Rubinstein et al v. The Keshet Inter Vivos Trust et al

Filing 399

ORDER granting in part and denying in part 387 the Owners' Motion to Strike. Signed by Magistrate Judge Edwin G. Torres on 6/13/2019. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-61019-Civ-WILLIAMS/TORRES
ARTURO RUBINSTEIN, et al.,
Plaintiffs,
v.
THE KESHET INTER VIVOS TRUST, et al.,
Defendants.
______________________________________/
ORDER ON THE OWNERS’ MOTION TO STRIKE
This matter is before the Court on BNH IV HM TRI LLC’S and 1159
Hillsboro Mile LLC’s (collectively, the “Owners”) motion to strike Arturo
Rubinstein’s, Fab Rock Investments, LLC’s, and Oceanside Mile LLC’s (collectively,
“Plaintiffs”) affirmative defenses to the Owners’ counterclaims.

[D.E. 387].

Plaintiffs responded to the Owners’ motion on April 22, 2019 [D.E. 393] to which the
Owners’ replied on April 29, 2019. [D.E. 395]. Therefore, the Owners’ motion is
now ripe for disposition. After careful consideration of the motion, response, reply,
and relevant authority, and for the reasons discussed below, the Owners’ motion to
strike is GRANTED in part and DENIED in part.

1

I.

BACKGROUND

Plaintiffs filed this action on May 22, 2017 and alleged the following claims:
federal and Florida RICO violations, tortious interference, unjust enrichment
conversion, rescission, quiet title, and injunctive relief. [D.E. 1]. This case relates
to a Florida Limited Liability Company named Oceanside that was formed in 2006.
Mrs. Yehuda and her husband Mr. Yehuda were Oceanside’s two founding
members.

Oceanside’s purpose was to purchase, renovate, and operate the Sea

Bonay Beach Resort, a hotel located in Broward County, Florida (the “Hotel
Property”). The Yehudas transferred their interests in Oceanside to the Trust, and,
in 2007, 49.5% of Oceanside’s equity was sold to other individuals/entities.
In January 2012 – to avoid foreclosure – the Yehudas enlisted the help of Mr.
Rubinstein in offering his personal guaranty to Oceanside’s lender so that it would
extend the maturity date of a loan.

Mr. Rubenstein apparently never gave a

personal guaranty to Oceanside’s lender, as the lender refused to extend the loan’s
maturity date. Nevertheless, the Trust gratuitously assigned all of its interest in
Oceanside to Fab Rock, and Fab Rock was designated as Oceanside’s managing
member.1
Notwithstanding these transfers, Plaintiffs allowed the Yehudas to continue
their management of the day to day operations of the Hotel Property. In 2013,
Oceanside filed for bankruptcy, but recovered with the help of a multi-million-dollar
loan from Stonegate Bank and payments from Fab Rock. Shortly thereafter, the
Plaintiffs allege that Mr. Rubinstein was always the managing member of
Fab Rock and Oceanside.
2
1

Yehudas began attempts to secretly seize control of Oceanside from Fab Rock.
Plaintiffs claim that the Yehudas forged Mr. Rubinstein’s signature on an
agreement regarding the assignment of the Trust’s interest in Oceanside to Fab
Rock and an amendment to that agreement granting the Trust an option to
reacquire that interest from Fab Rock. Mrs. Yehuda disputes this contention and
claims that she properly exercised the option agreement by delivering written notice
to Mr. Rubinstein in December 2015.
In June 2016, Plaintiffs uncovered certain improprieties about the Yehudas’
management of the Hotel Property. Plaintiffs demanded that the Yehudas turn
over management and operation of the Hotel Property to Mr. Rubinstein.

