Lugo v. Cocozella, LLC et al
Filing
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OPINION AND ORDER granting in part and denying in part 9 Motion to Strike 7 Answer to Complaint. Signed by Judge Kenneth A. Marra on 11/28/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80825-CIV-MARRA
DANIEL LUGO,
Plaintiff,
vs.
COCOZELLA, LLC, and MAC ACQUISITION
OF DELAWARE, LLC,
Defendants.
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon Plaintiff’s Motion to Strike Defendants’ Third Through
Seventh Affirmative Defenses to Plaintiff’s Complaint and Incorporated Memorandum of Law (DE
9). The motion is fully briefed and ripe for review. The Court has carefully considered the motion
and is otherwise fully advised in the premises.
Plaintiff filed his Complaint (DE 1) for injunctive relief pursuant to the Americans with
Disabilities Act [hereinafter “ADA”], 42 U.S.C. § 12181 et seq, on August 3, 2012. On September
10, 2012, Defendants filed their Answer and Affirmative Defenses (DE 7). Plaintiff now moves to
strike the third through seventh of those defenses. For the reasons that follow, Plaintiff’s motion is
granted in part, and denied in part.
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move to strike
“any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” within
the pleadings. Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored by courts, however,
because “the courts consider striking a pleading to be a drastic remedy to be resorted to only when
required for the purposes of justice.” Exhibit Icons, LLC v. XP Cos., LLC, 609 F. Supp. 2d 1282,
1300 (S.D. Fla. 2009) (internal quotations and citations omitted). That said, “an affirmative defense
may be stricken if the defense is insufficient as a matter of law.” Id. (quoting Microsoft Corp. v.
Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002). “A defense is insufficient
as a matter of law only if 1) on the face of the pleadings, it is patently frivolous, or 2) it is clearly
invalid as a matter of law.” Id.
Defendants’ third affirmative defense, entitled “COMPLIANCE,” presents a factual dispute
over when the subject property was constructed or converted to its present use. While Plaintiff’s
Complaint alleges that “[t]he restaurant/bar was built after the effective date of the ADA and
therefore the ‘new construction’ standard, structural impracticability, and not the ‘readily achievable’
or ‘technically infeasible’ standard, is applicable,” (DE 1 at 6 n.4), Defendant’s third affirmative
defense suggests that “[t]he subject property was constructed or converted to its present use prior to
the effective date of Title III of the ADA . . . .” (DE 7 at 4). In other words, Defendant denies that
the “structural impracticability” standard applies and argues instead for application of the “readily
achievable” standard. “[W]hen a party incorrectly labels a negative averment as an affirmative
defense rather than as a specific denial, the proper remedy is not [to] strike the claim, but rather to
treat [it] as a specific denial.” Advance Concrete Materials, LLC v. Con-Way Freight, Inc., No. 0980460-CIV, 2009 WL 2973265, at *2 (S.D. Fla. Sept. 11, 2009) (internal quotations and citation
omitted). Thus, the Court will treat Defendants’ third affirmative defense as a denial—not an
affirmative defense.
Defendants’ fourth affirmative defense, entitled “NOT READILY ACHIEVABLE,” states
that “Defendant reserves the right to raise the [‘readily achievable’] affirmative defense if, after
taking discovery, it should determine said defense is warranted.” (DE 7 at 5). Defendants seek to
reserve this right because—according to them—Plaintiff has been unspecific in his allegations and
may make additional demands after discovery. To the extent that Defendants’ fourth affirmative
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defense implicitly argues for application of the “readily achievable” standard, the Court treats it the
same as the third affirmative defense: as a denial, not an affirmative defense. Moreover, the Court
finds that the resultant duplicative nature of the fourth affirmative defense does not warrant striking
it because the redundancy does not prejudice Plaintiff. But to the extent Defendants seek to reserve
the right to raise this “affirmative defense” if Plaintiff is allowed to “add additional allegations
without seeking leave to amend” under paragraph 13 of the Complaint, the Court finds such
reservation unnecessary.1 If Defendants learn that Plaintiff is asserting new claims, at that time they
may seek leave to amend their answer.
Defendants’ fifth affirmative defense, entitled “HEALTH AND SAFETY,” similarly states
that “Defendant reserves the right to assert the statutory defense that the relief sought would cause
unreasonable risk to the safety or health of others or would violate the health[,] safety, building or
land use laws of the jurisdiction in which it is located.” (DE 7 at 5). For the reasons stated above
with respect to Defendants’ fourth affirmative defense, Defendants have no need to reserve the right
to raise a contingent defense. Thus, Defendants’ fifth affirmative defense is stricken.
Defendants’ sixth affirmative defense, entitled “NON-RECOVERABLE ATTORNEY
FEES,” provides,
On information and belief, Plaintiff is engaged in a scheme of filing
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Paragraph 13 of the Complaint, which Defendants point to as the basis for their need to
reserve the right to raise a contingent defense, reads,
The above listing [of ADA violations] is not intended to be an all-inclusive list of the
barriers, conditions and violations of the ADA encountered by Plaintiff and existing
at the Property. Although the above listing, in and of itself, denied Plaintiff, due to
his disabilities full and equal enjoyment of the goods, services, facilities, privileges,
advantages and/or accommodations offered at the Property in violation of the ADA,
Plaintiff requires a full and complete inspection of the Property; with full access
thereto, in order to determine all of the Defendants’ discriminatory acts violating the
ADA relevant to Plaintiff’s disabilities.
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unjustified law suits against Florida Businesses for his own financial gain, in
circumvention of the ADA’s prohibition against monetary damage awards, which his
counsel knew or reasonably should have known. Such suits are contrary to Florida
law and public policy and attorney fee agreements made in furtherance thereof are
unenforceable as likewise being contrary to law and public policy.
WHEREFORE Plaintiff’s claim for attorney’s fees and litigation expenses
should be denied or limited as required by law.
(DE 7 at 5–6). Defendants’ sixth affirmative defense is stricken because Defendants may address the
issue of attorneys’ fees and costs after the disposition of Plaintiff’s claim; an affirmative defense is
not the appropriate vehicle for this argument.
Defendants’ seventh affirmative defense, entitled “INEQUITABLE CONDUCT
CONTRARY TO STATUTE,” suggests that Plaintiff’s claims for relief and expenses should be
denied or limited because Plaintiff has unnecessarily complicated this litigation by not giving
Defendants “prior notice.” Defendants’ implication that such notice could have provided an
alternative means of dispute resolution is irrelevant: “pre-suit notice is not required for Title III ADA
claims.” Ramnarine v. RG Grp., Inc., No. 12-80264-CIV, 2012 WL 2735340 (S.D. Fla. July 9, 2012)
(citing Ass’n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359–60 (11th Cir. 2006)).
Thus, Defendants’ seventh affirmative defense is stricken.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike
Defendants’ Third Through Seventh Affirmative Defenses to Plaintiff’s Complaint and Incorporated
Memorandum of Law (DE 9) is GRANTED IN PART AND DENIED IN PART. The Court will
treat Defendants’ third affirmative defense as a denial. The fourth affirmative defense will be treated
as a denial to the extent that it argues for application of the “readily achievable” standard, and
STRICKEN to the extent that it reserves the right to raise a contingent defense. Defendants’ fifth,
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six, and seventh affirmative defenses are STRICKEN.
DONE AND SIGNED in Chambers at West Palm Beach, Palm Beach County, Florida, this
28th day of November, 2012.
_______________________________________
KENNETH A. MARRA
United States District Judge
Copies furnished to:
All counsel
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