Doe No. 60 v. G-Star School of the Arts, Inc.

Filing 35

ORDER Defendant's Motion for Judgment on the Pleadings as to Count I, ECF No. 28 , is GRANTED. Count I of the Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff may refile Count I against Defendant after complying with the pre-suit requirements of Fla. Sta. § 768.28(6). Plaintiff's Motion to Strike, ECF No. 27 , is DENIED. Signed by Judge Beth Bloom on 9/6/2016. (mc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-80446-BLOOM/Valle
JANE DOE NO. 60,
Plaintiff,
v.
G-STAR SCHOOL OF THE ARTS, INC.,
Defendant.
__________________________/
ORDER
THIS CAUSE is before the Court upon Defendant G-Star School of the Arts, Inc.’s
(“Defendant”) Motion to Dismiss Count I of the Plaintiff’s Amended Complaint, Alternative
Motion for Partial Judgment on the Pleadings, ECF No. [28], and Plaintiff Jane Doe No. 60’s
(“Plaintiff”) Motion to Dismiss or Strike Defendant’s Amended Affirmative Defenses Numbers
1, 3, 6, 7, and 8, ECF No. [27]. For the reasons stated below, Defendant’s Motion is granted and
Plaintiff’s Motion is denied.
I. BACKGROUND
Plaintiff filed the instant action on March 21, 2016, alleging negligence (Count I) and
violations of Title IX, 20 U.S.C. § 1681 et seq. (Count II). Compl., ECF No. [1]. On April 25,
2016, Plaintiff filed an Amended Complaint, ECF No. [6] (“Am. Compl.”). Plaintiff alleges that
she was sexually harassed and assaulted by her high school teacher at G-Star School of the Arts,
Ismael Martinez. According to Plaintiff, throughout her sophomore year, Martinez “groomed”
her to gain her trust and develop an inappropriate relationship with her. Am. Compl. ¶ 9. During
the course of a tutoring session, a “sexual incident” took place between Plaintiff and Martinez.

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Id. ¶ 11. Throughout Plaintiff’s junior and senior year of high school, the inappropriate
relationship continued, and by Plaintiff’s senior year, Martinez had been promoted to Assistant
Principal. Id. ¶¶ 13-14. Plaintiff alleges that during her sophomore year, school officials,
specifically the school’s CEO and Principal, learned of the inappropriate relationship and
Plaintiff, then 15 years old, was asked to sign and subsequently did sign a document stating that
she did not have an inappropriate relationship with a teacher. Id. ¶ 25. Later during her
sophomore year, the school officials received additional information about the purported
relationship between Martinez and Plaintiff and once again had Plaintiff sign a disclaimer
denying a sexual relationship between Martinez and Plaintiff. Id. ¶ 25. Plaintiff alleges that the
school never informed Plaintiff’s parents about the reports or allegations of Martinez’s
inappropriate relationship with Plaintiff or that Plaintiff signed statements disclaiming such
relationship. Id. ¶ 27.
Count I alleges that Defendant breached its duties to Plaintiff by failing to protect her
from sexual assault, harassment, and lewd and lascivious acts committed upon Plaintiff while she
was present on school grounds, during school hours, or during school-related activities. Id. ¶ 40.
Plaintiff also alleges that Defendant breached its duties by failing to take corrective action or
adequately investigate reports or allegations of sexual misconduct; hiring, retaining, and
supervising Martinez; and failing to warn Plaintiff’s parents that Plaintiff was in danger or at risk
of sexual abuse at the school. Id. ¶¶ 41-42, 47.
Defendant moves to dismiss, or, in the alternative, for judgment on the pleadings, as to
Count I, Plaintiff’s claim for negligence, arguing that Plaintiff failed to provide pre-suit notice as
required by statute. Defendant has filed an Answer and Amended Answer, ECF Nos. [13], [24].
Pursuant to Rule 12(b), “[a] motion to dismiss for failure to state a claim must be filed before

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answering the complaint[,]” and the Court will therefore consider only Defendant’s Motion for
Judgment on the Pleadings. O'Hagan v. M & T Marine Grp., LLC, No. 06-61635-CIV, 2010 WL
503118, at *1 (S.D. Fla. Feb. 8, 2010) (“[T]he court may construe the motion to dismiss as a
motion for judgment on the pleadings filed pursuant to Fed. R. Civ. P. 12(c).”).
Plaintiff moves to dismiss or strike Defendant’s first, third, sixth, seventh, and eighth
affirmative defense.
II. LEGAL STANDARD
A.