The

Yehudas refused. In August 2016, Oceanside filed a lawsuit in California to remove
the Yehudas from managing and operating the Hotel Property, alleging that the
Yehudas: (1) misappropriated Oceanside’s hotel proceeds, (2) created an entity to
seize control of Oceanside and to convince third parties that the Yehudas were the
managing members of Oceanside, and (3) entered into transactions on behalf of
Oceanside without its knowledge or consent. In their defense, the Yehudas argue
that Fab Rock had no interest in Oceanside because the Trust exercised its option to
reacquire all of Fab Rock’s interest in Oceanside.
On April 28, 2017, the buyers purchased the Hotel Property from Oceanside
for $13.5 million, pursuant to a warranty deed that was recorded in Broward
County’s public records on May 1, 2017. Mrs. Yehuda signed the deed as the sole
manager of Oceanside. On the date of the sale, the Department’s records reflected
3

that Mrs. Yehuda was Oceanside’s sole manager.

Prior to the sale, Mrs. Yehuda

also executed an affidavit in connection with the closing – swearing (1) that she was
Oceanside’s sole manager, (2) that she was authorized to execute deeds and other
documents necessary to convey real property on Oceanside’s behalf, and (3) that all
the prerequisites needed to authorize the Hotel Property’s sale had been
effectuated. After Plaintiffs learned of the transaction, they sued.
II.

APPLICABLE PRINCIPLES AND LAW

A party may move to strike pursuant to Rule 12(f) of the Federal Rules “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). “An affirmative defense is one that admits to the
complaint, but avoids liability, wholly or partly, by new allegations of excuse,
justification or other negating matter.” Royal Palm Sav. Ass'n v. Pine Trace Corp.,
716 F. Supp. 1416, 1420 (M.D. Fla. 1989) (quoting Fla. East Coast Railway Co. v.
Peters, 72 Fla. 311, 73 So. 151 (Fla. 1916)).

Thus, affirmative defenses are

pleadings, and as a result, must comply with all the same pleading requirements
applicable to complaints. See Home Management Solutions, Inc. v. Prescient, Inc.,
2007 WL 2412834, at *1 (S.D. Fla. Aug. 27, 2007). Affirmative defenses must also
follow the general pleading standard of Fed. R. Civ. P. 8(a), which requires a “short
and plain statement” of the asserted defense. See Morrison v. Executive Aircraft
Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005). A defendant must
admit the essential facts of the complaint and bring forth other facts in justification
or avoidance to establish an affirmative defense. See id.
4

“The striking of an affirmative defense is a ‘drastic remedy’ generally
disfavored by courts.” Katz v. Chevaldina, 2013 WL 2147156, at *2 (S.D. Fla. May
15, 2013) (citations omitted); see also Blount v. Blue Cross & Blue Shield of Florida,
Inc., 2011 WL 672450, at *1 (M.D. Fla. Feb. 17, 2011) (“Striking a defense . . . is
disfavored by the courts.”); Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC,
2010 WL 5393265, at *1 (S.D. Fla. Dec. 21, 2010) (“Motions to strike are generally
disfavored and are usually denied unless the allegations have no possible relation to
the controversy and may cause prejudice to one of the parties”) (internal quotations
omitted) (quoting another source).
But, a “defendant must allege some additional facts supporting the
affirmative defense.” Cano v. South Florida Donuts, Inc., 2010 WL 326052, at *1
(S.D. Fla. Jan. 21, 2010). Affirmative defenses will be stricken if they fail to recite
more than bare-bones conclusory allegations. See Merrill Lynch Bus. Fin. Serv. v.
Performance Mach. Sys., 2005 WL 975773, at *11 (S.D. Fla. March 4, 2005) (citing
Microsoft Corp. v. Jesse=s Computers & Repair, Inc., 211 F.R.D. 681, 684 (M.D. Fla.
2002)). “An affirmative defense may also be stricken as insufficient if: ‘(1) on the
face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of
law.”’ Katz, 2013 WL 2147156, at *1 (citing Blount v. Blue Cross and Blue Shield of
Fla., Inc., 2011 WL 672450 (M.D. Fla. Feb.17, 2011)).
“Furthermore, a court must not tolerate shotgun pleading of affirmative
defenses, and should strike vague and ambiguous defenses which do not respond to
any particular count, allegation or legal basis of a complaint.” Morrison v. Exec.
5

Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318 (S.D. Fla. 2005).

An

affirmative defense should only be stricken with prejudice when it is insufficient as
a matter of law.

