Piper v. Panther Towing, Inc. et al
Filing
42
ORDER granting in part and denying in part 36 Plaintiff's Motion to Strike and denying 36 Plaintiff's Motion to Deem Admitted. Signed by Judge Robin L. Rosenberg on 9/21/2017. (nkl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:17-CV-80238-ROSENBERG/BRANNON
WILLIAM CODY PIPER,
Plaintiff,
v.
PANTHER TOWING, INC. et al.,
Defendants.
________________________________/
ORDER GRANTING IN PART AND DENYING PLAINTIFF’S MOTION TO STRIKE
AND DENYING PLAINTIFF’S MOTION TO DEEM ADMITTED
THIS CAUSE is before the Court on Plaintiff’s Motion to Strike, Motion In Limine,
Motion to Deem Admitted, and Incorporated Memorandum of Law [DE 36]. The Court has
carefully considered Plaintiff’s Motion to Strike and Motion to Deem Admitted, 1 Defendants’
Response [DE 38], and Plaintiff’s Reply [DE 39], and is otherwise fully advised in the premises.
For the reasons set forth below, Plaintiff’s Motion to Strike is GRANTED IN PART and
DENIED IN PART, and Plaintiff’s Motion to Deem Admitted is DENIED.
I.
BACKGROUND
On February 26, 2017, Plaintiff filed his Complaint [DE 1] seeking unpaid minimum
wages, overtime pay, and liquidated damages pursuant to the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”). On March 30, 2017, Defendants’ counsel filed a Notice of
Appearance. See DE 8. Defendants filed an Answer to Plaintiff’s Statement of Claim, which was
docketed as an Answer to Plaintiff’s Complaint, on April 26, 2017. See DE 13. Defendants filed
their Answer and Affirmative Defenses [DE 26] on July 18, 2017.
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This Order does not address Plaintiff’s Motion In Limine. The Honorable James I. Cohn will preside over the trial
in this case, see DE 33, and will issue a ruling on Plaintiff’s Motion In Limine separately.
II.
MOTION TO STRIKE
In his Motion to Strike, Plaintiff argues that Defendants’ Answer and Affirmative
Defenses should be stricken as untimely. Specifically, Plaintiff argues that Defendants’ Answer
and Affirmative Defenses was filed without leave of Court approximately 100 days after it was
due and 15 days after the deadline to complete discovery in this case. Plaintiff further argues that
Defendants’ Answer and Affirmative Defenses contradicts Defendants’ responses to Plaintiff’s
request for admissions. As a result, Plaintiff argues, Defendants’ Answer and Affirmative
Defenses is improper and unfairly prejudicial. Finally, Plaintiff moves to strike Defendants’ eight
affirmative defenses as insufficiently pleaded.
In support of his argument that Defendants’ Answer and Affirmative Defenses should be
stricken as untimely, Plaintiff states that Defendant Panther Towing, Inc. was served with a
summons and copy of Plaintiff’s Complaint on March 10, 2017, and that Defendants Anayza M.
Ali and Mohammed Ali were served on March 20, 2017. According to Plaintiff, Defendant
Panther Towing, Inc. was therefore required to respond to Plaintiff’s Complaint by March 31,
2017, and Defendants Anayza M. Ali and Mohammed Ali were required to respond by April 10,
2017. To date, however, Plaintiff has not filed proof of service on Defendants. Even assuming
that Defendants’ responses were in fact due on these dates, Plaintiff never moved for default
against Defendants. Both Plaintiff and Defendants have actively litigated this case since its
inception, including attending mediation on July 14, 2017. See DE 24. Plaintiff’s argument that
Defendants’ Answer and Affirmative Defenses should be stricken as untimely is therefore
unavailing, and the Court will not strike Defendants’ Answer and Affirmative Defenses on this
ground.
