Adams v. JP Morgan Chase & Company
Filing
23
ORDER granting in part and denying in part 14 Motion to strike. Signed by Magistrate Judge Monte C. Richardson on 7/21/2011. (MOH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FRANK LANDON ADAMS, JR.,
Plaintiff,
vs.
Case No. 3:11-cv-337-J-37MCR
JP MORGAN CHASE BANK, N.A.,
Defendant.
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ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion to Strike Defendant’s
Affirmative Defenses, Deny Request for Attorney’s Fees, and Deny Defendant’s Motion
to Dismiss (Doc. 14) filed June 22, 2011. Defendant filed its response in opposition to
this Motion on July 8, 2011. (Doc. 16). Accordingly, the matter is now ripe for judicial
review.
I. BACKGROUND
On March 14, 2011, Plaintiff filed the Complaint in this case in state court. The
Complaint alleged Defendant discriminated against Plaintiff due to a disability in
violation of the Florida Civil Rights Act. (Doc. 2). The case was removed to this Court
on April 11, 2011 and on April 28, 2011, Plaintiff filed an amended complaint to change
the name of the Defendant. (Doc. 9). Defendant filed its answer and affirmative
defenses to the Amended Complaint on June 2, 2011. (Doc. 12). Shortly thereafter, on
June 21, 2011, Defendant filed an amended answer and affirmative defenses. (Doc.
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13). In the amended answer, Defendant raised thirteen defenses, requested an award
of attorneys’ fees, and asserted a counterclaim alleging breach of contract. Plaintiff now
complains that all but the second defense are insufficient and should be stricken.
Additionally, Plaintiff asks the Court to deny Defendant’s request for attorneys’ fees and
to deny Defendant’s motion to dismiss.1 Defendant responds that Plaintiff’s motion
should be denied because it properly asserted its affirmative defenses and because
Plaintiff failed to comply with Local Rule 3.01(g).2
II. ANALYSIS
Rule 12(f) of the Federal Rules of Civil Procedure provides that upon a party’s
motion, “the court may order stricken from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Pursuant to Rule 12(f), an
affirmative defense may be stricken if it is legally insufficient, however, striking a
defense is a “‘drastic remedy[,]’ which is disfavored by the courts.” Thompson v.
Kindred Nursing Centers East, LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002)
(quoting Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d
862, 868 (5th Cir. 1962) and Poston v. American President Lines Ltd., 452 F. Supp. 568,
570 (S.D. Fla. 1978)). “An affirmative defense is insufficient as a matter of law only if:
1
Defendant has not filed a motion to dismiss. Instead, in its request for attorneys’ fees,
Defendant asked that Plaintiff’s First Amended Complaint be dismissed. Because there is no
motion to dismiss pending, the Court will disregard Plaintiff’s request to deny such a motion.
2
While Defendant is correct that Plaintiff failed to comply with Local Rule 3.01(g) and that
such failure is a sufficient reason for the Court to deny Plaintiff’s Motion, the Court will decline to
deny on that basis. Plaintiff is cautioned, however, that he must comply with all rules of this Court
and that several such rules were pointed out to him in the undersigned’s Order dated April 15, 2011
(Doc. 6). Future failures to comply with the rules of this Court will result in the non-complying
motion being either stricken or denied.
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(1) on the face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a
matter of law.” Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681,
683 (M.D. Fla. 2002) (citing Anchor Hocking Corp. v. Jacksonville Elec. Authority, 419
F.Supp. 992, 1000 (M.D. Fla. 1976)). Moreover, “[a]n affirmative defense will be held
insufficient as a matter of law only if it appears that the Defendant cannot succeed
under any set of facts which it could prove.” Florida Software Sys., Inc. v.
Columbia/HCA Healthcare Corp., No. 97-2866-CIV-T-17B, 1999 WL 781812, at *1
(M.D. Fla. Sept. 16, 1999). Finally, “a court will not exercise its discretion under the rule
to strike a pleading unless the matter sought to be omitted has no possible relationship
to the controversy, may confuse the issues, or otherwise prejudice a party.” Id.