See Kaiser Aluminum & Chemical Sales, Inc. v. Avondale

Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982) (citing Anchor Hocking Corp. v.
Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976)).

Otherwise,

district courts may strike the technically deficient affirmative defense without
prejudice and grant the defendant leave to amend the defense. Microsoft Corp., 211
F.R.D. at 684.
III.

ANALYSIS

The Owners’ motion seeks to strike Plaintiffs’ affirmative defenses because
they lack any factual allegations and violate Rule 8. The Owners contend that
twelve of Plaintiffs’ fourteen affirmative defenses are merely single-sentenced
recitations of legal doctrines that fail to put the Owners on notice of Plaintiffs’
alleged defenses. As for the remaining two affirmative defenses – that contain one
or two additional sentences – the Owners maintain that they are equally defective
because they are confusing, vague, and conclusory.

Accordingly, the Owners

request that we strike all fourteen of Plaintiffs’ affirmative defenses.
A.

Whether Affirmative Defenses Must Comply with Twombly

Before we consider the merits of the Owners’ motion to strike, the parties
disagree as to whether Twombly applies to affirmative defenses. We acknowledge
there is a split of authority in the Eleventh Circuit on the question presented.
“Courts have developed two schools of thought regarding the pleading standard
6

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). In fact, no United States Court of Appeals has decided
the question on whether the plausibility standard enunciated in Twombly and Iqbal
applies to affirmative defenses “and the district courts that have considered it do
not agree on an answer.” Owen v. Am. Shipyard Co., LLC, 2016 WL 1465348, at *1
(D.R.I. Apr. 14, 2016) (citing Stephen Mayer, Note, An Implausible Standard for
Affirmative Defenses, 112 Mich. L. Rev. 275, 276 (2013) (“More than one hundred
federal cases have contemplated whether the plausibility standard outlined in
[Twombly and Iqbal] applies to affirmative defenses, yet the districts remain
divided, and no court of appeals has yet addressed the issue.”); Justin Rand,
Tightening Twiqbal: Why Plausibility Must Be Confined to the Complaint, 9 Fed.
Cts. L. Rev. 79 (2016)).
On one hand, many courts have held that affirmative defenses are subject to
the heightened pleading standard set forth in the Supreme Court cases of Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009).

See also Home Mgmt. Sols., Inc., 2007 WL 2412834, at *2

(“Affirmative defenses, however, are subject to the general pleading requirements of
Rule 8(a) and will be stricken if they fail to recite more than bare-bones conclusory
allegations.”) (citing Merrill Lynch Bus. Fin. Serv., 2005 WL 975773, at *11) (citing
Microsoft Corp., 211 F.R.D. at 684); see also Torres v. TPUSA, Inc., 2009 WL 764466
(M.D. Fla. Mar. 19, 2009) (affirmative defense stating that plaintiff fails to state a
7

claim upon which relief can be granted provides no basis on which the court can
determine a plausible basis for this defense); see also Holtzman v. B/E Aerospace,
Inc., 2008 U.S. Dist. LEXIS 42630, at *6 (S.D. Fla. May 28, 2008) (“While
Defendants need not provide detailed factual allegations, they must provide more
than bare-bones conclusions.

Plaintiff should not be left to discover the bare

minimum facts constituting a defense until discovery”); see also Home Mgmt.
Solutions, Inc. 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) (“Without some
factual allegation in the affirmative defense, it is hard to see how a defendant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the
defense, but also ‘grounds' on which the defense rests.”) (brackets omitted) (quoting
Twombly, 550 U.S. at 556 n.3).
On the other hand, some courts have held that the heightened pleading
standard described in Twombly and Iqbal only applies to the allegations in
complaints – not affirmative defenses. 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); Romero v. S. Waste Sys., LLC, 619 F. Supp. 2d 1356,
1358 (S.D. Fla. 2009); Sparta Ins. Co. v. Colareta, 2013 WL 5588140, at *3 (S.D. Fla.
Oct. 10, 2013); Blanc v. Safetouch, Inc., 2008 WL 4059786, at *1 (M.D. Fla. Aug. 27,
2008). The basis for these decisions stem from the differences between Rule 8(a) –
which apply to the pleading of claims – and Rules 8(b) and (c) which apply to
affirmative defenses.
8

