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Dionisio v. Ultimate Images and Designs, Inc.

United States District Court, S.D. Florida

July 30, 2019

ULTIMATE IMAGES AND DESIGNS, INC., d/b/a Oasis by the Sea, a Florida for Profit Corporation, ALI KALDIRIMOGLU, an individual, MECIT KALDIRIMOGLU, an individual, SEVIL KALDIRIMOGLU, an individual, SEYFULLAH KALDIRIMOGLU, an individual, Defendants.



         THIS CAUSE is before the Court upon Plaintiff's Motion to Strike Affirmative Defenses, ECF No. [14] (the “Motion”). In the Motion, Plaintiff requests the Court strike ten of Defendants' thirteen Affirmative Defenses asserted in their Answer, ECF No. [11] (“Answer”). The Court has carefully reviewed the Motion, all supporting and opposing filings, the record in this case and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part.

         I. BACKGROUND

         On February 22, 2019, Plaintiff Katrin Dionisio (“Plaintiff”) filed her Complaint against Defendants Ultimate Images and Design, Inc., Ali Kaldirimoglu, Mecit Kaldirimoglu, Sevil Kaldirimoglu, and Seyfullah Kaldirimoglu (together, “Defendants”). ECF No. [1]. Plaintiff was employed as a server at Oasis by the Sea, a restaurant owned by Defendant Ultimate Images and Design, Inc. Id. at 4. The remaining individual Defendants were supervisors and/or managers, each of whom was either involved in the establishment's daily operations or directly supervised Plaintiff. Id. Plaintiff asserts claims under the Fair Labor Standards Act (“FLSA”) for violations of 29 U.S.C. § 207 for Unpaid Overtime (Count I) and 29 U.S.C. § 206 for Unpaid Minimum Wages (Count II), and a claim for violation of the Florida Minimum Wage Amendment, Article X, § 24, of the Florida Constitution, and Florida Statute § 448.110 (Count III). See id.

         On March 27, 2019, Defendants filed an Answer to the Complaint asserting thirteen Affirmative Defenses. ECF No. [11]. Pursuant to Federal Rule of Civil Procedure 12(f), Plaintiff now moves to strike ten of Defendants' thirteen Affirmative Defenses, namely the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth, Twelfth, and Thirteenth Affirmative Defenses, on the grounds that each is simply a denial and/or lacks the required facts or specificity to provide a legal basis. See ECF No. [14]. Defendants filed a timely Response to Plaintiff's Motion to Strike Certain Affirmative Defenses, ECF No. [21], to which Plaintiff filed a timely Reply, ECF No. [22].


         Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, ” and grants courts broad discretion in making this determination. Fed.R.Civ.P. 12(f); Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318-19 (S.D. Fla. 2005) (citing Williams v. Eckerd Family Youth Alt., 908 F.Supp. 908, 910 (M.D. Fla. 1995)). Under Rule 12(f), “[a] motion to strike will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F.Supp.2d 1215, 1218 (S.D. Fla. 2010) (internal quotation and citation omitted); Action Nissan, Inc. v. Hyundai Motor Am., 617 F.Supp.2d 1177, 1187 (M.D. Fla. 2008) (same); see also Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 2007) (same). Despite the Court's broad discretion, a motion to strike is considered a drastic remedy and is often disfavored. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)); Fabing v. Lakeland Reg'l Med. Ctr., Inc., 2013 WL 593842, at *2 n.2 (M.D. Fla. 2013) (calling Rule 12(f) a “draconian sanction”).

         Even so, “an affirmative defense must be stricken when the defense is comprised of no more than ‘bare-bones, conclusory allegations' or is ‘insufficient as a matter of law.'” Northrop & Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008, 2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017) (quoting Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013) and Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007)). “A 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.” Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002).