Judgment on the Pleadings
“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A party may move for judgment on the
pleadings if there are no material facts in dispute. Palmer & Cay, Inc. v. Marsh & McLennan
Cos., 404 F.3d 1297, 1303 (11th Cir. 2005); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1291
(11th Cir. 2002). In rendering judgment, a court may consider the substance of the pleadings and
any judicially noticed facts. Termilus v. Marksman Sec. Corp., 2016 U.S. Dist. LEXIS 20356
(S.D. Fla. Feb. 19, 2016) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th
Cir. 1998)).
“A motion for judgment on the pleadings is governed by the same standard as a Rule
12(b)(6) motion to dismiss.” Guarino v. Wyeth LLC, 823 F. Supp. 2d 1289, 1291 (M.D. Fla.
2011). As such, a complaint must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). When reviewing such a motion, a court, as a general rule, must accept the

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plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). Dismissal is not appropriate unless the
complaint lacks sufficient factual matter to state a facially plausible claim for relief that allows
the Court to draw a reasonable inference that the defendant is liable for the alleged misconduct.
See Twombly, 550 U.S. at 556; Walter Inv. Mgmt. Corp. v. Walter Energy, Inc., 2014 U.S. Dist.
LEXIS 125835 (M.D. Fla. Sept. 9, 2014).
B. Motion to Strike
Rule 12(f) of the Federal Rules of Civil Procedure permits a court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter,” granting courts broad discretion in making this determination. Fed. R. Civ. P. 12(f);
Morrison v. Executive Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19 (S.D. Fla. 2005)
(citing Williams v. Eckerd Family Youth Alternative, 908 F. Supp. 908, 910 (M.D. Fla. 1995).
Under Rule 12(f), “[a] motion 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.” Harty v.
SRA/Palm Trails Plaza, LLC, 755 F. Supp. 2d 1215, 1218 (S.D. Fla. 2010) (internal quotation
and citation omitted); see also Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834,
at *1 (S.D. Fla. Aug. 21, 2007) (same); Action Nissan, Inc. v. Hyundai Motor Am., 617 F. Supp.
2d 1177, 1187 (M.D. Fla. 2008) (same). Irrespective of the Court’s broad discretion, this ability
to strike is considered to be drastic, and is often disfavored. Thompson v. Kindred Nursing Ctrs.
E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub.
Instruction of Escambia Cty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)); Fabing v. Lakeland

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Regional Medical Center, Inc., 2013 WL 593842, at *2 n.2 (M.D. Fla. 2013) (calling Rule 12(f)
“draconian sanction”). Additionally, affirmative defenses will be stricken if insufficient as a
matter of law. See Morrison, 434 F. Supp. 2d at 1319; see also Fed. R. Civ. P. 12(f).
“Courts have developed two schools of thought regarding the pleading standard 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).
Some courts have held that affirmative defenses are subject to the heightened pleading standard
of Rule 8(a), as set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Adams v. JP Morgan Chase Bank, N.A., 2011 WL 2938467, at
*2-3 (M.D. Fla. July 21, 2011); see also Moore v. R. Craig Hemphill & Assocs., 2014 WL
2527162, at *2 (M.D. Fla. May 6, 2014). Others have concluded that affirmative defenses are
subject to a less stringent standard under Rules 8(b) and 8(c), and that affirmative defenses need
only provide fair notice of the nature of the defense and the grounds upon which it rests. 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); Blanc v. Safetouch, Inc., 2008 WL 4059786 (M.D.
Fla. Aug. 27, 2008); 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); Ramnarine, 2013
WL 1788503 at *1.
The difference in language between Rules 8(a) and Rule 8(b) is subtle but significant.
While Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Rule 8(b) merely 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). Stated more directly, the

