Floyd v. SunTrust Banks, Inc. et al

Filing 56

ORDER granting in part and denying in part 24 Plaintiff's Motion to Strike Answer to Amended Complaint and the Aetna Defendants' 30 Motion to Dismiss Plaintiff's First Amended Complaint is GRANTED. As well, the SunTrust Defendants& #039; Motion for Extension of Time to File Reply Brief in Support of Motion to Quash Subpoenas 54 is GRANTED. The SunTrust Defendants have 14 days from the date of this Order to file their reply brief. Based upon the Plaintiff's Amended Compla int filing and the foregoing rulings, Plaintiff's Motion to Strike Answer to Complaint 8 and Defendant Christina Alexander's Motion to Dismiss for Lack of Personal Jurisdiction 29 are MOOT. Signed by Judge Richard W. Story on 6/13/11. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

SUSAN FLOYD,
Plaintiff,
v.
SUNTRUST BANKS, INC., et al.,
Defendants.

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CIVIL ACTION NO.
1:10-CV-2620-RWS

ORDER
This case comes before the Court on Plaintiff’s Motion to Strike Answer
to Complaint [8], Plaintiff’s Motion to Strike Answer to Amended Complaint
[24], Defendant Christina Alexander’s Motion to Dismiss for Lack of Personal
Jurisdiction [29], Defendants Christina Alexander and Aetna Life Insurance
Company’s (“Aetna”)(collectively, “Aetna Defendants”) Motion to Dismiss
Plaintiff’s First Amended Complaint [30], and Defendants Theresa L. Harwood
Hammond, SunTrust Banks, Inc., and SunTrust Bank’s (collectively, “SunTrust
Defendants”) Motion for Extension of Time to File Reply Brief in Support of

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Motion to Quash Subpoenas [54]. After a review of the Record, the Court
enters the following Order.
I. Brief Factual Background1
Susan Floyd, Plaintiff, was once employed by SunTrust as an in-house
attorney. Id. at ¶ 21. In May 2009, during her SunTrust employment, Plaintiff
filed a gender discrimination lawsuit against SunTrust. Am. Cmpl., Dkt. No.
[15] at ¶ 10. During that litigation, SunTrust propounded discovery seeking
medical and psychotherapy records from the Plaintiff directly, and Plaintiff
objected. Id. at ¶ 22.
Following Plaintiff’s objection and without informing the Plaintiff,
Defendant Hammond–who was also employed as an in-house attorney for
SunTrust–requested Plaintiff’s FMLA file from SunTrust’s FMLA
administrator and agent–Aetna. Id. at ¶¶ 23-25, 31-34. Aetna and SunTrust had
a contract which stated that information received under the plan would only be
used for administering the FMLA plan and would not be used in any
employment related actions or decisions without the relevant employee’s

1

These facts are drawn from the Complaint. The Court makes no findings of fact
in this Order.
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authorization. Id. at ¶¶ 27-28. However, Aetna produced these documents
having being informed that these documents were requested for “ use . . . in a
lawsuit filed by Plaintiff.” Id. at ¶ 40. But, when asked later about why they
disclosed the information, Aetna’s in-house counsel responded that they were
not aware a lawsuit was pending and that Defendant Alexander–Aetna’s file
handler– had assumed that the SunTrust Defendants had a legitimate purpose in
requesting the records. Id. at ¶¶ 77-78. It is this disclosure that underlies
Plaintiff’s claims against the Aetna Defendants.
The Aetna Defendants now move to dismiss all claims against them and
Defendant Alexander individually moves to dismiss for lack of personal
jurisdiction. As well, the SunTrust Defendants seek leave of Court to file a
reply brief to their Motion to Quash following this Court’s ruling on the
motions to dismiss. The Court will consider the motions in turn.
II. Discussion
A. Motion to Strike the SunTrust Defendants’ Answer
As a preliminary matter, the Court finds that Plaintiff’s Motion to Strike
the SunTrust Defendants’ Answer [8] is MOOT. The Plaintiff has sought, and

