HERNANDEZ v. Ticketmaster L.L.C

Filing 24

ORDER granting in part and denying in part 10 Motion to Strike Affirmative Defenses. Miscellaneous Deadline 6/4/2018. Signed by Magistrate Judge John J. O'Sullivan on 5/14/2018. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-20869-CIV-LENARD/O’SULLIVAN
YUDY HERNANDEZ,
Plaintiff,
v.
TICKETMASTER, LLC, a foreign for-profit
corporation,
Defendant.
_____________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff[’s] Motion to Strike
Defendant’s Affirmative Defenses and Incorporated Memorandum of Law in Support
(DE# 10, 4/17/18). Having reviewed the applicable filings and the law, the undersigned
enters the following Order.
BACKGROUND
On March 7, 2018, the plaintiff filed a complaint against the defendant alleging
violations of the Americans with Disabilities Act (“ADA”) (Count I) and trespass (Count
II) in connection with the defendant’s business website. See Complaint for Declaratory
and Injunctive Relief, and Jury Trial Demand (DE# 1, 3/7/18). On March 30, 2018, the
defendant filed its answer to the Complaint and asserted 21 affirmative defenses. See
Defendant Ticketmaster LLC’s Answer to Complaint (DE# 8, 3/30/18) (hereinafter
“Answer”).
On April 17, 2018, the plaintiff filed the instant motion seeking to strike all of the
defendant’s affirmative defenses. See Plaintiff[’s] Motion to Strike Defendant’s

Affirmative Defenses and Incorporated Memorandum of Law in Support (DE# 10,
4/17/18) (hereinafter “Motion”). The defendant filed its response in opposition on May 1,
2018. See Defendant Ticketmaster L.L.C.’s Opposition to Plaintiff’s Motion to Strike
Affirmative Defenses (DE# 17, 5/1/18) (hereinafter “Response”). The plaintiff filed her
reply on May 8, 2018. See Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s
Motion to Strike Affirmative Defenses (DE# 22, 5/8/18) (hereinafter “Reply”). This
matter is ripe for adjudication.
STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, the Court may strike “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). 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. Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC., No. 09-61490CIV, 2010 WL 5393265, at *1 (S.D. Fla. Dec. 21, 2010) (citation omitted). Affirmative
defenses fall under the general pleading requirements of Rule 8 of the Federal Rules of
Civil Procedure and should be stricken if they fail to recite more than bare-bones
conclusory allegations. Id. at *2 (quoting Home Mgmt. Solutions, Inc. v. Prescient, Inc.,
No. 07-20608-CIV, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007)). “Although Rule
8 does not obligate a defendant to set forth detailed factual allegations, a defendant
must give the plaintiff ‘fair notice’ of the nature of a defense and the grounds on which it
rests.” Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015) (citing Adams v.
Jumpstart Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013); Twombly, 550 U.S. at
555). Affirmative defenses should be stricken when they are insufficient as a matter of
2

law. Pandora Jewelers 1995, Inc., 2010 WL 5393265, at *2 (quoting Microsoft Corp. v.
Jesse’s Computers and Repairs, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002)). A defense
is legally insufficient only if the pleading on its face is patently frivolous, or it is clearly
invalid as a matter of law. Id.
ANALYSIS
The plaintiff seeks to strike all of the defendant’s affirmative defenses on the
ground that they are “insufficient.” Motion at 4. The defendant argues that the instant
motion should be denied on several grounds: (1) the plaintiff failed to confer with
opposing counsel as required by Local Rule 7.1; (2) the plaintiff has failed to show
prejudice and (3) the plaintiff has failed to explain why the defendant’s affirmative
defenses were not adequately pled. Response at 1. The defendant also asks the Court
for leave to amend any deficient affirmative defenses. Id.
1.

