 1:92-CV-

00083, 2006 WL 2667017, at *1 (N.D. Ohio 2006) (citing Brown & Williamson Tobacco Corp. v.
United States, 201 F.2d 819, 822 (6th Cir. 1953)).
A motion to strike an affirmative defense under Rule 12(f) “is proper if the defense is
insufficient; that is, if ‘as a matter of law, the defense cannot succeed under any circumstances.’”
S.E.C. v. Thorn, No. 2:01-CV-290, 2002 WL 31412440, *2 (S.D. Ohio 2002) (quoting Ameriwood
Indus. Int’l Corp. v. Arthur Andersen & Co., 961 F. Supp. 1078, 1083 (W.D. Mich. 1997)). A
motion to strike should not be granted “if the insufficiency of the defense is not clearly apparent,
or if it raises factual issues that should be determined on a hearing on the merits.” United States v.
Pretty Prods. Inc., 780 F. Supp. 1488, 1498 (S.D. Ohio 1991) (quoting 5A Wright & Miller, Fed.
Prac. & Proc. § 1380 (1990)). The court “may only strike those defenses ‘so legally insufficient
that it is beyond cavil that defendants could not prevail on them.’” Id. (citation omitted). The
decision whether to strike an affirmative defense is within the discretion of the district court. See
Conocophillips Co. v. Shaffer, No. 3:05 CV 7131, 2005 WL 2280393, at *2 (N.D. Ohio 2005)

(“Rule 12(f) permits the Court to act with discretion in that it may strike irrelevant and superfluous
defenses or let them stand. There is absolutely no harm in letting them remain in the pleadings if,
as the Plaintiff contends, they are inapplicable.”).
III. ANALYSIS
A. Motion to Reconsider
The defendants argue that the court should set aside the preliminary injunction on the
ground that the defendants were not afforded sufficient notice or time to oppose the plaintiffs’
motion. The court, however, finds no merit in the argument that the notice that the plaintiffs
provided was, in and of itself, defective in any way. Rule 65(a)(1) requires only “notice”—not a
particular kind of notice—and the record shows that the plaintiffs sent their request to an email

address that Ellenberger, by his own admission, was using at the time. (See Doc. No. 50 at 3; Doc.
No. 66 at 1; see also Doc. No. 41 at 2, 8.) The defendants respond that they did not consent to
service by email, but “[n]o service is required on a party who is in default for failing to appear.”
Fed. R. Civ. P. 5(a)(2). Moreover, “[t]he determination of whether a party has received notice of
a preliminary injunction sufficient to satisfy Fed. R. Civ. P. 65(a) rests within the discretion of the
district court,” Midmark Corp. v. Janak Healthcare Priv. Ltd., No. 3:14-CV-088, 2014 WL
1513009, at *1 (S.D. Ohio Apr. 16, 2014), and the court concluded then—as it does now—that
notice was either sufficient or not required because the defendants were in default.
The defendants’ objection that they were not given enough time to respond is potentially
more persuasive. Admittedly, there is no specific minimum period of time that must elapse before
a district court may act on a motion for a preliminary injunction, and the court is permitted to
“determine the length of notice needed based on the urgency of the factual circumstances and the

time available.” Laster v. D.C., 439 F. Supp. 2d 93, 100 (D.D.C. 2006) (citing Ciena Corp. v.
Jarrard, 203 F.3d 312, 319 (4th Cir. 2000)). Nevertheless, granting such a motion after less than
a day would typically raise a red flag, because it would not afford the nonmovant “an opportunity
to respond and prepare an opposition.” Id. (citing Ciena Corp., 203 F.3d at 319).
An opportunity to respond, however, is only valuable to a party willing to respond, and a
narrow focus on the time between the plaintiffs’ formal request for an injunction and the court’s
Order does not paint a particularly full picture of the state of the case at that point. By the time the
plaintiffs filed their motion on February 21, 2022, the plaintiffs had engaged in a nearly ten-month
long process of trying, in vain, to get the defendants to participate in this litigation. Both defendants
were in default. Ellenberger had been made aware of the case’s existence but had refused to appear

