United States District Court, S.D. Florida
ORDER ON DEFENDANT/COUNTER-PLAINTIFF'S MOTION TO
STRIKE AFFIRMATIVE DEFENSES TO COUNTERCLAIM
G. TORRES, United States Magistrate Judge.
September 16, 2019, Defendant/Counter-Plaintiff EWC P&T,
LLC (“Defendant” or “EWC”) filed a
Motion to Strike certain affirmative defenses asserted by
Plaintiff/Counter-Defendant BRYAN BOIGRIS
(“Plaintiff” or “Boigris”) contained
within his Amended Answer to the EWC's Counterclaim.
[D.E. 24]. The Honorable Judge Robert N. Scola referred that
Motion to the undersigned on the same day of its filing.
[D.E. 25]. Boigris responded in opposition to the Motion on
September 30, 2019, and Defendant's Reply followed on
October 7. [D.E. 27, 30]. As such, the Motion is now
fully-briefed and ripe for disposition, and following our
review of the arguments asserted in the briefing materials
and the governing legal authorities, we hereby
ORDER that EWC's Motion be
filed this action to appeal a final order issued by the
United States Patent and Trademark Office
(“USPTO”) denying Plaintiff's application to
register three trademarks. [D.E. 1]. According to the
Complaint, Plaintiff hoped to sell cosmetic beauty products
through third-party websites using three different names for
product lines: “Reveal Me, ” “Smooth Me,
” and “Renew Me.” He sought trademark
protection for these three marks with the USPTO. Defendant
filed a Consolidated Notice of Opposition to the registration
of the marks, arguing that Plaintiff's application with
the USPTO failed to establish that he possessed a bona
fide intent to use each in commerce. The USPTO agreed
with Defendant and sustained EWC's opposition to the
application, denying Plaintiff's request for trademark
protection for the product lines at issue.
filed a Complaint on March 25, 2019, asking that declaratory
relief be entered in his favor and that this Court reverse
the USPTO's decision. EWC answered the Complaint on July
8, 2019 and asserted a counterclaim against Boigris for
alleged violations of the Anti-Cybersquatting Consumer
Protection Act and Florida's Deceptive and Unfair Trade
Practices Act (Counts III and IV). The counterclaim also
seeks declaratory relief affirming the USPTO's decision
to deny the application (Counts I and II).
answered EWC's counterclaim on August 1, 2019, and
amended his Answer three weeks later. [D.E. 14, 18]. The
Amended Answer asserted two affirmative defenses to
Defendant's counterclaim, which read as follows:
First Amended Affirmative Defense
claims should be barred by the doctrine of unclean hands.
Second Amended Affirmative Defense
Counter-Plaintiff is barred from recovery insofar as
Counter-Defendant acted at all times in good faith.
now moves to strike these affirmative defenses, arguing that
each is conclusory and lacks factual specificity required by
the Federal Rules of Civil Procedure. [D.E. 24]. Plaintiff
opposes the Motion, arguing that the Complaint contains
sufficient factual allegations to support each of the
affirmative defenses asserted. [D.E. 27]. We disagree, and
find that the defenses run afoul of the particularity
requirements mandated by Rule 8 of the Federal Rules of Civil
Procedure. For this reason, the Motion will be granted.
affirmative defense “admits to the complaint, but
avoids liability, wholly or partly, by new allegations of
excuse, justification, or other negating matters.”
Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668,
671 (S.D. Fla. 2013). The purpose of an affirmative defense
is to give the opposing party notice of an issue to allow it
to prepare to litigate the issue raised. Losada v.
Norwegian (Bahamas) Ltd., 296 F.R.D. 688, 691 (S.D. Fla.
2013) (citing Hassan v. United States Postal
Service, 842 F.2d 260, 263 (11th Cir. 1998)). Rule 12
permits a court to strike an insufficient affirmative
defense, Fed.R.Civ.P. 12(f), but ...