United States District Court, S.D. Florida
J. Q' SULLIVAN UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Plaintiff['s] Motion to
Strike Defendant's Affirmative Defenses and Incorporated
Memorandum of Law in Support (DE# 10, 4/17/18). Having
reviewed the applicable filings and the law, the undersigned
enters the following Order.
March 7, 2018, the plaintiff filed a complaint against the
defendant alleging violations of the Americans with
Disabilities Act (“ADA”) (Count I) and trespass
(Count II) in connection with the defendant's business
website. See Complaint for Declaratory and
Injunctive Relief, and Jury Trial Demand (DE# 1, 3/7/18). On
March 30, 2018, the defendant filed its answer to the
Complaint and asserted 21 affirmative defenses. See
Defendant Ticketmaster LLC's Answer to Complaint (DE# 8,
3/30/18) (hereinafter “Answer”).
April 17, 2018, the plaintiff filed the instant motion
seeking to strike all of the defendant's affirmative
defenses. See Plaintiff['s] Motion to Strike
Defendant's Affirmative Defenses and Incorporated
Memorandum of Law in Support (DE# 10, 4/17/18) (hereinafter
“Motion”). The defendant filed its response in
opposition on May 1, 2018. See Defendant
Ticketmaster L.L.C.'s Opposition to Plaintiff's
Motion to Strike Affirmative Defenses (DE# 17, 5/1/18)
(hereinafter “Response”). The plaintiff filed her
reply on May 8, 2018. See Plaintiff's Reply to
Defendant's Opposition to Plaintiff's Motion to
Strike Affirmative Defenses (DE# 22, 5/8/18) (hereinafter
“Reply”). This 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
plaintiff seeks to strike all of the defendant's
affirmative defenses on the ground that they are
“insufficient.” Motion at 4. The defendant argues
that the instant motion should be denied on several grounds:
(1) the plaintiff failed to confer with opposing counsel as
required by Local Rule 7.1; (2) the plaintiff has failed to
show prejudice and (3) the plaintiff has failed to explain
why the defendant's affirmative defenses were not
adequately pled. Response at 1. The defendant also asks the
Court for leave to amend any deficient affirmative defenses.
Failure to Confer Pursuant to Local Rule 7.1
noted above, the defendant argues that the instant motion
should be denied because the plaintiff failed to confer with
the defendant as required by Local Rule 7.1(a)(3).
See Response at 4.
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 to resolve by agreement the issues to be raised
in the motion. Counsel conferring with movant's counsel
shall cooperate and act in good faith in attempting to
resolve the dispute. At the end of the motion, and above the
signature block, counsel for the moving party shall certify
either: (A) that counsel for the movant has conferred with
all parties or non-parties who may be affected by the relief
sought in the motion in a good faith effort to resolve the
issues raised in the motion and has been unable to do so; or
(B) that counsel for the movant has made reasonable efforts
to confer with all parties or non-parties who may be affected
by the relief sought in the motion, which efforts shall be
identified with specificity in the statement (including the
date, time, and manner of each effort), but has been unable
to do so. If certain of the issues have been resolved by
agreement, the certification shall specify the issues so
resolved and the issues remaining unresolved. Failure to
comply with the requirements of this Local Rule may be cause
for the Court to grant or deny the motion and impose on
counsel an appropriate sanction, which may include an order
to pay the amount of the reasonable expenses incurred because
of the violation, including a reasonable attorney's fee.
S.D. Fla. L. R. 7.1(a)(3) (emphasis added).
the plaintiff's counsel, Diego Mendez, sent an email to
the defendant's counsel, Nelson Bellido, on April 2,
2018, stating: “Counselor Quesada and I represent the
Plaintiff in the above referenced matter. Would you like to
have a call about this matter? We are available this
Thursday, April 5, 2018 in the morning.” Email Chain
(DE# 17-2 at 5). The following day, Mr. Mendez sent a
follow-up email stating:
Bellido, Mr. Hurley and Mr. Chilleen:
I apologize that I did not include all co-counsels in my
initial email (now included). We would like to set up a call
to discuss this case. We are available this Thursday, April
5, 2018 in the morning. Please let me know if you have time
or when you are available.
Also, pursuant to Local Rule 7.1(a)(3) we are informing you
of our intention of filing a Motion to Strike Affirmative
Defenses as legally insufficient.
Id. at 4 (emphasis added).
April 4, 2018, attorney Michael Chilleen responded to the
email by stating that he was not available until the
following Wednesday or Thursday. Id. at 3. The
plaintiff's counsel did not directly respond to Mr.
Chilleen's email. Instead, on April 13, ...