Lisa J. Stevenson, Acting General Counsel (lstevenson@fec.gov)

Kevin Deeley, Associate General Counsel (kdeeley@fec.gov)

Kevin P. Hancock, Acting Assistant General Counsel (khancock@fec.gov)

Sana Chaudhry, Attorney (schaudhry@fec.gov)

FOR THE PLAINTIFF

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650 

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

_______________________________________

)

FEDERAL ELECTION COMMISSION, )

)

Plaintiff, ) Case No. 2:15-cv-00439-DB

)

v. )

) CROSS-MOTION FOR PARTIAL

JEREMY JOHNSON, et al., ) JUDGMENT ON THE PLEADINGS 

)

Defendants. ) District Judge Dee Benson

 )

PLAINTIFF FEDERAL ELECTION COMMISSION’S 

CROSS-MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

Pursuant to Federal Rule of Civil Procedure 12(c), plaintiff Federal Election Commission 

cross-moves for judgment on the pleadings against the third affirmative defense of defendant 

John Swallow’s answer. (See Def.’s Answer to Am. Compl. at 37-38 (Docket No. 45).) 

On September 20, 2017, the Court stayed all proceedings in this case pending defendant 

Jeremy Johnson’s currently pending criminal appeal. (See Joint Stipulation and Order to Stay 

Proceedings ¶ 1 (Docket No. 91).) As an exception to that stay, the Court ordered that Swallow 

could file a motion under Rule 12(c) by October 23, 2017, and that in response the Commission 

could cross-move under Rule 12(c) “on any issues raised by defendant Swallow’s Rule 12(c) 

motion.” (Id.) On October 23, 2017, Swallow moved under Rule 12(c) against the Commission 

Case 2:15-cv-00439-DB Document 102 Filed 11/20/17 Page 1 of 3
2

in part on the basis of the third affirmative defense of his answer. (See Def. John Swallow’s 

Mot. to Dismiss, Mot. for J. on the Pleadings, and Mem. in Supp. at vi (Docket No. 98).) The 

Commission now cross-moves under Rule 12(c) against the third affirmative defense. 

The Court should grant the Commission’s cross-motion. Judgment against a pleaded 

affirmative defense is warranted under Rule 12(c) where the “non-moving party can prove no set 

of facts which would form the basis for relief” and thus the defense is “insufficient as a matter of 

law.” FDIC ex rel. Heritage Bank & Trust v. Lowe, 809 F. Supp. 856, 858-59 (D. Utah 1992) 

(dismissing affirmative defenses under Rule 12(c)). This Court has previously entered judgment 

on the pleadings in this case against defendant Jeremy Johnson’s legally insufficient affirmative 

defenses. (See Order on Mot. for Partial J. on the Pleadings or to Strike Affirmative Defenses 

(Docket No. 34).) Here, Swallow’s third affirmative defense is insufficient as a matter of law for 

the reasons stated in the Commission’s contemporaneously filed Memorandum in Opposition to 

Defendant John Swallow’s Motions to Dismiss and for Judgment on the Pleadings and in 

Support of the Commission’s Cross-Motion for Judgment on the Pleadings. See DUCivR 7-

1(b)(1)(A) (allowing a cross-movant to “incorporate the briefing contained in a memorandum in 

opposition”). 

Respectfully submitted,

Lisa J. Stevenson (lstevenson@fec.gov)

Acting General Counsel

Kevin Deeley (kdeeley@fec.gov)

Associate General Counsel

Kevin P. Hancock (khancock@fec.gov)

Acting Assistant General Counsel

November 20, 2017

/s/ Sana Chaudhry 

Sana Chaudhry (schaudhry@fec.gov)

Attorney

FOR THE PLAINTIFF 

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

Case 2:15-cv-00439-DB Document 102 Filed 11/20/17 Page 2 of 3
CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2017, I electronically filed plaintiff Federal 

Election Commission’s Cross-Motion for Partial Judgment on the Pleadings with the Clerk of the 

United States District Court for the District of Utah by using the Court’s CM/ECF system, which 

sent notification of such filing to the following: 

Allen Dickerson, Esq. (adickerson@ifs.org)

Tyler L. Martinez, Esq. (tmartinez@ifs.org)

Owen D. Yeates, Esq. (oyeates@ifs.org)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, VA 22314

Scott C. Williams, Esq. (scwlegal@gmail.com)

SCOTT C. WILLIAMS, LLC

43 East 400 South

Salt Lake City, Utah 84111

Attorneys for Defendant John Swallow

Karra J. Porter, Esq. (Karra.Porter@chrisjen.com)

John D. Lauritzen, Esq. (jd.lauritzen@chrisjen.com)

CHRISTENSEN & JENSEN, P.C.

257 East 200 South, Suite 1100

Salt Lake City, UT 84111

Attorneys for Defendant Jeremy Johnson

/s/ Sana Chaudhry

Sana Chaudhry

Attorney

Federal Election Commission

Case 2:15-cv-00439-DB Document 102 Filed 11/20/17 Page 3 of 3