Failure to Confer Pursuant to Local Rule 7.1
As noted above, the defendant argues that the instant motion should be denied

because the plaintiff failed to confer with the defendant as required by Local Rule
7.1(a)(3). See Response at 4.
Local Rule 7.1(a)(3) states in part:
Prior to filing any motion in a civil case, except a motion for injunctive
relief, for judgment on the pleadings, for summary judgment, to dismiss or
to permit maintenance of a class action, to dismiss for failure to state a
claim upon which relief can be granted, or to involuntarily dismiss an
action, for garnishment or other relief under Federal Rule of Civil
Procedure 64, or otherwise properly filed ex parte under the Federal
Rules of Civil Procedure and these Local Rules, or a petition to enforce or
vacate an arbitration award, counsel for the movant shall confer (orally
or in writing), or make reasonable effort to confer (orally or in
writing), with all parties or non-parties who may be affected by the
3

relief sought in the motion in a good faith effort to resolve by
agreement the issues to be raised in the motion. Counsel conferring
with movant's counsel shall cooperate and act in good faith in
attempting to resolve the dispute. At the end of the motion, and above
the signature block, counsel for the moving party shall certify either:
(A) that counsel for the movant has conferred with all parties or
non-parties who may be affected by the relief sought in the motion in
a good faith effort to resolve the issues raised in the motion and has
been unable to do so; or (B) that counsel for the movant has made
reasonable efforts to confer with all parties or non-parties who may
be affected by the relief sought in the motion, which efforts shall be
identified with specificity in the statement (including the date, time,
and manner of each effort), but has been unable to do so. If certain of
the issues have been resolved by agreement, the certification shall
specify the issues so resolved and the issues remaining unresolved.
Failure to comply with the requirements of this Local Rule may be cause
for the Court to grant or deny the motion and impose on counsel an
appropriate sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a
reasonable attorney's fee.
S.D. Fla. L. R. 7.1(a)(3) (emphasis added).
Here, the plaintiff’s counsel, Diego Mendez, sent an email to the defendant’s
counsel, Nelson Bellido, on April 2, 2018, stating: “Counselor Quesada and I represent
the Plaintiff in the above referenced matter. Would you like to have a call about this
matter? We are available this Thursday, April 5, 2018 in the morning.” Email Chain
(DE# 17-2 at 5). The following day, Mr. Mendez sent a follow-up email stating:
Mr. Bellido, Mr. Hurley and Mr. Chilleen:
I apologize that I did not include all co-counsels in my initial email (now
included). We would like to set up a call to discuss this case. We are
available this Thursday, April 5, 2018 in the morning. Please let me
know if you have time or when you are available.
Also, pursuant to Local Rule 7.1(a)(3) we are informing you of our
intention of filing a Motion to Strike Affirmative Defenses as legally
insufficient.

4

Id. at 4 (emphasis added).
On April 4, 2018, attorney Michael Chilleen responded to the email by stating
that he was not available until the following Wednesday or Thursday. Id. at 3. The
plaintiff’s counsel did not directly respond to Mr. Chilleen’s email. Instead, on April 13,
2018, the plaintiff’s co-counsel, Lydia Quesada, sent an email stating:
Good Afternoon:
We have prepared a motion to strike your affirmative defenses with
memorandum of law. We plan to file same by the close of business
day on Monday, May 16th. Please let me know if you will be
amending your affirmative defenses.
Email Chain (DE# 17-2 at 3) (emphasis added). On the same day, Mr. Chilleen
responded by stating: “I have no idea what you contend is wrong with Defendant's
affirmative defenses since we never met and conferred so I do not know whether
Defendant will be amending its affirmative defenses.” Id. at 2. Ms. Quesada sent a
response email stating “I am available to confer on Monday if you want.” Id.
The parties did not confer and on April 17, 2018, the plaintiff filed the instant
motion containing the following certification:
CERTIFICATION
Plaintiffs [sic] hereby certify that counsel for Plaintiff, pursuant to Local
Rule 7.1(a)(3), attempted to confer with opposing counsel regarding
Plaintiff’s motion to strike Defendant’s affirmative defenses in a good faith
effort to resolve the issues raised in the motion and has been unable to do
so.
Motion at 7.
The undersigned finds that the plaintiff did not comply with the requirements of
Local Rule 7.1(a)(3). The efforts made by plaintiff’s counsel to confer with opposing
5

