United States District Court, M.D. Florida, Fort Myers Division
MIRANDO United States Magistrate Judge
matter comes before the Court upon review of Plaintiffs'
Motion to Strike Defendants' Affirmative Defenses to
Plaintiffs' Complaint (Doc. 37) filed on December 29,
2017 and Plaintiffs' Motion to Compel Production of
Mandatory Contact Information Required in Rule 26 Initial
Disclosures (Doc. 43) filed on January 24, 2018. Plaintiffs
seek to strike Defendants' two affirmative defenses
because they are insufficient as a matter of law or are
conclusory and do not provide sufficient notice. Doc. 37.
Defendants have not responded to this motion, creating a
presumption that it is unopposed. Great Am. Assur. Co. v.
Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL 195526,
at *3 (M.D. Fla. Jan. 23, 2012). Plaintiffs further seek
Defendants to produce last known addresses of witnesses
identified in their initial disclosures. Doc. 43. Defendants
oppose the requested relief. Doc. 44.
August 7, 2017, Plaintiff filed a Complaint and Demand for
Jury Trial against Defendants under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et
seq. Doc. 1. Defendants filed an Answer and Defenses and
Demand for Jury Trial on November 2, 2017 and an Amended
Answer and Defenses and Demand for Jury Trial on December 8,
2017. Docs. 29, 35. In the Amended Answer, Defendants assert
four affirmative defenses, including:
FIRST AFFIRMATIVE DEFENSE
The plaintiffs' cause of action is retaliatory due the
defendant corporation terminating the plaintiffs'
employment due to the plaintiffs stealing the defendant
corporation's equipment and due to the plaintiffs
providing counterfeit social security cards, false social
security numbers, and counterfeit driver
THIRD AFFIRMATIVE DEFENSE
Plaintiffs have not and cannot satisfy the prerequisites to
maintain this lawsuit pursuant to 29 U.S.C. §
at 3. Plaintiffs seek to strike these two affirmative
defenses because they are not valid defenses under the FLSA
and do not comply with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. Doc. 37 at 2-6.
affirmative defense is generally a defense that, if
established, 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). Pursuant to Rule 12(f) of 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).
Although courts generally disfavor motions to strike,
“[d]istrict courts have broad discretion in disposing
of motions to strike under Fed.R.Civ.P. 12(f).”
Microsoft Corp. v. Jesse's Computers & Repair,
Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002) (internal
citations omitted); Hansen v. ABC Liquors, Inc., No.
3:09-CV-966-J-34MCR, 2009 WL 3790447, at *1 (M.D. Fla. Nov.
9, 2009). An affirmative defense will be stricken only if it
is insufficient as a matter of law. Microsoft, 211
F.R.D. at 683. An affirmative defense is insufficient as a
matter of law “only if: (1) on the face of the
pleadings, it is patently frivolous, or (2) it is clearly
invalid as a matter of law.” Id. The Eleventh
Circuit has noted that “[t]he party asserting an
affirmative defense usually has the burden of proving
it.” In re Rawson Food Serv., Inc., 846 F.2d
1343, 1349 (11th Cir. 1988). In evaluating a motion to strike
affirmative defenses, “the court must treat all well
pleaded facts as admitted and cannot consider matters beyond
the pleadings.” Microsoft, 211 F.R.D. at 683.
defenses also are subject to the general pleading
requirements of Rule 8(b)(1)(A), which requires a party to
“state in short and plain terms its defenses to each
claim asserted against it.” “As with any
pleading, an affirmative defense must provide ‘fair
notice' of the nature of the defense and the grounds upon
which it rests, and state a plausible defense.” Bi
ler v. Cafe Luna of Naples, Inc., No.
2:14-CV-659-FTM, 2015 WL 1648888, at *1 (M.D. Fla. Apr. 13,
2015) (citing Be l Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)). Nevertheless, “a
defendant must do more than make conclusory allegations. If
the affirmative defense comprises of no more than bare bones
conclusory allegations, it must be stricken.”
Microsoft, 211 F.R.D. at 683.
Court finds the first and third affirmative defenses should
be stricken. As their first affirmative defense, Defendants
assert Plaintiffs have a retaliatory motive behind filing
this lawsuit because Defendants lawfully terminated them for
stealing Defendants' equipment and providing falsified
identifications. Doc. 35 at 3. Regardless of Plaintiffs'
motive, FLSA rights are statutory and “cannot be
abridged by contract or otherwise waived.”
Lynn's Food Store, Inc. v. United States, 679
F.2d 1350, 1352 (11th Cir. 1982) (citation omitted); Doc. 35
at 3. Thus, it is questionable whether this defense warrants
judgment in favor of Defendants if Plaintiffs prove their
case by a preponderance of evidence. See Wright, 187
F.3d at 1303.
assuming Defendants are asserting the defense of unclean
hands, this affirmative defense does not meet the pleading
requirements of Rule 8. The defense of unclean hands prevents
Plaintiffs from profiting from their misconduct and requires
Defendants to show that “[Plaintiffs'] wrongdoing
is directly related to [their] claim and that Defendant[s
were] personally injured by [Plaintiffs'] conduct.”
McGlothan v. Walmart Stores, Inc., No.
6:06-CV-94-ORL-28JGG, 2006 WL 1679592, at *3 (M.D. Fla. June
14, 2006); Wlodynski v. Ryland Homes of Fla. Realty
Corp., No. 8:08-CV-00361-JDW-MAP, 2008 WL 2783148, at *4
(M.D. Fla. July 17, 2008). The first affirmative defense is
conclusory and does not allege the elements of the unclean
hands defense. Doc. 35 at 3; see McGlothan, 2006 WL
1679592, at *3; Wlodynski, 2008 WL 2783148, at *4.
Because the first affirmative defense either is insufficient
as a matter of law or is conclusory and does not provide
sufficient notice of what legal theory it is asserting, the
Court will strike this without prejudice and direct
Defendants to amend it.
the third affirmative defense that Plaintiffs have not
satisfied the prerequisites to maintain this lawsuit pursuant
to 29 U.S.C. § 216(b) is conclusory. Doc. 35 at 3. It
does not clarify what “prerequisites” Plaintiffs
have not met and need to meet and the grounds upon which this
affirmative defense rests. See id.; Biller,
2015 WL 1648888, at *1. Thus, the Court will strike this
without prejudice and direct Defendants to amend it.
Plaintiffs move to compel Defendants to produce last known
addresses of the witnesses identified in their Rule 26
initial disclosures. Doc. 43 at 1. Plaintiffs also seek costs
associated with this motion. Id. Defendants respond
they offered the witnesses' telephone numbers without
addresses, and Plaintiffs' counsel accepted this offer.
Doc. 44 at 2. Subsequently, Plaintiffs provided a ...