United States District Court, S.D. Florida
SREAM, INC. a California Corporation, Plaintiff,
GRATEFUL J'S, INC., a Florida Corporation, Defendant.
J. O' SULLIVAN, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Plaintiff's Motion to
Strike Defendant's Affirmative Defenses to
Plaintiff's Amended Complaint and Incorporated Memorandum
of Law (DE # 44, 11/10/17). This motion was referred to the
undersigned pursuant to 28 U.S.C. § 636. See Endorsed
Order (DE# 45, 11/13/17).
plaintiff has alleged two causes of action against the
defendant: (1) False Designation of Origin/Unfair Competition
under 15 U.S.C. § 1125(a) (Count III) and (2) violation
of the Florida Deceptive and Unfair Trade Practices Act
(Count IV). See Plaintiff's Amended Complaint
(DE# 13, 4/25/17). On October 27, 2017, the defendant filed
its answer and asserted seven affirmative defenses.
See Defendant's Answer and Affirmative Defen][
]ses to Plaintiff's Amended Complaint (D.E. 13) (DE# 42,
10/27/17) (hereinafter "Answer").
November 10, 2017, the plaintiff filed the instant motion
seeking to strike five affirmative defenses. See
Plaintiff's Motion to Strike Defendant's Affirmative
Defenses to Plaintiff's Amended Complaint and
Incorporated Memorandum of Law (DE # 44, 11/10/17)
(hereinafter "Motion"). The defendant filed its
response in opposition on November 27, 2017. See
Defendant's Opposition to Plaintiff's Motion to
Strike Defendants' Affirmative Defen[ses] to
Plaintiff's Amended Complaint [D.E. 44] for Failure to
Comply with Local Rule 7.1 (a)(3) (DE# 47, 11/27/17)
(hereinafter "Response"). The plaintiff filed its
reply on December 4, 2017. See Plaintiff's Reply
to the Defendant's Memorandum in Opposition to the
Plaintiff's Motion to Strike Answer and Affirmative
Defenses (DE# 49, 12/4/17) (hereinafter "Reply").
matter is ripe for adjudication.
the Federal Rules of Civil Procedure, the Court may strike
"an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).
Motions to strike are generally disfavored and are usually
denied unless the allegations have no possible relation to
the controversy and may cause prejudice to one of the
parties. Pandora Jewelers 1995, Inc. v. Pandora Jewelry,
LLC No. 09-61490-CIV, 2010 WL 5393265, at *1 (S.D. Fla.
Dec. 21, 2010) (citation omitted). Affirmative defenses fall
under the general pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure and should be stricken if
they fail to recite more than bare-bones conclusory
allegations, id. at *2 (quoting Home Mgmt.
Solutions, Inc. v. Prescient. Inc., No. 07-20608-CIV,
2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007)).
"Although Rule 8 does not obligate a defendant to set
forth detailed factual allegations, a defendant must give the
plaintiff 'fair notice' of the nature of a defense
and the grounds on which it rests." Tsavaris v.
Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015)
(citing Adams v. Jumpstart Wireless Corp., 294
F.R.D. 668, 671 (S.D. Fla. 2013); Twombly, 550 U.S.
at 555). Affirmative defenses should be stricken when they
are insufficient as a matter of law. Pandora Jewelers
1995, Inc., 2010 WL 5393265, at *2 (quoting
Microsoft Corp. v. Jesse's Computers and Repairs,
Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002)). A defense
is legally insufficient only if the pleading on its face is
patently frivolous, or it is clearly invalid as a matter of
Failure to Confer and Defendant's Request for
outset, the defendant argues that the instant motion should
be denied and the defendant be awarded attorney's fees
because the plaintiff failed to comply with its duty to
confer with opposing counsel prior to filing the instant
motion as required by Local Rule 7.1 (a)(3). See Response
Rule 7.1(a)(3) states in part:
Prior to filing any motion in a civil case, except a motion
for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or to permit maintenance of a
class action, to dismiss for failure to state a claim upon
which relief can be granted, or to involuntarily dismiss an
action, for garnishment or other relief under Federal Rule of
Civil Procedure 64, or otherwise properly filed ex parte
under the Federal Rules of Civil Procedure and these Local
Rules, or a petition to enforce or vacate an arbitration
award, counsel for the movant shall confer (orally or in
writing), or make reasonable effort to confer (orally or in
writing), with all parties or non-parties who may be affected
by the relief sought in the motion in a good faith effort ...