United States District Court, S.D. Florida
TOKIO MARINE SPECIALTY INSURANCE COMPANY, a foreign corporation, Plaintiff,
STEVEN RAMOS, ADRIAN LEON, JORGE DANIEL, and ACTION RENTALS LLC, Defendants.
ORDER ON PLAINTIFF’S MOTION TO STRIKE
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
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
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. [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].
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].
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 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. 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.
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.
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 ...