United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendants'
Motion to Strike Affirmative Defenses and Integrated
Memorandum of Law, ECF No. , 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. . 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.
Northrop and Johnson Holding Company, Inc.
(“Plaintiff” or “Holding”) filed the
operative complaint in this action, the Second Amended
Complaint, ECF No.  (“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. . Defendants filed their
Answer, Affirmative Defenses, and Counterclaim on October 2,
2017. ECF No. . In response, Plaintiff filed its Answer
and Affirmative Defenses to Counterclaim, ECF No , 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. . Plaintiff opposes the Motion, arguing that each
Affirmative Defense provides “fair notice of the claim
for Defendants to respond accordingly.” ECF No. 
¶ 2. In the alternative, Plaintiff requests that it be
given opportunity to amend any stricken Affirmative Defense.
Id. ¶ 4. No reply was filed.
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.
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.
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).
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.
“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)).
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)).
Defendants' Motion to Strike an Invalid Affirmative
Defense: Affirmative Defense 1
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 ...