or have his company appear. Any suggestion that the defendants failed to oppose the plaintiffs’
request solely because they were not afforded enough time to do so would therefore strain
credulity. Everything in the record suggests that the defendants were simply ignoring this case’s
existence—and continued to do so until they faced the possibility of contempt of court.
Even with that in mind, if the defendants had responded to the court’s ruling by actually
seeking a timely opportunity to oppose the plaintiffs’ motion, the court would have been inclined
to grant that opportunity. Indeed, the court’s Local Rules expressly contemplate precisely this
situation and permit reconsideration—if it is timely sought: “The Court may act on the motion
prior to the time allowed for response. In such event, the affected party may file a motion to
reconsider the Court’s ruling within fourteen (14) days after service of the order reflecting the
action of the Judge.” L.R. 7.01(b). These defendants simply did not avail themselves of that
opportunity.
The defendants’ request therefore must be considered pursuant to the ordinary standards

governing reconsideration of interlocutory orders. The defendants’ procedural complaints,
however, do not fall within the typical grounds for granting a motion to reconsider, particularly
this long after the challenged decision. “Traditionally, courts will find justification for
reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2)
new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.”
Rodriguez, 89 F. App’x at 959 (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D.
Ohio 1998)). The defendants have not identified any intervening change in the substantive law
governing the parties’ dispute, nor have they presented any new evidence. Moreover, any argument
that a manifest injustice has occurred is significantly undermined by the fact that Ellenberger
openly admitted to the court that he did, in fact, owe the plaintiffs money.

The only supposed injustice that the defendants have identified is that they were not
afforded enough time to respond to the plaintiffs’ motion. Whatever force that argument may have
had in late February or early March of 2022, when the defendants could have filed a motion
pursuant to L.R. 7.01(b), it is unavailing now. The defendants could have sought reconsideration
of the preliminary injunction in a timely manner, but they did not. Even when the court held two
separate hearings regarding the defendants’ need to comply with the injunction, Ellenberger gave
no indication whatsoever that he contested its validity. Rather, the defendants slept on their rights.
Even now, what the defendants have filed is not really a fully briefed motion for
reconsideration in the usual sense. An ordinary motion to reconsider would have included some
substantive argument in favor of the defendants’ position on the original motion, so that the court
could actually reconsider its previous decision and, potentially, come out another way. This
motion includes no argument along those lines. Rather, the defendants are not so much asking the
court to consider the plaintiffs’ motion anew, but to discard it—to wholly throw the plaintiffs’

valid request for preliminary relief out and require the plaintiffs to start the process over again,
despite the fact that, if anyone should be faulted for the court’s quick ruling, it is the court, not the
plaintiffs. The law requires no such result, and the court will not exercise its discretion to dictate
it. The defendants’ motion to reconsider will therefore be denied.
B. Motion to Strike
1. Effect of Striking an Affirmative Defense
Federal Rule of Civil Procedure 8(c) generally requires a defendant to “affirmatively state
any avoidance or affirmative defense” in its first response to a pleading, and the failure to do so
may (but does not necessarily) result in waiver of the defense. See Brent v. Wayne Cnty. Dep’t of
Hum. Servs., 901 F.3d 656, 680 (6th Cir. 2018) (citing Horton v. Potter, 369 F.3d 906, 911 (6th

Cir. 2004); Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986)); but see Shelbyville
Hosp. Corp. v. Mosley, No. 4:13-CV-88, 2017 WL 5586729, at *14 (E.D. Tenn. Nov. 20, 2017)
(“[F]ailure to raise an affirmative defense by responsive pleading does not always result in
waiver.”) (quoting Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997)). As a practical matter, then,
the inclusion of an affirmative defense in an answer often functions somewhat like the inclusion
of a claim in a complaint; it establishes that the particular defense is actually part of the case before
the court. A request to have a defense struck is, by extension, typically an effort to restrict the
case’s scope, not unlike a Rule 12(b)(6) motion that, although it does not seek outright dismissal
of all claims, asks the court to dispose of certain secondary claims that have not been sufficiently
pleaded and would simply clutter the case as it moved into discovery.
Despite that similarity, however, it would be a mistake to assume, as some plaintiffs do,
that a motion to strike an affirmative defense is simply the equivalent of a Rule 12(b)(6) motion—

