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discussing the two schools of thought and providing numerous examples
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Robert Joseph Alwine, II, Robert Joseph Alwine, P.A., Key Biscayne, FL, Umberto C. Bonavita, Serena Angelette Witter, Robert Allen Law, Miami, FL, for Plaintiff.
Douglas Crane Broeker, Sweetapple, Broeker & Varkas, P.L., Miami, FL, Patrick H. Boggs, Pro Hac Vice, Onda, LaBuhn, Rankin & Boggs Co., LPA, Columbus, OH, for Defendants.
ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES
JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on FAST SRL’s ("Plaintiff’s") Motion to Strike Defendants William Prokos, Best Price Private Jets, LLC, Donald Moss and Classic Air Charter, Inc.’s Affirmative Defenses (hereinafter, "Motion to Strike") [ECF No. 51]. In its Motion to Strike, Plaintiff asks this Court strike Defendants’ nine affirmative defenses pled by Defendants in their Answer and Cross Claim [ECF No. 40] due to insufficiency. To date, Defendants Prokos, Best Price Private Jets, LLC, Donald Moss and Classic Air Charter, Inc. (collectively, "Defendants") have not responded to the Motion to Strike. The Court has reviewed Plaintiff’s Motion to Strike, the record in this action, and is otherwise fully advised in the premises.
I. Legal Standards
A. Standard on a Motion to Strike
Rule 12(f) of the Federal Rules of Civil Procedure explains when the court can strike "a pleading, an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The court can do this on its own or "on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." Fed.R.Civ.P. 12(f). Courts "have broad discretion when considering a motion to strike," however, "striking defenses from a pleading" remains a " ‘drastic remedy to be resorted to only when required for the purposes of justice’ and only when the stricken material has ‘no possible relation to the controversy.’ " Guarantee Ins. Co. v. Brand Mgmt. Serv., Inc., No. 12-61670, 2013 WL 4496510, at *2 (S.D. Fla. Aug. 22, 2013).
B. Standard for Pleading Affirmative Defenses
When it comes to the pleading standard that applies to affirmative defenses, courts adhere to different schools of thoughts. Ctr. for Individual Rights v. Chevaldina, Case No. 16-20905, 2017 WL 2954919, at *3 (S.D. Fla. July 11, 2017) (" ‘Courts have developed two schools of thought regarding the pleading standard required for affirmative defenses, and the Eleventh Circuit has not yet resolved the split in opinion.’ ") (quoting Ramnarine v. CP RE Holdco 2009-1, LLC, No. 12-61716, 2013 WL 1788503, at *1 (S.D. Fla. Apr. 26, 2013) ). Specifically, "[t]here is currently a split of authority in the Eleventh Circuit on whether affirmative defenses must comply with Rule 8." Chevaldina, 2017 WL 2954919, at *3. Rule 8(b)(1)(A) of the Federal Rules of Civil Procedure states that in responding to a pleading, a party must "state in short and plain terms its defenses to each claim asserted against it." Fed.R.Civ.P. 8(b)(1)(A). At issue is whether the "plausibility standard," as articulated in the Supreme Court cases of Bell Atlantic v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), applies to affirmative defenses. Id. Courts adhering to one school of thought "have held that affirmative defenses are subject to the heightened pleading standard set forth" in Twombly and Iqbal . Chevaldina, 2017 WL 2954919, at *3 (citing Home Mgmt. Sol, Inc. v. Prescient Inc., No. 07-20608, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007), Microsoft Corp. v. Jesse’s Computers & Repair, Inc. 211 F.R.D. 681 (M.D. Fla. Dec. 9, 2002), Torres v. TPUSA, Inc., No. 2:08-cv-618-FtM-29DNF, 2009 WL 764466 (M.D. Fla. Mar. 19, 2009), Holtzman v. B/E AeroSpace, Inc., No. 07-80551, 2008 WL 2225668, at *2 (S.D. Fla. May 28, 2008) ). Accordingly, courts applying the plausibility standard to affirmative defenses will strike "defenses which offer labels or conclusions" as insufficient because they would fail to "include factual allegations to ‘raise a right to relief above the speculative level.’ " Chevaldina, 2017 WL 2954919, at *3 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Other courts finding that affirmative defenses "should be subject to the same general pleading standards of complaints" also arrived at this conclusion by reasoning that "[a] plaintiff should be given sufficient notice given (sic) of the defense asserted and the ground upon which it rests." Losada v. Norwegian (Bahamas) Ltd., 296 F.R.D. 688, 691 (S.D. Fla. 2013); see also Castillo v. Roche Labs Inc., No. 10-20876, 2010 WL 3027726 (S.D. Fla. Aug. 2, 2010) (finding affirmative defense insufficient "because Defendant fails to plead any supporting facts or the elements of the defense that would give Plaintiff ‘fair notice’ of the defense being asserted").