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language of Rule 8(a) requires the party to “show” that they are entitled to relief, while Rule 8(b)
does not. See also Moore, 2014 WL 2527162 at *2 (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’”); Floyd, 2011 WL 2441744 at *7 (“In adopting the
plausibility standard, the Supreme Court relied heavily on the rule language purporting to require
a ‘showing’ of entitlement to relief.”) (citation omitted); 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); 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”). Similar to Rule 8(b), Rule 8(c) simply requires that a party
“must affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). “[T]he
Eleventh Circuit has stressed providing notice as the purpose of Rule 8(c): ‘[t]he purpose of Rule
8(c) is simply to guarantee that the opposing party has notice of any additional issue that may be
raised at trial so that he or she is prepared to properly litigate it.’” Jackson v. City of Centreville,
269 F.R.D. 661, 662 (N.D. Ala. 2010) (quoting Hassan v. USPS, 842 F.2d 260, 263 (11th Cir.
1988)).
This Court concludes that affirmative defenses are not subject to the heightened pleading
standard elucidated in Twombly and Iqbal. The straightforward construction of Rule 8 delineates
different standards for pleadings generally, and those applicable to defenses. See Fed. R. Civ. P.
8. As noted by the Middle District of Alabama, “to artificially supply Rules 8(b)(1) and 8(c)(1)
with the unique language of Rule 8(a)(2) requiring a ‘showing’ is to contravene well-established
principles of statutory construction, which have been found applicable to interpreting the Federal

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Rules of Civil Procedure.” E.E.O.C. v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 663 (M.D.
Ala. 2012) (citing Business Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41
(1991)). Furthermore, “when one considers that a defendant must answer the complaint within
21 days, imposing a different standard for defenses is not unfair.” Floyd, 2011 WL 2441744 at
*8.
III. DISCUSSION
A. Motion for Judgment on the Pleadings
Defendant seeks judgment on the pleadings as to Plaintiff’s claim for negligence (Count
I), arguing that Plaintiff has failed to allege that she provided pre-suit notice. “Florida’s doctrine
of sovereign immunity prohibits a lawsuit against the state or one of its agencies or subdivisions
without the government’s consent.” Doe v. Charter Sch. USA, Inc., No. 1:15-CV-22282, 2016
WL 111364, at *1–2 (S.D. Fla. Jan. 11, 2016) (citing Cauley v. City of Jacksonville, 403 So. 2d
379, 381 (Fla. 1981)). Florida, however, has waived that sovereign immunity in cases involving
tort violations. Pursuant to Fla. Stat. § 768.28, to benefit from that waiver, a claimant must
provide written notice of any claim before filing suit. Section 768.28 provides in pertinent part:
An action may not be instituted on a claim against the state or one
of its agencies or subdivisions unless the claimant presents the
claim in writing to the appropriate agency, and also, except as to
any claim against a municipality or the Florida Space Authority,
presents such claim in writing to the Department of Financial
Services, within 3 years after such claim accrues and the
Department of Financial Services or the appropriate agency denies
the claim in writing;
*
*
*
For purposes of this section, the requirements of notice to the
agency and denial of the claim pursuant to paragraph (a) are
conditions precedent to maintaining an action but shall not be
deemed to be elements of the cause of action and shall not affect
the date on which the cause of action accrues.
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Fla. Stat. § 768.28(6)(a) and (b).
Pursuant to the statute, a plaintiff must satisfy the notice requirements prior to
maintaining a lawsuit against a subdivision of the State, “and the complaint must contain an
allegation that such notice was given.” Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393
(S.D. Fla. 2008) (quoting Diversified Numismatics, Inc. v. City of Orlando, Fla., 783 F. Supp.
1337, 1347 (M.D. Fla. 1990)). Generally, an action pursued without first satisfying the statutory
notice provision must be dismissed without prejudice, so that plaintiff may amend his complaint
to comply with the requirement. Id. (citation omitted). However, where the time for notice has
expired and it is evident that the plaintiff cannot fulfill the requirement, a dismissal with
prejudice is warranted. Id. (citing Wagatha v. City of Satellite Beach, 865 So. 2d 620, 622 (Fla.
5th DCA 2004)).
Defendant argues that G-Star, as a public charter school, is entitled to pre-suit notice of
state law tort claims. Under Fla. Stat. § 1002.33, charter schools are deemed “part of the state’s
program of public education” and “[a]ll charter schools in Florida are public schools.” Fla. Stat.
§ 1002.33(1). “A charter school shall organize as, or be operated by, a nonprofit organization.”
Id. § 1002.33(12)(i). “For purposes of tort liability, the governing body and employees of a
charter school shall be governed by [section] 768.28.” Id. § 1002.33(12)(h). Defendant asserts
that the nonprofit organization that charters the school—here, Defendant—constitutes the
“governing body” and is therefore entitled to pre-suit notice, which Plaintiff has failed to do.
Plaintiff avers that under the principle of expressio unius est exclusio alterius, by
expressly conferring sovereign immunity on the “governing body” and “employees” but not the
“charter school” itself, the legislature did not intend to extend immunity to a charter school
entity. Plaintiff conclusorily maintains that this language limits sovereign immunity to
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“individuals, consisting of the ‘governing body’ and ‘employees’ of a charter school.” Reply,
ECF No. [33] at 2. Plaintiff also cites to a portion of failed legislation which contained broader
language explicitly encompassing charter schools in “the same immunity to suit possessed by
school districts[.]” See Resp., ECF No. [32] at 6 (quoting failed Senate Bills 1030 and 1808,
attached as Ex. C, ECF No. [32-3]).1 Based on this failed legislation, Plaintiff maintains that we
must infer that it was not the legislature’s intent to confer immunity upon charter schools.
According to Plaintiff, because section 1002.33(12) does not specifically confer immunity upon
charter schools pursuant to section 768.28, Defendant would have to satisfy the “control” test—
i.e., Defendant would need to allege facts demonstrating that the Palm Beach County School
Board controls the day-to-day operations of the school. See Shands Teaching Hosp. & Clinics,
Inc. v. Lee, 478 So. 2d 77 (Fla. 1st DCA 1988).
The Court declines to adopt Plaintiff’s analysis and instead agrees with Defendant and
the Florida Circuit Court’s decision in Q.C. et al. v. Palm Beach Sch. for Autism, Inc., No. 2014CA-000871 (Fla. 15th Cir. Ct. Dec. 10, 2014), attached as Ex. A, ECF No. [28-1]. In that case,
plaintiffs asserted claims of negligence and loss of consortium, alleging that the school was
negligent in hiring, supervising, and retaining an employee who allegedly physically and
sexually abused the minor plaintiff, and in training its employees to report suspected abuse. The
Court determined that the defendant nonprofit organization constituted the “governing body” of
the school and was therefore covered under section 768.28. The court reasoned that it appeared
the nonprofit was the equivalent of a school board, which typically is the named defendant in the