just with the shoe on the other foot. Two principles—one obvious and one less so—foreclose such
an approach. First, Rule 12(f)’s “cannot succeed under any circumstances” standard is simply, on
its face, far more demanding of the movant than Rule 12(b)(6) is. See Hutchings v. Fed. Ins. Co.,
No. 6:08-CV-305-ORL-19KR, 2008 WL 4186994, at *2 (M.D. Fla. Sept. 8, 2008) (noting
differences between standards under Rule 12(b)(6) and Rule 12(f)). The likelihood that a Rule
12(f) motion will actually take any meaningful issues off the board is therefore considerably lower
than for a motion under Rule 12(b)(6).
Second, the potential effect of such a motion is curtailed by the fact that a defendant’s
pleaded affirmative defenses do not actually define the full scope of a defendant’s case, because
not every defense is an affirmative one in the parlance of the Federal Rules. “An affirmative

defense, under the meaning of Fed. R. Civ. P. 8(c), is a defense that does not negate the elements
of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s
claim are proven.” Roberge v. Hannah Marine Corp., 124 F.3d 199 (Table), 1997 WL 468330, at
*3 (6th Cir. Aug. 13, 1997). Aside from admitting or denying the specific allegations in the
complaint, an answer is not required to do anything or plead anything to preserve the defendant’s
right to pursue a defense based on negating elements of the plaintiff’s claims. Accordingly,
whether a particular defense is available to a defendant may not actually depend on whether the
defense was affirmatively pleaded at all—at least as long as the defendant was careful not to
concede the particular element that the defense would negate. Many theoretical defenses will
therefore remain potentially available to a defendant, even if no corresponding pleaded affirmative
defense can be found in its answer.
Combined, those two principles suggest that, in most cases, a motion to strike affirmative
defenses will be both unlikely to succeed and unlikely to have much impact even if it is granted.

That said, there are sometimes good reasons to strike a defense—particularly a meritless
affirmative defense that, unless struck, would significantly expand the scope of issues under
consideration in a case. It may, moreover, be helpful to obtain rulings from the court, at an early
stage, on core legal issues that will determine the direction of litigation, and a motion to strike a
defense may be one legitimate way to obtain such an early ruling, depending on the situation.
Finally, the court notes that, as the Sixth Circuit has acknowledged, ERISA’s provisions regarding
collection of unpaid premiums reflect a decision by Congress to streamline such actions and avoid
many of the complications ordinarily associated with labor/management disputes. Striking
unnecessary defenses can therefore support the purposes of ERISA itself. See Operating Engineers
Loc. 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1053 (6th Cir. 2015).

2. Connection to Interstate Commerce (First Affirmative Defense)
ERISA applies “to any employee benefit plan if it is established or maintained . . . (1) by
any employer engaged in commerce or in any industry or activity affecting commerce; or (2) by
any employee organization or organizations representing employees engaged in commerce or in
any industry or activity affecting commerce; or (3) by both.” 29 U.S.C. § 1003(a). As the plaintiffs
correctly point out, this provision does not actually require that Triton itself be engaged in business
in multiple states, as long as it participates in an industry that affects interstate commerce. See
Libbey-Owens-Ford Co. v. Blue Cross & Blue Shield Mut. of Ohio, 982 F.2d 1031, 1034 (6th Cir.
1993) (“ERISA applies to all employee benefit plans created by an employer engaged in interstate
commerce or any industry affecting interstate commerce.”)
As such, it is not ultimately determinative whether Triton engages in business outside of
Tennessee. What matters, rather, is whether the business it engages in falls within “a class of

