Laferte v. MURPHY PAINTERS, INC. et al

Filing 32

ORDER ON MOTION TO STRIKE. Motion to Strike Defendants' Affirmative Defenses, ECF No. 27 , is GRANTED in part and DENIED in part. Defendants' Third Affirmative Defense is STRICKEN. Defendants are granted leave to amend Third Affirmative Defense. Defendant shall file an amended answer and affirmative defense on or before June 19, 2017 (Amended Complaint due by 6/19/2017). Signed by Judge Beth Bloom on 6/12/2017. (mc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-CIV-60376-BLOOM/Valle
MARIO LAFERTE,
Plaintiff,
v.
MURPHY PAINTERS, INC.,
and GERALD MURPHY,
Defendants.
______________________________________/
ORDER ON MOTION TO STRIKE
THIS CAUSE is before the Court upon Plaintiff Mario Laferte’s (“Plaintiff”)
Motion to Strike Defendants’ Affirmative Defenses, ECF No. [27]. On May 5, 2017,
Plaintiff filed his Complaint, ECF No. [1], against Defendants Murphy Painters, Inc. and
Gerald Murphy (collectively, “Defendants”), the owner of Murphy Painters, Inc. The
Complaint asserts three claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq.—including two wage and hour claims (Counts I-II) and a retaliatory
discharge claim (Count III)—and a retaliatory discharge claim under Fla. Stat. § 440.205
(Count IV). See id. Defendants filed their Answer and Affirmative Defenses, ECF No.
[22], on April 17, 2017. Plaintiff now moves to strike six of Defendants’ twenty-one
affirmative defenses.
As background, the Complaint alleges that Plaintiff worked for Defendants as a
painter and a driver and, during his employment, “routinely worked in excess of 40 hours
per week without being compensated at a rate of not less than one and one half times the
regular rate at which he was employed.” Id. at ¶ 11. More specifically, from June of 2016

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to October of 2016, Defendants required Plaintiff “to travel daily (approximately 2 hours
per day, 5 to 6 days per week) on special work assignments and to transport work
materials” without paying Plaintiff for this “compensable travel time”—which exceeded
Plaintiff’s 40-hour work week. Id. at ¶ 13. Thereafter, in October of 2016, Plaintiff
“complained that he needed to get paid overtime for his compensable travel time incurred
from June 2016 through October 2016.” Id. at ¶ 28. “In response, [Defendants] fired
Plaintiff on or about January 30, 2017.” Id. at ¶ 29.
I. LEGAL STANDARD
Rule 12(f) of the Federal Rules of Civil Procedure permits a court to “strike from
a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter,” and grants courts broad discretion in making this determination. Fed.
R. Civ. P. 12(f); Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314,
1318-19 (S.D. Fla. 2005) (citing Williams v. Eckerd Family Youth Alt., 908 F. Supp. 908,
910 (M.D. Fla. 1995)). Under Rule 12(f), “[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.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F. Supp. 2d
1215, 1218 (S.D. Fla. 2010) (internal quotation and citation omitted); Action Nissan, Inc.
v. Hyundai Motor Am., 617 F. Supp. 2d 1177, 1187 (M.D. Fla. 2008) (same); see also
Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834, at *1 (S.D. Fla. Aug.
21, 2007) (same). Despite the Court’s broad discretion, a motion to strike is considered a
drastic remedy and is often disfavored. Thompson v. Kindred Nursing Ctrs. E., LLC, 211
F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of

