United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION TO STRIKE
DEFENDANT'S AFFIRMATIVE DEFENSES
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on a Motion to Strike Affirmative
Defenses filed by Plaintiff MSP RECOVERY, LLC
(“Plaintiff”) on May 30, 2017. [D.E. 62].
ALLSTATE INSURANCE COMPANY (“Defendant” or
“Allstate”) filed its Response to the Motion on
June 12, 2017 [D.E. 63], and the Reply followed on June 19.
[D.E. 64]. After a review of the Motion, Response,
Reply, and the relevant authorities, Plaintiff's Motion
is hereby GRANTED in part and DENIED
FACTUAL BACKGROUND AND LEGAL STANDARD
case involves a dispute between two insurers as to which is
responsible for payment of a patient's medical bills. The
incident giving rise to the claim occurred on June 19, 2014,
when a Medicare enrollee suffered injuries in a car accident.
Florida Healthcare Plus (“FHCP”) paid medical
expenses associated with the enrollee's injuries in the
amount of $1, 284.10. At the time the incident took place,
Defendant allegedly provided “no-fault” vehicular
insurance coverage to the enrollee, and Plaintiff asserts it
should be reimbursed for the expenses paid as a result of
several assignments of FHCP's rights. [D.E. 30, ¶
25-26]. In this Motion, Plaintiff moves to strike certain
defenses raised by Defendant in its Answer to the Second
Amended Complaint. [D.E. 62].
12(f) permits a court to strike an insufficient defense.
See Fed. R. Civ. P. 12(f). Striking an affirmative
defense is a drastic remedy that is disfavored and should
only be granted if it is clear that the defense must fail.
Electronic Comm. Tech., LLC v. Clever Athletics Co.,
LLC, 221 F.Supp.3d 1366, 1367 (S.D. Fla. 2016) (citing
Augustus v. Bd. of Pub. Instruction of Escambia
County, 306 F.2d 862, 868 (5th Cir. 1962)). Furthermore,
“both because striking a portion of a pleading is a
drastic remedy and because it often is sought by the movant
simply as a dilatory or harassing tactic…motions under
Rule 12(f) are viewed with disfavor and infrequently
granted.” 5C Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure:
Civil § 1380 (3d ed. 2008). “[I]t must be shown
that the allegations being challenged are so unrelated to
plaintiff's claims as to be unworthy of any consideration
as a defense and that their presence in the pleading
throughout the proceeding will be prejudicial to the moving
defenses are subject to the same pleading scrutiny imposed by
Rule 8's plausibility standard. See Bell At. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2009); Ashcroft v.
Iqbal, 556 U.S. 662 (2009); see also Losada v.
Norwegian (Bahamas) Ltd., 296 F.R.D. 688, 691 (S.D. Fla.
2013) (“After reviewing the case law on the issue and
the purpose of an affirmative defense, this Court finds that
affirmative defenses should be subject to the same general
pleading standards of complaints.”). Rule 8(a)(2)
requires “a short and plain statement of the claim
showing that the pleader is entitled to relief, ” which
should be sufficient to give the opposing party fair notice
of the claim and its grounds. See Twombly, 550 U.S.
at 555-56. The pleading must articulate enough facts to raise
a plausible right to relief on the assumption that all of the
non-conclusory, factual allegations in the complaint are
true. Id. at 555. Formulaic recitations filled with
labels and conclusions without factual allegations are
turn to each affirmative defense Plaintiff challenges in its
Defendant's First Affirmative Defense
first affirmative defense states that Plaintiff must have a
valid assignment from FHCP in order to recover damages and
that absent such an assignment, “Plaintiff lacks
standing to sue.” Although this affirmative defense
fails to raise facts that would suffice under Rule 8's
pleading standards, we are hesitant to strike it because it
raises a question as to whether this Court maintains subject
matter over the dispute. A court maintains broad discretion
when determining whether to strike defenses under Rule 12(f),
and it may decline to do so when there is a substantial or
disputed question of law. See Wausau Bus. Ins. Co. v.
Horizon Admin. Servs., LLC, 803 F.Supp.2d 209,
213 (E.D.N.Y. 2011) (“To strike an affirmative defense
as insufficient…the court must first find that there
are no substantial questions of law or fact that might allow
the defense to succeed[.]”). Because striking an
affirmative defense is generally disfavored, and in light of
the broad discretion we have in determining whether striking
a portion of the pleading is justified, Plaintiff's
Motion as to Defendant's first affirmative defense is
DENIED. Defendant should be allowed to plead
the issue for the record.
Defendant's Third Affirmative Defense
third affirmative defense states that Plaintiff's claims
are barred “to the extent it failed to comply with
§ 627.736(10), Fla. Stat., which requires as a condition
precedent to filing any action for personal injury protection
benefits written notice of intent to initiate
litigation.” Rule 9 of the Federal Rules of Civil
Procedure require that “when denying that a condition
precedent has occurred or been performed, a party must do so
with particularity.” Fed.R.Civ.p. 9(c). The affirmative
defense contains factual assertions that Plaintiff's
pre-suit correspondence (1) failed to attach any assignment
of benefits and (2) failed to provide “itemization of
the charges, treatment, service or accommodation and the type
of benefit claimed to be due.” This comports with Rule
12's pleading requirements, Twombly, 550 U.S. at
555, and Plaintiff's request as to the third affirmative
defense is therefore DENIED. Cf.
Falzarano v. Retail Brand Alliance, Inc., 2008 WL
899257, *2 (S.D. Fla. Mar. 31, 2008) (striking affirmative
defense based on failure to comply with pre-suit requirements
due to conclusory nature and because answering party failed
to include facts that indicated whether such failure actually
Defendant's Fourth ...