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Northrop and Johnson Holding Co., Inc. v. Leahy

United States District Court, S.D. Florida

November 22, 2017




         THIS CAUSE is before the Court upon Defendants' Motion to Strike Affirmative Defenses and Integrated Memorandum of Law, ECF No. [64], filed on October 30, 2017 (“Motion”). In the Motion, Defendants move to strike all fourteen of Plaintiff's Affirmative Defenses to the Defendants' Counterclaims, as well as Plaintiff's reservation of right to amend its affirmative defenses. See ECF No. [63]. The Court has carefully reviewed the Motion, all opposing and supporting materials, the record in this case and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff Northrop and Johnson Holding Company, Inc. (“Plaintiff” or “Holding”) filed the operative complaint in this action, the Second Amended Complaint, ECF No. [41] (“SAC”), on June 27, 2017. Defendants Caryn Leahy and Northrop and Johnson Yacht Charters, Inc. (together, “Defendants”) moved to dismiss the SAC, and the Court denied that motion on September 22, 2017. ECF No. [56]. Defendants filed their Answer, Affirmative Defenses, and Counterclaim on October 2, 2017. ECF No. [58]. In response, Plaintiff filed its Answer and Affirmative Defenses to Counterclaim, ECF No [63], which included fourteen affirmative defenses (the “Affirmative Defenses”) and a reservation of right to amend. Defendants now move to strike all fourteen Affirmative Defenses and the reservation of right to amend. ECF No. [64]. Plaintiff opposes the Motion, arguing that each Affirmative Defense provides “fair notice of the claim for Defendants to respond accordingly.” ECF No. [67] ¶ 2. In the alternative, Plaintiff requests that it be given opportunity to amend any stricken Affirmative Defense. Id. ¶ 4. No reply was filed.


         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 a party's claim or which fails to put the opposing party on notice of the nature of the defense is not a properly asserted affirmative defense. Id.

         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). 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); Kapow of Boca Raton, Inc. v. Aspen Specialty Ins. Co., No. 17-CV-80972, 2017 WL 5159601, at *2-3 (S.D. Fla. Nov. 7, 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 a matter of law where: “ ‘(1) in the face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law.' ” Home Mgmt. Solutions, Inc., 2007 WL 2412834, at *2 (quoting Microsoft Corp. v. Jessee's Comp. & Repair Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002)); see also Harty v. SRA/Palm Trails Plaza, LLC, 755 F.Supp.2d 1215, 1218 (S.D. Fla. 2010) (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.”) (internal quotation and citation omitted)).

         III. ANALYSIS

         A. Defendants' Motion to Strike an Invalid Affirmative Defense: Affirmative Defense 1

         In its Motion, Defendants argue that Affirmative Defense 1 should be stricken because an assertion that a counterclaim fails to state a claim is not a valid affirmative defense. This Court agrees. “[F]ailure to state a claim is a defect in [a party]'s claim; it is not an additional set of facts that bar recovery notwithstanding [a party]'s valid prima facie case.” Boldstar Tech. LLC ...

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