VG Investments, Inc. v. M/V Pacific II et al
Filing
41
ORDER granting in part and denying in part 38 Plaintiff's Motion to Strike Affirmative Defenses. Signed by Magistrate Judge Jonathan Goodman on 7/25/2012. (dkc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 12-20S43-CIV-GOODMAN
[CONSENT CASE]
V/G INVESTMENT, INC.
Plaintiff,
v.
MN PACIFIC II, her engines, machinery,
boilers, appliances, equipment, freight,
(including tackle, apparel, Appurtenances, et
cetera), in rem and PACIFIC SHIPPING
CORPORATION PANAMA
Defendants.
------------------------------~/
ORDER ON PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES
This in rem admiralty cause is before the Court on Plaintiffs Motion to Strike
Affirmative Defenses.
[ECF No. 38]. The Court has reviewed the motion, Defendant
MN Pacific II's response and Plaintiff's reply. For the reasons stated below, the Court
GRANTS the motion in part and DENIES the motion in part. [ECF Nos . 39; 40].
I.
INTRODUCTION
This admiralty case involves Plaintiff's complaint for allegedly unpaid repairs,
supplies, and related costs. [ECF No. 23].
Plaintiff has named the vessel (and its
engines and equipment) as an in rem defendant and also named a Panamanian
corporation as an individual defendant. Plaintiff filed its amended complaint on March
26, 2012 and the in rem Defendant IVIN Pacific /I (i.e., the vessel) filed its answer and
affirmative defenses to the amended complaint on April 5, 2012. [Id.; ECF No. 27]. On
April 27, 2012, Plaintiff moved for an unopposed extension of time to move to strike
Defendant's affirmative defenses and this Court granted the extension motion on April
30, 2012 .
[ECF Nos. 31; 35].
Plaintiff thereafter timely filed its motion to strike
affirmative defenses on May 21, 2012. [ECF No . 38].
In its motion , Plaintiff moved to strike as legally insufficient all sixteen of the
affirmative defenses raised in Defendant's answer to Plaintiff's amended complaint.
[ECF Nos. 27; 38]. Plaintiff contends that affirmative defenses one through fifteen are
either not valid defenses or merely state legal conclusions without any accompanying,
necessary factual allegations.
Plaintiff contends affirmative defense sixteen merely
points out an alleged legal defect in the amended complaint and is not actually an
affirmative defense. Not surprisingly, Defendant responds that it believes its affirmative
defenses are sufficient and do not require any additional factual allegations. Defendant
also appears to contend that its failure to plead specific facts in support of its affirmative
defenses is excused by its contention that Plaintiff's complaint is "devoid of any factual
allegations or details." [ECF No. 39 , p. 2] .
II.
LEGAL STANDARDS
Federal Rule of Civil Procedure 12(f) authorizes a court "to strike from a pleading
an insufficient defense or any redundant, immaterial , impertinent, or scandalous matter .
. . on its own; or . . . on motion by a party . .. within 21 days after being served with the
pleading ." 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." Romero v. S. Waste
Sys. , LLC, 619 F. Supp . 2d 1356, 1358 (S .D. Fla. 2009) (internal quotation marks and
citations omitted) . "[I\t1]otions to strike are disfavored and rarely granted. " BB In Tech .
Page 2 of 11
Co., Ltd. v. JAF, LLC, 242 F.R.D. 632, 641 (S.D. Fla. 2007) (citing Augustus v. Bd. of
Pub. Instruction, 306 F.2d 862, 868 (5th Cir. 1962)).
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 matters."
Puja/s ex reI. EI Rey De Los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1327 (S.D.
