Connor v. Ferris Marketing, Inc. et al

Filing 35

OPINION AND ORDER granting 32 Motion to Strike 21 Affirmative Defenses as set forth in the Opinion and Order without prejudice to filing amended affirmative defenses within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 3/8/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL
individual,

CONNOR,

an

Plaintiff,
v.

Case No: 2:16-cv-871-FtM-29MRM

FERRIS MARKETING, INC., a
Delaware
corporation,
PC
GEAR HEAD, LLC, a Florida
limited liability company,
RONALD M. FERRIS, JR., an
individual, and DANIEL A.
SHEA, an individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion to
Strike (Doc. #32) filed on February 11, 2017.

Defendants filed a

Memorandum in Opposition (Doc. #33) on February 24, 2017.
Plaintiff seeks to strike the Affirmative Defenses (Doc. #21,
pp. 11-12) asserted by defendants Ferris Marketing, Inc., Ronald
M. Ferris, Jr., and PC Gear Head, LLC.

Defendants assert six

defenses to the claims set forth in the Complaint 1.

1

Plaintiff

Claims are for breach of fiduciary duty against Ferris under
the Florida’s Revised Limited Liability Company Act (Count One),
a breach of a common law fiduciary duty against Ferris and Shea
(Count Two), a breach of fiduciary duty and aiding and a abetting
the breach against Ferris Marketing (Count III), conspiracy as to
Ferris, Shea, and Ferris Marketing (Count IV), breach of an implied
operating agreement against Ferris Marketing (Count V), breach of
the implied covenant of good faith and fair dealing against Ferris

seeks to strike the Second, Third, and Fourth Affirmative Defenses
because they are denials and not true affirmative defenses, and
plaintiff seeks to strike all six defenses because they lack the
factual support to state a claim.

The motion will be granted as

set forth below.
A. Standard of Review
As previously determined by the undersigned:
Defenses are subject to the general pleading
requirements of Rule 8 of the Federal Rules of
Civil Procedure. Rule 8(b)(1)(A) requires a
party to “state in short and plain terms its
defenses to each claim asserted against it,”
and
Rule
8(c)
requires
a
party
to
“affirmatively
state
any
avoidance
or
affirmative
defense.”
“An
affirmative
defense is generally a defense that, if
established,
requires
judgment
for
the
defendant even if the plaintiff can prove his
case by a preponderance of the evidence.”
Wright v. Southland Corp., 187 F.3d 1287, 1303
(11th Cir. 1999).
Pursuant to Federal Rule
of Civil Procedure 12(f), courts may strike
“insufficient defense[s]” from a pleading,
either upon a motion or sua sponte.
Daley v. Scott, No. 2:15-CV-269-FTM-29DNF, 2016 WL 3517697, at *1
(M.D. Fla. June 28, 2016).

Boilerplate pleading – that is, merely

listing the name of the affirmative defense without providing any
supporting facts – is insufficient to satisfy Rule 8(c) because it
does not provide adequate notice to plaintiff to rebut, or properly

Marketing (Count VI), for judicial dissolution of PC Gear Head
against Ferris Marketing (Count VII), for unjust enrichment
against all three defendants (Count VIII), and violation of the
Copyright Act (IX) against PC Gear Head.

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litigate the defense.

Id. at *2 (citing Grant v. Preferred

Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S.
Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)).

Defendants

have an obligation to identify the specific claims associated with
each defense to avoid ambiguity in the pleading that would make it
a shotgun pleading.

Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th

Cir. 2001), abrogated on other grounds as recognized by, Nurse v.
Sheraton Atlanta Hotel, 618 F. App'x 987, 990 (11th Cir. 2015).
“[R]equiring defendants to plead some facts establishing a
nexus between the elements of an affirmative defense and the
allegations in the complaint streamlines the pleading stage, helps
the parties craft more targeted discovery requests, and reduces
litigation costs.”

Daley, at *3 (citations omitted).

B. First Affirmative Defense
In

the

First

Affirmative

doctrine of unclean hands.
for this defense.
successfully

invoke

Defense,

defendants

assert

the

Defendants provide no factual support

“The Eleventh Circuit has observed that to
the

unclean

hands

doctrine

requires

a

defendant to establish two things: “First, the defendant must
demonstrate that the plaintiff’s wrongdoing is directly related to
the claim against which it is asserted.

Second, even if directly

related, the plaintiff’s wrongdoing does not bar relief unless the
defendant

can

show

that

it

was

conduct.”

PK Studios, Inc. v. R.L.R. Investments, LLC, No. 2:15-

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personally

injured

by

[his]

CV-389-FTM-99CM, 2016 WL 4529323, at *6 (M.D. Fla. Aug. 30, 2016)
(citation omitted).

Without even an indication of which claim in

the Complaint the defense relates to, the first defense must be
stricken for failure to comply with Rule 8(c).
C. Second Affirmative Defense
In the Second Affirmative Defense, defendants assert that
plaintiff failed to plead a claim in Count IX under the Copyright
Act.

Defendants do not state why plaintiff has failed to state a

claim, and in any event, by merely pointing out a defect in
plaintiff’s prima facie case, defendants are only stating a general
defense or denial and not an affirmative defense.

See PK Studios,

Inc. v. R.L.R. Invs., LLC, No. 2:15-CV-389-FTM-99CM, 2016 WL
4529323, at *2 (M.D. Fla. Aug. 30, 2016) (citing In re Rawson Food
Serv., Inc., 846 F.2d 1343, 1349 & n.9 (11th Cir. 1988)). 2

The

defense will be stricken.
D. Third and Fourth Affirmative Defense
As to the Third and Fourth Affirmative Defenses, as indicated
above, defendants must provide some factual basis, and connect the
defenses to a specific claim or claims under Rule 8(c).

Defendants

allege that plaintiff’s claims are barred because he did not first
make a demand upon the corporation’s board of directors (Third

2

The Court notes that defendant PC Gear Head, LLC filed a
separate Motion to Dismiss (Doc. #20) as to Count IX. That motion
was addressed by separate Opinion and Order.

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Defense), or the shareholders (Fourth Defense).

Plaintiff argues

that these are specific denials, and further argues that they are
insufficiently pled.
Only

one

corporation

is

involved

in

this

case,

Ferris

Marketing, Inc., and there is no clear indication as to which count
is barred by these defenses, or on what basis plaintiff would be
required to make a demand before filing suit.

“[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) (citations omitted).

The motion to strike

will be granted as to both defenses.
E. Fifth and Sixth Affirmative Defenses
In the last two defenses, defendants assert estoppel (Fifth
Defense) and waiver (Sixth Defense) without any factual basis for
either defense.

In fact, “[d]efendant[s] fails to allege any

facts

in

whatsoever

woefully

short

of

support
Rule

8's

of

these

liberal

defenses,
pleading

thus

falling

requirements.”

Wlodynski v. Ryland Homes of Florida Realty Corp., No. 8:08-CV00361-JDW-MAP, 2008 WL 2783148, at *2 (M.D. Fla. July 17, 2008).
These defenses will also be stricken for failure to comply with
Rule 8(c).
Accordingly, it is hereby

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ORDERED:
Plaintiff’s Motion to Strike (Doc. #32) is GRANTED as set
forth

above

without

prejudice

to

filing

amended

affirmative

defenses within FOURTEEN (14) DAYS of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this
March, 2017.

Copies:
Counsel of Record

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8th

day of