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The Court also rejects Plaintiff’s argument that Defendants’ Answer and Affirmative
Defenses should be stricken because it was filed after the deadline to complete discovery in this
case. Pursuant to the Court’s Order Setting Status Conference, Calendar Call, Pretrial Deadlines,
and Trial Date and Order of Reference to Magistrate [DE 6], the deadline to complete discovery
in this case was July 3, 2017. Defendants filed their Answer and Affirmative Defenses on July
18, 2017. See DE 26. While Plaintiff argues that the timing of Defendants’ Answer and
Affirmative Defenses is prejudicial, Plaintiff has failed to specify what prejudice will result from
the filing of Defendants’ Answer and Affirmative Defenses after the deadline to complete
discovery. Plaintiff has not proffered any additional discovery that he would conduct in light of
Defendants’ Answer and Affirmative Defenses had the deadline to complete discovery not
already passed. In addition, Plaintiff has not moved to reopen discovery to avoid any such
prejudice. Accordingly, the Court will not strike Defendants’ Answer and Affirmative Defenses
on this ground.
To the extent Plaintiff argues that Defendants’ Answer and Affirmative Defenses should
be stricken because it contradicts Defendants’ responses to Plaintiff’s request for admissions,
Defendants do not oppose Plaintiff’s Motion. Plaintiff states that in response to his request for
admissions, Defendant Panther Towing, Inc. admitted that the FLSA applies to its business for
the time that Plaintiff worked for it. Defendants’ Answer and Affirmative Defenses, however,
states that they are “without sufficient knowledge . . . and demand strict proof” of Plaintiff’s
allegation that Defendant Panther Towing, Inc. is subject to the FLSA. See DE 1, Complaint ¶ 3;
DE 26, Answer and Affirmative Defenses ¶ 3. Defendants have resolved this contradiction: In
response to Plaintiff’s Motion, Defendants state that “[f]or the purposes of this case, Defendants
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concede[] FLSA coverage.” See DE 38 ¶ 7. Accordingly, the Court strikes paragraph 3 of
Defendants’ Answer and Affirmative Defenses with Defendants’ agreement.
Finally, Plaintiff argues that each of Defendants’ eight affirmative defenses should be
stricken as “boilerplate, devoid of supporting facts, and vague[].” See DE 36 ¶ 15. Defendants do
not oppose Plaintiff’s Motion as to their first and sixth affirmative defenses. See DE 38 ¶ 8.
Accordingly, the Court strikes Defendants’ first and sixth affirmative defenses—paragraphs 18
and 23 of Defendants’ Answer and Affirmative Defenses, respectively—with Defendants’
agreement.
With respect to Defendants’ remaining six affirmative defenses, Federal Rule of Civil
Procedure 12(f) authorizes a district court to “strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12 (f). While
courts have broad discretion when considering a motion to strike, striking a defense from a
pleading is a drastic remedy and, as such, is generally disfavored. See Tsavaris v. Pfizer, Inc.,
310 F.R.D. 678, 680 (S.D. Fla. 2015). Accordingly, courts typically deny motions to strike an
affirmative defense “unless the defense (1) has no possible relation to the controversy, (2) may
cause prejudice to one of the parties, or (3) fails to satisfy the general pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure.” Id. (citing Nobles v. Convergent Healthcare
Recoveries, Inc., No. 8:15-CV-1745-T-30MAP, 2015 WL 5098877, at *1 (M.D. Fla. Aug. 31,
2015)).
Courts within the Southern District of Florida disagree as to whether affirmative defenses
must comply with the heightened pleading standard of Rule 8(a) set forth in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See id. at 680–82
(discussing split among the district courts and concluding that a lower pleading standard applies
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to affirmative defenses); Elec. Commc’n Techs., LLC v. Clever Athletics Co., LLC, No. 9:16-CV81466-WPD, 2016 WL 7409710, at *1 (S.D. Fla. Dec. 19, 2016) (acknowledging split and
applying heightened pleading standard). The Eleventh Circuit Court of Appeals has not yet
resolved this split among the district courts. Upon consideration, this Court adopts the reasoning
set forth in such cases as Tsavaris and concludes that “a lower pleading standard applies to
affirmative defenses.” See 310 F.R.D. at 680–82. Under this lower pleading standard, Defendants
need not “set forth detailed factual allegations,” but “must give the plaintiff ‘fair notice’ of the
nature of a defense and the grounds on which it rests.” Id. at 682 (quoting Adams v. Jumpstart
Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013)).