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received, leave of this Court to amend her complaint. See Dkt. Nos. [12, 14,
15]. Thus, the SunTrust Defendants’ original answer is no longer controlling.
B. Motion to Dismiss Plaintiff’s Amended Complaint for Failing to
State a Claim
The Aetna Defendants have moved this Court to dismiss all claims
against them for failing to state a claim. When considering a Federal Rule of
Civil Procedure 12(b)(6) motion to dismiss, a federal court is to accept as true
“all facts set forth in the plaintiff’s complaint.” Grossman v. Nationsbank,
N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted). Further, the
court must draw all reasonable inferences in the light most favorable to the
plaintiff. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.
1999); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
(internal citations omitted). However, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
The United States Supreme Court has dispensed with the rule that a
complaint may only be dismissed under Rule 12(b)(6) when “‘it appears beyond
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doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Twombly, 127 U.S. at 561 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has replaced that rule
with the “plausibility standard,” which requires that factual allegations “raise
the right to relief above the speculative level.” Id. at 556. The plausibility
standard “does not[, however,] impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence [supporting the claim].” Id.
1. Tortious Interference with Confidential Relationships
The Aetna Defendants first move to dismiss Plaintiff’s tortious
interference with confidential relationships claim. Plaintiff alleges that in
disclosing the Plaintiff’s confidential information to the SunTrust Defendants,
the Aetna Defendants tortiously interfered with “Plaintiff’s confidential
relationships with her medical and psychotherapy providers.” Am. Cmpl., Dkt.
No. [15] at ¶ 104.
First, the Aetna Defendants challenge whether Georgia even recognizes
this cause of action when a third-party does not induce the fiduciary himself to
breach his duty, but rather it is the third-party who distributes the fiduciary’s
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lawfully disseminated confidential information. This Court agrees that such a
cause of action has not been recognized in Georgia law.
In Rome Industries, Inc. v. Jonsson, 415 S.E.2d 651, 652 (Ga. Ct. App.
1992), the Georgia Court of Appeals found that a third-party could be liable for
tortious interference with confidential relationships if the third-party induced a
corporation’s officer (its fiduciary) to violate his own duty to the corporation.
The Court of Appeals noted that this “right of action is based on the statute
imposing liability in tort to one who procures another to commit a tortious act. .
.” Id. (citing O.C.G.A. § 51-12-30) (emphasis added).

Moreover, the case

equated this cause of action as one “for tortious interference of contractual
rights.” Id.
However, in Karpowicz v. Hyles, 543 S.E.2d 51, 52 (Ga. Ct. App. 2000),
the Court of Appeals did not sustain a claim where defense counsel obtained the
plaintiff’s psychiatric records from the plaintiff’s psychologist by a legal
subpoena duces tecum. After receiving the privileged information, the attorney
then openly divulged it in open court during cross-examination. The Court of
Appeals ruled that the case was “devoid of any evidence that [the defense

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attorney] attempted to induce anyone to breach a confidential relationship or
fiduciary duty.” Id. (emphasis added).
Like Karpowicz, this case lacks any inducement evidence. Plaintiff
summarily alleges that the Aetna Defendants interfered with Plaintiff’s
psychiatric-patient relationship, but fails to state how the Aetna Defendants did
so. There are no allegations that the Aetna Defendants lied to the psychologist
to obtain the records, or that they otherwise improperly convinced the
psychologist to release the records. See Am. Cmpl., Dkt. No. [15] at ¶¶ 34-40,
83, 103-05 (alleging that the SunTrust Defendants improperly obtained the
information, but not that the Aetna Defendants induced the psychologists to
initially produce the records to them). Rather, the more likely scenario is that
the Plaintiff released her records to Aetna for the purpose of processing her
FMLA claim.
Additionally, the Court notes that this is not a case in which the alleged
violator of the alleged duty holds the duty. Unlike Rome, where the officer
himself was induced to violate his duty to the corporation, the Aetna
Defendants were already in the lawful possession of the confidential
information and only chose to disclose that information following their proper
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receipt of it. Moreover, the disclosure is like that of Karpowicz–the Defendant
here disclosed the confidential information after it was legally obtained. This is
not a classic third-party interference claim and is not recognized in Georgia law.
Therefore, Plaintiff’s tortious interference with confidential relationships claim
is DISMISSED against the Aetna Defendants.2
2. Negligence-Based Claims
The Aetna Defendants next move to dismiss the Plaintiff’s negligencebased claims: negligence, gross negligence, negligence per se, and Aetna’s

