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Tokio Marine Specialty Insurance Co. v. Ramos

United States District Court, S.D. Florida

September 20, 2019

TOKIO MARINE SPECIALTY INSURANCE COMPANY, a foreign corporation, Plaintiff,



         This matter is before the Court on Tokio Marine Specialty Insurance Company’s (“Plaintiff”) motion to strike portions of Jorge Daniel’s (“Mr. Daniel”) affirmative defenses. [D.E. 29]. Mr. Daniel responded to Plaintiff’s motion on September 11, 2019 [D.E. 33] to which Plaintiff replied on September 18, 2019. [D.E. 35]. 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 to strike is GRANTED in part and DENIED in part.[1]

         I. BACKGROUND

         Plaintiff filed this action on May 22, 2019 seeking a declaratory judgment that it has no duty to defend or indemnify Steven Ramos (“Mr. Ramos”) or Adrian Leon (“Mr. Leon”) for the claims asserted against them in Florida State court.[2] [D.E. 1]. The plaintiff in the underlying action, Mr. Daniel, alleges that Mr. Ramos and Mr. Leon were grossly negligent when Mr. Daniel was injured in a forklift accident. Mr. Ramos’ and Mr. Leon’s employer at the time of the accident was Plaintiff’s insured, Action Rentals LLC (“Action Rentals”). One of the issues in the underlying litigation is whether Mr. Daniel was an employee of Action Rentals and, if so, whether he was acting in the course of his employment at the time of the negligent act on February 24, 2016. This issue is significant because Plaintiff’s insurance policy excludes “[a]ny obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law, ” including bodily injury to “[a]n employee of the insured arising out of and in the course of . . . “[e]mployment by the insured, ” or “[p]erforming duties related to the conduct of the insured’s business.” [D.E. 1-2].

         Mr. Daniel filed his answer and affirmative defenses to Plaintiff’s complaint on June 17, 2019. [D.E. 12]. Plaintiff moved to strike Mr. Daniel’s affirmative defenses on July 8, 2019 but Mr. Daniel failed to file a timely response. [D.E. 18]. The Court then entered a paperless order on July 30, 2019 and required Mr. Daniel to show cause why the Court should not grant the motion by default. [D.E. 24]. Mr. Daniel responded to the Court’s Order on July 30, 2019 [D.E. 25] and moved for an extension of time to file an amended answer and affirmative defenses. The Court granted Mr. Daniel’s motion and denied as moot Plaintiff’s initial motion to strike. [D.E. 26]. Mr. Daniel then filed an amended answer and affirmative defenses on July 31, 2019 [D.E. 27] and Plaintiff renews its motion to strike Mr. Daniel’s defenses as being legally insufficient under Fed.R.Civ.P. 12(f). [D.E. 29].


         A party 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.

         “The 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).

         But, a “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)).

         “Furthermore, 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.

         III. ANALYSIS

         Plaintiff’s motion seeks to strike Mr. Daniel’s first, second, third, and sixth affirmative defenses. Mr. Daniel concedes, in his response, that some of his affirmative defenses are inadequate and agrees to withdraw his first affirmative defense. Mr. Daniel also agrees to amend his second and third affirmative defenses so that they constitute mere denials.[3] Mr. Daniel denies, however, that his sixth affirmative defenses is inadequate and contends that Plaintiff’s motion, to this extent, must be denied. This means that the sixth affirmative defense is the only issue remaining for disposition. Therefore, Plaintiff’s motion to strike Mr. Daniel’s first, second, and third affirmative defenses is DENIED as moot.

         Mr. Daniel’s sixth affirmative defense states “[t]hat Defendant requests attorney’s fees in this cause pursuant to sections 626.911, 626.9373, 627.428, Florida Statutes, and/or [any] other law should he prevail in this action.” [D.E. 27]. Plaintiff argues that this defense must be stricken because it does not meet the definition of an affirmative defense. Plaintiff claims that “[a]n affirmative defense is established only when a defendant admits the essential facts of a complaint and sets up other facts in justification or avoidance, ” and that Mr. Daniel’s request for attorneys’ fees fails to meet this threshold. Will v. Richardson–Merrell, Inc., 647 F.Supp. 544, 547 (S.D. Ga. 1986) (emphasis in the original). Plaintiff also contends that Mr. Daniel is not Plaintiff’s insured and that, even if Mr. Daniel prevails in this case, he is not entitled to fees under any of the laws referenced in his answer. For these reasons, Plaintiff requests that the Court strike Mr. Daniel’s sixth affirmative defense.

         Before we consider the merits of the sixth affirmative defense, we note that the defense fails for an entirely separate reason because it fails to comply with Fed.R.Civ.P. 8. “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). In fact, no United States Court of Appeals has decided the question on whether the plausibility standard enunciated in Twombly and Iqbal applies to affirmative defenses “and the district courts that have considered it do not agree on an answer.” Owen v. Am. Shipyard Co., LLC, 2016 WL 1465348, at *1 (D.R.I. Apr. 14, 2016) (citing Stephen Mayer, Note, An Implausible Standard for Affirmative Defenses, 112 Mich. L. Rev. 275, 276 (2013) (“More than one hundred federal cases have contemplated whether the plausibility standard outlined in ...

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