Fla. 2011) (internal quotation marks and citations omitted). Affirmative defenses must
also comply with the pleading requirements of Rule 8(a) and allege plausible facts
supporting each affirmative defense. Cano v. S. Fla . Donuts, Inc., No. 09-81248-CIV,
2010 WL 326052, at *1 (S.D. Fla. Jan . 21, 2010); see also Mid-Continent Cas. Co. v.
Active Drywall 5., Inc., 765 F. Supp. 2d 1360, 1360 (S.D. Fla. 2011) (affirmative
defenses must be pled consistent with Twombly); see also 5 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 1274
(3d. ed. 2012) (noting that there is disagreement whether Rules 8(a) and 8(b) contain
identical pleading standards but remarking that an identical standard promotes
"efficiency" and makes sense "because boilerplate defenses clutter dockets and expand
discovery").
Framed by these rules, "courts do not tolerate shotgun pleading of affirmative
defenses and strike vague and ambiguous defenses that do not address any particular
count, allegation, or legal basis of a complaint." Cano, 2010 WL 326052, at *1 (citing
Byrne v. Nezhat, 261 F.3d 1075, 1128-29 (11th Cir. 1996) abrogated on other grounds
by Douglas Asphalt Co. v. QORE, Inc., 657 F .3d 1146 (11th Cir. 2011 )).
It is not an affirmative defense "simply to state 'Plaintiff has failed to state a
cause of action upon which relief can be granted.'" White v. De La Osa, No. 07-23381
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CIV, 2011 WL 1559826, at *2 (S .D. Fla. Apr. 25 , 2011) (quoting Gonzalez v. Spears
Holdings, Inc., No. 09-60501-CIV, 2009 WL 2391233, at *2 (S.D. Fla . July 31, 2009)
(citing In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988))).
In Byrne , 261 F.3d at 1129, the Eleventh Circuit discussed an answer containing
conclusory affirmative defenses comprised of only one word or a short sentence
containing phrases such as :
"estoppel, " "statute of limitations," "failure to state a claim for relief,"
"consent," "accord and satisfaction," "payment and release," "waiver," that
the Georgia RICO statute is "unconstitutionally vague ," and that plaintiffs
claim for punitive damages "violate[ed] [sic] the Eighth , Thirteenth, and
Fourteenth Amendments of the Constitution of the United States of
America ."
The Eleventh Circuit made the following observation about these defenses as
phrased
in
the
answer: "Although the
defendants'
affirmative defenses were
comprehensible in a literal sense, because they addressed the amended complaint as a
whole they were, as a practical matter, as vague and ambiguous as the amended
complaint."
Id.
The Eleventh Circuit concluded that pleadings containing alleged
defenses like this constitute "shotgun pleadings." Id.
III.
ANALYSIS
In this case, Defendant asserted its affirmative defenses [ECF No. 27, pp. 3-5] as
follows:
FIRST AFFIRMATIVE DEFENSE
This action is governed by and subject to the terms, limitations , and
conditions contained within the agreement(s) , if any, between Plaintiff and
Defendant, and the Defendant adopts and incorporates same in its
entirety to its answer by reference .
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SECOND AFFIRMATIVE DEFENSE
The Plaintiff's claims are governed by Maritime Law and Florida law and
any recovery is limited by Maritime Law and Florida law.
THIRD AFFIRMATIVE DEFENSE
Defendant fully discharged his duty to the Plaintiff by making payments to
Plaintiff.
FOURTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part because the Complaint
fails to state a claim upon which relief can be granted .
FIFTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the doctrine of
laches .
SIXTH AFFIRMATIVE DEFENSE
To the extent applicable, any award of damages to the Plaintiff must be
reduced for any collateral source payments .
SEVENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of its
failure to mitigate its alleged damages .
EIGHTH AFFIRMATIVE DEFENSE
To the extent applicable , Defendant is entitled to a set-off for any award of
damages to the Plaintiff for any payments made on the alleged
accou nt(s )/invoice(s).
NINTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part because the Plaintiff
waived any right to recovery and damages.
TENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of accord
and satisfaction.
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ELEVENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of duress .
TWELFTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of
estoppel.
THIRTEENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of
illegality.
FOURTEENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis of false
arrest of the vessel.
FIFTEENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part based on the doctrine
of unclean hands.
