333 F.R.D. 600 (S.D.Fla. 2019), 19-62282-CIV-DIMITROULEAS, Progressive Express Insurance Co. v. Star Painting & Waterproofing, Inc.

• Docket Nº: 19-62282-CIV-DIMITROULEAS
• Citation: 333 F.R.D. 600
• Opinion Judge: WILLIAM P. DIMITROULEAS, United States District Judge
• Party Name: PROGRESSIVE EXPRESS INSURANCE COMPANY, an Ohio corporation, Plaintiff, v. STAR PAINTING & WATERPROOFING, INC., et al., Defendants.
• Attorney: Stuart Jeffrey Freeman, Freeman, Goldis & Cash, P.A., St. Petersburg, FL, for Plaintiff. Andrew Steven Douglas, Weston, FL, Lawrence Allen Levine, Lawrence A. Levine PA, Plantation, FL, for Defendants. Jose Perez, Miami, FL, pro se. Juan Diaz, Hollywood, FL, pro se. Antonia Carmen Diaz, Hollywood...
• Case Date: December 02, 2019
• Court: United States District Courts, 11th Circuit, Southern District of Florida

Page 600

333 F.R.D. 600 (S.D.Fla. 2019)

PROGRESSIVE EXPRESS INSURANCE COMPANY, an Ohio corporation, Plaintiff,

v.

STAR PAINTING & WATERPROOFING, INC., et al., Defendants.

No. 19-62282-CIV-DIMITROULEAS

United States District Court, S.D. Florida

December 2, 2019

Entered 12/03/2019

Stuart Jeffrey Freeman, Freeman, Goldis & Cash, P.A., St. Petersburg, FL, for Plaintiff.

Andrew Steven Douglas, Weston, FL, Lawrence Allen Levine, Lawrence A. Levine PA, Plantation, FL, for Defendants.

Jose Perez, Miami, FL, pro se.

Juan Diaz, Hollywood, FL, pro se.

Antonia Carmen Diaz, Hollywood, FL, pro se.

ORDER GRANTING MOTIONS TO STRIKE AFFIRMATIVE DEFENSES

WILLIAM P. DIMITROULEAS, United States District Judge

Page 601

THIS CAUSE is before the Court on Plaintiff Progressive Express Insurance Company ("Plaintiff")’s Motion to Strike Affirmative Defenses of Defendants Mohamed Afyouni and Kathryn Beich [DE 36] and Motion to Strike Affirmative Defenses of Defendant Star Painting and Waterproofing [DE 37], both filed on November 14, 2019. The Court has carefully considered the Motions [DE’s 36, 37], Defendants Mohamed Afyouni and Kathryn Beich’s Response in Opposition [DE 42], Defendant Star Painting and Waterproofing’s Response in Opposition [DE 43], and is otherwise fully advised in the premises.

I. Background

Plaintiff filed this action on September 13, 2019. See [DE 1]. Amended Complaint, which is the operative pleading in this case, was filed on October 14, 2019. See [DE 20]. On October 28, 2019, Defendants Mohamed Afyouni and Kathryn Beich filed an Answer and Affirmative Defenses to Amended Complaint. See [DE 27]. On October 31, 2019, Defendant Star Painting and Waterproofing, Inc. filed an Answer and Affirmative Defenses to Amended Complaint. See [DE 28]. Plaintiff filed the instant Motions on November 14, 2019, requesting that the Court enter an order striking these Defendants’ Affirmative Defenses Nos. 2, 5, 6, 7, and 8, which provide as follows: 1. Plaintiff’s complaint fails to state any claim on which relief may be granted.

2. Plaintiff’s claims are barred by his unclean hands.

3. Plaintiff’s declaratory judgment claim fails to present a justiciable controversy between the parties.

4. Plaintiff’s claims are barred in whole or in part by the applicable statutes of limitations.

5. Plaintiff’s claims are barred in whole or in part by the doctrine of laches.

6. Plaintiff’s claims are barred in whole or in part by the doctrine of estoppel. Plaintiff’s claims are barred in whole or in part by the doctrine of accord and satisfaction.

7. Plaintiff’s claims are barred in whole or in part by the applicable statute of frauds.

8. Plaintiff’s claims are barred in whole or in part by the doctrine of waiver.

See [DE’s 27; 28].

II. Discussion

Rule 12(f) permits a court to strike an insufficient defense. See Fed.R.Civ.P. 12(f). Striking an affirmative defense is a drastic remedy that is disfavored and that will be granted only if it is clear that the defense must fail. Augustus v. Bd. of Pub. Instruction of Escambia County, 306 F.2d 862, 868 (5th Cir. 1962). Furthermore, "both because striking a portion of a pleading is a drastic remedy and because it often is sought by the movant simply as a dilatory or harassing tactic ... motions under Rule 12(f) are viewed with disfavor and are infrequently granted." 5C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1380 (3d ed. 2008). "[I]t must be shown that the allegations being challenged are so unrelated to plaintiff’s claims as to be unworthy of any consideration as a defense and that their presence in the pleading throughout the proceeding will be prejudicial to the moving party." Id.

Nonetheless, affirmative defenses are subject to the same pleading scrutiny...