In debating whether Twombly and Iqbal apply to affirmative defenses, many
parties rely on the language in Rules 8(a) and 8(b). Rule 8(a) requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” whereas
Rule 8(b) 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) (emphasis added). Some
parties have speculated that Rule 8(a) requires a party to “show” an entitlement to
relief whereas Rule 8(b) merely requires a party to “state” an affirmative defense.
See Moore v. R. Craig Hemphill & Assocs., 2014 WL 2527162 (M.D. Fla. May 6,
2014) (“Whereas [Rule 8’s] pleading provision uses, ‘showing,’ its response and
affirmative-defense provisions use, ‘state,’ and Iqbal’s and Twombly’s analyses
relied on ‘showing’”); see also Laferte, 2017 WL 2537259, at *2 (S.D. Fla. June 12,
2017) (“The difference in language between Rules 8(a) and Rule 8(b) is subtle but
significant.”); Owen, 2016 WL 1465348, at *2 (“Applying different pleading
standards recognizes the differences between these words; ‘showing’ requires some
factual underpinnings to plead a plausible claim, while ‘stating’ contemplates that
defendants can plead their defenses in a more cursory fashion.”); 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”); 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); Floyd, 2011 WL 2441744 at *7 (“In adopting
9

the plausibility standard, the Supreme Court relied heavily on the rule language
purporting to require a ‘showing’ of entitlement to relief.”) (citation omitted).
The Court is persuaded – by three considerations – that both complaints and
affirmative defenses are subject to Twombly and Iqbal. First, Iqbal’s extension of
the Twombly pleading standard was premised on Twombly’s holding that the
purpose of Rule 8 – in general – was to give parties notice of the basis for the claims
being sought. Importantly, the Supreme Court discussed Rule 8 at large and never
limited its holding solely to complaints. Plaintiff’s reliance on a subtle difference in
wording (i.e. “show” and “state”) between Rule 8(a) and 8(b) is unpersuasive because
the purpose of pleading sufficient facts is to give fair notice to the opposing party
that there is a plausible and factual basis for the assertion and not to suggest that it
might simply apply to the case.

This was the foundation for the decisions in

Twombly and Iqbal and it applies equally to complaints and affirmative defenses.
Second “it neither makes sense nor is it fair to require a plaintiff to provide
defendant with enough notice that there is a plausible, factual basis for . . . [his]
claim under one pleading standard and then permit the defendant [or counterdefendant] under another pleading standard simply to suggest that some defense
may possibly apply in the case.” Castillo v. Roche Labs. Inc., 2010 WL 3027726, at
*2 (S.D. Fla. Aug. 2, 2010) (quoting Palmer v. Oakland Farms, Inc., 2010 WL
2605179, at *4 (W.D. Va. June 24, 2010)).

And third, “when defendants are

permitted to make “[b]oilerplate defenses,” they “clutter [the] docket; they create
unnecessary work, and in an abundance of caution require significant unnecessary
10

discovery.” Castillo, 2010 WL 3027726, at *3 (citation and internal quotation marks
omitted).
When coupling the three considerations discussed above with the fact that a
majority of courts have agreed with this position, we hold that there is no separate
standard for complaints and affirmative defenses in connection with Rule 8. See,
e.g., Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d
1167, 1171–72 (N.D. Cal. 2010) (“While neither the Ninth Circuit nor any other
Circuit Courts of Appeals has ruled on this issue, the vast majority of courts
presented with the issue have extended Twombly’s heightened pleading standard to
affirmative defenses.”) (citing CTF Dev., *1172 Inc. v. Penta Hospitality, LLC, 2009
WL 3517617, at *7–8 (N.D. Cal. Oct. 26, 2009) (“Under the Iqbal standard, the
burden is on the defendant to proffer sufficient facts and law to support an
affirmative defense”); see also Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650
n.15 (D. Kan. 2009) (citing nine cases applying Twombly and Iqbal to the pleading
of affirmative defenses)). We will therefore determine whether Plaintiffs’
affirmative defenses comply with the pleading requirements in Twombly and Iqbal.
B.