Plaintiff asserts two main reasons why Defendant’s affirmative defenses should
be stricken. First, Plaintiff claims Defendant failed to provide adequate factual support
for the defenses. Second, Plaintiff takes issue with the merits of several of Defendant’s
defenses. At this point in the litigation, prior to discovery, the undersigned will decline to
rule on the merits of any of the affirmative defenses. Accordingly, the Court will focus
its analysis on whether Defendant adequately pled its affirmative defenses.
Plaintiff argues that affirmative defenses are subject to the heightened pleading
standard set forth in the Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555–56, 127 S.Ct. 1955 (2007) and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct.
1937, 1949 (2009). If this is correct, affirmative defenses which merely offer “‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Moreover,
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“[t]hreadbare recitals ... supported by mere conclusory statements, will not suffice,”
Iqbal, 129 S.Ct. at 1949, and instead, the factual allegations in a defense “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Defendant does not specifically address whether this heightened pleading standard
should apply to affirmative defenses, however, Defendant does cite to both Iqbal and
Twombly in its argument regarding whether the defenses are adequately pled. (Doc.
16, p.3).
In conducting its own research, the Court observed that the Eleventh Circuit has
not yet determined whether the heightened pleading standard applies to affirmative
defenses. However, many district courts within this circuit have addressed the issue
and the majority have held that the Iqbal and Twombly standard does apply to
affirmative defenses. See In re Fischer, No. 08-74070-MHM, 2011 WL 1659873 (Bankr.
N.D. Ga. Apr 12, 2011); Mid-Continent Casualty Co. v. Active Drywall South, Inc., 765
F.Supp.2d 1360 (S.D. Fla. 2011); Castillo v. Roche Laboratories Inc., No.
10-20876-CIV, 2010 WL 3027726 (S.D. Fla. Aug 2, 2010); Bartram, LLC v. Landmark
American Ins. Co., No. 1:10-cv-28, 2010 WL 4736830 (N.D. Fla. Nov. 16, 2010); Torres
v. TPUSA, Inc., No. 2:08-cv-618, 2009 WL 764466 (M.D. Fla. Mar. 19, 2009); and
Home Management Solutions, Inc. v. Prescient, Inc., No. 07-20608, 2007 WL 2412834
(S.D. Fla. Aug. 21, 2007). The majority position is based on two main considerations.
First, is that “fairness, common sense and litigation efficiency require application of the
same standard to both complaints and defenses” and therefore, “[t]he pleading of a
defense should provide more than merely the possibility that the defense may exist.” In
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re Fischer, 2011 WL 1659873, at *1. The second consideration is the belief that
defenses which are nothing more than “boilerplate recitations or conclusory allegations
clutter the docket and create the need for unnecessary or extended discovery.” Id.
On the other hand, the Court also located a line of cases from this circuit holding
the heightened pleading standard in Iqbal and Twombly does not apply to affirmative
defenses. See Floyd v. SunTrust Banks, Inc., No. 1:10-CV-2620-RWS, 2011 WL
2441744 (N.D. Ga. June 13, 2011); Jackson v. City of Centreville, 269 F.R.D. 661 (N.D.
Ala. 2010); Pension Benefit Guaranty Corp. v. Divin, No. 4:08-CV-151, 2010 WL
2196114 (M.D. Ga. May 27, 2010); Sembler Family Partnership No. 41, Ltd. v. Brinker
Florida, Inc., No. 8:08-cv-1212, 2008 WL 5341175, at *4 (M.D. Fla. Dec. 19, 2008); and
Blanc v. Safetouch, Inc., No. 3:07-cv-1200, 2008 WL 4059786, at *1 (M.D. Fla. Aug. 27,
2008). The rationale supporting this line of cases is that there is a difference between
Rule 8(a) of the Federal Rules of Civil Procedure, which deals with the pleading
requirements for complaints, and Rules 8(b) and (c), which deal with the pleading
requirements for defenses. See Jackson, 269 F.R.D. at 662. While Rule 8(a)(2)
requires a pleading stating a claim for relief to include “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Rules 8(b) and 8(c) only require
parties to state their defenses. Rule 8, Fed.R.Civ.P. (emphasis added). The Supreme
Court, in establishing the heightened standard of Twombly and Iqbal on pleadings
stating a claim for relief, “relied heavily on the rule language purporting to require a
‘showing’ of entitlement to relief, meaning, according to the Supreme Court, that the
pleader of a claim for relief must allege sufficient facts to ‘show’ that the claim is
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‘plausible.’” 2 Moore’s Federal Practice, §8.08[1] (Matthew Bender 3d ed.).
