Opinion
CASE NO. 12-23368-CIV-SEITZ/SIMONTON
07-08-2013
SHELLY HILL, Plaintiff, v. ROSS DRESS FOR LESS, INC., Defendant.
ORDER GRANTING MOTION TO STRIKE
THIS MATTER is before the Court on Plaintiff's Motion to Strike Defendant's Affirmative Defenses, Numbers 8, 19 and 29 [DE-35], Defendant's response [DE-36], and Plaintiff's reply [DE-37]. Plaintiff's one count Second Amended Complaint alleges that Defendant was negligent which caused Plaintiff to slip and fall on a piece of loose plastic while in Defendant's store. Defendant filed its Answer and twenty-nine affirmative defenses. Plaintiff seeks to strike three of those defenses. Because Defendant's Affirmative Defense 8 is inadequately pled and its Affirmative Defenses 19 and 29 are not appropriate affirmative defenses, Plaintiff's motion is granted with leave to amend Affirmative Defense 8 if there are facts to support such a defense.
In her motion, Plaintiff also notes that Defendant has agreed to withdraw its Affirmative Defense 2. Defendant does not dispute this in its response to the motion. However, a review of the record indicates that Defendant has not filed anything indicating that it has withdrawn its Affirmative Defense 2. The Court expects that Defendant will honor its representations and will file the appropriate notice with the Court indicating that it has withdrawn Affirmative Defense 2.
The three specific affirmative defenses Plaintiff seeks to strike are:
8. That the Plaintiff has failed to mitigate her damages, if any; and, therefore, is not entitled to recovery of any damages, which could have been mitigated.The Court will address each of these defenses, in reverse order.
19. The Second Amended Complaint contains insufficient information to permit DEFENDANT to raise all appropriate defenses and, therefore, DEFENDANT reserves its right to amend and/or supplement its answer with additional affirmative defenses.
29. The Second Amended Complaint improperly comingles [sic] claims for negligent mode of operation and premises liability against DEFENDANT. Hix v. Billen, 284 So. 2d 209, 210 (Fla. 1973); Maldonado v. Jack M. Berry Grove Corp., 351 So. 2d 967, 968 (Fla. 1977); Martino v. Wal-Mart Stores, 835 So. 2d 1251, 1253 (Fla. 4th DCA 2003); Etheredge v. Walt Disney World Co., 999 So. 2d 669 (5th DCA 2008); Ventimiglia v. TGI Fridays, Inc., 980 So. 2d 1087 (Fla. 2007). Defendant reserves the right to move for dismissal of this action under separate motion based on the aforementioned caselaw [sic].
Affirmative Defense 29
In its Order Denying Motion to Dismiss [DE-30], the Court addressed Defendant's argument that Plaintiff improperly commingled claims and held that Plaintiff had not. Defendant acknowledges in its response that this in not a true affirmative defense, see DE-36, p. 4, but argues that it is a negative averment. However, Affirmative Defense 29, as stated, is not a negative averment because it does not allege that Plaintiff has not adequately pled the elements of one of its claims. Consequently, Defendant's Affirmative Defense 29 is stricken.
Affirmative Defense 19
The Court's order denying the motion to dismiss also found that Plaintiff had sufficiently pled her claim to survive a motion to dismiss. Affirmative Defense 19 essentially argues that Plaintiff has not adequately pled her claim, despite the Court's prior ruling. Furthermore, Affirmative Defense 19 is neither an affirmative defense or a specific denial of any of Plaintiff s allegations. Lastly, because Defendant cannot amend its pleadings without leave of Court, its reservation of rights is meaningless. Accordingly, Affirmative Defense 19 is stricken.
Affirmative Defense 8
This Court has previously found that the heightened pleading standard set out in Iqbal and Twombly applies to affirmative defenses. Castillo v. Roche Laboratories, Inc., 2010 WL 3027726, *2 (S.D. Fla. Aug. 2, 2010). In Castillo, this Court found that an affirmative defense that simply alleges a failure to mitigate damages was inadequate under the heightened pleading standard. Id. at *4. In Affirmative Defense 8, Defendant has similarly pled in a conclusory fashion that Plaintiff failed to mitigate her damages. Defendant has not pled any supporting facts. Consequently, Affirmative Defense 8 is stricken because it does not meet the pleading standard of Iqbal and Twombly. Accordingly, it is
ORDERED that Plaintiff's Motion to Strike Defendant's Affirmative Defenses, Numbers 8, 19 and 29 [DE-35] is GRANTED:
1. Affirmative Defenses 8, 19, and 29 are STRICKEN.
2. If facts exist to support a mitigation of damages affirmative defense, Defendant may file an amended answer and affirmative defenses no later than July 19, 2013.
While clear, focused pleadings are the goal, Federal Rule of Civil Procedure 1 also requires the "just speedy and inexpensive" determination of every action. The amount of attorney time spent on this motion which reasonable counsel should have been able to resolve without Court intervention suggests that both counsel need to remember that they are officers of the Court and are expected to conduct themselves accordingly, which includes limiting pleadings to those that counsel actually intends to pursue.
DONE and ORDERED in Miami, Florida, this 8th day of July, 2013.
______________________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE
cc: All Counsel of Record