Rodriguez et al v. Cady et al
Filing
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OPINION AND ORDER granting 16 Motion to Strike Defendant Sheriff's Affirmative Defense number 6 in his Answer to Complaint. Signed by Judge Kenneth A. Marra on 10/11/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60844-CIV-MARRA/MATTHEWMAN
JORGE RODRIGUEZ and MARIA RENTEL,
Plaintiffs,
vs.
JUSTIN LAMBERT, JAMES CADY and
RANDY VILLATA, individually and
ALFRED T. LAMBERTI, as Sheriff of
Broward County,
Defendants.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Plaintiffs Jorge Rodriguez and Maria Rentel’s
(“Plaintiffs”) Motion to Strike Defendant Sheriff’s Affirmative Defense ¶ 6 in his Answer to the
Complaint as Violative of the Supremacy Clause of the United States Constitution (DE 16).
Defendant Alfred T. Lamberti filed a response (DE 21). No reply memorandum has been filed.
I. Background
Plaintiffs have filed an eighteen-count Complaint against several Broward county sheriff
deputies and Alfred T. Lamberti, as Sheriff of Broward County (the “Sheriff”) (collectively,
“Defendants”). (DE 1.) The Complaint alleges that Defendants acted improperly when the
sheriff deputies used force and a taser on Mr. Rodriguez and handcuffed his wife, Ms. Rental.
(Compl. ¶ ¶ 5-60.) Plaintiffs bring several causes of action pursuant to 42 U.S.C. § 1983 (counts
one through five, count eight, counts twelve through thirteen), malicious prosecution (counts six
through seven), battery (counts nine and eighteen), loss of consortium (counts ten through
eleven) and false arrest/false imprisonment (counts fourteen through seventeen).
In response, Defendants have filed an Answer and Affirmative Defenses (DE 15).
Affirmative defense six states:
As a further and separate Defense, the Defendant Sheriff would assert that
the conditions precedent, as well as the conditions subsequent, to the maintenance of this
cause of action may not have been complied with by Plaintiff pursuant to Florida Statutes
§§768.28(6),(7).
(Affirmative Defense ¶ 6.)
The parties agree that the Sheriff’s position is that Florida law requires, as a condition
precedent, that a claimant provide his or her social security number to the Defendant state agency
and the Florida Department of Financial Services. Plaintiffs have not provided their social
security numbers on the basis that the numbers are confidential as a matter of law. Plaintiffs do
not intend to provide this information and therefore have filed the instant motion to resolve
whether they must provide this information to recover on any state claim against the Sheriff.
II. Legal Standard
Rule 12(f) of the Federal Rules of Civil Procedure provides that “the court may strike
from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). “A defense is insufficient as a matter of law if, on the face of the
pleadings, it is patently frivolous, or if it is clearly invalid as a matter of law.” Anchor Hocking
Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976). Generally, motions
to strike are disfavored and “will usually be denied unless the allegations have no possible
relation to the controversy and may cause prejudice to one of the parties.” Carlson Corp./
Southeast v. School Bd. Of Seminole County, 778 F. Supp. 518, 519 (M.D. Fla. 1991).
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Therefore, affirmative defenses should only be stricken when they are insufficient on the face of
the pleadings. See Anchor Hocking Corp., 419 F. Supp. at 1000. When the sufficiency of the
defense depends upon disputed issues of fact or questions of law, a motion to strike an
affirmative defense should not be granted. See United States v. Marisol, Inc., 725 F. Supp. 833,
836 (M.D. Pa. 1984).
III. Discussion
Florida Statutes § § 768.28 provides in pertinent part as follows:
(1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its
agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only
to the extent specified in this act.
....
(6)(c) The claimant shall also provide to the agency the claimant's date and place of birth and
social security number if the claimant is an individual, or a federal identification number if
the claimant is not an individual. The claimant shall also state the case style, tribunal, the
nature and amount of all adjudicated penalties, fines, fees, victim restitution fund, and other
judgments in excess of $200, whether imposed by a civil, criminal, or administrative
tribunal, owed by the claimant to the state, its agency, officer or subdivision. If there exists
no prior adjudicated unpaid claim in excess of $200, the claimant shall so state.
(d) For purposes of this section, complete, accurate, and timely compliance with the
requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or
commencement of trial, whichever is sooner . . .
....
