United States District Court, S.D. Florida
ORDER ON MOTION TO STRIKE AFFIRMATIVE
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiff's
Motion to Strike Affirmative Defenses, ECF No.  (the
“Motion”). In the Motion, Plaintiff requests the
Court strike ten of Defendants' thirteen Affirmative
Defenses asserted in their Answer, ECF No. 
(“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.
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. . 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.
March 27, 2019, Defendants filed an Answer to the Complaint
asserting thirteen Affirmative Defenses. ECF No. .
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.
. Defendants filed a timely Response to Plaintiff's
Motion to Strike Certain Affirmative Defenses, ECF No. ,
to which Plaintiff filed a timely Reply, ECF No. .
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
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.
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.
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)).
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).
Third Affirmative Defense
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.  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.  at 5.
The Court addresses each argument in turn.
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 ...