Other courts have found that "affirmative defenses are not subject to the heightened pleading standard elucidated in Twombly and Iqbal " and "[t]he straightforward construction of Rule 8 delineates different standards for pleadings generally, and those applicable defenses." Laferte v. Murphy Painters, Inc., Case No. 17-CIV-60375, 2017 WL 2537259, at *2 (S.D. Fla. June 12, 2017); see also Tsavaris v. Pfizer, 310 F.R.D. 678, 680-81 (S.D. Fla. Sept. 25, 2015) (same) (citing Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 2015 WL 1566398, at *2 (S.D. Fla. Apr. 8, 2015), Sparta Ins. Co. v. Colareta, No. 13-60579-CIV, 2013 WL 5588140, at *1 (S.D. Fla. Oct. 10, 2013), Gonzalez v. Midland Credit Mgmt., Inc., No. 6:13-CV-1576-ORL-37, 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013), Ramnarine, 2013 WL 1788503, at *1, Adams v. JP Morgan Chase Bank, N.A., No. 3:11-cv-337-J-37MCR, 2011 WL 2938467, at *2-*3 (M.D. Fla. July 21, 2011) ). In doing so, courts have looked to the "subtle but significant" difference in language between Rule 8(a) and Rule 8(b), noting that Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," while "Rule 8(b) merely requires that a party ‘state in short and plain terms its defenses to each claim against it.’ " Laferte, 2017 WL 2537259, at *2 ("The straightforward construction of Rule 8 delineates different standards for pleadings generally, and those applicable to defenses."). In addition to this statutory construction, these courts have also found that " ‘when one considers that a defendant must answer the complaint within 21 days, imposing a different standard for defenses is not unfair.’ " Id. (citing Floyd v. SunTrust Banks, Inc., No. 1:10-CV-2620-RWS, 2011 WL 2441744, at *8 (N.D.Ga. June 13, 2011) ).
In this Court’s view, based on the distinction in the language of the Federal Rules of Civil Procedure Rule 8(a) and Rule 8(b)-(c), which apply to complaints and affirmative defenses, respectively, the heightened pleading standard as set forth in Twombly and Iqbal is inapplicable to affirmative defenses. Rule (8)(b) only requires that the party responding to a pleading state its defense in "short and plain terms." Fed.R.Civ.P. 8(b)(1)(A).
This issue is not a matter of first impression before this Court. This Court has previously held that the heightened pleading standard as set forth in Twombly and Iqbal does not apply to affirmative defenses. Decarlo v. McKinnon, 13-14324, 2013 WL 12077796 (S.D. Fla. Nov. 19, 2013); see also Tillis v. Loar, 13-14160, 2013 WL 12178572 (S.D. Fla. Nov. 13, 2013).
II. Discussion
A. Plaintiff’s Motion to Strike
Defendants filed their Answer and Affirmative Defenses [ECF No. 40] on December 22, 2017. Plaintiff untimely filed their motion to strike on January 26, 2018, well after 21 days of being served with Defendants’ pleading. See Fed.R.Civ.P. 12(f)(2). Nevertheless, this Court will exercise its discretion and on its own, pursuant to Rule 12(f)(1), review Defendants’ affirmative defenses to see whether this Court should strike them as insufficient, redundant, immaterial or impertinent. In re Cooper, No. 6:11-bk-05364-KSJ , 2013 WL 5278933, at *1 (M.D. Fla. Sept. 19, 2013) (considering merits of plaintiffs’ motion to strike even though it was untimely because "Rule 12(f) allows the Court sua sponte to strike matters in a pleading at any time").
