United States District Court, S.D. Florida
POLLO CAMPESTRE, S.A. DE C.V. Plaintiff,
CAMPERO, INC. Defendant,
ORDER ON DEFENDANT'S MOTION TO STRIKE AFFIRMATIVE
G. TORRES, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Campero, Inc.'s
(“Campero” or “Defendant”) motion to
strike Pollo Campestre, S.A. DE C.V.'s (“Pollo
Campestre” or “Plaintiff”) affirmative
defenses. [D.E. 129]. Plaintiff filed a response on September
26, 2019 [D.E. 132] to which Defendant replied on October 3,
2019. [D.E. 134]. Therefore, Defendant's motion is now
ripe for disposition. After careful consideration of the
motion, response, reply, relevant authorities, and for the
reasons discussed below, Defendant's motion is
GRANTED in part and DENIED in
filed this action on February 20, 2018, to seek judicial
review of a decision from the Trademark Trial and Appeal
Board (“TTAB”). [D.E. 1]. The TTAB granted
Campero's motion for summary judgment and refused the
trademark registration of Pollo Campestre's proposed
trademark. TTAB entered judgment in favor of Campero because
of the likelihood of confusion between the trademarks.
Campero then filed a counterclaim on July 8, 2019 seeking (1)
a declaratory judgment, affirming the TTAB decision in its
favor, and (2) a declaratory judgment for trademark
infringement and unfair competition. [D.E. 99].
Campero's counterclaim, Pollo Campestre filed an answer
with affirmative defenses on August 22, 2019. [D.E. 199].
Pollo Campestre presented seven affirmative defenses: (1)
failure to state a claim, (2) lack of standing, (3) naked
licensing, (4) abandonment, (5) estoppel, (6) unclean hands,
and (7) trademark misuse. Campero challenges these defenses
because they are conclusory with no facts to meet the
requirements of Rule 8(a).
APPLICABLE PRINCIPLES AND LAW
Rule 12(f) of the Federal Rules, a party may move to strike
“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)). Therefore, an affirmative defense is
a pleading; as a result, it 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).
an affirmative defense must follow the general pleading
standard under 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). An
affirmative defense is only established when a defendant
admits the essential facts of the complaint and provides
other facts in justification or avoidance; thus, a defense
which points to a defect in the plaintiff's complaint is
not 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).
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). An affirmative defense will be stricken if it
fails to state more than a bare bone conclusory allegation.
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, at *1).
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. See Microsoft
Corp., 211 F.R.D. at 684.
motion seeks to strike Pollo Campestre's first, second,
third, fourth, fifth, sixth, and seventh affirmative
defenses. The first affirmative defense is that
Campero's counterclaim fails to state a claim upon which
relief can be granted. Campero moves to strike this defense
because it is not an affirmative defense, and it is otherwise
conclusory without any supporting facts. The second
affirmative defense is lack of standing. Campero claims that
this defense must also be stricken because lack of standing
is not an affirmative defense, and Pollo Campestre has failed
to allege any supporting facts or present any other authority
to conclude otherwise. The third, fourth, and fifth
affirmative defenses are naked licensing, abandonment, and
estoppel. Campero argues that these defenses are inadequate
for the same reasons discussed above because there is no
explanation as to how they apply to the facts of this case.
And as for the sixth (unclean hands) and seventh (trademark
misuse) affirmative defenses, Campero concludes that they are
too conclusory and must be stricken accordingly.
we consider the merits of Campero's motion to strike, the
affirmative defenses are defective because they fail 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 ...