counsel were insufficient.
In her reply, the plaintiff complains that Mr. Chilleen is not counsel of record and
is not admitted to practice in the Southern District of Florida, therefore, the plaintiff
argues that “the only counsel of record for the Defendant ignored Plaintiff’s
counsels’ emails.” Reply at 2. This argument is not well taken. At no point during the
parties’ exchange of emails did the plaintiff’s counsel raise a concern about Mr. Chilleen
not being counsel of record. To the contrary, the plaintiff’s counsel, Mr. Mendez, sent a
follow-up email on April 3, 2018 in part because he’d failed to include Mr. Chilleen in the
original email. See Email Chain (DE# 17-2 at 4) (stating “I apologize that I did not
include all co-counsels in my initial email (now included)”). More importantly, the
plaintiff’s counsel did not attempt to follow-up with opposing counsel (counsel of record
or otherwise) by telephone or directly respond to Mr. Chilleen’s email stating that he
was not available until the following Wednesday or Thursday. Id. at 3.
Compliance with Local Rule 7.1(a)(3) is mandatory and serves an important
purpose. “As set forth in the Local Rule, the purpose of the pre-filing conference is to
avoid seeking relief unnecessarily, thereby avoiding waste of effort by the parties and
the court.” Onuss Ortak Nokta Uluslararasi Haberlesme Sistem Servis Bilgisayar
Yazilim Danismanlik Ve Dis Ticaret Ltd. Sirketi v. Terminal Exch., LLC, No.
09-80720-CIV, 2009 WL 10668748, at *4 (S.D. Fla. Dec. 9, 2009). Here, the plaintiff’s
counsel failed to meaningfully comply with this rule. The certificate of conferral included
in the instant motion is also deficient. It does not state “with specificity in the
[certification] (including the date, time, and manner of each effort)” the efforts made by
the plaintiff to confer with the defendant. S.D. Fla. L. R. 7.1(a)(3).
6

Despite the failure by plaintiff’s counsel to comply with Local Rule 7.1(a)(3), the
Court will exercise its discretion and consider the merits of the instant motion. See
Nanotech Entm't, Inc. v. R&T Sports Mktg., Inc., No. 14-61608-CIV, 2014 WL
12611203, at *3 (S.D. Fla. Sept. 24, 2014) (noting that “the impact of a party's failure to
comply with Rule 7.1(a)(3) is ultimately left with the discretion of the Court.”). If the
failure to confer continues to occur in this case, either party may raise the issue with the
Court.
2.

Merits of the Plaintiff’s Motion
a.

Prejudice

Motions 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.” Carlson
Corp./Southeast v. School Bd. of Seminole County, 778 F. Supp. 518, 519 (M.D. Fla.
1991) (emphasis added). The defendant argues that the instant motion should be
denied because the plaintiff has failed to show prejudice. Response at 4-5. The plaintiff
responds that “[t]he Defendant’s blanket assertion of affirmative defenses with
inadequate factual support prejudices the Plaintiff by requiring additional discovery and
motion practice, which ultimately consumes judicial resources.” Reply at 4. Because the
plaintiff has raised the issue of prejudice, albeit broadly, the undersigned will address
the merits of the instant motion.
b.

Sufficiency of the Defenses
1.