Whether Plaintiffs’ Affirmative Defenses Comply with Twombly

Having established that Twombly applies to affirmative defenses, we agree
with the Owners that almost all of Plaintiffs’ defenses are vague and conclusory.
Twelve of the affirmative defenses are merely one sentence long and many of them
fail to describe in any way how a defense applies. The lack of factual support runs
rampant through many defenses, including the first (failure to state a claim),
11

second (collateral source setoff), third (waiver/estoppel), fourth (unclean hands),
sixth (limitation of liability), eighth (litigation privilege), ninth (failure to mitigate),
eleventh (failure to satisfy conditions precedent), twelfth (qualified privileged),
thirteenth (laches), and fourteenth (statute of limitations) affirmative defenses.
Each of these defenses in some respects lacks the necessary factual support and
fails to comply with the requirements of Rule 8. While the Court will not articulate
how each of them is defective – to avoid being repetitive – a few examples are
instructive.
The first affirmative defense is the most appropriate place to start because it
fails for two important reasons. The defense states that “[t]he counts alleged by
Buyers for statutory liability for damages, slander of title, and quiet title fail to
state causes of action under Florida law.” [D.E. 385 at 8]. While this sentence
recites several legal doctrines, it completely fails to explain how they apply to the
facts of this case and this alone renders it defective. See Perlman v. Wells Fargo
Bank, N.A., 2014 WL 4449602, at *2 (S.D. Fla. Sept. 10, 2014) (striking affirmative
defense that “state legal doctrines or terms, but neither state how or why such
defenses might apply to Plaintiff's claims, nor state facts in support of their
application.”). The defense fails for a second reason because “it is no more than a
recitation of the standard for dismissal under Rule 12(b)(6) and “is a bare-bones
conclusory allegation that fails to notify [the Owners] of the deficiencies in the
[counterclaims].” Valdez v. Smith & Deshields, Inc., 2008 WL 4861547, at *2 (S.D.
Fla. Nov. 10, 2008) (citing Renalds v. S.R.G. Restaurant Group, 119 F. Supp 2d 800,
12

803-04 (N.D. Ill. 2000) (finding that a simple recitation of the standard for dismissal
under Rule 12(b)(6) is an abdication of a party’s responsibility for alleging facts
demonstrating an entitlement to relief); Merrill Lynch Bus. Fin. Servs., Inc. v.
Performance Mach. Sys. U.S.A., Inc., 2005 WL 975773, at *11 (S.D. Fla. Mar. 4,
2005) (same).

Accordingly, the first affirmative defense is stricken for two

independent reasons.
The second affirmative defense states that “[a]ny recovery by [the] Buyers
should be reduced and/or setoff by any collateral sources of indemnity or recovery
from any parties or non-parties who are responsible for all or a portion of Buyers’
alleged damages.” [D.E. 385 at 8]. The problem with this defense is that it “merely
states a legal doctrine, set-off, without any factual context to this action,” and fails
to meet the requirement that a “[r]espondent must plead some facts to support this
legal conclusion.” Oriole Gardens Condo. Ass’n I v. Aspen Specialty Ins. Co., 2012
WL 864629, at *2 (S.D. Fla. Mar. 13, 2012).

Plaintiffs suggest that, while the

defense might be defective, it should nonetheless remain because the underlying
complaint provides the necessary factual support to color Plaintiffs’ theory of
damages.

But, “it is inappropriate for [Plaintiffs] to place the burden on [the

Owners] and on the Court to sift through ‘pages’ of allegations to determine [what
Plaintiffs] might have intended to form the basis of each of [their] defenses.”
Certain Interested Underwriters at Lloyd’s, London v. AXA Equitable Life Ins. Co.,
2013 WL 3892956, at *4 (S.D. Fla. July 26, 2013).

