Walsh et al v. MK Centennial Maritime B.V. et al
Filing
30
ORDER: Plaintiff M.U.'s Motion to Strike Defendants' Affirmative Defenses, or Alternatively, for More Definite Statement (Doc. # 28 ) is GRANTED to the extent the Court Strikes the sixth and seventh Defenses. The Motion is otherwise DENIED. Signed by Judge Virginia M. Hernandez Covington on 1/24/2018. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
M.U., a minor, by and through his
parents and natural guardians,
Lacy Walsh and Korey Ussery,
Plaintiff,
Case No. 8:17-cv-2334-T-33JSS
v.
MK CENTENNIAL MARITIME B.V., ET AL.,
Defendants.
_________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
M.U.’s Motion to Strike Defendants’ Affirmative Defenses, or
Alternatively, for More Definite Statement (Doc. # 28), which
was filed on January 4, 2018.
Defendants MK Centennial
Maritime B.V. and MMS Co., Inc. filed a Response in Opposition
to the Motion (Doc. # 29) on January 17, 2018.
For the
reasons that follow, the Court grants the Motion with respect
to the sixth and seventh Defenses.
The Motion is otherwise
denied.
I.
Background
After allegedly sustaining personal injuries in a boating
accident,
Plaintiff
Defendants.
filed
a
state
court
action
against
After being served with the Amended Complaint on
September 5, 2017, Defendants removed the case on October 5,
2017, on the basis of admiralty jurisdiction. (Doc. # 1).
Defendants separately filed their Answers and Affirmative
Defenses (Doc. ## 24, 25) on December 4, 2017.
On January 4,
2018, Plaintiff moved to strike Defendants’ second, third,
fourth, sixth, and seventh Defenses.
To summarize, the
second, third, and fourth Defenses address comparative fault.
The sixth Defense seeks a set-off for amounts collected from
collateral sources. And, the seventh Defense asserts that, in
maritime cases, prejudgment interest on non-economic losses is
prohibited.
II.
Legal Standard
A.
Motion to Strike
Affirmative defenses are subject to the general pleading
requirements of Rule 8.
Rule 8(b)(1)(A), Fed. R. Civ. P.,
requires that a party "state in short plain terms its defenses
to each claim asserted against it."
Affirmative defenses are
also evaluated against the touchstone of Rule 12(f), Fed. R.
Civ. P., which states, "The court may strike from a pleading
an
insufficient
defense
or
any
impertinent, or scandalous matter."
redundant,
immaterial,
Although the Court has
broad discretion in ruling on a motion to strike, such motions
are disfavored due to their “drastic nature.”
Royal Ins. Co.
of Am. v. M/Y Anastasia, No. 95-cv-60498/RV, 1997 U.S. Dist.
LEXIS 15595, at *10 (N.D. Fla. Jan. 30, 1997).
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Thus, “[a]n 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)(citation
omitted).
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. “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).
B.
Motion for a More Definite Statement
Rule 12(e) of the Federal Rules of Civil Procedure
states, “a party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which
is so vague or ambiguous that the party cannot reasonably
prepare a response.
The motion
. . . must point out the
defects complained of and the details desired.” Fed. R. Civ.
P. 12(e). “A Rule 12(e) motion is appropriate if the pleading
is so vague or ambiguous that the party cannot reasonably
respond, even with a simple denial, in good faith, without
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prejudice to itself.” Ramirez v. FBI, No. 8:10-cv-1819-T23TBM,
2010 U.S. Dist. LEXIS 132271, at *4 (M.D. Fla. Dec. 14, 2010).
“In considering such a motion, the Court should be
mindful of the liberal pleading requirements of the Federal
Rules of Civil Procedure, pursuant to which a short and plain
statement of the claim will suffice.” Betancourt v. Marine
Cargo Mgmt., Inc., 930 F. Supp. 606, 608 (S.D. Fla. 1996).
Such
a
motion
is
“intended
to
provide
a
remedy
for
an
unintelligible pleading, rather than a vehicle for obtaining
greater detail.” Aventura Cable Corp. v. Rifkin/Narragansett
S. Fla. CATV Ltd. P’ship, 941 F. Supp. 1189, 1195 (S.D. Fla.
1996).
III. Analysis
A true affirmative defense is “one that admits to the
complaint, but avoids liability, wholly, or partly, by new
allegations
of
excuse,
justification
or
other
negating
matters.” Bluewater Trading, LLC v. Willmar USA, Inc., No. 07cv-61284, 2008 U.S. Dist. LEXIS 108191, at *2 (S.D. Fla. Sept.
9, 2008).
Rule 8(c)(1) includes a list of affirmative
defenses, such as contributory negligence, assumption of risk,
estoppel, laches, res judicata, and waiver.
Some of the Defenses at issue are not true affirmative
defenses.
That is, they do not admit the allegations of the
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Amended Complaint but avoid liability based upon some negating
factor. Nevertheless, the Court is not inclined to strike the
Defenses,
with
the
exception
of
the
sixth
and
seventh
Defenses.
As explained in Ohio National Life Assurance Corp. v.
Langkau, No. 3:06-cv-290, 2006 U.S. Dist. LEXIS 60062, at *6-7
(M.D. Fla. Aug. 15, 2006):
In attempting to controvert an allegation in the
complaint, the defendant occasionally may label his
negative averment as an affirmative defense rather
than as a specific denial.
But as long as the
pleading clearly indicates the allegations in the
complaint that are intended to be placed in issue,
the improper designation should not prejudice the
pleader.
If plaintiff has been given “plain
notice” of the matters to be litigated which is all
the federal pleading rules require, he should be
put to this proof irrespective of any error by
defendant regarding terminology.
