Harris v. Rambosk et al

Filing 69

OPINION and ORDER granting 61 plaintiff's Motion to Strike. See Opinion and Order for details. Signed by Judge John E. Steele on 7/23/2018. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT DALE HARRIS,
Plaintiff,
v.

Case No:

2:18-cv-17-FtM-29MRM

KEVIN
RAMBOSK,
in
his
official capacity as Sheriff
of Collier County, Florida,
KASEY
P.
WINGO,
individually,
MICHAEL
D.
CHAPMAN, individually, BRIAN
R.
WIEDEL,
individually,
SCOTT PEPIN, individually,
and
ROSS
ANTHONY,
individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion to
Strike Defendant Chapman’s Affirmative Defenses (Doc. #61) filed
on May 31, 2018.

Defendant Michael D. Chapman filed a Response

in Opposition (Doc. #65) on June 14, 2018.

For the reasons set

forth below, the motion is granted.
I.
Robert Dale Harris (Plaintiff) filed a twenty-count Amended
Complaint (Doc. #51) pursuant to 42 U.S.C. § 1983 against Kevin
Rambosk in his official capacity as the Sheriff of Lee County (the
Sheriff), and deputies Kasey P. Wingo (Deputy Wingo), Michael D.
Chapman (Deputy Chapman), Brian R. Wiedel (Deputy Wiedel), Scott

Pepin (Deputy Pepin), and Ross Anthony (Deputy Anthony).

Deputy

Chapman individually filed his Answer and Affirmative Defenses
(Doc.

#58)

on

May

affirmative defenses.

16,

2018,

in

which

he

raises

seventeen

Plaintiff seeks to strike Deputy Chapman’s

Fourth and Sixth Affirmative Defenses because they are conclusory
and unsupported by any facts.
II.
The Federal Rules require defendants to “affirmatively state
any avoidance or affirmative defense.”

Fed. R. Civ. P. 8(c).

“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.”
Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).

Wright v. Southland
Pursuant to Rule

12(f), courts may strike “insufficient defense[s]” from a pleading
upon a motion so requesting or sua sponte.

Fed. R. Civ. P. 12(f).

As this Court recently discussed in some detail, affirmative
defenses must comply with two separate pleading requirements.
First, the defense, as pled, must contain “some facts establishing
a nexus between the elements of an affirmative defense and the
allegations in the complaint,” so as to provide the plaintiff fair
notice of the grounds upon which the defense rests.

Daley v.

Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3 (M.D.
Fla. June 28, 2016).

Boilerplate pleading – that is, merely

listing the name of the affirmative defense without providing any

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supporting facts – is insufficient to satisfy Rule 8(c), because
it does not provide notice sufficient to allow the plaintiff to
rebut or properly litigate the defense.1
Preferred

Research,

Inc.,

885

F.2d

Id. (citing Grant v.
795,

797

(11th

Cir.

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

Requiring defendants to allege some facts linking the

defense to the plaintiff’s claims “streamlines the pleading stage,
helps the parties craft more targeted discovery requests, and
reduces litigation costs.”

Id. (citations omitted).

Second, a defendant must avoid pleading shotgun affirmative
defenses,

viz.,

“affirmative

defenses

[that]

address[]

the

complaint as a whole, as if each count was like every other count.”
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); see also Paylor v. Hartford
Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014).

Rather, each

defense must address a specific count or counts in the complaint
or clearly indicate that (and aver how) the defense applies to all
claims.

See Byrne, 261 F.3d at 1129; see also Lee v. Habashy, No.

This pleading requirement does not “unfairly subject defendants
to a significant risk of waiving viable defenses for which they do
not yet have supporting facts,” since courts routinely grant filing
extensions and freely afford leave to amend pleadings.
Daley,
2016 WL 3517697, at *3.
Often, it is even deemed sufficient
“notice" to raise the affirmative defense in a dispositive motion
or in the pretrial statement or order. Id.
1

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6:09–cv–671–Orl–28GJK, 2009 WL 3490858, at *4 (M.D. Fla. Oct. 27,
2009).
shotgun
replead.

District courts have a sua sponte obligation to identify
affirmative

defenses

and

strike

them,

with

leave

to

See Paylor, 748 F.3d at 1127; Morrison v. Executive

Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla.
2005).
III.
A.

Fourth Affirmative Defense
Deputy Chapman’s Fourth Affirmative Defense asserts that “on

April 4, 2014 probable cause did exist, as a matter of law, for
Plaintiff’s arrest.

Therefore, Plaintiff must have consented to

his arrest by committing actions that established probable cause
for his arrest.”

(Doc. #58, p. 3.)

This Affirmative Defense is

a shotgun defense because it is pled indiscriminately against
Plaintiff’s

six

claims

against

Deputy

Chapman.

This

leaves

Plaintiff (and the Court) to speculate as to which count or counts
it is directed.

Accordingly, the Court strikes this shotgun

Affirmative Defense with leave to replead.
B.

Sixth Affirmative Defense
Deputy Chapman’s Sixth Affirmative Defense states that “to

the extent applicable that the Plaintiff failed to take reasonable
efforts or exercise reasonable care to mitigate his damages, the
Plaintiff’s recovery, if any, should be barred or comparatively
diminished . . . .”

(Doc. #58, p. 3.)

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Nothing in this boilerplate

assertion

indicates

how

Plaintiff

failed

to

efforts to alleviate the effects of the injury”.

“make

reasonable

Century 21 Real

Estate LLC v. Perfect Gulf Props., Inc., No. 608CV1890ORL28KR,
2010 WL 598696, at *5 (M.D. Fla. Feb. 17, 2010) (quoting Black’s
Law Dictionary (9th ed. 2009)).

This defense will therefore be

stricken with leave to amend.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Strike (Doc. #61) is GRANTED.

2.

Defendant Michael D. Chapman is granted leave to amend

the stricken Affirmative Defenses within fourteen (14) days of the
date of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this 23rd day of
July, 2018.

Copies:
Counsel of Record

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