Sace BT S.p.A. et al v. Italkitchen International, Inc.

Filing 38

ORDER granting 16 Motion to Strike. The defendant has until 1/20/2012, to correct any affirmative defenses in this matter. Signed by Magistrate Judge John J. O'Sullivan on 1/6/2012. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-21663-CIV-LENARD/O’SULLIVAN
SACE BT S.p.A., an Italian corporation as
partial subrogee of MOBILEPREF S.p.A.,
an Italian corporation,
Plaintiffs,
v.
ITALKITCHEN INTERNATIONAL, INC.,
a Florida corporation,
Defendant.
_____________________________/
ORDER
THIS MATTER is before the Court on the Plaintiffs’ Motion to Strike Defendant’s
Affirmative Defenses (DE # 16, 6/29/11). Having reviewed the applicable filings and law, the
undersigned enters the following Order.
BACKGROUND
On May 10, 2011, the plaintiffs filed a Complaint in this matter against the defendant
which included a breach of contract claim. (DE # 1, 5/10/11). On June 14, 2011, the defendant
filed an Answer and Affirmative Defenses in this matter. (DE # 14, 6/14/11). On June 29,
2011, the plaintiffs filed the Plaintiffs’ Motion to Strike Defendant’s Affirmative Defenses (DE #
16, 6/29/11) and moved to strike the defendant’s Second, Third, Fourth, Fifth, Sixth and
Seventh affirmative defenses. The defendant filed a response on July 18, 2011. (DE # 20,
7/18/11).
LEGAL STANDARD
While the federal courts do not favor striking affirmative defenses, under Federal Rule of
Civil Procedure 12(f), “[t]he court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Federal Rule of Civil Procedure

12(f). “Affirmative defenses are insufficient as a matter of law if they do not meet the general
pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure”. Mid-Continent
Casualty Co. v. Active Drywall South, Inc., et al, 765 F.Supp.2d 1360, 1361 (S.D.Fla. 2011).
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement” of a party’s defense.
While “an affirmative defense ‘does not need detailed factual allegations, [it] requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.’” Id, quoting Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 555, 127 S.Ct.1955, 167
L.Ed.2d 929 (2007).
ANALYSIS
The plaintiffs seek to strike the defendant’s Second, Third, Fourth, Fifth, Sixth and
Seventh affirmative defenses. The plaintiffs assert that the aforementioned affirmative
defenses are insufficient. The plaintiffs argue that the “Second, Third, Fourth, Fifth and Sixth
Affirmative Defenses are insufficient as a matter of law because they do nothing more than
state bare legal conclusions without an accompanying ‘short and plain statement’ in support
thereof.” Plaintiffs’ Motion to Strike Defendant’s Affirmative Defenses, (DE # 16, at p. 3), citing
Fed. R. Civ. P. 8(a); Castillo v. Roche Laboratories Inc., 2010 WL 3027726 at *1. Citing again
to Castillo, the plaintiffs argue that the defendant “fails to plead any supporting facts or the
elements of the defense that would give Plaintiff’s ‘fair notice’ of the defense being asserted” in
support of the Second, Third, Fourth, Fifth and Sixth Affirmative Defenses. Plaintiffs’ Motion to
Strike Defendant’s Affirmative Defenses, (DE # 16, at p. 3), citing Castillo v. Roche
Laboratories Inc., 2010 WL 3027726 at *4. An affirmative defense may be stricken if it fails to
satisfy the pleading requirements of Rule 8 and Twombly. See Twombly at 1362. The
defendant has failed to satisfy the pleading requirements of Rule 8 and Twombly in this matter
because the defenses merely states conclusions. Accordingly, the plaintiffs’ motion is granted

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with respect to the Second, Third, Fourth, Fifth and Sixth Affirmative Defenses.
The plaintiffs further argue that the Seventh Affirmative Defense should be stricken
because that affirmative defense is not properly pled as an affirmative defense. The
defendant’s Seventh Affirmative Defense is that the plaintiffs have failed to state a claim upon
which relief can be granted. If an affirmative defense points out a defect in the prima facie
case of a plaintiff, that affirmative defense is not actually an affirmative defense, it is a denial.
See Zeron v. C&C Drywall Corporation, Inc., 2009 WL 2461771 (S.D.Fla. 2009). Accordingly,
the defendant’s Seventh Affirmative Defense in this matter shall be considered a denial.
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Plaintiffs’ Motion to Strike Defendant’s Affirmative
Defenses (DE # 16, 6/29/11) is GRANTED in accordance with the foregoing Order. The
defendant has until January 20, 2012, to correct any affirmative defenses in this matter.
DONE AND ORDERED in Chambers, at Miami, Florida, this 6th day of January, 2012.

_________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE

Copies provided to:
United States District Judge Lenard
All counsel of record

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