United States District Court, S.D. Florida
KAPOW OF BOCA RATON, INC. and RESTORATION CONSTRCTION, LLC. Plaintiffs,
ASPEN SPECIALTY INSURANCE CO., Defendant.
ORDER ON MOTION TO STRIKE
BLOOM, UNITED STATES DISTRICT JUDGE.
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.
 (“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.
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.
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
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
August 23, 2017, Defendant removed the lawsuit to this Court
invoking diversity jurisdiction as the basis for removal.
See ECF No. . 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. . 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. . Although Plaintiffs had the
opportunity to file a Reply, they did not do so. This Motion
is now ripe for review.
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
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.
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.
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).
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.
“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 ...