United States District Court, S.D. Florida
ORDER ON MOTION TO STRIKE
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiff Mario Laferte's
(“Plaintiff”) Motion to Strike Defendants'
Affirmative Defenses, ECF No. . On May 5, 2017, Plaintiff
filed his Complaint, ECF No. , against Defendants Murphy
Painters, Inc. and Gerald Murphy (collectively,
“Defendants”), the owner of Murphy Painters, Inc.
The Complaint asserts three claims under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
et seq.-including two wage and hour claims (Counts
I-II) and a retaliatory discharge claim (Count III)-and a
retaliatory discharge claim under Fla. Stat. § 440.205
(Count IV). See Id. Defendants filed their Answer
and Affirmative Defenses, ECF No. , on April 17, 2017.
Plaintiff now moves to strike six of Defendants'
twenty-one affirmative defenses.
background, the Complaint alleges that Plaintiff worked for
Defendants as a painter and a driver and, during his
employment, “routinely worked in excess of 40 hours per
week without being compensated at a rate of not less than one
and one half times the regular rate at which he was
employed.” Id. at ¶ 11. More
specifically, from June of 2016 to October of 2016,
Defendants required Plaintiff “to travel daily
(approximately 2 hours per day, 5 to 6 days per week) on
special work assignments and to transport work
materials” without paying Plaintiff for this
“compensable travel time”-which exceeded
Plaintiff's 40-hour work week. Id. at ¶ 13.
Thereafter, in October of 2016, Plaintiff “complained
that he needed to get paid overtime for his compensable
travel time incurred from June 2016 through October
2016.” Id. at ¶ 28. “In response,
[Defendants] fired Plaintiff on or about January 30,
2017.” Id. at ¶ 29.
12(f) of the Federal Rules of Civil Procedure permits a court
to “strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter,
” and grants courts broad discretion in making this
determination. Fed.R.Civ.P. 12(f); Morrison v. Exec.
Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318-19
(S.D. Fla. 2005) (citing Williams v. Eckerd Family Youth
Alt., 908 F.Supp. 908, 910 (M.D. Fla. 1995)). Under Rule
12(f), “[a] motion to strike will usually be denied
unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the
parties.” Harty v. SRA/Palm Trails Plaza, LLC,
755 F.Supp.2d 1215, 1218 (S.D. Fla. 2010) (internal quotation
and citation omitted); Action Nissan, Inc. v. Hyundai
Motor Am., 617 F.Supp.2d 1177, 1187 (M.D. Fla. 2008)
(same); see also Home Mgmt. Solutions, Inc. v. Prescient,
Inc., 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 2007)
(same). Despite the Court's broad discretion, a motion to
strike is considered a drastic remedy and is often
disfavored. Thompson v. Kindred Nursing Ctrs. E.,
LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (quoting
Augustus v. Bd. of Pub. Instruction of Escambia
Cnty., Fla., 306 F.2d 862, 868 (5th Cir.
1962)); Fabing v. Lakeland Reg'l Med.
Ctr., Inc., 2013 WL 593842, at *2 n.2 (M.D. Fla. 2013)
(calling Rule 12(f) a “draconian sanction”).
affirmative defenses will be stricken if insufficient as a
matter of law. See Morrison, 434 F.Supp.2d at 1319;
see also Fed. R. Civ. P. 12(f). “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.”
Ramnarine v. CP RE Holdco 2009-1, LLC, 2013 WL
1788503, at *1 (S.D. Fla. Apr. 26, 2013). Some courts have
concluded that affirmative defenses are subject to the
heightened pleading standard of Rule 8(a), as set forth in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See
Moore v. R. Craig Hemphill & Assocs., 2014 WL
2527162, at *2 (M.D. Fla. May 6, 2014); see also Adams v.
JP Morgan Chase Bank, N.A., 2011 WL 2938467, at *2-3
(M.D. Fla. July 21, 2011). Other courts have held that
affirmative defenses are subject to a less stringent standard
under Rules 8(b) and 8(c), and that affirmative defenses need
only “provide fair notice of the nature of the defense
and the grounds upon which it rests.” See,
e.g., Gonzalez v. Midland Credit Mgmt.,
Inc., 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013);
Floyd v. SunTrust Banks, Inc., 2011 WL 2441744
(N.D.Ga. June 13, 2011); Jackson v. City of
Centreville, 269 F.R.D. 661 (N.D. Ala. 2010); Blanc
v. Safetouch, Inc., 2008 WL 4059786 (M.D. Fla. Aug. 27,
2008); Romero v. S. Waste Sys., LLC, 619 F.Supp.2d
1356, 1358 (S.D. Fla. 2009); Sparta Ins. Co. v.
Colareta, 2013 WL 5588140, at *3 (S.D. Fla. Oct. 10,
2013); Ramnarine, 2013 WL 1788503 at *1.
difference in language between Rules 8(a) and Rule 8(b) is
subtle but significant. While Rule 8(a) requires “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” Rule 8(b) merely
requires that a party “state in short and plain terms
its defenses to each claim asserted against it.”
Fed.R.Civ.P. 8(a) and (b). Stated more directly, the language
of Rule 8(a) requires the party to “show” that
they are entitled to relief, while Rule 8(b) does not.
