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Kapow of Boca Raton, Inc. v. Aspen Speciatly Insurance Co.

United States District Court, S.D. Florida

November 7, 2017




         THIS CAUSE is before the Court upon Plaintiffs', Kapow of Boca Raton, Inc. and Restoration Construction, LLC.'s (“Plaintiffs”) Motion to Strike Defendant's Affirmative Defenses, see ECF No. [9] (“Motion”). The Court has reviewed the Motion, all supporting and opposing filings, all memoranda of law, and is otherwise duly advised. For the foregoing reasons, the Motion is granted in part and denied in part.

         I. BACKGROUND

         Plaintiffs originally filed this action in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. See ECF No. [17-1]. In the Complaint, Plaintiffs allege that Aspen Specialty Insurance Co. (“Defendant”) issued a policy of insurance to Kapow of Boca Raton (“Kapow”), an Asian noodle restaurant, providing insurance coverage for water and mold damage to commercial property and coverage for business interruption. Id. at ¶¶ 5-6. On or about August 16, 2016, Plaintiffs allege that Kapow's restaurant suffered water and mold damage caused by a toilet overflowing in a second floor unit above the restaurant. Id. at ¶ 7. This overflowing water leaked through the restaurant's ceiling and caused an interruption of Kapow's business, forcing it to close for several days to complete water extraction, mold remediation and other repairs services. Id. Kapow retained co-Plaintiff Restoration Construction LLC (“RC”) to perform these services and assigned its insurance benefits under the insurance policy to RC. Id. at ¶ 9.

         After Plaintiffs made a claim for insurance benefits under the policy, they allege that Defendant improperly denied coverage for the claim, citing to the policy's exclusion for overflow of drains and sewers. See ECF No. [17-1] at ¶ 12. In Count I of the Complaint, Kapow asserts a claim for loss of income arising from the first incident. See ECF No. [17-1] at ¶¶ 20-23. In Count II, RC, as an assignee of Kapow, asserts a breach of contract claim against Defendant also arising from the first incident, seeking to recover damages for the cost of its water extraction and mold remediation services. Id. at ¶¶ 24-29.

         In the Complaint, Plaintiffs also allege a second breach of contract claim against Defendant by RC as Kapow's assignee. Id. at ¶¶ 30-35. This claim arises from a second incident on November 14, 2016 that caused water and mold damage to Kapow's restaurant as a result of a leaking toilet overflowing on the second floor. Id. at ¶ 14. Kapow again retained RC to perform the repair services and assigned its benefits under the policy to RC. Id. at ¶ 16. In response to the second claim for benefits, Defendant again denied coverage, invoking the same exclusionary language within the policy. Id. at ¶ 19.

         On August 23, 2017, Defendant removed the lawsuit to this Court invoking diversity jurisdiction as the basis for removal. See ECF No. [1]. Although Plaintiffs sought remand of the case to state court, this Court entered an Order finding that it had subject matter jurisdiction over Plaintiffs' claims. See ECF No. [23]. Prior to the removal of this action, Defendant filed its Answer and Affirmative Defenses asserting ten affirmative defenses. ECF No. [1-7]. Pursuant to Federal Rule of Civil Procedure 12(f), Plaintiff now moves to strike all ten of them. Id. Defendant's timely Response in opposition followed. See ECF No. [8]. Although Plaintiffs had the opportunity to file a Reply, they did not do so. This Motion is now ripe for review.


         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 a court 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.” United States Commodity Futures Trading Comm'n v. Mintco, LLC., No. 15-CV-61960, 2016 WL 3944101, at *2 (S.D. Fla. May 17, 2016) (denying in part motion to strike affirmative defenses). Thus, 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., No. 8:12-CV-2624, 2013 WL 593842, at *2 (M.D. Fla. Feb. 15, 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. “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, No. 12-61716-CV, 2013 WL 1788503, at *1 (S.D. Fla. Apr. 26, 2013).

         An affirmative defense is a defense “that admits to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification, or other negating matters.” Adams v. Jumpstart Wireless Corp., 294 F.R.D. 688, 671 (S.D. Fla. 2013). A defense which addresses a defect in the plaintiff's claim is not, however, an affirmative defense. Id.

         Some courts in this Circuit 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, e.g., Moore v. R. Craig Hemphill & Assocs., No. 3:13-CV-900-J-39, 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014); see also Adams v. JP Morgan Chase Bank, N.A., No. 3:11-CV-337-J-37, 2011 WL 2938467, at *2-3 (M.D. Fla. July 21, 2011). Others 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., Sparta Ins. Co. v. Colareta, No. 13-60579-CIV, 2013 WL 5588140, at *3 (S.D. Fla. Oct.10, 2013) (denying in part plaintiff's motion to strike affirmative defenses and instead treating certain defenses as specific denials); Gonzalez v. Midland Credit Mgmt., Inc., No. 6:13-CV-1576, 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013) (denying motion to strike defendant's affirmative defenses because the affirmative defenses provided plaintiff with fair notice); Ramnarine, 2013 WL 1788503 at *1 (denying motion to strike affirmative defenses).

         In this Court's opinion, “the difference in language between Rules 8(a) and Rule 8(b) is subtle but significant.” Laferte v. Murphy Painters, Inc., No. 17-CIV-60376, 2017 WL 2537259, * 2 (S.D. Fla. June 12, 2017). 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 v. Suntrust Banks, Inc., No. 1:10-CV-2620, 2011 WL 2441744 at *7 (N.D.Ga. June 13, 2011) (“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., No. 1:11-CV-226, 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)). 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.

         Thus, “affirmative defenses are not subject to the heightened pleading standard elucidated in Twombly and Iqbal.” Laferte, 2017 WL 2537259, at *2. 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 Enter., 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)). However, under this standard, “an affirmative defense must be stricken when the defense is comprised of no more than bare-bones, conclusory allegations” or is “insufficient as a matter of law.” Adams, 294 F.R.D. at 671; Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007). An affirmative defense is insufficient as ...

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