First Affirmative Defense

The plaintiff argues that the defendant’s First Affirmative Defense should be

7

stricken “because it does nothing more than state a ‘formulaic recitation of the elements
of a cause of action’ and conclusions without any factual support.” Motion at 5 (citing
Twombly, 550 U.S. at *555; Iqbal, 556 U.S. at 662). The defendant’s First Affirmative
Defense states:
Plaintiff lacks standing to pursue her alleged claims. To show standing, “a
plaintiff has the burden of proving: (1) that he or she suffered an ‘injury in
fact,’ (2) a causal relationship between the injury and the challenged
conduct, and (3) that the injury likely will be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Here, Plaintiff lacks standing to pursue her alleged claims because,
among other reasons, she is not a bona fide patron, she never
attempted to access Defendant’s website, and/or she does not intend
to access Defendant’s website in the future.
Answer at 6-7 (emphasis added).
The undersigned finds that the defendant has provided sufficient information as
to the applicability of this affirmative defense to the claims asserted by the plaintiff. See
Waterkeeper v. City of St. Petersburg, No. 8:16-CV-3319-T-27AEP, 2018 WL 549999,
at *2 (M.D. Fla. Jan. 22, 2018) (refusing to strike affirmative defense based on lack of
standing where “Defendant raise[d] new factual matter extraneous to the Second
Amended Complaint in support of its contention that Plaintiffs lack[ed] standing and the
Court lack[ed] subject matter jurisdiction.”). Accordingly, the defendant’s First
Affirmative Defense is legally sufficient and will not be stricken.
2.

Third Affirmative Defense

The plaintiff argues that the defendant’s Third Affirmative Defense “merely states
an allegation without any specifics” and should therefore be stricken. Motion at 6. In its
Third Affirmative Defense, the defendant states: “The Complaint, and each and every

8

claim therein, fails to state a claim for which relief can be granted and should, therefore,
be dismissed.” Answer at 7. The defendant’s Third Affirmative Defense is legally
insufficient. “Although failure to state a claim is a proper affirmative defense, it is not
sufficiently pled in this case to provide Plaintiffs or the Court with any factual support or
basis for the defense.” Robinson v. Nat'l Credit Sys., Inc., No. 2:17-CV-386-FTM-99CM,
2018 WL 1877462, at *2 (M.D. Fla. Apr. 19, 2018). Accordingly, the defendant's Third
Affirmative Defense is legally insufficient and is hereby STRICKEN.
3.

Fifth Affirmative Defense and Ninth Affirmative Defense

The plaintiff seeks to strike the defendant’s Fifth Affirmative Defense and Ninth
Affirmative Defense because these defenses “do nothing more than state bare legal
conclusions without an accompanying ‘short and plain statement’ in support thereof.”
Motion at 7.
The defendant’s Fifth Affirmative Defense and Ninth Affirmative Defense state as
follows:
FIFTH AFFIRMATIVE DEFENSE
(Defendant Provided Services Via Alternative Methods)
5. Any alleged wrongful acts or omissions performed by Defendant or its
agents, if there were any, do not subject Defendant to liability because
Defendant was ready and willing to accommodate Plaintiff’s alleged
disability by providing access via alternative methods, but Plaintiff never
asked for nor sought any assistance.
***
NINTH AFFIRMATIVE DEFENSE
(Reasonable Modifications to Policies, Practices and Procedures)
9. Plaintiff’s claims are barred because Defendant was willing to make
reasonable modifications to its policies, practices, and/or procedures to
9

accommodate Plaintiff’s alleged disability, but Plaintiff never asked for
nor sought assistance.
Answer at 7-8 (emphasis added). “An affirmative defense must provide ‘fair notice’ of
the nature of the defense and indicate the plausible grounds upon which it rests.”
Robinson, 2018 WL 1877462, at *2. The undersigned finds that the defendant’s Fifth
Affirmative Defense and Ninth Affirmative Defense, as pled, provide sufficient notice to
the plaintiff. Accordingly, the defendant’s Fifth Affirmative Defense and Ninth Affirmative
Defense are legally sufficient and will not be stricken.
4.