The burden is instead on

Plaintiffs to provide the relevant facts and to state them as part of each defense.
13

Otherwise, Defendants would have no choice but to assume or guess as to how a
specific defense applies to the facts of a case. Because the burden is on Plaintiffs to
show how this defense applies and Plaintiffs failed to meet that burden, the second
affirmative defense cannot stand.
Plaintiffs’ third and fourth affirmative defenses fail for many of the same
reasons because there is no indication on how these legal doctrines apply to the
facts of this case. The third affirmative defense alleges that the “Buyers’ claims are
barred, in whole or in part, by the doctrine of waiver and/or estoppel.” [D.E. 385 at
8]. Yet, to allege an affirmative defense of waiver or estoppel, a party must allege
and provide factual support for each of their respective elements. See Noveshen v.
Bridgewater Assocs., LP, 2016 WL 3902580, at *2 (S.D. Fla. Feb. 25, 2016)
(“[W]aiver, [and] estoppel . . . are equitable defenses that must be pled with the
specific elements required to establish the defense.”) (quoting Marina Bartashnik v.
Bridgeview Bancorp, Inc., 2005 WL 3470315, at *4 (N.D. Ill. Dec. 15, 2005)).
Because no element is even mentioned in the third affirmative defense, it does not
include enough factual support to withstand a motion to strike.
The fourth defense is inadequate because it states that the “Buyers’ claims
are barred, in whole or in part, because they have unclean hands.” [D.E. 385 at 8].
This defense fails because it lacks any facts that place the Owners on notice on how
they have unclean hands. See Colon v. Fource Hotel Properties, LLC, 2011 WL
13302684, at *1 (M.D. Fla. Jan. 21, 2011) (“Defendants must include facts that place
the Plaintiff on adequate notice of the nature of the unclean hands defense, and the
14

grounds upon which it rests.”) (citations omitted).

And without any supporting

facts, the fourth affirmative defense is too conclusory to suffice under Rule 8.
In sum, eleven of Plaintiffs’ affirmative defenses are inadequate because they
lack the necessary factual support to give notice of how each defense applies to the
facts of this case. Plaintiffs repeatedly emphasize that the parties have litigated
this case for more than two years and that the Owners know, or should know, the
basis for Plaintiffs’ defenses. But, Plaintiffs rely on no legal authority that allows a
party to bypass the requirements of Rule 8 on an inference that the opposing party
should be knowledgeable about the basis of another party’s claims. The Owners’
motion to strike must therefore be GRANTED without prejudice as to
affirmative defenses 1-4, 6, 8-9, and 11-14 for a failure to include the necessary
factual support as required under Rule 8.
Having articulated how eleven of Plaintiffs’ affirmative defenses are defective
due to a lack of factual support, we turn to the fifth (good faith), seventh (truth),
and tenth (statutory compliance) affirmative defenses.2 The Owners seek to strike

2

The fifth, seventh, and tenth affirmative defenses state the following:
The lien recorded on June 5, 2017 is permitted under Florida law.
Plaintiffs had a good faith belief that they were entitled to record the
lien.
...
The lien recorded on June 5, 2017 is permitted under Florida law and
proper based on Plaintiffs’ rights to the Hotel Property and the alleged
communication to a third party was truthful.
...
Plaintiffs state that they have fully complied with Florida Statutes,
Chapters 605 and 65, in addition to all applicable rules, state and
Federal regulations.
15