1
The Court notes that the remainder of that portion of the failed legislation reads: “If a school district
generally indemnifies its teaching personnel, it shall similarly indemnify the teaching personnel of a
charter public school within that school district. A charter public school shall have the authority to
indemnify its employees to the extent that they are not already indemnified by the school district.” Ex. C
at 14-15. It is unclear whether that portion of the legislation failed as a result of the language explicitly
extending immunity to charter schools or the language regarding indemnification.

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context of suits involving public schools. The Court further explained that “it appears that the
governing body would be the appropriate party in this action because Plaintiffs have alleged
negligence in hiring, supervising, retaining, and training its employees”—responsibilities
typically charged to a governing body. Id. at 4; see also Doe No. 50 et al. v. Charter Sch. USA,
Inc. et al., No. 2014-28393-CA-01 (Fla. 11th Cir. Ct. May 11, 2015), attached as Ex. B, ECF No.
[28-1] (dismissing without prejudice claims against charter school defendants for plaintiffs’
failure to provide pre-suit notice pursuant to section 726.28).
Under Florida law, the governing body of a charter school is the entity charged with
“continuing oversight over charter school operations.” Fla. Stat. § 1002.33(9)(i). Plaintiff has
specifically alleged in the Complaint that Defendant “controls the performance and day-to-day
operations of the School.” Am. Compl. ¶ 4. Here, similar to the allegations in Q.C., Plaintiff has
alleged breach of Defendant’s duty in hiring, retaining, and supervising Martinez; maintaining
adequate policies and procedures to protect students; providing adequate training of teachers and
staff; and warning Plaintiff’s parents that Plaintiff was in danger or at risk of sexual abuse at the
school. All of these allegations seem to track the responsibilities of the governing board
contemplated in section 1002.33. Pursuant to section 1002.33(7), “[t]he major issues involving
the operation of a charter school shall be considered in advance and written in the charter” and
“[t]he charter shall be signed by the governing board of the charter school and the sponsor . . . .”
Fla. Stat. § 1002.33(7). “The charter shall address and criteria for approval of the charter shall be
based on . . . [t]he qualifications to be required of the teachers and the potential strategies used to
recruit hire, train, and retain qualified staff to achieve best value.” Id. § 1002.33(7)(a)(14).
Likewise, “[e]ach charter school’s governing board must appoint a representative to facilitate