Remaining Affirmative Defenses

The plaintiff does not address the remaining affirmative defenses individually, but
rather states, generally, that they should be stricken because they “do not comply with
the pleading requirements of Rule 8” and are “like the conclusory, legally insufficient
affirmative defense[s] stricken [in other cases].” Motion at 5.
The undersigned has carefully reviewed the remaining affirmative defenses and
finds that – with the exception of the defendant’s Tenth Affirmative Defense, Nineteenth
Affirmative Defense and Twentieth Affirmative Defense – the remaining affirmative
defenses serve a purpose by providing notice to the plaintiff of the nature of the issues
the defendant seeks to assert. Affirmative defenses may be treated as denials and not
stricken from the Answer where they “‘serve[ ] a laudable purpose of placing Plaintiff
and the Court on notice of certain issues which Defendant intends to assert against
Plaintiff's Claims.’” Rubin v. Serv. Ins. Co., No. 12-23861-CIV, 2013 WL 12162457, at
*1 (S.D. Fla. Apr. 23, 2013) (quoting Qualley v. American Bankers Ins. Co. of Fla., No.
03-20228 (S.D. Fla. Apr. 16, 2003)). The defendant’s Tenth Affirmative Defense,
10

Nineteenth Affirmative Defense and Twentieth Affirmative Defense, however, will be
stricken for the reasons stated below.
The defendant’s Tenth Affirmative Defense and Nineteenth Affirmative Defense
state as follows:
TENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
10. Plaintiff failed to properly mitigate her alleged damages.
***
NINETEENTH AFFIRMATIVE DEFENSE
(Ripeness)
19. Plaintiff’s claims are not yet ripe for adjudication.
Answer at 8, 19. These affirmative defenses fail to explain how the plaintiff failed to
mitigate her damages or why the plaintiff’s claims are not yet ripe. In Schmidt v.
Synergentic Commc’ns, Inc., No. 2:14–cv–539–FtM–29CM, 2015 WL 997828, at *2
(M.D. Fla. Mar. 5, 2015), the court struck an affirmative defense because it did not
contain “any allegations connecting the defense to [plaintiff’s] claims.” Similarly here,
the defendant’s Tenth Affirmative Defense and Nineteenth Affirmative Defense are
legally insufficient and are hereby STRICKEN.
The defendant’s Twentieth Affirmative Defense states that the “Plaintiff’s claims
are barred because they violate Defendant’s right to due process of law, including
without limitation, rights protected by the United States and Florida Constitutions.”
Answer at 10. The defendant’s Twentieth Affirmative Defense fails to explain how the
plaintiff, a private, non-government actor, can violate the defendant’s constitutional

11

rights. See Farese v. Scherer, 342 F.3d 1223, 1233 n. 13 (11th Cir. 2003) (stating that
“[t]he First, Fifth, and Fourteenth Amendments do not apply to private parties unless
those parties are engaged in an activity deemed to be state action.”) (internal quotation
marks omitted). A defense may properly be stricken where it is patently frivolous on its
face or clearly invalid as a matter of law. See Pandora Jewelers 1995, Inc., 2010 WL
5393265, at *2. Accordingly, the defendant’s Twentieth Affirmative Defense is legally
insufficient and is hereby STRICKEN.
CONCLUSION
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Plaintiff[’s] Motion to Strike Defendant’s
Affirmative Defenses and Incorporated Memorandum of Law in Support (DE# 10,
4/17/18) is GRANTED in part and DENIED in part in accordance with the foregoing
Order. The defendant’s Third Affirmative Defense, Tenth Affirmative Defense,
Nineteenth Affirmative Defense and Twentieth Affirmative Defense are STRICKEN. The
defendant has until Monday, June 4, 2018, to amend any stricken affirmative
defenses.
DONE AND ORDERED in Chambers, at Miami, Florida, this 14th day of May,
2018.
_________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record

12