activity that as a whole affects commerce.” Reber v. Provident Life & Acc. Ins. Co., 93 F. Supp.
2d 995, 1009 (S.D. Ind. 2000) (quoting Usery v. Lacy, 628 F.2d 1226, 1228 (9th Cir. 1980)). There
is no remotely plausible argument that the construction and/or ironworking industries would fail
that test. See Outstate Mich. Trowel Trades Health & Welfare Fund v. Alpha Concrete Corp., No.
1:07-CV-746, 2008 WL 4960154, at *1 (W.D. Mich. Nov. 19, 2008) (holding that “the building
and construction industry” is “an industry affecting commerce within the meaning of 29 U.S.C. §
185 and 29 U.S.C. § 1002(5) and (12)”). Indeed, despite the prevalence of ERISA-eligible plans
in the construction field and the frequency of litigation under those plans, the defendants have not
identified a single case adopting their position and finding these industries outside ERISA’s scope.
Rather, they rely on a 1991 out-of-circuit case involving a particular niche economic activity—the

private management of “the estates of two families, the principal assets of which [were] entirely
within Texas”—that, if anything, highlights the interstate character of the industries at issue here
by contrast. See Sheffield v. Allstate Life Ins. Co., 756 F. Supp. 309, 310 (S.D. Tex. 1991).
Indeed, the union contract at issue in this case itself makes clear that the union represents
employees in an industry that crosses state lines:
This agreement covers all work in the states of Tennessee, Missouri, Mississippi,
Georgia, Kentucky, North Carolina, Alabama, Arkansas, and South Carolina,
coming under the jurisdiction of the Iron Worker Local Unions of the Tennessee
Valley and Vicinity, as defined in the Local Union charters and District Council
boundary map.
(Doc. No. 56-1 at 5.) There is no colorable argument that the covered employees—scattered across
multiple states in a nationwide industry that relies on expensive physical materials that must be
processed, purchased, and shipped—are not engaged in activity directly affecting interstate
commerce. Triton’s First Affirmative Defense therefore has no meaningful possibility of success

and will be struck.
3. Existence of a Contract (Fourth Affirmative Defense)
The Fourth Affirmative Defense asserts that the agreement between Triton and the union
“was terminated” and that, as a result, “[t]he source of the obligation that the Plaintiffs claim has
been breached is no longer in effect.” (Doc. No. 71 at 4.) The plaintiffs respond that the defendants’
claim that the agreement was terminated “has no basis in fact and fails as a matter of law” based
on the language of the agreement itself. (Doc. No 76 at 8.) Specifically, the plaintiffs argue that,
based on the language of the contract, the defendants could not have terminated the agreement
earlier than April 30, 2023. (See Doc. No. 76 at 8–9.) The defendants argue that the plaintiffs have
misconstrued the relevant termination provisions. (Doc. No. 78 at 12.)

The questions of whether the parties had a meeting of the minds regarding the early
terminability of the contract and whether the contract was ever terminated potentially raise factual
issues that would be inappropriate to resolve on a motion to strike. See In re Est. of Josephson,
No. M2011-01792-COA-R3CV, 2012 WL 3984613, at *2 (Tenn. Ct. App. Sept. 11, 2012)
(“Whether a meeting of the minds occurred is a question of fact.”). The existence of an enforceable
obligation is, moreover, an element of the plaintiffs’ claims, meaning that, for reasons that the
court has already discussed, striking this defense would not really take that issue off the table
anyway. The court accordingly will not strike the Fourth Affirmative Defense. The court stresses,
however, that its holding in this regard is not based on any conclusion that the defendants’
argument on this point is likely to succeed. Rather, the court’s decision is based on the particular
allocation of pleading burdens under Rule 8 and the high bar for striking a defense under Rule
12(f), as those principles apply to this potential defense.
Although the court will not strike this defense, the court will, in the interest of advancing

the litigation, note one area in which the plaintiffs’ characterization of the relevant law is more
persuasive than the defendants’. The defendants argue that, unless there is a current live contract
between Triton and the union, then this court has no jurisdiction under ERISA. As the plaintiffs
point out, the Sixth Circuit has affirmatively rejected that position and held that the existence of a
contract in an ERISA case is a merits issue. See Operating Engineers' Loc. 324 Fringe Benefit
Funds v. Rieth-Riley Constr. Co., 43 F.4th 617, 622–24 (6th Cir. 2022); see also Trustees of B.A.C.
Loc. 32 Ins. Fund v. Fantin Enters., Inc., 163 F.3d 965, 970 (6th Cir. 1998) (considering ERISA
action regarding contract that had been terminated). Moreover, while the court cannot yet make
any kind of factual determination regarding termination of the contract, the court notes that the
defendants have filed a purported Notice of Termination that was issued in August of 2022, well