The federal
courts have accepted the notion of treating a
specific
denial
that
has
been
improperly
denominated as an affirmative defense as though it
was correctly labeled.
Id. (citing 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1269 (2d ed. 1991), pp. 409-10).
In
the
Amended
Complaint,
Plaintiff
claims
to
have
suffered a permanent injury after a vessel he occupied was
struck by a wake that rolled from Defendants’ vessel.
Among
other allegations, Plaintiff asserts that Defendants acted
negligently and carelessly by failing to properly train and
supervise their crew, failing to keep their vessel under
-5-
control, failing to operate at a safe speed, and failing to
observe the rules of the waterway.
A.
Second Defense
In the second Defense, Defendants allege that the actions
or failures to act on the part of Plaintiff must be taken into
consideration when allocating fault.
Comparative negligence
defenses are applied in maritime cases.
See generally, Muhs
v. River Rats, Inc., 586 F. Supp. 2d 1364, 1370 (S.D. Ga.
2008)(“The court applies comparative fault rules to apportion
damages in admiralty cases according to the relative fault of
the parties.”).
The Court has not been provided with a valid
basis to strike or require a more definite statement of the
second Defense.
B.
Third and Fourth Defenses
The third and fourth Defenses raise issues as to whether
another party, such as the “John Doe” named in the Amended
Complaint, or other persons not yet known to the parties,
caused or contributed to the incident alleged to have damaged
Plaintiff.
These Defenses are appropriately raised under
admiralty law.
See generally, Tampa Port Auth. v. M.V.
Duchess, 65 F. Supp. 2d 1279, 1293 (M.D. Fla. 1997)(“When two
or more parties are at fault in causing property damages in a
maritime
collision,
liability
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for
such
damage
is
to
be
allocated among the parties proportionately to the comparative
degree of their fault.”). And, Plaintiff has not provided any
reason to require a more definite statement as to these
Defenses.
See
Dunning
v.
Tang
Thuyen,
No.
8:11-cv-2340-T-33TGW, 2012 WL 882549, at *2 (M.D. Fla. Mar.
15, 2012)(“To the extent that any of the affirmative defenses
are merely statements of law or legal conclusions as argued by
Plaintiff, they still ‘serve the laudable purpose of placing
Plaintiff and the Court on notice of certain issues Defendant
intends to assert against Plaintiff’s claims.’” (citation
omitted)).
C.
Sixth Defense
In their sixth Defense, Defendants allege that they are
entitled to an off-set from any damages which may be awarded
Plaintiff in this action to the extent of any amounts or
benefits Plaintiff received from collateral sources for the
injuries,
damages,
and
losses
alleged
in
the
Amended
Complaint.
Plaintiff argues that this Defense must be stricken and
has supplied two admiralty cases in support of that position.
In Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 354 (5th
Cir. 1980), a Jones Act case, the court found it was error for
the jury to consider that the injured seaman was receiving
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workman’s compensation payments. The court further explained:
“In its simplest application, the [collateral source] rule
prohibits the introduction of evidence offered to show that
the
[plaintiff]
has
already
been
compensated
for
his
injuries.”
Hillenburg v. Carnival Corp., No. 16-22091, 2016 U.S.
Dist.
LEXIS
146252
illustrative.
(S.D.
Fla.
Sept.
21,
2016)
is
also
There, a passenger on a cruise ship sustained
personal injuries after she was accidentally struck with a
golf ball. Id. at *1. The defendant asserted that it was
entitled to a set-off for any collateral source payments,
similar to the sixth Defense in this case. Id. at *2.
The
court struck the defense and held: “Carnival may not introduce
evidence of benefits or payments made to Hillenburg by a
collateral source.” Id. at *4.
The Court reaches the same
determination here and finds that Defendants are not permitted
to introduce evidence to show that Plaintiff has already been
compensated for the alleged injuries. The Motion to Strike is
therefore granted as to the sixth Defense.
D.
Seventh Defense
Defendants assert in the seventh Defense that the general
maritime law of the United States does not permit recovery of
prejudgment
interest
on
non-economic
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damages.
However,
Plaintiff points to several admiralty cases regarding personal
injuries, which allow for prejudgment interest on pain and
suffering. In Baucome v. Sisco Stevedoring, LLC, 560 F. Supp.
2d 1181, 1209 (S.D. Ala. 2008), the court held: “In personal
injury
cases
under
admiralty
jurisdiction,
prejudgment
interest must be granted unless peculiar circumstances justify
its denial.
Such prejudgment interest awards apply even to
general damage awards for pain and suffering, rather than
being confined to special damages for liquidated amounts.”
(citations omitted). See also Deakle v. John E. Graham & Sons,
756 F.2d 821, 833 (11th Cir. 1985)(holding that an award of
prejudgment interest on portion of verdict which represented
recovery for pain and suffering and mental anguish was not an
abuse of discretion).
In response, Defendants attempt to change their defense.
They indicate that “it is the rule that pre-judgment interest
cannot be recovered on any award for damages for future loss
of earnings, future medical expenses and/or future pain and
suffering.” (Doc. # 29 at 5)(emphasis added).
The Court
determines that it is appropriate to strike the seventh
Defense, as such Defense is presented in the Answer and
Affirmative Defenses. (Doc. ## 24, 25).
Defendants are not
authorized to simply amend their Defenses in response to a
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Motion to Strike.
The deadline to amend the pleadings has
long expired. (Doc. # 20 at 1).
The Motion to Strike is
therefore granted as to the seventh Defense.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff M.U.’s Motion to Strike Defendants’ Affirmative
Defenses, or Alternatively, for More Definite Statement (Doc.
# 28) is GRANTED to the extent the Court Strikes the sixth and
seventh Defenses.
The Motion is otherwise DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 24th
day of January, 2018.
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