333 F.R.D. 594 (S.D.Fla. 2019), 19-22831-Civ-WILLIAMS/TORRES, Westchester General Hospital, Inc. v. Evanston Insurance Co.

Docket Nº:19-22831-Civ-WILLIAMS/TORRES
Citation:333 F.R.D. 594
Opinion Judge:EDWIN G. TORRES, United States Magistrate Judge
Attorney:Stephanie Alice Weeks, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff. Emily Catherine Smith, Devang B. Desai, Gaebe, Mullen, Antonelli & DiMatteo, Coral Gables, FL, for
Case Date:October 25, 2019
Court:United States District Courts, 11th Circuit, Southern District of Florida

Page 594

333 F.R.D. 594 (S.D.Fla. 2019)




No. 19-22831-Civ-WILLIAMS/TORRES

United States District Court, S.D. Florida

October 25, 2019

Page 595

Stephanie Alice Weeks, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff.

Emily Catherine Smith, Devang B. Desai, Gaebe, Mullen, Antonelli & DiMatteo, Coral Gables, FL, for


EDWIN G. TORRES, United States Magistrate Judge

This matter is before the Court on Westchester General Hospital, Inc.’s ("Plaintiff") motion to strike Evanston Insurance Company’s ("Defendant") affirmative defenses. [D.E. 24]. Defendant responded to Plaintiff’s motion on September 23, 2019 [D.E. 26] to which Plaintiff replied on September 27, 2019. [D.E. 27]. Therefore, Plaintiff’s motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authorities, and for the reasons discussed below, Plaintiff’s motion to strike is GRANTED.

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Plaintiff filed this action in Florida state court and Defendant removed it on July 10, 2019. [D.E. 1]. This action relates to an incident that occurred in 2018 where Jane Doe was a mental health patient at Plaintiff’s facility. Jane Doe alleges that one of Plaintiff’s employees injured her and that that Plaintiff was negligent for failing to investigate, train, supervise, and/or adequately staff its mental health department.

Defendant issued Plaintiff an insurance policy with effective dates of May 23, 2018 to May 23, 2019. The policy contains several coverage parts, including general liability insurance coverage and professional liability insurance coverage. Defendant also issued an umbrella liability policy to Plaintiff, providing excess indemnity. When Jane Doe filed suit in state court, Plaintiff notified Defendant of the underlying litigation. On April 2, 2019, Defendant issued a reservation of rights letter to Plaintiff, stating that Defendant would provide a defense to Plaintiff under one of the insurance policies. Defendant clarified, however, that it would not indemnify Plaintiff for any damages that may be awarded. Plaintiff then filed this declaratory action pursuant to the insurance policies and demands that Defendant indemnify Plaintiff for any damages incurred in the underlying litigation.


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

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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.


Plaintiff’s motion seeks to strike all six of Defendant’s affirmative defenses because they are mere denials. Plaintiff claims that an affirmative defense - by definition - is a defense that admits the facts of a complaint and sets forth other facts in justification or avoidance. Plaintiff argues that the affirmative defenses in this case fail to meet that threshold and that they should be stricken as a result. Plaintiff also contends that the affirmative defenses fail for an entirely separate reason because they lack any factual support to meet the requirements of Rule 8. Plaintiff suggests, for example, that each defense sets forth nothing more than legal conclusions or generic references to legal doctrines such as waiver, laches, and estoppel. While some of the defenses reference the underlying insurance policies, Plaintiff maintains that they are defective because Defendant fails to specify what terms, limitations, conditions, or exclusions apply in this case. Because Defendant’s single-sentence defenses are conclusory and lack any factual support, Plaintiff concludes that the motion to strike must be granted.

Plaintiff’s motion is well taken because the affirmative defenses in this case 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 [Twombly and Iqbal] applies to affirmative...

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