Suncoast Waterkeeper et al v. City of Gulfport

Filing 63

ORDER granting in part and denying in part 60 Motion to Strike. Signed by Judge Susan C Bucklew on 8/3/2017. (GAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUNCOAST WATERKEEPER, ET AL.,
Plaintiffs,
v.

CASE NO. 8:17-cv-35-T-24 MAP

CITY OF GULFPORT,
Defendant.
_______________________________/
ORDER
This cause comes before the Court on Plaintiffs’ Motion to Strike Affirmative Defenses.
(Doc. No. 60). Defendant opposes the motion. (Doc. No. 61). As explained below, the motion
is granted in part and denied in part.
I. Background
Plaintiffs Suncoast Waterkeeper, Our Children’s Earth Foundation (“OCEF”), and
Ecological Rights Foundation filed this action against Defendant City of Gulfport under the
citizen-suit enforcement provision of the Federal Water Pollution Control Act (“Clean Water
Act” or “CWA”). (Doc. No. 1). Plaintiffs allege Defendant has violated section 301(a) of the
CWA1 by (1) discharging pollutants into the waters of the United States without National
Pollution Discharge Elimination System (“NPDES”) Permit authorization and (2) violating the
terms of its NPDES Permit, No. FLS000005-003, through these discharges.
Plaintiffs allege that, through a series of sanitary sewer overflows (“SSOs”) and in
violation of the CWA, Defendant has repeatedly spilled raw and partially treated sewage from its
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Section 301(a) of the CWA, 33 U.S.C. § 1311(a), provides that with limited exceptions,
“the discharge of any pollutant by any person shall be unlawful.”

wastewater collection system into Tampa Bay, the Gulf of Mexico, and other waters near
Gulfport. Plaintiffs further allege that, because wastewater collected within Gulfport is
ultimately transported to St. Petersburg’s publicly owned treatment works (“POTW”) facilities,
Defendant has also caused or contributed to SSOs from St. Petersburg’s POTW by contributing
to the overload on the system during wet weather events in the Tampa Bay area.2
In response to the complaint, Defendant has filed its answer and has asserted nineteen
affirmative defenses. (Doc. No. 59). In the instant motion, Plaintiffs move to strike all nineteen
affirmative defenses.
II. Standard of Review
Federal Rule of Civil Procedure 12(f) provides that the Court may order that “any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” be stricken
from a pleading. “A motion to strike will ‘usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties.’” Scelta v.
Delicatessen Support Services, Inc., 57 F. Supp.2d 1327, 1347 (M.D. Fla. 1999)(quoting Seibel
v. Society Lease, Inc., 969 F. Supp. 713, 715 (M.D. Fla. 1997)).
“An affirmative defense will only be stricken . . . if the defense is ‘insufficient as a matter
of law.’” Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla.
2002)(quoting Anchor Hocking Corp. v. Jacksonville Electric Authority, 419 F. Supp. 992, 1000
(M.D. Fla. 1976)). An affirmative “defense is insufficient as a matter of law only if: (1) on the
face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law.” Id.