7) In actions brought pursuant to this section, process shall be served upon the head of the
agency concerned and also, except as to a defendant municipality or the Florida Space
Authority, upon the Department of Financial Services; and the department or the agency
concerned shall have 30 days within which to plead thereto.
Florida Statutes § § 768.28(1), (6)(c) and (d), and (7).
In the first instance, a waiver of the state sovereign immunity is not required for the
Section 1983 claims asserted against the Sheriff to proceed. In Owen v. City of Independence,
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Mo., 445 U. S. 622 (1980), the Supreme Court stated:
[T]he municipality’s “governmental” immunity is obviously
abrogated by the sovereign’s enactment of a statute making
it amenable to suit. Section 1983 was just such a statute. By
including municipalities within the class of “persons” subject
to liability for violations of the Federal Constitution and laws,
Congress-the supreme sovereign on matters of federal lawabolished whatever vestige of the State’s sovereign immunity
the municipality possessed.
Id. at 647-48. Similarly, in Felder v. Casey, 487 U.S. 131 (1988) and Patsy v. Board of Regents
of Florida, 457 U.S. 496 (1982), the Supreme Court addressed the applicability of state statutes
requiring pre-suit notice and a waiting period before suit could be filed, and rejected the
applicability of such requirements on Section 1983 claims whether brought in state or federal
court. Since the Sheriff is a municipal official and, as a matter of federal law, not immune from
suit under Section 19831, neither the State of Florida’s sovereign immunity, nor a state statute
that purports to waive immunity against the Sheriff only on the fulfillment of certain conditions,
are applicable to the Section 1983 claims brought in this case.
Furthermore, to the extent Plaintiff is pursing state law claims, Section 7 of the Federal
Privacy Act of 1974 provides that, “"It shall be unlawful for any Federal, State or local
government agency to deny to any individual any right, benefit, or privilege provided by law
because of such individual's refusal to disclose his social security account number." 5 U.S.C. §
552a note. The exceptions to this rule include “any disclosure required by federal statute” or
“any disclosure of a social security number to any federal, state or local agency maintaining a
system of records in existence and operating before January 1, 1975, if such disclosure was
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Hufford v. Rodgers, 912 F.2d 1338, 1341 (11th Cir. 1990) (sheriff is county official and
not agent of the state so Eleventh Amendment does not bar suit).
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required under statute or regulation adopted prior to such date to verify the identify of an
individual.” Section 7(A)(1) and Section 7(A)(2)(B). Notably, Florida Statute § 768.28(6)(c) was
enacted in 1991.2 1991 Fla. Sess. Law Serv. Ch. 91-209 (Committee Substitute for the
Committee Substitute for House Bill 937).
In Florida Division of Worker’s Compensation v. Cagnoli, 914 So. 2d 950 (Fla. 2005),
the Florida Supreme Court ruled that a workers’ compensation claimant is not required to
provide his social security number when applying for benefits because that requirement violates
the Privacy Act of 1974. Id. at 950-51. The Florida Supreme Court stated that the exception in
Section 7(A)(2)(B) did not apply because the Florida statute requiring workers to list their social
security number was not enacted until 1980. Id. at 951. The clear inference from the Cagnoli
decision is that under the Supremacy Clause of the United States Constitution, Art. VI, cl. 2, the
Privacy Act trumps the state statutory requirements.
For the foregoing reasons, the Court grants Plaintiffs’ Motion to Strike will be granted.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion to
Strike Defendant Sheriff’s Affirmative Defense ¶ 6 in his Answer to the Complaint as Violative
of the Supremacy Clause of the United States Constitution (DE 16) is GRANTED. Affirmative
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The legislative history reflects that this provision was enacted to determine whether the
claimant owes the agency against whom the claim is being asserted a sum of money based on an
unpaid judgment or adjudicated penalty, fine, fee or victim restitution. House Staff Analysis,
CS/HB 937, Mar. 13, 1991, at p. 4. The legislature intended for the provision to result in a
savings to the state because claims could: (1) potentially be dismissed for failure to comply with
the disclosure requirement or (2) reduced as a result of an off-set for monies owed to the state.
Senate Staff Analysis, CS/SB 1044, Mar. 13, 1991, at 6.
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Defense number 6 is stricken.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 11th day of October, 2012.
______________________________________
KENNETH A. MARRA
United States District Judge
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