Morrison v. Executive Aircraft Refinishing, Inc.

• Decision Date: 08 April 2005
• Docket Number: No. 0481079CIVRYSKAMP.,0481079CIVRYSKAMP.
• Citation: 434 F.Supp.2d 1314
• Parties: Devon MORRISON, Plaintiff, v. EXECUTIVE AIRCRAFT REFINISHING, INC., and Mark Turi, individually, Defendants.
• Court: U.S. District Court — Southern District of Florida

434 F.Supp.2d 1314

Devon MORRISON, Plaintiff, v. EXECUTIVE AIRCRAFT REFINISHING, INC., and Mark Turi, individually, Defendants.

No. 0481079CIVRYSKAMP.

United States District Court, S.D. Florida, West Palm Beach.

April 8, 2005.

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE CERTAIN OF DEFENDANTS' AFFIRMATIVE DEFENSES

RYSKAMP, District Judge.

THIS CAUSE comes before the Court upon Plaintiff's Motion to Strike Certain of Defendants' Affirmative Defenses [DE 12] filed on March 7, 2005. In that motion, Plaintiff requests that the Court strike Defendants' Fourth, Fifth, Sixth and Ninth Affirmative Defenses and require Defendants to amend their Second, Seventh and Eighth Affirmative Defenses.¹ Defendants filed a Response to Plaintiff's Motion to Strike Affirmative Defenses [DE 17] on March 28, 2005, and Plaintiff filed a Reply [DE 19] on April 7, 2005. The motion is now ripe for adjudication.

I. Introduction

This is an action to recover alleged unpaid overtime wages under the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. ("FLSA"). Plaintiff was employed by Defendants as a painter from approximately January, 2003 through December, 2003. See Compl. [DE 1], at ¶ 20. Plaintiff alleges that he regularly worked over forty (40) hours per week and was not compensated time and a half wages accordingly. See id. at ¶¶ 21-22. In their Answer and Affirmative Defenses [DE 10], Defendants deny most of the allegations of the Complaint and offer ten affirmative defenses, including that Plaintiffs' claims are barred by: (1) Plaintiff's failure to provide notice of any unlawful practice; (2) Plaintiff's duty to mitigate damages; (3) "waiver, estoppel, laches, satisfaction, release or agreement"; and (4) setoff. See Ans. and Aff. Def. [DE 10], at 8-9. Plaintiff contends that these four affirmative defenses must be stricken because they are not recognized under the FLSA or are otherwise legally insufficient. Defendants also raise as affirmative defenses that: (1) Plaintiff and/or Defendants are not subject to the FLSA; (2) Plaintiff's damages are "restricted by the statutes and acts which form the basis for the cause of action"; and (3) Defendants did not wilfully violate the law; or alternatively, Defendants had a good faith belief that they were in compliance with the law. Id. Plaintiff contends that these three affirmative defenses are overly vague and must be amended.

II. Discussion

The Court has broad discretion in considering a motion to strike under Fed.R.Civ.P. 12(f). See Williams v. Eckerd Family Youth Alternative, 908 F.Supp. 908, 910 (M.D.Fla.1995). Rule 12(f) states that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(f). Thus, a defense will be stricken if it is insufficient as a matter of law. See Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000 (M.D.Fla.1976). "A defense is insufficient as a matter of law if, on the face of the pleadings, it is patently frivolous, or if it is clearly invalid as a matter of law." Id. (citations omitted).

In addition, affirmative defenses must comply with the general pleading requirements of Fed.R.Civ.P. 8(a), which requires "a short and plain statement" of the asserted defense. Fed.R.Civ.P. 8(a). The rule does not obligate a defendant to set forth detailed and particular facts, but requires only that the defendant give "fair notice" of the defense and "the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). On the other hand, the party raising the affirmative defense "must do more than make conclusory allegations." Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 684 (M.D.Fla. 2002). Where the affirmative defenses are no more than "bare bones conclusory allegations, [they] must be stricken."² Id.

By its very definition, "[a]n affirmative defense is established only when a defendant admits the essential facts of a complaint and sets up other facts in justification or avoidance." Will v. Richardson-Merrell, Inc., 647 F.Supp. 544, 547 (S.D.Ga.1986) (emphasis in the original). Thus, a defense which simply points out a defect or lack of evidence in a plaintiff's case is not an affirmative defense. See In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.1988). 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. See Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir.2001); Anderson v. Dist. Bd. of Trustees of Central Fla. Comm. Coll., 77 F.3d 364, 367 (11th Cir.1996).

The Court addresses each of Defendants' affirmative defenses in light of the standards stated above.