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Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)1); Fabing v. Lakeland Reg’l
Med. Ctr., Inc., 2013 WL 593842, at *2 n.2 (M.D. Fla. 2013) (calling Rule 12(f) a
“draconian sanction”).
Nevertheless, affirmative defenses will be stricken if insufficient as a matter of
law. See Morrison, 434 F. Supp. 2d at 1319; see also Fed. R. Civ. P. 12(f). “Courts have
developed two schools of thought regarding the pleading standard required for
affirmative defenses, and the Eleventh Circuit has not yet resolved the split in opinion.”
Ramnarine v. CP RE Holdco 2009-1, LLC, 2013 WL 1788503, at *1 (S.D. Fla. Apr. 26,
2013). Some courts have concluded that affirmative defenses are subject to the
heightened pleading standard of Rule 8(a), as set forth in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Moore v. R. Craig
Hemphill & Assocs., 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014); see also Adams
v. JP Morgan Chase Bank, N.A., 2011 WL 2938467, at *2-3 (M.D. Fla. July 21, 2011).
Other courts have held that affirmative defenses are subject to a less stringent standard
under Rules 8(b) and 8(c), and that affirmative defenses need only “provide fair notice of
the nature of the defense and the grounds upon which it rests.” See, e.g., Gonzalez v.
Midland Credit Mgmt., Inc., 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013); Floyd v.
SunTrust Banks, Inc., 2011 WL 2441744 (N.D. Ga. June 13, 2011); Jackson v. City of
Centreville, 269 F.R.D. 661 (N.D. Ala. 2010); Blanc v. Safetouch, Inc., 2008 WL
4059786 (M.D. Fla. Aug. 27, 2008); Romero v. S. Waste Sys., LLC, 619 F. Supp. 2d

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In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. 1981) (en banc), the
court adopted as binding precedent all decisions of the Fifth Circuit issued prior to
October 1, 1981.
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1356, 1358 (S.D. Fla. 2009); Sparta Ins. Co. v. Colareta, 2013 WL 5588140, at *3 (S.D.
Fla. Oct. 10, 2013); Ramnarine, 2013 WL 1788503 at *1.
The difference in language between Rules 8(a) and Rule 8(b) is subtle but
significant. While Rule 8(a) requires “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Rule 8(b) merely requires that a party “state in short
and plain terms its defenses to each claim asserted against it.” Fed. R. Civ. P. 8(a) and
(b). Stated more directly, the language of Rule 8(a) requires the party to “show” that they
are entitled to relief, while Rule 8(b) does not. See Moore, 2014 WL 2527162 at *2
(“Whereas [Rule 8’s] pleading provision uses, ‘showing,’ its response and affirmativedefense provisions use, ‘state,’ and Iqbal’s and Twombly’s analyses relied on
‘showing’”); Floyd, 2011 WL 2441744 at *7 (“In adopting the plausibility standard, the
Supreme Court relied heavily on the rule language purporting to require a ‘showing’ of
entitlement to relief.”) (citation omitted); Smith v. Wal-Mart Stores, Inc., 2012 WL
2377840, at *2 (N.D. Fla. June 25, 2012) (noting that the Supreme Court in Twombly and
Iqbal relied on the specific language of Rule 8(a), and finding that the plausibility
requirement contained therein was inapplicable); Ramnarine, 2013 WL 1788503 at *3
(explaining that “the difference in the language between Rule 8(a) and Rules 8(b) and (c)
requires a different pleading standard for claims and defenses”). Comparable to Rule
8(b), Rule 8(c) requires that a party “must affirmatively state any avoidance or
affirmative defense.” Fed. R. Civ. P. 8(c). “[T]he Eleventh Circuit has stressed providing
notice as the purpose of Rule 8(c): ‘[t]he purpose of Rule 8(c) is simply to guarantee that
the opposing party has notice of any additional issue that may be raised at trial so that he

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or she is prepared to properly litigate it.’” Jackson v. City of Centreville, 269 F.R.D. 661,
662 (N.D. Ala. 2010) (quoting Hassan v. USPS, 842 F.2d 260, 263 (11th Cir. 1988)).
In this Court’s view, affirmative defenses are not subject to the heightened
pleading standard elucidated in Twombly and Iqbal. The straightforward construction of
Rule 8 delineates different standards for pleadings generally, and those applicable to
defenses. See Fed. R. Civ. P. 8. As noted by the Middle District of Alabama, “to
artificially supply Rules 8(b)(1) and 8(c)(1) with the unique language of Rule 8(a)(2)
requiring a ‘showing’ is to contravene well-established principles of statutory
construction, which have been found applicable to interpreting the Federal Rules of Civil
Procedure.” E.E.O.C. v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 663 (M.D. Ala.
2012) (citing Business Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41
(1991)). Furthermore, “when one considers that a defendant must answer the complaint
within 21 days, imposing a different standard for defenses is not unfair.” Floyd, 2011 WL
2441744 at *8.
II. DISCUSSION
A. Third Affirmative Defense
Defendants’ Third Affirmative Defense asserts that the Plaintiff was not an
employee engaged in commerce or the production of commerce and, thus, was not within
the protected class of persons subject to the FLSA. Plaintiff moves to strike Defendants’
Third Affirmative Defense because it sets forth mere conclusory statements and fails to
sufficiently identify facts so as to properly put Plaintiff on notice of the specific defense
alleged. Plaintiff further asserts the defense is a mere denial. Defendants respond that the
request to strike the Third Affirmative Defense is premature as it is too early in the