The Court concludes that Defendants’ second and fifth affirmative defenses are
sufficiently pleaded under this standard. As their second affirmative defense, “Defendants allege
that any claim of the Plaintiff should be reduced by a set-off for the hours that Plaintiff
performed personal errands on company time.” See DE 26 ¶ 19. As their fifth affirmative
defense, “Defendants allege that they properly paid [Plaintiff] and do not owe him any monies.”
Id. ¶ 22. Each of these statements gives Plaintiff fair notice of the nature of the defense and the
grounds upon which it rests. Accordingly, the Court will not strike Defendants’ second and fifth
affirmative defenses.
However, the Court concludes that Defendants’ third, fourth, and seventh affirmative
defenses are insufficiently pleaded and should be stricken. As their third affirmative defense,
“Defendants allege that Plaintiff’s claims relate in part to alleged time constituting de minimis
time.” Id. ¶ 20. As their fourth affirmative defense, “Defendants allege that Plaintiff has unclean
hands.” Id. ¶ 21. As their seventh affirmative defense, “Defendants allege that Plaintiff would be
unjustly enriched if he were to recover any monies in the subject action.” Id. ¶ 24. Even under
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the lower pleading standard applicable to affirmative defenses, none of these statements is
sufficient to give Plaintiff fair notice of the nature of the defense and the grounds upon which is
rests. Instead, each of these affirmative defenses constitutes a vague, conclusory statement
without any detail or factual support. Accordingly, the Court strikes Defendants’ third, fourth,
and seventh affirmative defenses—paragraphs 20, 21, and 24 of Defendants’ Answer and
Affirmative Defenses, respectively—as insufficiently pleaded. At this late stage, the Court will
not permit Defendants to replead these affirmative defenses.
Finally, as their eighth affirmative defense, “Defendants allege that Plaintiff has failed to
state a cause of action upon which relief can be granted.” Id. ¶ 25. This is not an affirmative
defense; instead, it is a denial. See Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015)
(quoting In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988)) (“[A] defense
that simply points out a defect or lack of evidence in a plaintiff’s case is not an affirmative
defense.”). In such cases, the appropriate course is not to strike the defense, but to treat it as a
denial. See id. (citing FDIC v. Bristol Home Mortgage Lending, LLC, No. 08-81536-CIV, 2009
WL 2488302, at *3 (S.D. Fla. Aug. 13, 2009)). Accordingly, the Court will not strike
Defendants’ eighth affirmative defense.
III.
MOTION TO DEEM ADMITTED
In his Motion to Deem Admitted, Plaintiff argues that the allegations in Plaintiff’s
Complaint should be deemed admitted because Defendants did not timely file their Answer and
Affirmative Defenses. This argument is rejected for the reasons set forth above.
In addition, Plaintiff argues that liability has been established because Defendants
admitted in response to Plaintiff’s request for admissions that they did not pay Plaintiff overtime.
While Plaintiff has not submitted a copy of its request for admissions or Defendants’ response,
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Defendants do not appear to dispute that Plaintiff’s fifth request for admission stated: “Admit or
deny that you did not pay Plaintiff the proper overtime rate of 1.5 times his regular hourly rate
for all overtime hours he worked for you,” and that in response, Defendant Panther Towing, Inc.
stated: “ADMIT – Panther never payed Plaintiff the overtime rate of 1.5 times his regular hourly
rate because Plaintiff never earned any overtime.” See DE 36 at 8; DE 38 at 6 (emphasis added).
This does not constitute an admission of liability. Plaintiff’s Motion to Deem Admitted is
therefore without merit.
IV.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion to Strike [DE 36] is GRANTED IN PART and DENIED IN
PART. Specifically, Plaintiff’s Motion to Strike is GRANTED to the extent that
paragraph 3 of Defendants’ Answer and Affirmative Defenses, and Defendants’ first,
third, fourth, sixth, and seventh affirmative defenses (paragraphs 18, 20, 21, 23, and
24 of Defendants’ Answer and Affirmative Defenses, respectively), are STRICKEN
without leave to replead. Plaintiff’s Motion to Strike is DENIED in all other respects.
2. Plaintiff’s Motion to Deem Admitted [DE 36] is DENIED.
3. The Court issues no ruling on Plaintiff’s Motion In Limine [DE 36]. As noted above,
the Honorable James I. Cohn will issue a ruling on Plaintiff’s Motion In Limine
separately.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 21st day of
September, 2017.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of record
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