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parental involvement, provide access to information, assist parents with questions and concerns,
and resolve disputes.” Id. § 1002.33(9)(p)(2).
At least one judge in this District has contemplated—without fully reaching the issue—
that section 768.28 applies to a charter school. See Charter Sch. USA, 2016 WL 111364. In
Charter School USA, the Court denied a motion to dismiss filed by one defendant, Renaissance
Charter School, Inc., because the complaint did not allege whether the school was a charter
school and that determination would have required the Court to go outside the pleadings. Id. at
*2. However, the Court specifically noted that “[o]nly if [it] is the case [that the school] is a
charter school can Renaissance be considered a subdivision of the state, bringing it within the
auspices of Section 768.28(6).” Id. The other two defendants in the case, Charter Schools USA,
Inc. and Charter Schools USA at Keys Gate L.C., also filed a motion to dismiss “for failure to
comply with the statutorily prescribed notice requirement of Florida Statute 768.28(6).” Id. The
plaintiffs did not oppose the motion, and the Court found sufficient cause for granting the motion
by default, dismissing the action without prejudice as to those two defendants.
Here, Plaintiff has specifically pleaded that G-Star is a charter school, but has failed to
plead that she has provided Defendant with pre-suit notice as required under section 768.28(6)(a)
and dismissal is, therefore, appropriate. See Fletcher, 567 F. Supp. 2d at 1393. Defendant urges
the Court to dismiss this action with prejudice, arguing that Plaintiff’s claim accrued more than
three years ago—specifically, when Plaintiff was fifteen years old. However, the Court is unable
to determine, based upon the four corners of the Complaint, whether Plaintiff’s claim accrued
over three years ago. Indeed, the Complaint repeatedly alleges that the inappropriate relationship
between Plaintiff and Martinez continued throughout Plaintiff’s junior and senior year of high
school. See Compl. ¶ 13-14. Further, Plaintiff asserts that her parents were purportedly left

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unaware of any problem or issue involving Plaintiff and her claim therefore did not accrue until
she could act on it herself when she turned eighteen years old. Because the date upon which
Plaintiff’s claim accrued cannot be determined at this stage of the proceedings, the Court
dismisses Count I of the Complaint without prejudice.
B. Motion to Strike
1. Defense One, Six, and Seven (sovereign immunity defenses)
Defendant’s first, sixth, and seventh affirmative defenses relate to its assertion of
sovereign immunity and Plaintiff’s failure to provide pre-suit notice pursuant to Fla. Stat.
§768.28. The Court having already determined that section 768.28 applies to Defendant,
Plaintiff’s request to dismiss or strike these affirmative defenses is denied as moot.
2. Defense Three
Defendant’s third affirmative defense asserts that “Defendant cannot be found to have
violated Title IX because it has an effective policy for reporting and redressing sexual
harassment and other types of sex discrimination.” Am. Answer at 6. Plaintiff asserts that this is
not a recognized legal defense to a Title IX claim. Specifically, this defense was discussed only
in the dissent to the Supreme Court’s seminal Title IX decision, Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 306-07 118 S. Ct. 1989, 2007, 141 L. Ed. 2d 277 (1998) (Ginsburg, J,
dissenting) (“I would recognize as an affirmative defense to a Title IX charge of sexual
harassment, an effective policy for reporting and redressing such misconduct.”). Plaintiff
maintains that in the years since Gebser, it has not been held to be a viable defense to a Title IX
claim. See Mot. at 8 (citing Doe v. Sch. Bd. of Broward Cty, 604 F.3d 1248 (11th Cir. 2010)).
Defendant urges, however, that the issue is unsettled as “no court has held that the
implementation of an effective policy for reporting and redressing sexual harassment is not an

