Gomez v. Bird Auto., LLC

411 F.Supp.3d 1332

Andres GOMEZ, Plaintiff,

v.BIRD AUTOMOTIVE, LLC and Bird Road Motors, Inc., Defendants.

Case No. 19-23681-Civ-WILLIAMS/TORRES

United States District Court, S.D. Florida.

November 25, 2019

Beverly Virues, Anthony Joseph Perez, Law Office of Garcia-Menocal & Prez, P.L., Miami, FL, for Plaintiff.

William Carlos Diaz-Rousselot, Kurkin Forehand Brandes, LLP, Miami, FL, for Defendant.

EDWIN G. TORRES, United States Magistrate Judge

ORDER ON PLAINTIFF's MOTION TO STRIKE

This matter is before the Court on Andres Gomez's ("Plaintiff") motion to strike Bird Automotive, LLC's ("Defendant") affirmative defenses. [D.E. 13]. Defendant responded to Plaintiff's motion on November 15, 2019 [D.E. 15] to which Plaintiff replied on November 22, 2019. [D.E. 16]. Therefore, Plaintiff's motion is now ripe for disposition. After careful consideration of the motion, response, reply, and relevant authority, and for the reasons discussed below, Plaintiff's motion to strike is GRANTED .

I. APPLICABLE PRINCIPLES AND LAW

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.

II. ANALYSIS

Plaintiff's motion seeks to strike thirty-six affirmative defenses.¹ Plaintiff argues that these defenses must be stricken because they are conclusory and fail to allege a plausible defense as required under Twombly . Plaintiff also claims that many of the defenses are improper denials and fail to present "new allegations of excuse, justification or other negating matters." Royal Palm Sav. Ass'n v. Pine Trace Corp. , 716 F. Supp. 1416, 1420 (M.D. Fla. 1989) (citing Florida East Coast Railway Co. v. Peters, 72 Fla. 311, 73 So. 151 (1916) ). Plaintiff suggests that, in reviewing these defenses, one can only guess as to how they apply to the facts of this case. For these reasons, Plaintiff concludes that almost every affirmative defense must be stricken.

Defendant contends, on the other hand, that Plaintiff's motion lacks merit because Defendant gave Plaintiff fair notice of its defenses and the grounds upon which they rest. Defendant also argues that its defenses need not comply with Twombly's plausibility requirements and Defendant rejects the allegation that its defenses constitute mere denials. Defendant claims, for example, that an affirmative defense premised on the failure to state a claim is permissible and that Plaintiff fails to rely on any authority suggesting otherwise. Accordingly, Defendant requests that Plaintiff's motion be denied.

Before we consider the merits of the motion to strike, the parties disagree as to whether Twombly applies to affirmative defenses. We acknowledge that there is a split of authority in the Eleventh Circuit on the question presented. "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 [ Twombly and Iqbal ] applies to affirmative defenses, yet the districts remain divided, and no court of appeals has yet addressed the issue."); Justin Rand, Tightening Twiqbal: Why Plausibility Must Be Confined to the Complaint , 9 Fed. Cts. L. Rev. 79 (2016) ).

On one hand, many courts have held that affirmative defenses are subject to the heightened pleading standard set forth in the Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). See also Home Mgmt. Sols., Inc. , 2007 WL 2412834, at *2 ("Affirmative defenses, however, are subject to the general pleading requirements of Rule 8(a) and will be stricken if they fail to recite more than bare-bones conclusory allegations.") (citing Merrill Lynch Bus. Fin. Serv., 2005 WL 975773, at *11 ) (citing Microsoft Corp., 211 F.R.D. at 684 ); see also Torres v. TPUSA, Inc., 2009 WL 764466 (M.D. Fla. Mar. 19, 2009) (affirmative defense stating that plaintiff fails to state a claim upon which relief can be granted provides no basis on which the court can determine a plausible basis for this defense); see also Holtzman v. B/E Aerospace, Inc., 2008 WL 2225668, at *2, 2008 U.S. Dist. LEXIS 42630, at *6 (S.D. Fla. May 28, 2008) ("While Defendants need not provide detailed factual allegations, they must provide more than bare-bones conclusions. Plaintiff should not be left to discover the bare minimum facts constituting a defense until discovery"); see also Home Mgmt.Solutions, Inc. , 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) ("Without some factual allegation in the affirmative defense, it is hard to see how a defendant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the defense, but also ‘grounds' on which the defense rests.") (brackets omitted) (quoting Twombly, 550 U.S. at 556 n.3, 127 S.Ct. 1955 ).

On the other hand, some courts have held that the heightened pleading standard described in Twombly and Iqbal only applies to the allegations in complaints – not affirmative defenses. See, e.g., Gonzalez v. Midland Credit Mgmt., Inc. , 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013) ; Floyd v. SunTrust Banks, Inc., 2011 WL 2441744 (N.D. Ga. June 13, 2011) ; Jackson v. City of Centreville, 269 F.R.D. 661 (N.D. Ala. 2010) ; Romero v. S. Waste Sys., LLC , 619 F. Supp. 2d 1356, 1358 (S.D. Fla. 2009) ; Sparta Ins. Co. v. Colareta , 2013 WL 5588140, at *3 (S.D. Fla. Oct. 10, 2013) ; Blanc v. Safetouch, Inc., 2008 WL 4059786, at *1 (M.D. Fla. Aug. 27, 2008). The basis for these decisions stem from the differences between Rule 8(a) – which apply to the pleading of claims – and Rules 8(b) and (c) which apply to affirmative defenses.

In debating whether Twombly and Iqbal apply to affirmative defenses, many parties rely on the language in Rules 8(a) and 8(b). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," whereas Rule 8(b)...