         “Courts have developed two schools of thought regarding the pleading standard required for affirmative defenses, and the Eleventh Circuit has not yet resolved the split in opinion.” Ramnarine v. CP RE Holdco 2009-1, LLC, 2013 WL 1788503, at *1 (S.D. Fla. Apr. 26, 2013). Some courts have concluded that affirmative defenses are subject to the heightened pleading standard of Rule 8(a), as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Moore v. R. Craig Hemphill & Assocs., 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014); see also Adams v. JP Morgan Chase Bank, N.A., 2011 WL 2938467, at *2-3 (M.D. Fla. July 21, 2011). Other courts have held that affirmative defenses are subject to a less stringent standard under Rules 8(b) and 8(c), and that affirmative defenses need only “provide fair notice of the nature of the defense and the grounds upon which it rests.” See, e.g., Gonzalez v. Midland Credit Mgmt., Inc., 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013); Jackson v. City of Centreville, 269 F.R.D. 661 (N.D. Ala. 2010); Romero v. S. Waste Sys., LLC, 619 F.Supp.2d 1356, 1358 (S.D. Fla. 2009); Sparta Ins. Co. v. Colareta, 2013 WL 5588140, at *3 (S.D. Fla. Oct. 10, 2013); Ramnarine, 2013 WL 1788503, at *1.

         The difference in language between Rule 8(a) and Rule 8(b) is subtle, but significant. While Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Rule 8(b) merely requires that a party “state in short and plain terms its defenses to each claim asserted against it.” Fed.R.Civ.P. 8(a) and (b). In plain terms, the language of Rule 8(a) requires the party to “show” that they are entitled to relief, while Rule 8(b) does not. See Moore, 2014 WL 2527162, at *2 (“Whereas [Rule 8's] pleading provision uses, ‘showing,' its response and affirmative-defense provisions use, ‘state,' and Iqbal's and Twombly's analyses relied on ‘showing'”); Ramnarine, 2013 WL 1788503, at *3 (explaining that “the difference in the language between Rule 8(a) and Rules 8(b) and (c) requires a different pleading standard for claims and defenses”). Comparable to Rule 8(b), Rule 8(c) requires that a party “must affirmatively state any avoidance or affirmative defense.” Fed.R.Civ.P. 8(c). “[T]he Eleventh Circuit has stressed providing notice as the purpose of Rule 8(c): ‘[t]he purpose of Rule 8(c) is simply to guarantee that the opposing party has notice of any additional issue that may be raised at trial so that he or she is prepared to properly litigate it.'” Jackson v. City of Centreville, 269 F.R.D. 661, 662 (N.D. Ala. 2010) (quoting Hassan v. USPS, 842 F.2d 260, 263 (11th Cir. 1988)).

         In this Court's view, affirmative defenses are not subject to the heightened pleading standard elucidated in Twombly and Iqbal. The straightforward construction of Rule 8 delineates different standards for pleadings generally, and those applicable to defenses. See Fed. R. Civ. P. 8. As noted by the Middle District of Alabama, “to artificially supply Rules 8(b)(1) and 8(c)(1) with the unique language of Rule 8(a)(2) requiring a ‘showing' is to contravene well-established principles of statutory construction, which have been found applicable to interpreting the Federal Rules of Civil Procedure.” E.E.O.C. v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 663 (M.D. Ala. 2012) (citing Business Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41 (1991)). Furthermore, “when one considers that a defendant must answer the complaint within 21 days, imposing a different standard for defenses is not unfair.” Floyd v. SunTrust Banks, Inc., 2011 U.S. Dist. LEXIS 65190, at *8 (N.D.Ga. June 13, 2011).


         a. Third Affirmative Defense

         Defendants' Third Affirmative Defense states “Plaintiff and/or Defendants are not subject to and/or are exempt under applicable statutes. Plaintiff was not individually engaged in interstate commerce.” ECF No. [11] at 6. Plaintiff argues that: (1) Defendants improperly combined two separate defenses; (2) Defendants must plead any exemption under the FLSA with specificity; and (3) the statement regarding Plaintiff's lack of engagement in interstate commerce is a mere denial, not an affirmative defense. ECF No. [14] at 5. The Court addresses each argument in turn.

         When two separate defenses are pled under a single affirmative defense heading, the proper course of action for the court is to strike the defendant's affirmative defense without prejudice, giving leave for the defendant to amend. See New York Disc. Plus, Inc., v. Scottsdale Ins. Co., No. 13-24231-CIV, 2014 U.S. Dist. LEXIS 14148, at *5-6 (S.D. Fla. February 5, 2014) (“This purported defense . . . lists five distinct affirmative defenses, each of which must be pled separately . . . . Therefore, [defendant's defense] fails to provide fair notice and must be stricken, with leave to re-plead.”). Rule 15(a)(2) of the Federal Rules of Civil Procedure allows amendments to the ...

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