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Plaintiffs have filed a similar lawsuit against the City of St. Petersburg. See Suncoast
Waterkeeper v. City of St. Petersburg, Case No. 8:16-cv-03319-JDW-AEP.
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“To the extent that a defense puts into issue relevant and substantial legal and factual questions,
it is ‘sufficient’ and may survive a motion to strike, particularly when there is no showing of
prejudice to the movant.” Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D.
Fla. 1995)(citation omitted).
III. Motion to Strike
In the instant motion, Plaintiffs seek to strike all nineteen affirmative defenses.
Specifically, Plaintiffs argue that six of the affirmative defenses fail as a matter of law.
Additionally, Plaintiffs argue that all nineteen of the affirmative defenses are not properly pled.
Accordingly, the Court will address each argument.
A. Whether Certain Affirmative Defenses Fail as a Matter of Law
Plaintiffs argue that six of the affirmative defenses fail as a matter of law. Accordingly,
the Court will analyze each of these affirmative defenses.
1. Failure to State a Claim
In its first affirmative defense, Defendant asserts that Plaintiffs have failed to state a claim
for relief. Plaintiffs argue, and the Court agrees, that this is not an affirmative defense; rather,
this is a denial. See Boldstar Technical, LLC v. Home Depot Inc., 517 F. Supp.2d 1283, 1292
(S.D. Fla. 2007). As such, the Court grants Plaintiffs’ motion to strike this defense.
2. Act of God or War
In its third affirmative defense, Defendant asserts that the damages and/or losses alleged
in the complaint were proximately caused by an act of God or an act of war. Defendant has
withdrawn its act of war defense (Doc. No. 61, p.1), but it contends that its act of God defense is
valid. Plaintiffs respond that there is no act of God affirmative defense for violations of section
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301(a) of the CWA. The Court agrees with Plaintiffs. See U.S. v. CITGO Petroleum Corp., 697
F. Supp.2d 670, 674 (W.D. La. 2010)(concluding that the act of God defense is not available for
violations of section 301(a) of the CWA); U.S. v. ConAgra, Inc., 1997 WL 33545777, at *19 (D.
Idaho 1997). Accordingly, the Court strikes Defendant’s third affirmative defense.
3. Act or Omission of a Third Party
In its fourth affirmative defense, Defendant asserts that Plaintiffs’ claims are barred
because any violations and damages resulting therefrom were caused solely by the acts or
omissions of a third party. Plaintiffs move to strike this affirmative defense, arguing that whether
third parties are also partly responsible is irrelevant to their CWA claims. See U.S. v. Chuchua,
2004 U.S. Dist. LEXIS 32365, at *48 (S.D. Cal. Mar. 10, 2004)(stating that “a defendant’s
liability under the CWA is strict, so whether or not other persons are partly responsible for the
pollution is irrelevant”); ConAgra, 1997 WL 33545777, at *19. This Court agrees with Plaintiffs
and strikes this affirmative defense.3
4. Laches
In its fifth affirmative defense, Defendant asserts that Plaintiffs’ claims are barred by the
doctrine of laches due to Plaintiffs’ unreasonable delay in giving notice to Defendant and in
filing the complaint, which prejudiced Defendant. Plaintiffs, citing a Ninth Circuit case, argue
that this defense should be stricken because equitable defenses such as laches are generally not
available against citizen-plaintiffs in environmental cases.

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As stated, Defendant alleges that the violations were caused solely by a third party. Such
is a denial of Plaintiffs’ CWA claim rather than an affirmative defense.
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The Eleventh Circuit has not weighed in on the issue of whether the defense of laches is
disfavored in the environmental context. See Mobile Baykeeper, Inc. v. U.S. Army Corps of
Engineers, 2014 WL 5307850, at *8 (S.D. Ala. Oct. 16, 2014); Black Warrior Riverkeeper, Inc.
v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1284 n.8 (11th Cir. 2015). However, given the
fact that the Black Warrior Riverkeeper court considered the laches defense in an environmental
case, it appears that the defense does not fail as a matter of law.4 As such, this Court denies
Plaintiffs’ motion to strike Defendant’s laches defense.
5. Indemnification and Contribution
In its eighth affirmative defense, Defendant asserts that Plaintiffs’ damages and losses
were solely, directly, and proximately caused (or, alternatively, contributed to) by the
misconduct, negligence, or wrongful conduct of third parties whose identities are not known to
Defendant. As such, Defendant seeks an apportionment of fault and a judgment of
indemnification and contribution against those third parties.
Plaintiffs move to strike this purported defense, arguing that whether third parties are also
partly responsible is irrelevant to their CWA claims. See Chuchua, 2004 U.S. Dist. LEXIS
32365, at *48 (stating that “a defendant’s liability under the CWA is strict, so whether or not
other persons are partly responsible for the pollution is irrelevant”). Defendant responds that
cases such as Mid-Valley Pipeline Co. v. S.J. Louis Construction, Inc., 847 F. Supp.2d 982, 988
(E.D. Ky. 2012), find that a common law right of contribution exists under the CWA.

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This Court notes, though, that the Black Warrior Riverkeeper court stated that cases
within the Eleventh Circuit “applying laches in complex environmental litigation have generally
involved a delay amounting to several years, without any reasonable excuse.” Black Warrior
Riverkeeper, 781 F.3d at 1285.
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The Court finds Mid-Valley Pipeline to be distinguishable, because that case involved
civil penalties assessed under 33 U.S.C. § 1321(b)(7), rather than the penalties being sought in
the instant case under 33 U.S.C. § 1319(d). In Mid-Valley Pipeline, the court noted that 33
U.S.C. § 1321(h)5 specifically preserves the right of contribution under federal law in favor of a
discharger against a third party whose fault contributed to the discharge. 847 F. Supp.2d at 986,
988. However, § 1321(h) applies to penalties assessed under § 1321, not to those assessed under
§ 1319(d).
Regardless of whether or not the common law recognizes a right of contribution or
indemnity against a third party, such does not affect the fact that this is not an affirmative defense
for Defendant to assert against Plaintiffs. As such, the Court strikes this purported defense. The
Court notes, however, that it makes no ruling on the issue of whether or not Defendant can assert
a claim against a third party for contribution or indemnity.
6. Standing
In its seventeenth affirmative defense, Defendant asserts that Plaintiffs lack standing to
assert their claims. Plaintiffs argue that standing is not an affirmative defense and that this Court
has already denied Defendant’s motion to dismiss based on standing. The Court is not persuaded
by Plaintiffs’ arguments.
The issue of standing goes to this Court’s subject matter jurisdiction, and challenges to
subject matter jurisdiction can be raised at any time. Furthermore, the Court denied Defendant’s

