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Suncoast Waterkeeper v. City of St. Petersburg

United States District Court, M.D. Florida, Tampa Division

January 22, 2018

SUNCOAST WATERKEEPER, et al., Plaintiffs,
v.
CITY OF ST. PETERSBURG, Defendant.

          ORDER

          JAMES D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.

         BEFORE 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.

         A court 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).[1] 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. Fla. 1976)).

         Plaintiffs 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.

         Legal Sufficiency

         "'An 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).

         A 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

         Defendant's 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.")).[2] This defense will not be stricken, notwithstanding that Defendant's summary judgment motion on jurisdiction has been denied.

         Second Affirmative Defense

         Defendant's 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.

         Fourth Affirmative Defense

         Plaintiffs 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 stricken.

         Sixth ...


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