United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION TO STRIKE
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Karen Smith's
(“Plaintiff”) motion to strike Royal
Caribbean's (“Defendant”) thirteenth
affirmative defense. [D.E. 10]. Defendant responded to
Plaintiff's motion on June 27, 2019 [D.E. 13] to which
Plaintiff replied on July 3, 2019. [D.E. 15]. Therefore,
Plaintiff's motion is now ripe for disposition. After
careful consideration of the motion, response, reply,
relevant authority, and for the reasons discussed below,
Plaintiff's motion is GRANTED.
case involves a passenger on a ship who was injured when she
slipped and fell on a slippery surface or object. Plaintiff
alleges that she was traversing the ship when she lost her
footing, fell, and suffered traumatic injuries that included
fractured teeth and injuries to her knees. Plaintiff claims
that the surface and/or object where she slipped was
unreasonably dangerous, risk-creating, defective, outdated,
improperly designed and installed, or otherwise unsafe.
Plaintiff also alleges that the area lacked adequate safety
features and that the adjacent areas were inadequate to
notify her of any hazards. Therefore, Plaintiff filed her
complaint on May 3, 2019 [D.E. 1] for one count of negligence
and seeks compensation for the damages she suffered, the
costs incurred (including court costs), and any applicable
APPLICABLE PRINCIPLES AND LAW
may move to strike pursuant to Rule 12(f) of the Federal
Rules “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). “An affirmative defense is one that
admits to the complaint, but avoids liability, wholly or
partly, by new allegations of excuse, justification or other
negating matter.” Royal Palm Sav. Ass'n v. Pine
Trace Corp., 716 F.Supp. 1416, 1420 (M.D. Fla. 1989)
(quoting Fla. East Coast Railway Co. v. Peters, 72
Fla. 311, 73 So. 151 (Fla. 1916)). Thus, affirmative defenses
are pleadings, and as a result, must comply with all the same
pleading requirements applicable to complaints. See Home
Management Solutions, Inc. v. Prescient, Inc., 2007 WL
2412834, at *1 (S.D. Fla. Aug. 27, 2007). Affirmative
defenses must also follow the general pleading standard of
Fed.R.Civ.P. 8(a), which requires a “short and plain
statement” of the asserted defense. See Morrison v.
Executive Aircraft Refinishing, Inc., 434 F.Supp.2d
1314, 1318 (S.D. Fla. 2005). A defendant must admit the
essential facts of the complaint and bring forth other facts
in justification or avoidance to establish an affirmative
defense. See id.
striking of an affirmative defense is a ‘drastic
remedy' generally disfavored by courts.” Katz
v. Chevaldina, 2013 WL 2147156, at *2 (S.D. Fla. May 15,
2013) (citations omitted); see also Blount v. Blue Cross
& Blue Shield of Florida, Inc., 2011 WL 672450, at
*1 (M.D. Fla. Feb. 17, 2011) (“Striking a defense . . .
is disfavored by the courts.”); Pandora Jewelers
1995, Inc. v. Pandora Jewelry, LLC, 2010 WL 5393265, at
*1 (S.D. Fla. Dec. 21, 2010) (“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”) (internal
quotations omitted) (quoting another source).
“defendant must allege some additional facts supporting
the affirmative defense.” Cano v. South Florida
Donuts, Inc., 2010 WL 326052, at *1 (S.D. Fla. Jan. 21,
2010). Affirmative defenses will be stricken if they fail to
recite more than bare-bones conclusory allegations. See
Merrill Lynch Bus. Fin. Serv. v. Performance Mach. Sys.,
2005 WL 975773, at *11 (S.D. Fla. March 4, 2005) (citing
Microsoft Corp. v. Jesse's Computers & Repair,
Inc., 211 F.R.D. 681, 684 (M.D. Fla. 2002)). “An
affirmative defense may also be stricken as insufficient if:
‘(1) on the face of the pleadings, it is patently
frivolous, or (2) it is clearly invalid as a matter of
law.”' Katz, 2013 WL 2147156, at *1
(citing Blount v. Blue Cross and Blue Shield of Fla.,
Inc., 2011 WL 672450 (M.D. Fla. Feb.17, 2011)).
a court must not tolerate shotgun pleading of affirmative
defenses, and should strike vague and ambiguous defenses
which do not respond to any particular count, allegation or
legal basis of a complaint.” Morrison v. Exec.
Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318
(S.D. Fla. 2005). An affirmative defense should only be
stricken with prejudice when it is insufficient as a matter
of law. See Kaiser Aluminum & Chemical Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.
1982) (citing Anchor Hocking Corp. v. Jacksonville Elec.
Auth., 419 F.Supp. 992, 1000 (M.D. Fla. 1976)).
Otherwise, district courts may strike the technically
deficient affirmative defense without prejudice and grant the
defendant leave to amend the defense. Microsoft Corp., 211
F.R.D. at 684.
motion seeks to strike Defendant's thirteenth affirmative
defense because it limits Plaintiff's recovery at the
exclusion of a collateral source:
RCCL alleges that any recovery obtained by Plaintiff herein,
which is denied, should be reduced, off set, or set off for
any and all collateral source benefits received by or payable
[D.E. 6 at 6]. Plaintiff argues that this defense is improper
under general maritime law because an alleged tortfeasor may
not mitigate damages through setoffs that a plaintiff
receives from an independent source. Defendant claims, on the
other hand, that the affirmative defense must stand because
Plaintiff cannot introduce medical bills into the record that
Plaintiff never paid. Defendant equates Plaintiff's
motion as an attempt to introduce “phantom
damages” and that it runs counter to well-established
Eleventh Circuit precedent. For these reasons, Defendant
concludes that Plaintiff's motion to strike must be
collateral source rule is a traditional maritime common law
principle that bars a tortfeasor ‘from mitigating
damages by setting off compensation received by the employee
from an independent source.'” Holderbaum v.
Carnival Corp., 2015 WL 12085846, *2 (S.D. Fla. Mar. 4,
2015) (quoting Bourque v. Diamond M. Drilling Co.,623 F.2d 351, 354 (5th Cir. 1980)). The collateral source
rule “bars both evidence directly bearing on damages
and evidence which might be considered by the jury in
assessing damages.” Id. In other words, the
rule “prohibits the ...