after this case was ongoing. (Doc. No. 77 at 1.) It therefore seems very unlikely that this defense
is likely to succeed, at least as a mechanism for defeating past liability. Whether there is an
ongoing, live contract between Triton and the union might be relevant to the availability of
prospective remedies or to some merits questions, but it does not create any jurisdictional bar to
this court’s consideration of claims that arose when a contract was in place.
4. Usurious Interest (Fifth Affirmative Defense)
The contract between Triton and the union included the following provision regarding late
contributions:
In the event the report and contributions are not received at the Funds office by the
tenth (10th) day of the month following the month in which the due date occurs, a
late charge will be assessed against the Employer in an amount equal to 10% of the
amount due. An interest charge will also be assessed against the Employer in an
amount equal to 1% of the delinquent contributions. An additional interest charge
of 1% will be assessed against the Employer for each succeeding month, or portion
thereof, during which the Employer remains delinquent.

(Doc. No. 56-1 at 19.) In the defendants’ Fifth Affirmative Defense, they argue that the 10% late
fee and the 1% monthly interest—amounting to a rate of 12% per annum—violate Tenn. Code
Ann. § 47-14-103, which provides:
Except as otherwise expressly provided by this chapter or by other statutes, the
maximum effective rates of interest are as follows:

(1) For all transactions in which other statutes fix a maximum effective rate of
interest for particular categories of creditors, lenders, or transactions, the rate
so fixed;

(2) For all written contracts, including obligations issued by or on behalf of the
state of Tennessee, any county, municipality, or district in the state, or any
agency, authority, branch, bureau, commission, corporation, department, or
instrumentality thereof, signed by the party to be charged, and not subject to
subdivision (1), the applicable formula rate; and

(3) For all other transactions, ten percent (10%) per annum.

Tenn. Code Ann. § 47-14-103. The defendants allege that the formula rate during the time periods
relevant to the plaintiffs’ claims was originally 7.25% and was later raised to 8.75%. (Doc. No. 71
at 4.)
The plaintiffs argue that, to the extent that the Tennessee usurious interest statute would
apply to these facts, it is preempted by the interest-related provisions of ERISA, including 29
U.S.C. § 1132(g)(2), which provides, in relevant part:
In any action under this subchapter by a fiduciary for or on behalf of a plan to
enforce section 1145 of this title in which a judgment in favor of the plan is
awarded, the court shall award the plan—

(A) the unpaid contributions,

(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—

(i) interest on the unpaid contributions, or

(ii) liquidated damages provided for under the plan in an amount not in
excess of 20 percent (or such higher percentage as may be permitted
under Federal or State law) of the amount determined by the court
under subparagraph (A) . . . .

For purposes of this paragraph, interest on unpaid contributions shall be determined
by using the rate provided under the plan, or, if none, the rate prescribed under
section 6621 of Title 26.

29 U.S.C.§ 1132(g)(2).
ERISA includes expansive preemption provisions that are intended to ensure that employee
benefit plan regulation will be exclusively a federal concern. See Aetna Health, Inc. v. Davila, 542
U.S. 200, 207–208 (2004). As relevant to this case, the statute requires that, “[e]xcept as provided
in [the ERISA saving clause, 29 U.S.C. 1144(b)(2)(A)], the provisions of this subchapter and
subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to
any employee benefit plan described in section 1003(a) of this title and not exempt under section
1003(b) of this title.” 29 U.S.C.§ 1144(a); see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44–45
(1987). The plaintiffs argue that the plain meaning of that provision requires the court to conclude
that Tenn. Code Ann. § 47-14-103 is preempted insofar as it would apply to ERISA-covered
benefit plans. The defendants argue, however, that no such preemption occurs, because Tenn. Code
Ann. § 47-14-103 is a statute of general applicability that does not “relate to any employee benefit
plan,” as the term “relate to” is used in the relevant preemption provision. 4

