Swearingen v. State Farm Mutual Automobile Insurance Company

Filing 54

ORDER granting in part and denying in part 38 Motion to Strike. Signed by Judge James D. Whittemore on 4/9/2014. (KE)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOYCE L. SWEARINGEN,

Plaintiff,
vs.

Case No.: 8:13-cv-00986-T-27MAP

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

Defendant.

ORDER
BEFORE THE COURT is Plaintifr s Motion to Strike State Farm's Amended Affirmative
Defenses, or Alternatively, for More Definite Statements (Dkt. 38), to which Defendant has
responded in opposition (Dkt. 47). Upon consideration, the motion is GRANTED in part and
DENIED in part. The first affirmative defense is stricken in part, and the ninth, tenth, eleventh,
twelfth, and fifteenth affirmative defenses are stricken without prejudice.
Federal Rule of Civil Procedure 12(f) permits courts to strike insufficient defenses. Motions
to strike are generally disfavored and are considered to be a "drastic remedy to be resorted to only
when required for the purposes of justice." Augustus v. Bd. ofPub. Instruction ofEscambia Cnty.,

Fla., 306 F.2d 862, 868 (5th Cir. 1962). Nevertheless, courts have broad discretion in determining
whether to grant a motion to strike. Slonev. Judd, No. 8:09-cv-1175-T-27TGW,2009 WL5214984,
at *1 (M.D. Fla. Dec. 29, 2009) (Whittemore, J.) (citing Anchor Hocking Corp. v. Jacksonville Elec.

Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976)).
An affirmative defense is one in which the defendant admits the essential facts of the

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complaint and sets up other facts in justification or avoidance. Morrison v. Exec. Aircraft

Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005). A defense simply pointing out a
defect or lack of evidence in a plaintiffs case is not an affirmative defense. Id. (citing In re Rawson

Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988)). Affirmative defenses are subject to the
general pleading requirements of Federal Rule of Civil Procedure 8(a), which requires a "short and
plain statement" of the defense giving "fair notice" of the defense and "the grounds upon which it
rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
Affirmative defenses are to be stricken when they are insufficient as a matter oflaw. Anchor

Hocking, 419 F. Supp. at 1000. "A defense is insufficient as a matter oflaw if, on the face of the
pleadings, it is patently frivolous, or if it is clearly invalid as a matter oflaw." Id.
Defendant's ninth, tenth, eleventh, and twelfth affirmative defenses fail to put Plaintiff on
"fair notice" of the grounds upon which the defenses rest. Even though Defendant asserts these as
"conditional" affirmative defenses contingent upon discovery into the details of the putative class,
they are nonetheless bare bones legal statements that fail to put Plaintiff on fair notice ofthe defenses
for the purpose of discovery. The fifteenth affirmative defense is likewise due to be stricken, as
conceded by Defendant.
Moreover, to the extent the first affirmative defense alleges that Count I fails to state a claim
because Plaintiff has an adequate remedy at law in Count III, it is invalid as a matter of law. See

Angelo's Aggregate Materials, Ltd. v. Pasco Cnty., 118 So. 3d 971, 973-74 (Fla. 2d DCA 2013)
("[T]he availability of another remedy does not preclude a declaratory judgment."); Title & Trust Co.

of Fla. v. Title Guar. & Abstract Co. of Sanford, 103 So. 2d 211, 212 (Fla. 2d DCA 1958) (title
insurer entitled to determination under Declaratory Judgment Act with respect to contractual rights

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even though insurer had adequate remedy at law). Defendant argues that the affirmative defense is
cognizable as to Count I because declaratory relief is not permitted "where the issue is application
of fact to an unambiguous contract provision" (Dkt. 47 at 6). This argument is unpersuasive, as it
misconstrues the breadth and basis of Plaintiffs claims, which do not allege that the policy is
unambiguous. Nevertheless, the first affirmative defense is valid as to Count II because injunctive
relief requires the absence of an adequate remedy at law. See Orange Cnty. v. City ofOrlando, 327 ·
So. 2d 7, 7 (Fla. 1976).
The remaining affirmative defenses are legally sufficient and not clearly invalid as a matter
oflaw. 1
Accordingly, Plaintiffs Motion to Strike State Farm's Amended Affirmative Defenses, or
Alternatively, for More Definite Statements (Dkt. 38) is GRANTED in part and DENIED in part.
The ninth, tenth, eleventh, twelfth, and fifteenth affirmative defenses are STRICKEN without

prejudice. The first affirmative defense, as it relates to Count I only, is STRICKEN with prejudice.
Defendant is GRANTED leave to file a second amended answer and affirmative defenses within
fourteen (14) days of the date of this Order.

DONE AND ORDERED this

l:J 15

day of April, 2014.

Copies to: Counsel of Record

1There

is some dispute among courts over whether lack of standing is an affirmative defense. See Ramnarine
v. CP REHo/dco2009-l, LLC, No. 12-61716-CIV, 2013 WL 1788503, at *4 (S.D. Fla. Apr. 26, 2013). Even ifit is not
an affirmative defense, however, the proper remedy is not to strike it, but to treat it as a specific denial. Id.

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