Smith v. City of New Smyrna Beach

Filing 29

ORDER granting 26 Motion to strike affirmative defenses. Signed by Judge Gregory A. Presnell on 12/7/2011. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
O RLANDO D IVISION
MELISSA SMITH,
Plaintiff,
-vs-

Case No. 6:11-cv-1110-Orl-31KRS

CITY OF NEW SMYRNA BEACH,
Defendant.
______________________________________

ORDER
This matter comes before the Court on the Motion to Strike Affirmative Defenses (Doc.
26) filed by the Plaintiff, Melissa Smith (“Smith”), and the response (Doc. 28) filed by the
Defendant, New Smyrna Beach (the “City”).
In this gender discrimination case, Smith, a firefighter and paramedic, contends that she
suffered sexual harassment and, after complaining about it, retaliation. She has asserted claims
under both Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act. In its
Amended Answer (Doc. 25), the City raises 16 affirmative defenses. Smith seeks to have all 16
stricken for failing to satisfy the pleading requirements set forth in Bell Atl. 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).
Without reaching the issue of whether Twombly and Iqbal apply, the Court concludes that
the affirmative defenses must be stricken. The affirmative defenses suffer from a host of
deficiencies, including the fact that a number of them are not affirmative defenses but mere denials

of one or more elements of the Plaintiff’s claims.1 Others appear to describe valid affirmative
defenses but fail to assert that the defense applies in this case.2 The City’s final affirmative
defense is nothing more than an assertion of a right to amend its answer if it comes up with any
more affirmative defenses. (Doc. 25 at 6).
The purported affirmative defenses share one shortcoming: They are entirely devoid of
specifics. They contain nothing from which the reader could conclude that the City actually
believes that they apply in this case. Rather, the affirmative defenses appear to be simply a generic
list of defendant-friendly conclusions that could conceivably be reached in an employment
discrimination case. Even when challenged, the City provides no support for its pleading, nothing
to suggest that it has reviewed this matter and has a good faith belief that these issues will need to
be resolved. While affirmative defenses may not have to meet the Twombly/Iqbal standard, they
must be more than boilerplate.
In consideration of the foregoing, it is hereby

1

For example, “As its eleventh Affirmative Defense, this Defendant would assert that Plaintiff
cannot prove that Defendant’s alleged discriminatory and/or retaliatory act or acts were the
proximate or legal cause of damages sustained by the Plaintiff.” (Doc. 25 at 7).
2

As an example, the City’s second affirmative defense discusses (in somewhat overbroad
terms) the Plaintiff’s obligation to present her claims to the EEOC before filing suit: “[T]his
Defendant would assert that any and all claims made by Plaintiff in her Complaint that were not
specifically set forth in a complaint or Charge of Discrimination timely filed with the Equal
Employment Opportunity Commission, or any deferral agency, cannot be the basis for any claim of
discrimination against this Defendant”. (Doc. 25 at 5-6). The City does not actually assert that the
Plaintiff failed to present any of her claims to the pertinent agency.
-2-

ORDERED that the Motion to Strike Affirmative Defenses is GRANTED, and the
Defendant’s affirmative defenses are STRICKEN. Should it wish to do so, the City may file an
amended answer and affirmative defenses on or before December 19, 2011.

DONE and ORDERED in Chambers, Orlando, Florida on December 7, 2011.

Copies furnished to:
Counsel of Record
Unrepresented Party

-3-