4 The defendants also argue that ERISA does not require preemption here because Tennessee’s usurious
interest statute includes a criminal provision, Tenn. Code Ann. § 47-14-112, and ERISA, by its own terms,
does not preempt “generally applicable criminal law.” 29 U.S.C. § 1144(b)(4). At most, though, that would
mean that ERISA does not preempt the criminal component of the statute, which is not at issue here. What
is at issue here is Tenn. Code Ann. § 47-14-103 as a civil cap on permissible interest.
Neither party has identified any precedent from the Sixth Circuit definitively resolving this
issue. The plaintiffs instead ask the court to adopt the reasoning of the Seventh Circuit in Operating
Eng’rs Local 139 Health Benefit Fund v. Gustafson Const. Corp., 258 F.3d 645 (7th Cir. 2001),
in which the court concluded that an ERISA-covered plan could impose late payment terms

including interest rates that, in a general context, would have violated Wisconsin’s anti-usury
statute. Id. at 653. The Seventh Circuit acknowledged that preemption might occur if the statutes
at issue directly conflicted, but it chose to construe the Wisconsin statute—which included an
“exception for cases in which a higher rate is authorized by other statutes”—not to apply. Id.
The same analysis is persuasive here. Tennessee’s anti-usury statute includes an exception
“[f]or all transactions in which other statutes fix a maximum effective rate of interest for particular
categories of creditors, lenders, or transactions.” Tenn. Code Ann. § 47-14-103(1). ERISA is an
“other statute” that expressly authorizes an alternate ceiling for interest: “the rate provided under
the plan, or, if none, the rate prescribed under section 6621 of Title 26.” 29 U.S.C.§ 1132(g)(2).
The court accordingly construes Tenn. Code Ann. § 47-14-103 not to apply to debts for unpaid

contributions under ERISA—and notes that, if the court did not so construe the Tennessee statute,
preemption would likely dictate the same result. The court accordingly will strike the Fifth
Affirmative Defense.
5. Pre-Suit Notice and Arbitration (Sixth and Eighth Affirmative Defenses)
The contract between Triton and the union set forth certain procedures regarding
delinquencies, including the following:
In the event the report and contributions are not received by the Funds by the
fifteenth (15th) day of the month after the due date, the Administrator will issue a
notice to the delinquent Employer advising the Employer of the delinquency and
requesting payment. The notice will warn the Employer that a late charge and
interest are assessed if contributions are not received by the tenth (10th) day of the
month following the due date. In addition, the notice will caution the Employer that
the delinquency will eventually be referred to Legal Counsel.

(Doc. No. 56-1 at 20.) As the Sixth Affirmative Defense, the defendants assert that compliance
with that procedure was a condition precedent to filing suit and that the plaintiffs failed to comply
with that condition. (Doc. No. 71 at 5.) Similarly, the defendants assert, as the Eighth Affirmative
Defense, that the plaintiffs failed to comply with the contract’s grievance provision, which requires
that “[a]ll grievances and disputes (other than jurisdictional disputes) arising out of the
interpretation or application of this Agreement” be submitted to arbitration. (Doc. No. 56-1 at 27.)
As a preliminary matter, the court notes that the plaintiffs argue in their Reply that—in
addition to the substantive grounds for striking these defenses that they initially identified—the
court should strike the Sixth Affirmative Defense because it fails to comply with Federal Rule of
Procedure 9(c), which “provides that a pleading denying the performance or occurrence of a
condition precedent ‘shall be made specifically and with particularity.’” Heights Driving Sch., Inc.
v. Top Driver, Inc., 51 F. App’x 932, 939 (6th Cir. 2002) (quoting Fed. R. Civ. P. 9(c)). This
argument is without merit. This particular (ostensible) condition precedent simply involves the
failure to provide a required notice. It is not clear what other detail could possibly be necessary
other than asserting, as the defendants have, that the notice was not sent. The defendants were not
required to list every hour of the day or date of the year in which something did not happen.
Substantively, the plaintiffs argue that the court should strike these defenses because the