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litigation to determine if the defense is applicable, arguing that they are only required to
give Plaintiff fair notice of the defenses and the grounds that those defenses rest upon.
ECF No. [28] at 4 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In essence, Defendants’ Third Affirmative Defense generally asserts that Plaintiff
is not covered under the FLSA. Defendants, however, fail to identify the specific FLSA
exemption that Plaintiff falls under. See Morrison, 434 F. Supp. 2d at 1319 (“Where a
defendant pleads generally that a plaintiff is not covered under the FLSA, but fails to
identify the specific FLSA exemptions that are applicable, the defendant should be given
leave to amend the defense.”) (citing Schwind v. EW & Assocs., Inc., F. Supp. 2d 691,
697 (S.D.N.Y. 2005) (emphasis added)). As such, because Defendants’ Third Affirmative
Defense fails to identify the specific FLSA exemption that they believe Plaintiff should
be categorized under, the Court strikes the Third Affirmative Defense without prejudice
and with leave to amend to classify the particular FLSA exemption that is applicable.
B. Ninth Affirmative Defense
Plaintiff moves to strike Defendants’ Ninth Affirmative Defense—that Plaintiff’s
Complaint fails to allege sufficient ultimate facts or state a claim upon which relief can
be granted—because it is a recital of Federal Rule of Civil Procedure 12(b)(6) and fails to
notify Plaintiff of the insufficiencies in the Complaint. ECF No. [27] at 6 (citing Merrill
Lynch Bus. Fin. Servs. v. Performance Mach. Sys. U.S.A., Inc., 2005 WL 975773 (S.D.
Fla. Mar. 4, 2005)). Defendants respond by recognizing that failure to state a claim is not
an appropriate defense, but nevertheless argue that the defense is more appropriately
labeled (and should be treated as) a denial of Plaintiff’s claim—whereby striking is not
the appropriate remedy. ECF No. [28] at 9 (citing Hansen v. ABC Liquors, Inc., 2009

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WL 3790447, at *2 (M.D. Fla. Nov. 9, 2009)). The Court agrees, and will, instead of
striking the Ninth Affirmative Defense, treat it as a denial. See Home Mgmt. Sols. Inc. v.
Prescient, Inc., 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) (citing Ohio Nat’l Life
Assur. Corp. v. Langkau, 2006 WL 2355571, at *2 (M.D. Fla. Aug. 15, 2006)); see also
Premium Leisure, LLC v. Gulf Coast Spa Mfrs., Inc., 2008 WL 3927265, at *3 (M.D. Fla.
Aug. 21, 2008) (“The [] affirmative defense . . . that Premium Leisure has failed to state a
claim. . . . is a denial of Premium Leisure’s claim, rather than an affirmative defense. As
such, the Court will treat it as a denial and not strike it.”) (internal citation omitted).
C. Tenth and Thirteenth Affirmative Defense
Defendants’ Tenth Affirmative Defense asserts that if Plaintiff is able to show a
violation of the FLSA, Defendants are entitled to seek a set-off for paid but unearned
wages. Defendants’ Thirteenth Affirmative Defense asserts that Defendants are entitled
to a set-off for any and all collateral sources or monies paid for the benefit of Plaintiff or
otherwise available to him, including unemployment compensation and worker’s
compensation benefits. Plaintiff moves to strike Defendants’ Tenth and Thirteenth
Affirmative Defenses on the basis that a defense of a set-off is not allowed in cases
involving unpaid wages under the FLSA. ECF No. [27] at 5 (citing Nelson v. CK Nelson
Inc., et al., 2008 WL 2323892 (S.D. Fla. June 2, 2008)). Defendants respond that the
request to strike the Tenth and Thirteenth Affirmative Defenses is premature. Morevover,
they argue that set-offs are permitted in FLSA matters if the set-off “will not cause a
plaintiff’s wages to dip below the statutory minimum” and that here, discovery is needed
to determine if Plaintiff’s wages would fall below the applicable statutory minimum
wage. ECF No. [28] at 5 (citing Dougan v. Armitage Plumbing, LLC, 2011 WL 5983352,

