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Pollo Campestre, S.A. DE C.V. v. Campero, Inc.

United States District Court, S.D. Florida

October 29, 2019

CAMPERO, INC. Defendant,



         This 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 part.


         Plaintiff 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].

         Following 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).


         Under 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).

         Moreover, 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.

         “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).

         However, 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).

         “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. See Microsoft Corp., 211 F.R.D. at 684.

         III. ANALYSIS

         Campero's motion seeks to strike Pollo Campestre's first, second, third, fourth, fifth, sixth, and seventh affirmative defenses.[1] 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.

         Before 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 ...

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