United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.
THE COURT are Plaintiffs' Motion to Strike
Defendant's Affirmative Defenses (Dkt 90) and
Defendant's opposition (Dkt. 91). Upon consideration, the
motion (Dkt. 90) is GRANTED in part
and DENIED in part.
may "strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter." FED. R. ClV. P. 12(f). Motions to strike are
generally disfavored and are considered to be a "drastic
remedy to be resorted to only when required for the purposes
of justice." Augustus v. Board of Pub. Instruction
of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir.
1962). Nonetheless, district courts have broad
discretion in determining whether to grant a motion to
strike. Slone v. Judd, No. 8:09-cv-1175-T-27TGW,
2009 WL 5214984, at *1 (citing Anchor Hocking Corp. v.
Jacksonville Elec. Auth, 419 F.Supp. 992, 1000 (M.D.
move to strike Defendant's first, second, fourth, sixth,
seventh, ninth, eleventh, and sixteenth affirmative defense,
contending that those defenses are insufficient as a matter
of law. Plaintiffs also move to strike all affirmative
defenses contending that they are inadequately pled.
affirmative defense raises matters extraneous to the
plaintiff's prima facie case.' " In
re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th
Cir. 1988) (quoting Ford Motor Co. v. Transport Indemnity
Co., 795 F.2d 538, 546 (6th Cir. 1986)); see also
Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir.
2003) ("An affirmative defense is defined as [a]
defendant's assertion raising new facts and arguments
that, if true, will defeat the plaintiff s or
prosecution's claim, even if all allegations in the
complaint are true." (internal quotation marks and
citations omitted)). If an affirmative defense is
established, it "generally... requires judgment for the
defendant even if the plaintiff can prove his case by a
preponderance of the evidence." Wright v. Southland
Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).
defense that merely points out a defect in a plaintiffs
prima facie case is not a proper affirmative
defense. In re Rawson Food Serv., 846 F.2d at 1349.
An affirmative defense is also insufficient as a matter of
law and should be stricken "if it appears to a certainty
that the plaintiff would succeed despite any set of facts
which could be proved in support of the defense."
Equal Emp't Opportunity Comm'n v. First Nat'l
Bank of Jackson, 614 F.2d 1004, 1008 (5th Cir. 1980)
(citation omitted). And an affirmative defense is
insufficient if it is patently frivolous or clearly invalid
as a matter of law. Anchor Hocking Corp., 419
F.Supp. at 1000.
First Affirmative Defense asserts that Plaintiffs fail to
state a claim under the Clean Water Act on jurisdictional
grounds, specifically that the Court lacks subject matter
jurisdiction because the Florida Department of Environmental
Protection is pursuing a consent order relating to the same
violations alleged in Plaintiffs' citizens suit. (Dkt. 89
at p. 8). This defense is neither patently frivolous nor
clearly invalid as a matter of law, because the CWA bars
citizens suits when "a State has commenced and is
diligently prosecuting an action under a State law
comparable" to the CWA. 33 U.S.C. 13 l9(g)(6)(A)(ii).
And this defense is not a mere "failure to state a
claim" defense, as Plaintiffs contend, because it
asserts new facts relating to the FDEP's enforcement
proceeding in support of a defense to Plaintiffs' claims.
(Dkt. 90 at p. 4) (citing Boldstar Technical, LLC v. Home
Depot, Inc., 517F.Supp.2d 1283, 1291 (S.D. Fla. 2007)
(noting that a "failure to state a claim" defense
is not a proper affirmative defense where "it is not an
additional set of facts that bars recovery notwithstanding
the plaintiffs valid prima facie case.")). This defense will
not be stricken, notwithstanding that Defendant's summary
judgment motion on jurisdiction has been denied.
Second Affirmative Defense asserts that the FDEP's
comparable enforcement proceeding forecloses "the
jurisdiction of the Court and the standing of the Plaintiffs
to pursue this matter." (Dkt. 89 at p. 9). Plaintiffs
argue that lack of standing is not a valid affirmative
defense. (Dkt. 90 at p, 2) (citing Vogel v. Huntington
Oaks Del. Partners, LLC, 291 F.R.D. 438, 442 (CD. Cal.
2013)). However, Defendant's Second Affirmative Defense
differs from those in which defendants merely assert that a
plaintiff lacks standing, because Defendant raises new
factual matter extraneous to the Second Amended Complaint in
support of its contention that Plaintiffs lack standing and
the Court lacks subject matter jurisdiction. See
Vogel, 291 F.R.D. at 442 ("Huntington's
twenty-fourth affirmative defense is not an affirmative
defense-it just asserts that Vogel lacks standing.").
And a diligently prosecuted and comparable state enforcement
proceeding is a valid defense to a citizens suit under the
CWA. See 33 U.S.C. 13 l9(g)(6)(A)(ii). Accordingly,
Defendant's Second Affirmative Defense will not be
stricken, notwithstanding that Defendant's summary
judgment motion on jurisdiction has been denied.
argue that the Fourth Affirmative Defense is an improper
"failure to state a claim" defense that raises no
new factual matter, but rather addresses defects in their
prima facie case. (Dkt. 90 at p. 4) (citing
Boldstar Technical, 517 F.Supp.2d at 1291).
Plaintiffs are incorrect. Defendant asserts additional facts
in support of this defense. See In re Rawson Food
Serv., 846 F.2d at 1349. Specifically, Defendant asserts
that the violations alleged in Plaintiffs' complaint are
not actionable under the CWA because they are wholly past
violations and there is no reasonable expectation that they
will be repeated. (Dkt. 89 at pp. 9-10). Plaintiffs cite no
authority demonstrating that the Fourth Affirmative Defense
is not a valid defense, if Defendant proves the facts
asserted. See Anchor Hocking Corp., 419 F.Supp. at
1000. The Fourth Affirmative Defense will therefore not be