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at *2 (M.D. Fla. Nov. 14, 2011)). The Court agrees with Defendants, and therefore the
Tenth and Thirteenth Affirmative Defensives will not be stricken.
As explained by a court in the Middle District of Florida, an affirmative defense
of a set-off may be properly asserted in an FLSA case, so long as such a set-off does not
reduce the amount a plaintiff can recover below the statutory minimum wage. See
Dougan, 2011 WL 5983352, at *2 (M.D. Fla. Nov. 14, 2011); see also King v. ITT
Educational Servs. Inc., 2009 WL 3583881, at *3 (M.D. Fla. Oct. 27, 2009). The
Southern District of Florida appears to take the same approach. See Nelson, 2008 WL
2323892, at *3 (recognizing that “the defense of set-offs is not barred in all FLSA cases,”
particularly where “the set-off . . . [does] not cause the employees’ wages to fall below
the statutory minimum wage”) (citing Singer v. City of Waco, Tex., 324 F.3d 813 (5th
Cir. 2003), and Morrison, 434 F. Supp. 2d at 1321). As such, the Court denies Plaintiff’s
request to strike the Tenth and Thirteenth Affirmative Defenses to the extent that the setoffs will not lead to Plaintiff’s wages to fall below the statutory minimum. Whether
Plaintiff’s wages will fall beneath the statutory minimum must be determined through
discovery. Accordingly, Defendants’ Tenth and Thirteenth Affirmative Defenses will not
be stricken.
D. Eleventh Affirmative Defense
Plaintiff moves to strike Defendants’ Eleventh Affirmative Defense—that
Plaintiff’s claims are barred by the doctrines of estoppel and/or estoppel by silence due to
Plaintiff’s failure to accurately report hours allegedly worked and/or Defendants’
unawareness that Plaintiff worked the hours claimed—on the basis that “[w]aiver and

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estoppel are not defenses allowed in FLSA cases . . . .”2 ECF No. [27] at 5-6 9 (citing
Burry v. Nat’l Trailer Convoy, Inc., 338 F.2d 422 (6th Cir. 1964)).
Defendants correctly respond that estoppel is a permissible affirmative defense in
the Eleventh Circuit. ECF No. [28] at 6 (citing McGlothan v. Walmart Stores, Inc., 2006
WL 1679592, at *2 (M.D. Fla. June 14, 2006)). In order for Plaintiff to recover under the
FLSA, he must demonstrate “that (1) he worked overtime without compensation; and (2)
the employer knew or should have known of Plaintiff’s overtime work.” Laplante v.
Terraces of Lake Worth Rehab. & Health Ctr., LLC, 725 F. Supp. 2d 1358, 1361-62
(S.D. Fla. 2010) (citing Allen v. Board of Public Educ. for Bibb Cty., 495 F.3d 1306,
1314 (11th Cir. 2007)). “Binding precedent in this Circuit establishes that the affirmative
defense of estoppel is available in response to an FLSA claim where the employee
affirmatively misleads the employer regarding the number of hours worked and the
employer had no knowledge of the employee’s actual hours.” McGlothan, 2006 WL
1679592, at *2 (citing Brumbelow v. Quality Mills, Inc., 492 F.2d 1324, 1327 (5th Cir.
1972), and finding that the defendant’s assertion of the affirmative defense of estoppel
and/or estoppel by silence—in that the plaintiff “failed to accurately report[] hours
allegedly worked and/or [the] [d]efendant was unaware that [the] [p]laintiff . . . worked
the hours claimed”—was permissible and sufficiently pled). Moreover, it is unknown at
this point whether Defendants knew or should have known of Plaintiff’s claimed