See Moore, 2014 WL 2527162 at *2 (“Whereas
[Rule 8's] pleading provision uses, ‘showing, '
its response and affirmative-defense provisions use,
‘state, ' and Iqbal's and
Twombly's analyses relied on
‘showing'”); Floyd, 2011 WL 2441744
at *7 (“In adopting the plausibility standard, the
Supreme Court relied heavily on the rule language purporting
to require a ‘showing' of entitlement to
relief.”) (citation omitted); Smith v. Wal-Mart
Stores, Inc., 2012 WL 2377840, at *2 (N.D. Fla. June 25,
2012) (noting that the Supreme Court in Twombly and
Iqbal relied on the specific language of Rule 8(a),
and finding that the plausibility requirement contained
therein was inapplicable); Ramnarine, 2013 WL
1788503 at *3 (explaining that “the difference in the
language between Rule 8(a) and Rules 8(b) and (c) requires a
different pleading standard for claims and defenses”).
Comparable to Rule 8(b), Rule 8(c) requires that a party
“must affirmatively state any avoidance or affirmative
defense.” Fed.R.Civ.P. 8(c). “[T]he Eleventh
Circuit has stressed providing notice as the purpose of Rule
8(c): ‘[t]he purpose of Rule 8(c) is simply to
guarantee that the opposing party has notice of any
additional issue that may be raised at trial so that he or
she is prepared to properly litigate it.'”
Jackson v. City of Centreville, 269 F.R.D. 661, 662
(N.D. Ala. 2010) (quoting Hassan v. USPS, 842 F.2d
260, 263 (11th Cir. 1988)).
Court's view, affirmative defenses are not subject to the
heightened pleading standard elucidated in Twombly
and Iqbal. The straightforward construction of Rule
8 delineates different standards for pleadings generally, and
those applicable to defenses. See Fed. R. Civ. P. 8.
As noted by the Middle District of Alabama, “to
artificially supply Rules 8(b)(1) and 8(c)(1) with the unique
language of Rule 8(a)(2) requiring a ‘showing' is
to contravene well-established principles of statutory
construction, which have been found applicable to
interpreting the Federal Rules of Civil Procedure.”
E.E.O.C. v. Joe Ryan Enterprises, Inc., 281 F.R.D.
660, 663 (M.D. Ala. 2012) (citing Business Guides v.
Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41
(1991)). Furthermore, “when one considers that a
defendant must answer the complaint within 21 days, imposing
a different standard for defenses is not unfair.”
Floyd, 2011 WL 2441744 at *8.
Third Affirmative Defense
Third Affirmative Defense asserts that the Plaintiff was not
an employee engaged in commerce or the production of commerce
and, thus, was not within the protected class of persons
subject to the FLSA. Plaintiff moves to strike
Defendants' Third Affirmative Defense because it sets
forth mere conclusory statements and fails to sufficiently
identify facts so as to properly put Plaintiff on notice of
the specific defense alleged. Plaintiff further asserts the
defense is a mere denial. Defendants respond that the request
to strike the Third Affirmative Defense is premature as it is
too early in the litigation to determine if the defense is
applicable, arguing that they are only required to give
Plaintiff fair notice of the defenses and the grounds that
those defenses rest upon. ECF No.  at 4 (citing
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
essence, Defendants' Third Affirmative Defense generally
asserts that Plaintiff is not covered under the FLSA.
Defendants, however, fail to identify the specific FLSA
exemption that Plaintiff falls under. See Morrison,
434 F.Supp.2d at 1319 (“Where a defendant pleads
generally that a plaintiff is not covered under the
FLSA, but fails to identify the specific FLSA exemptions
that are applicable, the defendant should be given leave to
amend the defense.”) (citing Schwind v. EW &
Assocs., Inc., F.Supp.2d 691, 697 (S.D.N.Y. 2005)
(emphasis added)). As such, because Defendants' Third
Affirmative Defense fails to identify the specific FLSA
exemption that they believe Plaintiff should be categorized
under, the Court strikes the Third Affirmative Defense
without prejudice and with leave to amend to classify the
particular FLSA exemption that is applicable.
Ninth Affirmative Defense
moves to strike Defendants' Ninth Affirmative
Defense-that Plaintiff's Complaint fails to allege
sufficient ultimate facts or state a claim upon which relief
can be granted-because it is a recital of Federal Rule of
Civil Procedure 12(b)(6) and fails to notify Plaintiff of the
insufficiencies in the Complaint. ECF No.  at 6 (citing
Merrill Lynch Bus. Fin. Servs. v. Performance Mach. Sys.
U.S.A., Inc., 2005 WL 975773 (S.D. Fla. Mar. 4, 2005)).
Defendants respond by recognizing that failure to state a
claim is not an appropriate defense, but nevertheless argue
that the defense is more appropriately labeled (and should be
treated as) a denial of Plaintiff's claim-whereby
striking is not the appropriate remedy. ECF No.  at 9
(citing Hansen v. ABC Liquors, Inc., 2009 WL
3790447, at *2 (M.D. Fla. Nov. 9, 2009)). The Court agrees,
and will, instead of striking the Ninth Affirmative Defense,
treat it as a denial. See Home Mgmt. Sols. Inc. v.
Prescient, Inc., 2007 WL 2412834, at *3 (S.D. Fla. Aug.
21, 2007) (citing Ohio Nat'l Life Assur. Corp. v.
Langkau, 2006 WL 2355571, at *2 (M.D. Fla. Aug. 15,
2006)); see also Premium Leisure, LLC v. Gulf Coast Spa
Mfrs., Inc., 2008 WL ...