plaintiff benefit funds were not parties to the underlying agreement, which was between Triton
and the union. The defendants do not dispute that it was, as a formal matter, the union—not the
legally distinct entities that are the benefit plans—that executed the contract. The defendants argue,
however, that the funds were intended beneficiaries and are bound by the agreement’s arbitration
and grievance provisions. See, e.g., Whaley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No.
1:14-CV-82, 2014 WL 12676124, at *2 (E.D. Tenn. Apr. 21, 2014) (holding that the plaintiff was
“subject to the arbitration clause as a purported beneficiary of the contract”).
Generally speaking, to qualify as a third-party beneficiary, a plaintiff must show that:
(1) The parties to the contract have not otherwise agreed;

(2) Recognition of a right to performance in the [third party] is appropriate to
effectuate the intention of the parties; and

(3) The terms of the contract or the circumstances surrounding performance
indicate that either:

(a) the performance of the promise will satisfy an obligation or discharge a
duty owed by the promisee to the beneficiary; or

(b) the promisee intends to give the beneficiary the benefit of the promised
performance.

Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 899 (Tenn. 2016) (quoting Owner-Operator
Indep. Drivers Ass’n v. Concord EFS, Inc., 59 S.W.3d 63, 70 (Tenn. 2001)). It may be debatable
whether the funds would satisfy that test, but it is not so beyond the realm of possibility that it
would support striking the pleaded defenses—particularly given that some of the factors, including
the “circumstances surrounding performance” may pose factual questions. See Fishbein v.
Miranda, 670 F. Supp. 2d 264, 275 (S.D.N.Y. 2009) (holding that employee benefit fund was
intended third-party beneficiary of a collective bargaining agreement). The court accordingly will
not strike either the Sixth or Eighth Affirmative Defense, although the court again stresses that this
outcome depends at least as much on the stage of proceedings and the allocation of burdens as it
does on any assessment of the substantive merits of the defense.
6. Notice of Breach and Opportunity to Cure (Seventh Affirmative Defense)
In at least some situations, “Tennessee caselaw requires notice and an opportunity to cure”
deficient performance under a contract. Greg Calfee Builders LLC v. MaGee, 616 S.W.3d 545,
555 (Tenn. Ct. App. 2020). The defendants assert that no such notice or opportunity occurred here.
Whether that is true or not is a factual issue beyond the scope of a motion to strike. That said, it
may nevertheless be appropriate to strike this defense, if, factual issues aside, the plaintiffs have
identified some legal ground for concluding that there is no meaningful possibility that the defense

will succeed.
Although the plaintiffs’ briefing on this defense is relatively short, they have carried that
burden. As a preliminary matter, the court notes that the defendants have not actually identified
any caselaw suggesting that notice and an opportunity to cure are required in all Tennessee breach
of contract cases. Indeed, the case on which they rely (1) limits its analysis to construction defects
and (2) stresses that, even in that setting, the requirement of notice and an opportunity to cure is
not “absolute.” Id. In any event, this is not a claim under Tennessee common law contract
principles. It is a collection action under ERISA. Any idiosyncratic features of Tennessee common
law that are incompatible with the prerequisites for filing suit under ERISA are therefore
completely preempted. See Smith v. Belk, Inc., No. 3:13-CV-332-TAV-CCS, 2013 WL 6181455,

at *6 (E.D. Tenn. Nov. 26, 2013). The defendants have not identified any provision of ERISA, any
term of the contract at issue here, or any rule from ERISA-related caselaw that would impose an
opportunity-to-cure requirement over and above the agreed-upon notice provisions already
addressed by the Sixth Affirmative Defense. The Seventh Affirmative Defense, therefore, will be
struck.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Reconsider and Dissolve Preliminary
Injunction (Doc. No. 63) will be denied, and the plaintiffs’ Motion to Strike Defendants’
Affirmative Defenses (Doc. No. 75) will be granted as to the First, Fifth, and Seventh Affirmative
Defenses and denied as to the Fourth, Sixth, and Eighth Affirmative Defenses.
An appropriate order will enter.

ALETA A. Ht
United States District Judge

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438337. Public record. Not legal advice.