these defenses because they are confusing and merely allege a defect in the Owners’
counterclaims.
Based on our review, these defenses are not pleaded as affirmative defenses.
By definition, “an affirmative defense is something that, if proven, will reduce or
eliminate a plaintiff’s recovery even if the plaintiff established a prima facie case.”
F.D.I.C. v. Stovall, 2014 WL 8251465, at *2 (N.D. Ga. Oct. 2, 2014). “For example,
responding that plaintiff’s complaint fails to state a claim upon which relief may be
granted—the standard for dismissal under Rule 12(b)(6)—or that defendants did
not owe plaintiff a duty does not raise an affirmative defense.” F.D.I.C. v. Stovall,
2014 WL 8251465, at *2 (N.D. Ga. Oct. 2, 2014) (citing In re Rawson Food Serv.,
Inc., 846 F.2d 1343, 1349 (11th Cir. 2010) (“A defense which points out a defect in
the plaintiff’s prima facie case is not an affirmative defense.”)).
Here, the “affirmative defenses” merely identify defects in the Owners’
counterclaims rather than reasons that explain how Plaintiffs are not liable. And it
is well settled that “[a] defense which points out a defect in the . . . prima facie case
is not an affirmative defense.” In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349
(11th Cir. 1988); see also Roberge v. Hannah Marine Corp., 124 F.3d 199, 199 (6th
Cir. 1997) (“An affirmative defense . . . does not negate the elements of the
plaintiff’s claim, but instead precludes liability even if all of the elements of the
plaintiff’s claim are proven.”).

These defenses are sometimes referred to as

“negative” defenses because they are simply an attack on a party’s prima facie case.
See, e.g., Mister v. Dart, 2014 WL 2922830, at *2 (N.D. Ill. June 26, 2014) (citing
16

Riemer v. Chase Bank USA, N.A., 274 F.R.D. 637, 639 (N.D. Ill. 2011) (“[A] negative
defense is an attack on a plaintiff’s prima facie case.”)).

As the Sixth Circuit

explained in Ford Motor Co. v. Transport Indemnity Co., an affirmative defense
presents an extraneous reason that helps a defendant avoid liability:
An affirmative defense raises matters extraneous to the plaintiff’s prima facie
case; as such, they are derived from the common law plea of ‘confession and
avoidance.’ On the other hand, some defenses negate an element of the
plaintiff’s prima facie case; these defenses are excluded from the definition of
affirmative defense in Fed. R. Civ. P. 8(c).
795 F.2d 538, 546 (6th Cir. 1986) (internal citations omitted).
Yet, in this case, it is entirely unclear how the the fifth, seventh, and tenth
affirmative defenses meet this standard.

For example, the seventh affirmative

defense states (1) that Plaintiffs recorded a lien on June 5, 2017, (2) that this was
permitted under Florida law, and (3) that a communication to a third party was
truthful. While we do not dispute that these might be relevant facts, it is unclear as
to how this helps Plaintiffs avoid liability. The same is true of the fifth affirmative
defense because Plaintiffs allege that they recorded a lien on June 5, 2017 and that
they had a good faith belief to record it.

Nothing in this statement negates

Defendants’ counterclaims. This is not to say that the doctrine of good faith can
never arise to an affirmative defense (and we reserve that question for another day),
it merely means that the allegations presented are inadequate to show how
Plaintiffs can avoid liability. And it appears that both parties agree that the tenth
affirmative defense constitutes a mere denial because it states that Plaintiffs
complied with state and federal law.
17

Accordingly, the fifth, seventh, and tenth affirmative defenses are denials –
as opposed to affirmative defenses – and although we could strike them as
inadequate, there is no prejudice to the Owners in allowing them to remain.

See

Bruce v. Ocwen Loan Servicing, LLC, 2012 WL 4867224, at *2 (M.D. Fla. Oct. 15,
2012) (“While these defenses appear to be denials of Plaintiff's claims, rather than
true affirmative defenses, the Court finds that there is no prejudice to Plaintiff by
allowing them to remain.”); see also Tomason v. Stanley, 297 F.R.D. 541, 546 (S.D.
Ga. 2014) (finding that a claim did not constitute an affirmative defense but
denying the motion to strike). Therefore, the Owners’ motion to strike the fifth,
seventh, and tenth affirmative defenses is DENIED.
IV.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
the Owners’ motion to strike [D.E. 387] is GRANTED in part and DENIED in
part.
A. The Owners’ motion to strike affirmative defenses 1-4, 6, 8-9, and 11-14 is
GRANTED without prejudice. Any amended answer shall be filed within
fourteen (14) days from the date of this Order.
B. The Owners’ motion to strike affirmative defenses 5, 7, and 10 is
DENIED.

18

DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of
June, 2019.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

19