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The Court notes that although Plaintiff asserts that the defense of waiver is not
permitted in FLSA cases, Defendants’ Eleventh Affirmative Defense makes no mention
of the defense of waiver and instead refers only to “the doctrine of estoppel and/or
estoppel by silence.” ECF No. [22] at 7, ¶ 11; see generally ECF No. [27] at 4 (Plaintiff
citing to two different lines of cases in addressing the defense of waiver and the defense
of estoppel separately).
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overtime work, and so striking the estoppel defense would be premature. Accordingly,
Defendants’ Eleventh Affirmative Defense will not be stricken.
E. Twenty-First Affirmative Defense
Plaintiff moves to strike Defendants’ Twenty-First Affirmative Defense—that
Plaintiff’s entire complaint is frivolous, vexatious, and without foundation and that
Defendants are entitled to costs and attorneys’ fees—on the basis that Defendants cannot
claim attorneys’ fees in a FLSA action. ECF No. [27] at 6 (citing 29 U.S.C. § 26(b);
Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985)).
Defendants respond, and correctly so, that Plaintiff’s interpretation of Kreager is
misplaced, arguing that attorneys’ fees can be awarded to a FLSA defendant in certain
circumstances. ECF No. [28] at 7-8.
As the Eleventh Circuit explained in Kreager, under what is known as the
“American Rule,” absent a specific provision of Congress, generally a litigant may not
recover attorney’s fees. 775 F.2d at 1542 (citing Alyeska Pipeline Serv. Co. v. Wilderness
Society, 421 U.S. 240, 257 (1975)). Contrary to what Plaintiff suggests, however, the
Eleventh Circuit in Kreager actually recognized that despite the fact that 29 U.S.C. §
216(b)—cited by Plaintiff—does not make fee awards mandatory for prevailing
defendants in FLSA actions like it does for prevailing plaintiffs in FLSA actions, an
exception to the American Rule lies in federal courts’ “‘inherent power’ to assess
attorney’s fees . . . when a losing party has ‘acted in bad faith, vexatiously, wantonly or
for oppressive reasons.’” Id. at 1543 (quoting Alyeska Pipeline, 421 U.S. at 258-59).
The Eleventh Circuit then applied this “bad faith exception” to the case before it, in
which the trial court had granted a fee award to the FLSA defendants. See id. In doing so,

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the Eleventh Circuit remanded the case back to the trial court to make findings to support
the fee award it had granted. See id. The Eleventh Circuit explained as follows:
In the present action, this court is presented with no findings of fact by the
district judge and is unable to determine precisely why costs and fees were
awarded to the defendants or how these amounts were determined. The
pleadings, motions, and briefs in this case contain numerous allegations of
bad faith and vexatiousness on the part of both parties. If accepted as true,
there are sufficient allegations against both parties to justify an award of
costs and attorney’s fees. . . . [W]e remand so that the trial court can make
reviewable findings regarding the specific acts of bad faith and vexatious
conduct which form the basis for the award.
Id. (emphasis added).
Here, Defendants’ Twenty-First Affirmative Defense invokes the bad faith
exception recognized in Kreager. At this stage, it is premature to strike the Twenty-First
Affirmative Defense as there has been no determination whether Defendants could prove
a set of facts to support a future claim for attorneys’ fees due to bad faith in bringing the
claim or through conduct in the litigation. See Gonzalez v. Spears Holdings, Inc., 2009
WL 2391233, at 5 (S.D. Fla. July 31, 2009) (holding the same in declining to strike the
FLSA defendants’ claim for attorneys’ fees as an one of its asserted affirmative
defenses). Accordingly, Defendants’ Twenty-First Affirmative Defense will not be
stricken.
III. CONCLUSION
For the reasons stated above, is it ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion to Strike, ECF No. [14], is GRANTED in part and DENIED
in part.
2. Defendants’ Third Affirmative Defense is STRICKEN.

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3. Defendants are granted leave to amend their Third Affirmative Defense.
Defendants shall file an amended answer and affirmative defenses on or before
June 19, 2017.

DONE AND ORDERED in Miami, Florida this 12th day of June, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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