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Laferte v. Murphy Painters, Inc.

United States District Court, S.D. Florida

June 12, 2017




         THIS CAUSE is before the Court upon Plaintiff Mario Laferte's (“Plaintiff”) Motion to Strike Defendants' Affirmative Defenses, ECF No. [27]. On May 5, 2017, Plaintiff filed his Complaint, ECF No. [1], 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. [22], on April 17, 2017. Plaintiff now moves to strike six of Defendants' twenty-one affirmative defenses.

         As 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.


         Rule 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)[1]); 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”).

         Nevertheless, 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.

         The 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)).

         In this 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.


         A. Third Affirmative Defense

         Defendants' 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. [28] at 4 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         In 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.

         B. Ninth Affirmative Defense

         Plaintiff 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. [27] 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. [28] 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 ...

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