Kassem v. Martin et al

Filing 66

ORDER: Plaintiff Lynn Kassem's Motions to Strike 62 63 are GRANTED. Defendant Matt Martin's affirmative defenses 59 are STRICKEN. Defendant Martin may file an amended answer asserting proper affirmative defenses within fourteen (14) days from the date of this Order. The DC Sales Defendants' affirmative defenses 58 are STRICKEN. The DC Sales Defendants may file an amended answer asserting proper affirmative defenses within fourteen (14) days from the date of this Order. Signed by Judge James S. Moody, Jr. on 1/17/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

LYNN KASSEM,
Plaintiff,
v.

Case No: 5:15-cv-623-Oc-30PRL

MATT MARTIN, DEBI CONNOR, DC
SALES & ENTERTAINMENT, LLC and
DC SALES AND MARKETING, LTD,
Defendants.

ORDER
Lynn Kassem filed an 11-count First Amended Complaint (“FAC”) (Doc. 55)
against Matt Martin and the DC Sales Defendants 1 for claims arising from the sale or lease
of 12 horses. Defendants answered, and Martin raised 37 affirmative defenses (Doc. 59, ¶¶
164–200), and the DC Sales Defendants raised 19 (Doc. 58, pp. 12–16). Kassem moves to
strike the affirmative defenses. Because the affirmative defenses are improperly pled, the
Court strikes them.
DISCUSSION
Federal Rule of Civil Procedure 12(f) provides that the Court may order “any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”
stricken from the record. But motions to strike are a disfavored, “drastic remedy.”
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The DC Sales Defendants are Debi Connor, DC Sales & Entertainment, LLC, and DC Sales and
Marketing.

Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002).
Accordingly, motions to strike affirmative defenses are usually denied, unless: (1) the
affirmative defense has no possible relation to the controversy and may cause prejudice to
one of the parties, Harvey v. Home Depot U.S.A., Inc., No. 8:05-cv-936-T-24EAJ, 2005
WL 1421170 *1 (M.D. Fla. June 17, 2005), or (2) the affirmative defense fails to satisfy
the general pleading requirements of Federal Rule of Civil Procedure 8, which requires a
party to “state in short and plain terms its defense to each claim asserted against it.” Fed.
R. Civ. P. 8(b)(1); see Muschong v. Millennium Physician Group, LLC, No. 2:13-cv-705FtM-38CM, 2014 WL 1268574, *1 (M.D.Fla. Mar. 25, 2014); but see Heath v. Deans Food
T.G. Lee, No. 6:14-cv-2023-Orl-28TBS, 2015 WL 1524083, *1 (M.D. Fla. Apr. 24, 2015)
(noting some division among courts in the Eleventh Circuit, but concluding that the
Iqbal/Twombly pleading standard does not apply to affirmative defenses).
To be stricken, an affirmative defense must be insufficient as a matter of law.
Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla.
2002). Even deficient defenses, to the extent that they raise relevant and substantial legal
and factual questions, may survive a motion to strike. Muschong, 2014 WL 1268574 at *1.
Denials, for example, that do not meet the technical definition of an affirmative defense,
should not be stricken, but treated as specific denials. Id. (citing Lugo v. Cocozella, LLC,
No. 12-80825-CIV, 2012 WL 5986775, *1 (S.D. Fla. Nov. 29, 2012)).
Although a disfavored remedy, Defendants’ affirmative defenses should be
stricken—and Defendants should be given an opportunity to replead their affirmative
defenses. A brief overview of the affirmative defenses, especially those of Martin, shows

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them to be totally devoid of any factual support. This is the same sort of bare-bones
affirmative defenses this Court has stricken in other cases as being insufficient as a matter
of law. See Slep–Tone Entertainment Corporation v. Dunn, No. 8:12–cv–1440–T–30EAJ
(M.D. Fla. Aug. 20, 2015) (noting that the one-sentence affirmative defenses that were
subject of motion to strike were “insufficient as a matter of law because they do not meet
the general pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.”).
Since the affirmative defenses have to be repled in accordance with Rule 8, the
Court declines to parse through them individually now to see whether the defenses should
be stricken for other reasons. Counsel are strongly encouraged to reconsider whether each
defense actually states an affirmative defense, 2 and, if so, to determine what facts if any
are needed to properly plead the defense.

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The Court reminds all counsel who may one day read this order of some basic rules regarding
affirmative defenses:
1. “An affirmative defense has been described as ‘[a]ny matter that does not tend to controvert the
opposing party's prima facie case as determined by the applicable substantive law.’” Hassan v.
U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988). Or, as described by the Florida Supreme
Court, “an ‘affirmative defense’ is any defense that assumes the complaint or charges to be
correct but raises other facts that, if true, would establish a valid excuse or justification or a right
to engage in the conduct in question. An affirmative defense does not concern itself with the
elements of the offense at all, it concedes them. In effect, an affirmative defense says, ‘Yes, I did
it, but I had a good reason.’ ” State v. Cohen, 568 So.2d 49, 51–52 (Fla.1990).
2. “A defense which points out a defect in the plaintiff's prima facie case is not an affirmative
defense.” In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988).
3. Regardless of whether Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
apply to affirmative defenses, they must be pled in such a way to provide “plaintiff fair notice of
issues that may be raised at trial,” so they must be more than boilerplate Luxottica Grp. S.P.A. v.
Cash Am. E., Inc., No. 616CV728ORL31DAB, 2016 WL 4157211, at *1 (M.D. Fla. Aug. 2,
2016).

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The Court writes further to address Kassem’s counsel’s Local Rule 3.01(g)
certification—or lack thereof—with counsel for the DC Sales Defendants. Rule 3.01(g)
provides in pertinent part:
Before filing any motion in a civil case, … the moving party shall
confer with counsel for the opposing party in a good faith effort to resolve
the issues raised by the motion, and shall file with the motion a statement (1)
certifying that the moving counsel has conferred with opposing counsel and
(2) stating whether counsel agree on the resolution of the motion. A
certification to the effect that opposing counsel was unavailable for a
conference before filing a motion is insufficient to satisfy the parties’
obligation to confer. The moving party retains the duty to contact opposing
counsel expeditiously after filing and to supplement the motion promptly
with a statement certifying whether or to what extent the parties have
resolved the issue(s) presented in the motion. …
Kassem’s counsel satisfied neither the dictates nor spirit of this rule requiring a good faith
conference. All the certification says is that “further consultation on these issues is at this
point futile.”
Regardless of what Kassem’s counsel may subjectively believe about the futility of
a future conference, counsel is not permitted to ignore this rule. Likewise, counsel for
Defendants are instructed that this rule also places a requirement on them to confer in good
faith with Kassem’s counsel. That means when Kassem’s counsel points out valid issues
of law—like several of the affirmative defenses being insufficiently pled—Defendants’
counsel are required to give good faith consideration to opposing counsel’s position. All
counsel are then expected to confer to see if a resolution can be reached without the need
for involving the Court.

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Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff Lynn Kassem’s Motions to Strike (Docs. 62 and 63) are
GRANTED.

2.

Defendant Matt Martin’s affirmative defenses (Doc. 59) are STRICKEN.
Defendant Martin may file an amended answer asserting proper affirmative
defenses within fourteen (14) days from the date of this Order.

3.

The DC Sales Defendants’ affirmative defenses (Doc. 58) are STRICKEN.
The DC Sales Defendants may file an amended answer asserting proper
affirmative defenses within fourteen (14) days from the date of this Order.

DONE and ORDERED in Tampa, Florida, this 17th day of January, 2017.

Copies furnished to:
Counsel/Parties of Record

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