B. Defendants’ Affirmative Defenses
1. Failure to State a Claim
Defendants’ First Affirmative Defense states, "[t]he Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure" [ECF No. 40, A]. This Court finds that this affirmative defense should be treated as "a denial" instead of an affirmative defense, and will forgo striking it at this time. Laferte, 2017 WL 2537259, at *3 (treating a defendant’s affirmative defense, a recital of Federal Rule of Civil Procedure 12(b)(6), as a denial instead of striking) (citing Home Mgmt. Sol, Inc., 2007 WL 2412834, at *3).
2. Lack of Jurisdiction and Inconvenient Forum
Defendants’ Second Affirmative Defense states, "[t]his Court lacks jurisdiction over the Defendants William Prokos, Donald Moss and Classic Air, and this is an inconvenient forum for them. As such, the claims against them should be dismissed" [ECF No. 40, B]. Similarly, this Court finds that Defendants’ Second Affirmative Defense is also a denial. " ‘An affirmative defense is established only when a defendant admits the essential facts of a complaint and sets up other facts in justification or avoidance.’ " Tsavaris, 310 F.R.D. at 682 (quoting Royal Caribbean Cruises, Ltd. v. Jackson, 921 F.Supp.2d 1366, 1372 (S.D. Fla. 2013) ). When a defense "simply points out a defect or lack of evidence in a plaintiff’s case," it is not an affirmative defense. Id. (citing In re Rawson Food Serv., Inc., 846 F.2d 1343 (11th Cir. 1988) ). Accordingly, "[w]hen defendant mislabels a specific denial as a defense, the proper remedy is to treat the claim as a denial, not to strike it." Id. (citing FDIC v. Bristol Home Mortgage Lending, LLC, No. 08-81536, 2009 WL 2488302 at *3 (S.D. Fla. Aug. 13, 2009) ).
3. Defendants had no obligation to Plaintiff and alleged Rule 11 violation
Defendants’ Third Affirmative Defense reads:
"Defendants ... had no obligation (contractual or otherwise) to the Plaintiff or any of the other Defendants in this case as it relates to the claims asserted by the Plaintiffs in its First Amended Complaint, and the claims against these Defendants should be dismissed. Further, the claims asserted against these Defendants are frivolous and in violation of Rule 11 of the Federal Rules of Civil Procedure, entitling these Defendants to recover their attorney’s fees and sanctions against the Plaintiff."
[ECF No. 40, C]. The Court construes this affirmative defense as a denial to the extent it pertains to Defendants alleging that they "had no obligation (contractual or otherwise) to the Plaintiff." Id. In fact, Plaintiff argues that this affirmative defense should be treated as a denial [ECF No. 51 ¶ IV]. Accordingly, the Court will not strike this portion of the affirmative defense and treat it as a denial. Laferte, 2017 WL 2537259, at *3.
With respect to Defendants’ claim that Plaintiff’s claim are frivolous and violate Rule 11, this Court will strike the request as insufficient, redundant, immaterial or impertinent pursuant to Rule 12(f)(1). Under Rule 11 of the Federal Rules of Procedure, "[a] motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b)." Fed.R.Civ.P. 11(c)(2); see also Tomason v. Stanley, 297 F.R.D. 541, 549 (S.D. Ga. 2014) (striking defense that stated plaintiffs were in violation of Rule 11). Accordingly, Defendants’ request for Rule 11 sanctions is stricken from Defendants’ Third Affirmative Defense. Should Defendants seek Rule 11 sanctions against Plaintiff, they are hereby instructed to comply with the requirements of Rule 11.