A. Second Affirmative Defense

As their Second Affirmative Defense, Defendants assert:

Plaintiff and/or Defendants are not subject to and/or are exempt under applicable statutes. Defendants was not a covered entity under the FLSA. Plaintiff does not have individual coverage under the FLSA. Defendant was not en [sic] employer and Plaintiff was not an employee as defined by the FLSA.

Ans. and Aff. Def. [DE 10], at 8.

Plaintiff contends that Defendants should be required to list the specific exemptions that they claim are applicable in this case. The Court agrees. A claim of exemption under the FLSA is an affirmative defense that, pursuant to Fed. R.Civ.P. 8(c), must be specifically pleaded or it will be deemed waived. E.g., Schwind v. EW & Assocs., Inc., 357 F.Supp.2d 691 (S.D.N.Y.2005). Where a defendant pleads generally that a plaintiff is not covered under the FLSA, but fails to identify the specific FLSA exemptions that are applicable, the defendant should be given leave to amend the defense. Id. Therefore, the Court strikes the Second Affirmative Defense without prejudice, and grants Defendants leave to amend.

B. Fourth Affirmative Defense

As their Fourth Affirmative Defense, Defendants state that "[t]he action and/or the damages claimed in this action are barred by Plaintiffs failure to provide notice of any alleged unlawful pay practice." Ans. and Aff. Def. [DE 10], at ¶ 8. There is no requirement under the FLSA for a plaintiff to have provided notice of an alleged wage violation prior to bringing suit. An employee is only obligated to have given an employer notice for a claim brought under the FLSA's antiretaliation provision. See 29 U.S.C. § 215(a)(3); Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir.1999). As Plaintiff has not alleged any retaliation claim, the Fourth Affirmative Defense is legally insufficient and must be stricken with prejudice.

C. Fifth Affirmative Defense

As their Fifth Affirmative Defense, Defendants assert that "Plaintiff has a duty to mitigate damages." Ans. and Aff. Def. [DE 10], at ¶ 8. Plaintiff argues that the doctrine of mitigation is not applicable to FLSA actions, and this Court agrees. Although employees claiming wrongful discharge under Title VII or the Age Discrimination in Employment Act have a duty to use reasonable efforts to mitigate their damages, there is no requirement to mitigate overtime wages under the FLSA. Defendant has not cited, nor can this Court locate, any authority to support such a requirement; moreover, it would seem to contradict the purposes of the FLSA if an employee were required, after working overtime hours, to secure alternative employment to mitigate his damages. Thus, the Fifth Affirmative Defense is legally insufficient and is stricken with prejudice.

D. Sixth Affirmative Defense

As their Sixth Affirmative Defense, Defendants assert that "[t]he action and/or damages claimed in this action are barred by waiver, estoppel (collateral or otherwise), laches, satisfaction, release or agreement." Ans. and Aff. Def. [DE 10], at ¶ 8. Defendants have altogether failed to allege any facts to support these defenses. In any event, none of these defenses are recognized under the FLSA and must be stricken with prejudice.

First, the rights provided under the FLSA, including the right to overtime compensation, cannot be contractually abridged or otherwise waived by an employee because a waiver would "nullify the purposes" of the statute and the legislative policies it was designed to effectuate. See, e.g., Lee v. Flightsafety Servs. Corp., 20 F.3d 428, 432 (11th Cir.1994); Lynn's Food Stores, Inc. v. U.S. Dept. of Labor, 679 F.2d 1350, 1352 (11th Cir.1982). The FLSA's general aim of counteracting the unequal bargaining power of employers over their employees forbids the waiver of minimum and overtime wages. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 706, 65 S.Ct. 895, 89 L.Ed. 1296 (1945). Accordingly, waiver is usually not a recognized affirmative defense under the FLSA, nor is a release of FLSA rights valid. See Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir.1959). Plaintiff is correct in asserting that there are only two exceptions where waiver is a recognized defense: (1) an employee accepts full payment of unpaid wages, as supervised by the Secretary of Labor; and (2) an employee accepts payment under a court-approved settlement. See 29 U.S.C. §§ 216(b), 216(c); Lynn's Food Stores, 679 F.2d at 1352. Neither of these exceptions are asserted in this case, so Defendant's defenses of waiver, release or agreement must be stricken.

Second, like waiver and release, the doctrine of estoppel is not recognized under the FLSA. See Caserta, 273 F.2d at 946. Federal courts have repeatedly rejected equitable estoppel as an affirmative defense to an FLSA action, even where an employee is required, but fails to, record overtime hours worked. See, e.g., Burry v. Nat'l Trailer Convoy, Inc., 338 F.2d 422, 426-27 (6th Cir.1964); Handler v. Thrasher, 191 F.2d 120, 123 (10th Cir.1951). The only...