Accordingly, having based the heightened pleading requirement “in pleading a claim for
relief on rule language requiring a ‘showing’, the quite different rule language covering
pleading of affirmative defenses should eliminate any plausibility requirement” for
affirmative defenses. Id.
Moreover, as the Jackson court noted, the Eleventh Circuit has not extended the
requirements of Rule 8(a) to affirmative defenses. Jackson, 269 F.R.D. at 662. Indeed,
the Eleventh Circuit has repeatedly emphasized that the purpose of Rule 8(c) is simply
to provide the plaintiff with notice of an affirmative defense that may be raised at trial.
Id. (citing Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988) and Hewitt
v. Mobile Research Technology, Inc., 285 F.App’x. 694, 696 (11th Cir. 2008)). In both
cases, the Eleventh Circuit noted that a defendant may be permitted to raise an
affirmative defense at trial that the defendant did not even plead, so long as the plaintiff
had notice of the defense. The undersigned finds this rationale compelling. If it is not
even required that a defendant plead an affirmative defense (so long as the plaintiff has
notice of the defense), it cannot be necessary for a defendant to include factual
allegations supporting each affirmative defense. Instead, what must be required is that
the affirmative defense as pled gives the plaintiff adequate notice of the defense.
The undersigned is also persuaded by the rationale that requiring affirmative
defenses to contain detailed factual allegations is unfair to defendants. Whereas
plaintiffs have the opportunity to conduct investigations prior to filing their complaints,
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defendants, who typically only have twenty-one days to respond to the complaint, do not
have such a luxury.
At this point in time, defendants may not have all of the facts
needed to plead affirmative defenses with sufficient factual
specificity to meet “plausibility” standards. Thus, requiring
“plausibility” – that is, requiring factual pleading of affirmative
defenses – is likely to accomplish little more than
encouraging a flurry of motions to strike affirmative
defenses.
2 Moore’s Federal Practice, §8.08[1]. As noted above, motions to strike are disfavored
by courts and therefore, the undersigned is persuaded that the Supreme Court did not
intend for a standard, which would result in more motions to strike, to be applied to
affirmative defenses.
For the foregoing reasons, the undersigned finds affirmative defenses are not
subject to the heightened standards announced in Twombly and Iqbal and therefore, the
Court will examine Defendant’s affirmative defenses to determine whether they are
sufficient to put Plaintiff on notice of the potential defenses he will face.
A.
Defendant’s First Affirmative Defense
Defendant’s first affirmative defense alleges that Counts I and II “should be
dismissed in their entirety and with prejudice because Plaintiff, in exchange for
severance and transition pay received from Chase, signed a Release Agreement,
attached as Exhibit “1”, that released and discharged Chase from the claims asserted in
Counts I and II of the Complaint.” (Doc. 13, p.12). Plaintiff argues this defense is not a
defense, but rather, a conclusory statement. The Court does not agree. Defendant’s
first affirmative defense gives Plaintiff fair notice of its nature. Defendant attached a
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copy of the release to the Answer and “‘a court will not exercise its discretion under the
rule to strike a pleading unless the matter sought to be omitted has no possible
relationship to the controversy, may confuse the issues, or otherwise prejudice a party.’”
Nankivil v. Lockheed Martin Corp., 216 F.R.D. 689, 691 (M.D. Fla. 2003), aff’d, 87 F.
App’x. 713 (11th Cir. 2003) (quoting Reyher v. Trans World Airlines, Inc., 881 F.Supp.