4. Plaintiff’s claim is barred because of "a failure of consideration"
Defendants’ Fourth Affirmative Defense only alleges, "[t]he Plaintiff’s claims against these Defendants are barred because of a failure of consideration" [ECF No. 40, D]. As noted, an affirmative defense admits "essential facts of a complaint and sets up other facts in justification or avoidance." Tsavaris, 310 F.R.D. at 682. Defendants’ affirmative defense is insufficient as it is void of an admission of the essential facts of the complaint and fails to outline "other facts in justification or avoidance" besides including the enumerated defense of "failure of consideration." Moreover, notwithstanding the fact that, in this Court’s view, Twombly and Iqbal’s heightened pleading standard does not apply to affirmative defenses— this Court notes that affirmative defenses "must give the plaintiff ‘fair notice’ of the nature of a defense and the grounds on which it rests." Tsavaris, 310 F.R.D. at 682. This Court finds that Defendants averment that Plaintiff’s claims are barred "because of a failure of consideration" fails to provide "fair notice" of "the nature of a defense and the grounds on which it rests." Id. Hence, this Court will strike this affirmative defense without prejudice.
Fed.R.Civ.P. 8(c)(1) (listing "failure of consideration" as affirmative defense).
5. Failure to Mitigate Damages
Defendants’ Fifth Affirmative Defense states, "Plaintiff has failed to mitigate its damages by failing to accept an available refund of amounts paid, when those amounts could have been received and Plaintiff’s losses reduced" [ECF No. 40, E]. It cannot be said that this short and plain statement has "no possible relation to the controversy and may cause prejudice to one of the parties," requiring it to be stricken. Laferte, 2017 WL 2537259, at *1. Here, Defendants have alleged that Plaintiff failed to mitigate its damages by failing to accept a refund check [ECF No. 40, E]. This Court finds that the affirmative defense is sufficient and provides Plaintiff with fair notice. Gonzalez, 2013 WL 5970721, at *3 (denying plaintiffs motion to strike affirmative defenses where one of the affirmative defenses averred "Plaintiff’s request for actual damages is barred by his failure to mitigate damages"); see also Adams, 2011 WL 2938467, at *5 (finding that affirmative defense provided plaintiff with sufficient notice where affirmative defense stated "Plaintiff has failed to mitigate his damages by, among other things, failing to take reasonable steps to secure and retain other employment following his separation from employment with Chase") (citing Sembler Family P’ship No. 41, Ltd. v. Brinker Fla., Inc., No. 8: 08-cv-1212-T-24MAP, 2008 WL 5341175, at *4 (M.D. Fla. Dec. 19, 2008) (denying plaintiff’s motion to strike affirmative defense where defendants alleged that "Plaintiff’s claim for damages is barred because Plaintiff failed to undertake appropriate steps to mitigate its damages") ).
6. Amount of damages Plaintiff could have received is "set off"
Defendants’ Sixth Affirmative Defense avers, "[a]lthough these Defendants assert no amount should be recovered against them, the amount which Plaintiff could have received from other parties is properly set off against any recovery against these Defendants, if any, which is denied" [ECF No. 40, F]. The Court declines to strike Defendants’ affirmative defense at this time, finding that Plaintiff can re-assert any challenges at the summary judgment stage. See Riverto v. Lefeld & Son, LLC, No. 13-81154, 2014 WL 2095219, at *2 (S.D. Fla. May 20, 2014).
7. Plaintiff failed to join an Indispensable Party
Defendants’ Seventh Affirmative Defense alleges that "Plaintiff has failed to join an indispensable party (the Estate of Arnold Leonara), and as such, the claims against these Defendants should be dismissed" [ECF No. 40, G]. The Court will deny Plaintiff’s motion to strike this affirmative defense, once more noting that Plaintiff can "re-assert their challenges" to the affirmative defense at the summary judgment stage. See Riverto, 2014 WL 2095219, at *2 (denying plaintiffs motion to strike affirmative defense of failure to join an indispensable party and finding plaintiff could challenge affirmative defense at summary judgment stage); see also Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F.Supp.2d 1322, 1331-32 (S.D. Fla. 2011) (treating defendant’s affirmative defense of failure to join an indispensable party as a denial where defendant failed to allege "why full relief cannot be accorded between themselves and Plaintiff"). For these reasons, Plaintiff’s motion to strike this affirmative defense is denied.
