United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion to
Strike Defendant Wingo's Affirmative Defenses (Doc. #59)
filed on May 26, 2018. Defendant Kasey P. Wingo filed a
Response in Opposition (Doc. #64) on June 11, 2018. For the
reasons set forth below, the motion is granted in part and
denied in part.
Dale Harris (Plaintiff) filed a twenty-count Amended
Complaint (Doc. #51) pursuant to 42 U.S.C. § 1983
against Kevin Rambosk in his official capacity as the Sheriff
of Lee County (the Sheriff), and deputies Kasey P. Wingo
(Deputy Wingo), Michael D. Chapman (Deputy Chapman), Brian R.
Wiedel (Deputy Wiedel), Scott Pepin (Deputy Pepin), and Ross
Anthony (Deputy Anthony). Deputy Wingo individually filed his
Answer and Affirmative Defenses (Doc. #54) on May 14, 2018,
in which he raises thirteen affirmative defenses, including
failure to mitigate damages, preexisting condition, and
probable cause. Plaintiff seeks to strike Deputy Wingo's
First, Third, Fourth, Ninth, and Thirteenth Affirmative
Defenses because they are conclusory and unsupported by any
Federal Rules require defendants to “affirmatively
state any avoidance or affirmative defense.”
Fed.R.Civ.P. 8(c). “An 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), courts may strike “insufficient
defense[s]” from a pleading upon a motion so requesting
or sua sponte. Fed.R.Civ.P. 12(f).
Court recently discussed in some detail, affirmative defenses
must comply with two separate pleading requirements. First,
the defense, as pled, must contain “some facts
establishing a nexus between the elements of an affirmative
defense and the allegations in the complaint, ” so as
to provide the plaintiff fair notice of the grounds upon
which the defense rests. Daley v. Scott, No:
2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3 (M.D. Fla. June
28, 2016). Boilerplate pleading - that is, merely listing the
name of the affirmative defense without providing any
supporting facts - is insufficient to satisfy Rule 8(c),
because it does not provide notice sufficient to allow the
plaintiff to rebut or properly litigate the
defense. Id. (citing Grant v.
Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.
1989); Hassan v. U.S. Postal Serv., 842 F.2d 260,
263 (11th Cir. 1988)). Requiring defendants to allege some
facts linking the defense to the plaintiff's claims
“streamlines the pleading stage, helps the parties
craft more targeted discovery requests, and reduces
litigation costs.” Id. (citations omitted).
a defendant must avoid pleading shotgun affirmative defenses,
viz., “affirmative defenses [that] address the
complaint as a whole, as if each count was like every other
count.” Byrne v. Nezhat, 261 F.3d 1075, 1129
(11th Cir. 2001), abrogated on other grounds as recognized
by, Nurse v. Sheraton Atlanta Hotel, 618 Fed.Appx.
987, 990 (11th Cir. 2015); see also Paylor v. Hartford
Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014).
Rather, each defense must address a specific count or counts
in the complaint or clearly indicate that (and aver how) the
defense applies to all claims. See Byrne, 261 F.3d
at 1129; see also Lee v. Habashy, No.
6:09-cv-671-Orl-28GJK, 2009 WL 3490858, at *4 (M.D. Fla. Oct.
27, 2009). District courts have a sua sponte obligation to
identify shotgun affirmative defenses and strike them, with
leave to replead. See Paylor, 748 F.3d at 1127;
Morrison v. Executive Aircraft Refinishing, Inc.,
434 F.Supp.2d 1314, 1318 (S.D. Fla. 2005).
First Affirmative Defense
Wingo agrees to withdraw his First Affirmative Defense. The
First Affirmative Defense is therefore deemed withdrawn.
Third Affirmative Defense
Wingo's Third Affirmative Defense asserts that Plaintiff
failed to mitigate his damages by not seeking “advice
from medical and mental health professionals, failing to seek
and obtain the benefit of any and all economic opportunities
to limit claims for lost earnings, failing to submit to
lawful arrest, minimizing the necessity for use of force and
responding to his resistance, and intentionally publicizing
his arrest . . . .” (Doc. #54, p. 23.) The Court finds
this Affirmative Defense is sufficiently pled because it
alleges Plaintiff's basis for seeking a reduction of
Fourth, Ninth, and Thirteenth ...