SIXTEENTH AFFIRMATIVE DEFENSE
The Plaintiff's claims are barred in whole or in part on the basis that the
Plaintiff's Amended Complaint for Collection of Supplies and Related
Costs is not verified as required by the Supplemental Rules for Admiralty
or Maritime Claims and Local Rules.
In this case, the Court concludes that it must strike Defendant's affirmative
defense numbers one through three and five through fifteen . Although this remedy is
generally disfavored, the Court concludes that the remedy is required in this particular
instance .
This is because none of the alleged affirmative defenses contain factual
allegations of any kind. Instead, the alleged affirmative defenses contain only bare legal
conclusions.
For example. the ninth (waiver). eleventh (duress), twelfth (estoppel). thirteenth
(illegality) and fifteenth (unclean hands) defenses are especially vague and fact-free.
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Plaintiff would have no idea what type of scenario Defendant is referring to when
asserting these defenses. How did Plaintiff purportedly waive its claims? Why are the
claims subject to estoppel? What type of illegality precludes recovery? Defendant does
not say. Nothing in the affirmative defenses even hints at the general category of event
which supposedly generates the purported defenses, let alone a summary of the
specific facts.
Other defenses, while not quite as nebulous, are also impermissibly vague and
conclusory.
For example, affirmative defense number three alleges "Defendant fully
discharged his duty to the Plaintiff by making payments to Plaintiff."
This Court
assumes that counsel conducted "an inquiry reasonable under the circumstances, " Fed.
R. Civ. P. 11 (b), before alleging this defense. Defendant therefore should have been
able to allege at least some details regarding the amount of any payment, the date of
any payment, and/or the method of any payment. But Defendant did not and its failure
to do so renders the affirmative defense insufficient.
By way of further example, in affirmative defense number one, Defendant states
that it is adopting and incorporating certain contractual defenses by reference.
Defendant, however, not only does not identify any specific contractual defenses or
what agreement gave rise to these defenses, but Defendant also suggests the
agreement may not even exist - because it qualifies this defense by cryptically referring
to "the agreement(s), if any." [ECF No. 27, p. 3 (emphasis added)]. At bottom, this
purported affirmative defense is nothing more than a recitation of the legal principal that
a party's legal relationship can be detailed and regulated by a contract.
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The Court could make the same or similar comments about the other affirmative
defenses it is striking. The Court has no reason to suspect that defense counsel and
Defendant did not undertake a reasonable investigation before filing these defenses or
that they could not have alleged the requisite factual support for each affirmative
defense . Nevertheless, the reality is that Defendant did not include sufficient factual
support to enable Plaintiff to understand the defenses . Therefore, given the upcoming
October trial date , Defendant may serve and file amended affirmative defenses by
Tuesday, July 31, 2012 by the close of business , if it chooses . In doing so , Defendant
shall not allege any new or additional defenses and may only, if it is able, correct
existing affirmative defense numbers one through three and five through sixteen by
supplying the necessary factual support .
The Court notes that the stricken affirmative defenses in this case are similar to
the affirmative defense stricken in Microsoft Corp. v. Jesse 's Computers & Repair, Inc.,
211 F.R.D. 681, 684 (MD. Fla. 2002). In Jesse's Computers, the defendant moved to
strike the following affirmative defense : "Plaintiff is barred from enforcing its copyright
against the Defendant since (sic) Plaintiff has engaged in licensing and other practices
that constitute copyright misuse." Id. The district court in that case granted the motion
to strike this affirmative defense and noted that defendant "failed to allege any facts
whatsoever in support of its copyright misuse defense" and "it is clear that the
Defendant's copyright misuse defense falls woefully short of even the liberal
requirements of Rule 8." Id. The Court concludes that the affirmative defenses in this
case fall at least as short of the required pleading standard as the one raised in Jesse 's
Computers and therefore must be stricken.
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However, the Court will not strike affirmative defense number four because it is
not actually an affirmative defense. Instead, it is a denial.
2391233, at *2.