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affirmative defense to a Title IX action.” Resp., ECF No. [31] at 5. It appears that the parties
agree on at least one thing—that no court has affirmatively held such defense applies (or does
not apply) in a Title IX case. However, at least one Eleventh Circuit case appears to contemplate
the application of Justice Ginsburg’s Gebser dissent. In Hawkins v. Sarasota Cty. Sch. Bd., the
Eleventh Circuit determined that in order to consider the issue of whether notice to a teacher
constitutes actual knowledge, it would be necessary to examine Florida’s organization of its
public schools, the school district’s discrimination policies and procedures, and the specific facts
and circumstances of the particular case. 322 F.3d 1279, 1286 (11th Cir. 2003). The Court also
noted that Florida has enacted the Florida Education Equity Act, and it is unclear how its
procedures may affect the notice analysis and any finding of deliberate indifference. Id. In a
footnote, the Court further noted that, pursuant to the Act, each school district is directed to
submit a plan of implementation which must include the policy of nondiscrimination adopted by
the school board and include grievance and complaint procedures available to students and
parents. Id. at 1286, n. 8. Upon recognizing this requirement, the Court cited to Justice
Ginsburg’s dissent in Gebser. Id. (“In Gebser, Justice Ginsburg, dissenting on behalf of three of
the justices, suggested that the Court recognize as an affirmative defense to a Title IX charge of
sexual harassment an effective policy for reporting and redressing such conduct.”). Although
certainly not conclusive of the applicability of this potential defense to a Title IX action, in light
of an absence of case law foreclosing the use of the defense, the Court declines to strike
Defendant’s third proffered affirmative defense.
3. Defense Eight
Defendant’s eighth affirmative defense asserts that “Defendant at all times acted
reasonably and with a good faith belief that its actions were lawful and not in violation of any

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federal or state right.” Am. Answer at 7. Plaintiff moves to strike this defense, arguing that it is
nothing more than a denial and not an affirmative defense to either of Plaintiff’s claims.
Although the defense lacks factual detail, it puts Plaintiff on notice that Defendant will be raising
the issue of its good faith belief that its actions were lawful. However, to the extent that this
defense merely denies Plaintiff’s allegations, the proper remedy is for the Court to treat it as a
specific denial, not to strike it. A defense that simply points out a defect or lack of evidence in
the plaintiff’s case is not an affirmative defense. Flav-O-Rich, Inc. v. Rawson Food Serv., Inc.
(In re Rawson Food Serv., Inc.), 846 F.2d 1343, 1349 (11th Cir. 1988). However, “[i]n
attempting to controvert an allegation in the complaint, a defendant occasionally may label his
negative averment as an affirmative defense rather than as a specific denial.” Home Mgmt.
Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) (quoting 5
Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1269 (3d ed. 2004)). Federal
courts in Florida and elsewhere have repeatedly held that “[w]hen this occurs, the proper remedy
is not strike the claim, but rather to treat it as a specific denial.” Id. See also Adams v. Jumpstart
Wireless Corp., 294 F.R.D. 668, 671-72 (S.D. Fla. 2013) (denying plaintiff’s motion to strike
denials labeled as affirmative defenses and instead treating them as specific denials); Bartram,
LLC v. Landmark Am. Ins. Co., 2010 WL 4736830, at *2 (N.D. Fla. Nov. 16, 2010); Ohio Nat’l
Life Assur. Corp. v. Langkau, 2006 WL 2355571, at *1-2 (M.D. Fla. Aug. 15, 2006) (“The
federal courts have accepted the notion of treating a specific denial that has been improperly
denominated as an affirmative defense as though it was correctly labeled. This is amply
demonstrated by the fact that research has not revealed a single reported decision since the
promulgation of the federal rules in which an erroneous designation resulted in any substantial
prejudice to the pleader.”). Because this specific denial is closely related to the controversy,

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Plaintiff cannot maintain that it would be prejudiced by being forced to undertake discovery
related to it.
IV. CONCLUSION
For the reasons stated above, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Judgment on the Pleadings as to Count I, ECF No. [28], is
GRANTED.
2. Count I of the Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff may
refile Count I against Defendant after complying with the pre-suit requirements of
Fla. Stat. § 768.28(6).
3. Plaintiff’s Motion to Strike, ECF No. [27], is DENIED.
DONE AND ORDERED in Miami, Florida, this 6th day of September, 2016.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:
Counsel of record

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