8. Plaintiff’s conduct "estops" Plaintiff from recovery against these Defendants
Defendants’ Eighth affirmative states, "Plaintiff’s conduct herein estops Plaintiff from any recovery against these Defendants, in whole or in part" [ECF No. 40, H]. Once more, despite this Court adhering to a less stringent pleading requirement when dealing with affirmative defenses, it cannot be said that Defendants’ averment provides Plaintiff with "fair notice" of the grounds their affirmative defense is based on. Compare Groves v. Patricia J. Dury, M.D., P.A., No. 2:06-cv-338-FtM-99SPC, 2006 WL 2556944, at *1-*2 (M.D. Fla. Sept. 1, 2006) (striking defendant’s affirmative defense, which stated, "Plaintiff’s claims are barred by the doctrine of waiver, estoppel, laches, and detrimental reliance" as it was devoid of any facts "which would even satisfy the notice pleading requirements") with Laferte, 2017 WL 2537259, at *4 (finding that defendant’s estoppel affirmative defense was properly pled where defendants alleged plaintiff’s claim was barred by estoppel "due to Plaintiff’s failure to accurately report hours allegedly worked and/or Defendants’ unawareness that Plaintiff worked the hours claimed") and Sembler Family P’ship No. 41, Ltd., 2008 WL 5341175, at *4 (denying plaintiff’s motion to strike affirmative defense of estoppel where "a review of Defendants’ affirmative defenses in their entirety shows that Defendants have clearly put Plaintiff on notice as to their estoppel defense, identifying Plaintiffs intentional conduct/acquiescence and Defendants’ reliance thereon"). Thus, Defendants’ Eighth Affirmative Defense is stricken without prejudice.
Fed.R.Civ.P. 8(c)(1) (listing "estoppel" as affirmative defense).
9. Defendants’ Reservation of Rights
Defendants’ Ninth affirmative defense states, "[a]s discovery proceeds, these Defendants reserve the right to assert any additional affirmative defenses in this matter" [ECF No. 40, I]. Plaintiff argues that this is not an affirmative defense. Plaintiff is correct. See Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 186 F.Supp.3d 1370, 1381 (N.D.Ga. 2016) (striking affirmative defense which provided for a "reservation of rights"). However, as a " ‘reservation of rights within an answer is essentially meaningless’ and does ‘does not prejudice [a party] in any way or somehow confer a right to amend ... without the Court’s approval,’ " this Court will deny Plaintiff’s request to strike Defendants’ ninth affirmative defense. Northrop & Johnson Holding Co. v. Leahy, Case No. 16-cv-63008, 2017 WL 5632041 (S.D. Fla. Nov. 22, 2017) (quoting Ramnarine, 2013 WL 1788503, at *6).
III. Conclusion
Accordingly, for the foregoing reasons, it is hereby
ORDERED and ADJUDGED that Plaintiffs Motion to Strike [ECF No. 51] is DENIED IN PART AND GRANTED IN PART AS FOLLOWS:
1. Plaintiff Motion to Strike Defendants’ First Affirmative Defense is DENIED.
2. Plaintiff’s Motion to Strike Defendants’ Second Affirmative Defense is DENIED.
3. Plaintiff’s Motion to Strike Defendants’ Third Affirmative Defense is DENIED IN PART AND GRANTED IN PART. The portion of the affirmative defense requesting Rule 11 sanctions is STRICKEN without prejudice. Should Defendants seek to file a motion for Rule 11 sanctions, they must comply with the requirements of Rule 11.
4. Plaintiff’s Motion to Strike Defendants’ Fourth Affirmative Defense is GRANTED. Defendants’ Fourth Affirmative Defense is STRICKEN without prejudice.
5. Plaintiff’s Motion to Strike Defendants’ Fifth Affirmative Defense is DENIED.
6. Plaintiff’s Motion to Strike Defendants’ Sixth Affirmative Defense is DENIED.
7. Plaintiff’s Motion to Strike Defendants’ Seventh Affirmative Defense is DENIED.
8. Plaintiff’s Motion to Strike Defendants’ Eighth Affirmative Defense is GRANTED. Defendants’ Eighth Affirmative Defense is STRICKEN without prejudice.
9. Plaintiff’s Motion to Strike Defendants’ Ninth Affirmative Defense is DENIED.
10. Defendants will have until October 1, 2018 to submit an amended Fourth Affirmative Defense and an Amended Fifth Affirmative Defense.
DONE AND ORDERED