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Section 1321(h) provides, in relevant part, that “[t]he liabilities established by this
section shall in no way affect any rights which . . . the owner or operator of a vessel or of an
onshore facility or an offshore facility may have against any third party whose acts may in any
way have caused or contributed to such discharge.” 33 U.S.C. § 1321(h).
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motion to dismiss based on a facial attack on Plaintiffs’ standing. (Doc. No. 48). The Court
stated in its order regarding Plaintiff OCEF’s standing that OCEF would be required to prove that
at least one of its identified members was injured by Defendant’s alleged CWA violations.
Furthermore, the Court noted that Defendant may wish to assert a factual attack on Plaintiffs’
standing at a later date. As a result, the Court denies Plaintiffs’ motion to strike this defense.
B. Whether the Affirmative Defenses are Properly Pled
Next, Plaintiffs argue that all of the remaining affirmative defenses are not properly pled.
Plaintiffs generally argue that Defendant’s affirmative defenses are simply conclusory assertions
that do not contain a sufficient factual basis. This raises an issue that has not been resolved by
the Eleventh Circuit—how much factual support must be pled within affirmative defenses.
District courts within the Eleventh Circuit have taken conflicting positions on the issue, but this
Court agrees with the courts that do not apply the heightened pleading standard set forth in
Twombly6 and Iqbal7 to affirmative defenses. Those courts explain their reasoning as follows:
[Some] courts have declined to apply the heightened pleading
standard in Twombly and Iqbal to affirmative defenses based upon
the rationale that there is a difference in the language of Rule
8(a)—which deals with the pleading requirements for
complaints—and Rule 8(b) and (c), which deal with the pleading
requirements for defenses. Although Rule 8(a)(2) requires a
complaint to include a “short and plain statement of the claim
showing that the pleader is entitled to relief,” Rules 8(b)(1)(A) and
8(c)(1) only require that a party states his defenses. The Supreme
Court in Twombly and Iqbal relied on the specific language of Rule
8(a)(2), which requires a “showing” of entitlement to relief, when it
established the plausibility requirement for complaints. Thus, it
follows that the plausibility requirement . . . should not apply to

6

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

7

Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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affirmative defenses because the language in the rule governing
affirmative defenses notably lacks any “showing” requirement.
Secondly, requiring affirmative defenses to contain the factual
specificity needed to meet a plausibility standard would be unfair to
defendants, who lack time to conduct investigations within the
twenty-one day period to respond to complaints.
Smith v. Wal-Mart Stores, Inc., 2012 WL 2377840, at *2 (N.D. Fla. June 25, 2012)(internal
citations omitted).
Therefore, to the extent that Plaintiffs argue that Defendant’s affirmative defenses should
be stricken because they are conclusory and without sufficient specific factual support, the Court
rejects this argument (with one exception), as no prejudice to Defendant has been shown by the
allegedly insufficient pleading. Additional factual detail to support these affirmative defenses
can be sought through discovery. However, the Court agrees with Plaintiffs that Defendant’s
sixth affirmative defense is woefully deficient.
Defendant’s sixth affirmative defense is titled, “Uncertainty.” Defendant asserts the
following: “Each claim for relief alleged in the Complaint is uncertain.” (Doc. No. 59).
Plaintiffs argue that this vague assertion does not give them notice of the proposed defense.
Defendant fails to respond to this argument, and the Court agrees with Plaintiffs that this
purported affirmative defense is not sufficiently pled and provides no notice of the intended
defense. Accordingly, the Court strikes Defendant’s sixth affirmative defense.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion to Strike
Affirmative Defenses (Doc. No. 60) is GRANTED IN PART AND DENIED IN PART: The

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motion is GRANTED as to Defendant’s first, third, fourth, sixth, and eighth affirmative
defenses; otherwise, the motion is DENIED.
DONE AND ORDERED at Tampa, Florida, this 3rd day of August, 2017.

Copies to:
Counsel of Record

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