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Hernandez v. Ticketmaster, LLC

United States District Court, S.D. Florida

May 14, 2018

YUDY HERNANDEZ, Plaintiff,
v.
TICKETMASTER, LLC, a foreign for-profit corporation, Defendant.

          ORDER

          JOHN J. Q' SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         BACKGROUND

         On 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”).

         On 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.

         STANDARD OF REVIEW

         Under 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 law. Id.

         ANALYSIS

         The 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. Id.

         1. Failure to Confer Pursuant to Local Rule 7.1

         As 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.

         Local 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).

         Here, 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:

         Mr. 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).

         On 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, ...


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