Primo Broodstock, Inc. v. American Mariculture, Inc. et al

Filing 408

ORDER denying 388 Motion to Strike. Defendants withdraw affirmative defenses 13-26 and 95-107 so to that extent the motion is moot. It is otherwise untimely. See Order for details. Signed by Magistrate Judge Nicholas P. Mizell on 10/25/2021. (Mizell, Nicholas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PB LEGACY, INC.,
and TB FOODS USA, LLC,
Plaintiffs,
v.

Case No. 2:17-cv-9-JES-NPM

AMERICAN PENAEID, INC. and
ROBIN PEARL,
Defendants,
and AMERICAN MARICULTURE,
INC.,
Defendant/Counterclaimant,
v.
PB LEGACY, INC.,
Counterclaim Defendant.
ORDER
This nearly five-year-old, trade-secret-misappropriation action is specially set
to be tried before a jury on November 1, 2021, with a final pretrial conference on
October 26. (Docs. 354, 356). Eight days before the final pretrial conference, and
more than four-and-a-half years after the filing of Defendants’ answer (Doc. 81),
Plaintiff TB Foods USA, LLC filed a motion to strike many of Defendants’

affirmative defenses (Doc. 388). Though in the final stages of trial preparation,
Defendants expeditiously filed a response in opposition on Sunday, October 24
(Doc. 407).
The central thrust of Plaintiff’s motion is that the Court’s summary-judgment
rulings nullified some of Defendants’ affirmative defenses. The motion also takes
issue with defenses that are more in the nature of denials, as well as Defendants’
pleading of defenses that do not satisfy Twiqbal’s standard for pleading claims for
relief. Notably, the presiding district judge in this matter squarely rejected the latter
two objections less than two months ago in a case in which Plaintiff’s counsel, Brian
M. Gargano (who signed the motion here), is also counsel of record. See American
Mariculture, Inc. v. Syaqua Americas, Inc., Case No. 2:20-cv-711-JES-MRM, 2021
WL 3732915 (M.D. Fla. Aug. 24, 2021). And yet plaintiff counsel made no attempt
to account for this ruling or distinguish the authorities on which it relied. Instead, it
seems the preparation of the motion to strike included lifting passages from a similar
motion filed in the Southern District of Florida because for these two points the
motion cites only a handful of decisions from that district.
But the Court need not address the merits of Plaintiff’s motion because it is
untimely. Though the motion to strike cites Rule 12(f) of the Federal Rules of Civil
Procedure, it turns a blind eye to the plain text of the rule, which expressly requires
the filing of such a motion “within 21 days after being served with the pleading.”
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Fed. R. Civ. P. 12(f)(2). Defendants served their answer on April 6, 2017, and so
Plaintiff had until April 27, 2017, to file this motion. It is more than four years late.
Nevertheless, Defendants state in their response that, “for housekeeping
purposes, [they] withdraw affirmative defenses 13-26 and 95-107.” (Doc. 407, p. 2).
So to that extent, the motion is also moot. How the summary-judgment rulings shape
the trial of the claims and defenses in this matter may otherwise be addressed during
the final pretrial conference.
Accordingly, Plaintiff’s motion to strike (Doc. 388) is DENIED.
ORDERED in Fort Myers, Florida on October 25, 2021.

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