See Gonzalez, 2009 WL
Where a defendant raises a failure to state a claim as a purported
affirmative defense, the appropriate course of action is for a court simply to treat the
alleged affirmative defense as a denial and not to strike it. Id. For similar reasons, the
Court will also not strike affirmative defense number sixteen . Like a failure to state a
claim, a defendant's allegation that the amended complaint is not verified is not properly
construed as an affirmative defense because it does not, for example, admit the
allegations in the complaint yet offer an excuse against liability. See also, e.g., Gyasi v.
MN "Andre", No. 07-23281-CIV, 2008 WL 906761, at *1 (S.D. Fla . Apr. 1, 2008)
(defendant filed a motion to dismiss an admiralty intervenor complaint on the ground it
was not verified). The Court notes that this ruling as to number sixteen is not a ruling on
whether the allegations contained therein entitle Defendant to any specific form of relief,
as no such request for relief is pending before the Court. 1
In closing, the Court will also address two specific arguments that Defendant
made but that the Court finds are without merit.
Plaintiff cites In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.
1988), for the proposition that affirmative defense number sixteen should be stricken
because it "merely points out an alleged defect in Plaintiff's pleading ." [ECF No. 38, p.
4). In Rawson, the Eleventh Circuit held that a "defense which points out a defect in the
plaintiff's prima facie case is not an affirmative defense ." See also BLACK'S LAW
DICTIONARY 1228 (8th ed . 2004) (defining a "prima facie case" as "1. The establishment
of a legally required rebuttable presumption [or) ... 2. A party's production of enough
evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.")
Here, Plaintiff is correct that the sixteenth affirmative defense is not an affirmative
defense but has failed to explain why the Court should strike it, rather than treat it as a
challenge to Plaintiff's failure to comply with a local rule verification requirement.
Page 9 of 11
First, Defendant argues that Form 30 to the Federal Rules of Civil Procedure
supports its contention that its affirmative defenses are sufficient despite its failure to
allege any facts in support. Defendant cites to no authority supporting its contention
that the paragraph of Form 30 dealing with a failure to state a claim even applies to
affirmative defenses but, in light of the fact that a failure to state a claim is not an
affirmative defense, it appears to the Court unlikely that this paragraph applies. The
Court notes, however, that a different paragraph of Form 30 instead addresses
affirmative defenses and gives the following example:
Affirmative Defense--Statute of Limitations
6. The plaintiffs claim is barred by the statute of limitations because it
arose more than
years before this action was commenced.
A plain reading of this paragraph of the form demonstrates that even defendants
who utilize these forms are required to plead facts and not merely legal conclusions.
Specifically, this form contains a "because" clause that requires the defendant to detail
the number of years before the action commenced that a plaintiff's claim arose. In other
words, this form clearly anticipates that a proper affirmative defense will include some
details as to why the defense applies to a specific claim at issue .
Second, Defendant appears to argue that its failure to allege any specific facts is
excused because Plaintiff's complaint is "devoid of any factual allegations or details."
However, the sufficiency of Plaintiff's complaint is not the matter currently before the
Court and the Court will not comment on that issue at this time . If Defendant believes
that the complaint is in some way legally insufficient, then Defendant could have filed,
for example, a motion to dismiss or for a more definite statement instead of answering
the complaint.
Defendant cites to no authority, and the Court is aware of none, that
authorizes a defendant to file legally insufficient affirmative defenses on this ground,
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instead of taking advantage of the other options authorized by the Federal Rules of Civil
Procedure. Such a theory would create inefficiency and confusion and the Court will not
adopt it here.
IV.
CONCLUSIONS
The Court GRANTS the motion to strike as to Defendant's affirmative defenses
one through three and five through fifteen but DENIES it as to numbers four and
sixteen. Defendant may serve and file amended affirmative defenses (i.e., amending
the existing affirmative defenses by including additional detail sufficient to elevate the
defenses to acceptable form) by Tuesday, July 31, 2012 at the close of business, if it
chooses.
DONE AND ORDERED, in Chambers, in Miami, Florida, this
2.)
~~
day of
July, 2012 .
AN GOODMAN
STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record
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