574 (M.D. Fla. 1995); Florida Software Sys., Inc., 1999 WL 781812, at *1. In the
present case, Plaintiff has not claimed that this defense has no relation to the
controversy, would confuse the issues, or would prejudice Plaintiff. Accordingly, the
Court will not strike it on the grounds that it is conclusory.
B.
Defendant’s Third Affirmative Defense
Defendant’s Third Affirmative Defense alleges Plaintiff’s claims in Counts II and
III should be dismissed because they impermissibly exceed the scope of the charge
Plaintiff filed with the EEOC. Plaintiff claims this defense is conclusory and should be
stricken. The Court finds the defense provides Plaintiff with ample notice of its nature
and therefore, should not be stricken. Again, there is no allegation that this defense has
no relation to the controversy, would confuse the issues, or would prejudice Plaintiff.
Accordingly, the Court will decline to strike it.
C.
Defendant’s Fourth Affirmative Defense
Defendant’s fourth defense alleges Plaintiff’s claims are barred by the applicable
statute of limitations. Plaintiff argues this is not a valid defense, but rather, a statement
of law. Additionally, Plaintiff claims this defense is not sufficiently pled because
Defendant has not provided any specificity regarding which of Plaintiff’s claims allegedly
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fall outside the statute of limitations. The statute of limitations is a valid defense.
Indeed, it is one of the listed affirmative defenses in Rule 8(c). Moreover, the
undersigned finds simply stating Plaintiff’s claims are barred by the statute of limitations
is sufficient alone to put Plaintiff on notice. See Blanc, 2008 WL 4059786, at *1 (noting
that “[u]nder federal standards of notice pleading, it is not always necessary to allege
the evidentiary facts constituting the defense. . . Thus, for example, a statement that
‘[t]his claim is barred by the statute of limitations,’ gives fair notice of the defense and
meets Rule 8 pleading requirements”).
D.
Defendant’s Fifth Affirmative Defense
Defendant’s Fifth Affirmative Defense states:
Plaintiff has failed to mitigate his damages by, among other
things, failing to take reasonable steps to secure and retain
other employment following his separation from employment
with Chase.
(Doc. 16, p.7). Again, the Court finds this defense provides Plaintiff with sufficient
notice and is therefore, appropriate. See Sembler Family Partnership No. 41, Ltd., 2008
WL 5341175, at *4 (defense stating that plaintiff’s claim for damages is barred because
plaintiff failed to undertake appropriate steps to mitigate its damages is sufficient to put
plaintiff on notice).
E.
Defendant’s Sixth, Seventh, and Eighth Affirmative Defenses
Plaintiff argues each of these defenses should be stricken because they fail on
their merits. As noted above, the Court will decline to rule on the merits of any of the
affirmative defenses at this time. Should Plaintiff wish to challenge the merits of any
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defenses, a motion for summary judgment is the more appropriate vehicle for such
challenges.
F.
Defendant’s Ninth Affirmative Defense
Defendant’s Ninth Affirmative Defense states that Plaintiff’s claim for punitive
damages should be limited by the statutory cap specified in Florida statute §760.11(5).
Plaintiff argues that this is not a valid defense, but rather, a statement of law. To
support his claim, Plaintiff cites the Torres case which struck a similar defense as simply
being a statement of law. See Torres, 2009 WL 764466, at *2. Defendant responds
that it has no objection to withdrawing the defense. As such, the Court will grant
Plaintiff’s Motion to Strike with respect to Defendant’s Ninth Affirmative Defense.
G.
Defendant’s Tenth Affirmative Defense
Defendant’s Tenth Affirmative Defense is an after-acquired evidence defense.
Specifically, it states:
To the extent Chase discovers during the course of this
action that Plaintiff engaged in any conduct that would have
warranted his discharge under Company policy, Plaintiff’s
right to recover damages beyond the date of such discovery
will be cut off.
(Doc. 16, p.9). Plaintiff argues Defendant has failed to provide sufficient facts to support
this defense. While Defendant has provided no factual support for this defense at this
time, the undersigned finds it is an appropriate defense which puts Plaintiff on notice
that if Defendant discovers any alleged wrongdoing, it will pursue an after-acquired
evidence defense. Plaintiff is free to propound discovery regarding this defense and
Defendant will be under a duty to supplement should any such evidence be discovered.
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Moreover, because there is no argument that this defense has “no possible relationship
to the controversy, may confuse the issues, or otherwise prejudice a party,” the Court
will not exercise its discretion to strike it. Nankivil, 216 F.R.D. at 691.
H.
Defendant’s Eleventh Affirmative Defense
Defendant’s Eleventh Affirmative Defense states:
Notwithstanding Chase’s general denials and previous
affirmative defenses, to the extent Plaintiff established his
alleged disability was a motivating factor for any employment
decision challenged in the Complaint, Chase affirmatively
states it would have taken the same action notwithstanding
Plaintiff’s alleged disability.
(Doc. 16, p.10). While Plaintiff argues to the contrary, the undersigned finds this
defense to be adequately pled and therefore, it will not be stricken.
I.
Defendant’s Twelfth Affirmative Defense
Defendant’s Twelfth Affirmative Defense provides:
Chase engaged in good faith efforts, in consultation with
Plaintiff, to identify and make a reasonable accommodation
that would provide Plaintiff with an equally effective
opportunity and would not cause an undue hardship on the
operation of Chase’s business. Accordingly, an award of
compensatory or punitive damages is not appropriate in this
case.
(Doc. 16, p.11). Again, Plaintiff argues Defendant has provided no factual basis for its
claim of good faith efforts. The Court disagrees and finds this defense adequately puts
Plaintiff on notice and therefore, the Court will decline to strike it.
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J.
Defendant’s Thirteenth Affirmative Defense
Finally, Defendant’s Thirteenth Affirmative Defense states:
Chase has and had in place strong, officially-promulgated
and user-friendly policies against discrimination to prevent
and promptly correct any such unlawful conduct; thus, to the
extent Plaintiff is able to prove that he was subject to
discrimination, which Chase denies, Chase cannot be held
vicariously liable or liable for punitive damages because of
good-faith efforts to ensure compliance with the
discrimination laws.
(Doc. 16, p.12). Plaintiff believes Defendant has improperly failed to provide specificity
regarding any policies which would have prevented and/or corrected unlawful conduct.
Once again, the Court does not agree. This defense is sufficient to place Plaintiff on
notice of the nature of the defense and because Plaintiff has raised no argument that
this defense has “no possible relationship to the controversy, may confuse the issues,
or otherwise prejudice a party,” the Court will not exercise its discretion to strike it.
Nankivil, 216 F.R.D. at 691.
K.
Defendant’s Request for an Award of Attorneys’ Fees
In its Amended Answer, Defendant requests an award of its costs and attorneys’
fees pursuant to Florida Statute §760.11(5) and paragraph 20 of the Release. (Doc.13).
Plaintiff asks the Court to strike Defendant’s request for attorneys’ fees on the merits.
As noted previously, the proper method to attack this request for fees is through a
motion for summary judgment after discovery has been conducted. Therefore, the
undersigned will deny Plaintiff’s request to strike Defendant’s attorneys’ fee demand.
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III. CONCLUSION
The undersigned finds that with the exception of Defendant’s Ninth Affirmative
Defense, Defendant’s affirmative defenses are not insufficient as a matter of law, do not
confuse the issues, do not unnecessarily prejudice the Plaintiff, are adequately related
to the controversy, and are not so vague or ambiguous that Plaintiff has no notice of the
defenses he will face. As such, the Court will not strike them. The Court is making no
comment on the probable success on the merits of these defenses, but rather declines
to grant such a drastic remedy at the present time.
Accordingly, after due consideration, it is
ORDERED:
Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses, Deny Request for
Attorney’s Fees, and Deny Defendant’s Motion to Dismiss (Doc. 14) is GRANTED in
part and DENIED in part as provided in the body of this Order.
DONE AND ORDERED in Chambers in Jacksonville, Florida this
21st
day of
July, 2011.
MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
Copies to:
Counsel of Record
Pro Se Plaintiff
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