2

The Court is not persuaded by Plaintiff’s citation of Kennestone Hospital, Inc. v.
Hopson, 538 S.E.2d 742 (Ga. 2000), Insight Technology, Inc. v. FreightCheck, LLC, 633
S.E.2d 373 (Ga. Ct. App. 2006), or Hicks v. Tallbott Recovery System, Inc., 196 F.3d
1226 (11th Cir. 1999) (applying Georgia law). First, in Kennestone, the Georgia
Supreme Court did not even address the merits of the tortious interference with
confidential relationship claim. 538 S.E.2d at 744-45. Rather, the court only discussed
whether the plaintiff could impliedly waive the psychologist-patient privilege in Georgia.
Id. In Insight, the Georgia Court of Appeals again noted that the key to a tortious
interference claim is inducing the privilege holder to improperly act. 633 S.E.2d at 379
(“Georgia law authorizes a plaintiff to recover [for tortious interference with a fiduciary
relationship] upon proof of the following elements: (1) through improper action or
wrongful conduct and without privilege, the defendant acted to procure a breach of the
primary wrongdoer's fiduciary duty to the plaintiff; (2) with knowledge that the primary
wrongdoer owed the plaintiff a fiduciary duty, the defendant acted purposely and with
malice and the intent to injure;(3) the defendant's wrongful conduct procured a breach of
the primary wrongdoer's fiduciary duty; and (4) the defendant's tortious conduct
proximately caused damage to the plaintiff.”) (emphasis added). Last, Hicks didn’t
involve a third-party claim; rather, the defendants directly owed the plaintiff a duty and
violated it. 196 F.3d at 1241 (“The jury concluded that [the defendants] had breached a
fiduciary duty that they owed to [the plaintiff] . . .”).
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negligent supervision of Alexander. All of these claims are based upon the
allegation that the SunTrust Defendants were not entitled to the Plaintiff’s
records; thus, any disclosure by the Aetna Defendants was improper.
Specifically, Plaintiffs allege that the Aetna Defendants violated
[the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), 45 C.F.R. § 164 et seq.,] and the plan sponsor
disclosure rules contained in 45 C.F.R. [§] 164.504(f), as well as
the contractual undertakings between AETNA and SunTrust
pursuant to those rules. [Further] . . . AETNA was serving as
SunTrust’s agent and . . . SunTrust was Plaintiff’s employer. This
agency relationship obligated both SunTrust and Aetna to comply
with the privacy provisions of the ADA.
Pl.’s Opp. Br., Dkt. No. [37] at 32.
a. HIPAA and Related Obligations
First, this Court does not find that the Aetna Defendants–as
administrators of an FMLA or STD plan–were subject to HIPAA or any related
disclosure rules as they are not “covered entities” under that framework. See
Harris v. Vescom Corp., 2007 WL 1810159, *2 (S.D. Ga. 2007) (“The privacy
rule of [HIPAA] . . . does not directly regulate employers or other plan sponsors
that are not HIPAA covered entities.”). In order to be subject to HIPAA, the
entity must be: “(1) a health plan[;] (2) A health care clearinghouse[; or ] (3) A
health care provider who transmits any health information in electronic form in
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connection with a transaction covered by this subchapter.” 45 C.F.R. § 160.103.
Plaintiff has not alleged that the Aetna Defendants as FMLA and STD plan
administrators meet any of these requirements.
Additionally, the Aetna Defendants are not directly subject to 45 C.F.R. §
164.504(f) because they are not a group health plan for that regulation’s
purposes. See 45 C.F.R. § 164.504(f)(1) (stating that the provision only applies
to a “group health plan”). 45 C.F.R. § 160.103 defines “group health plan” as a
“health plan” which has fifty or more participants and is administered outside
the employer. A “health plan” includes: (i) a group health plan (as defined as
an employee welfare benefit plan under the Employee Retirement Income and
Security Act (“ERISA”) to the extent the plan provides medical services); (ii) a
health insurance issuer as defined by ERISA (iii) health maintenance
organization (“HMO”); (iv) Medicare; (v) Medicaid; (vi) an issuer of a
Medicare supplemental policy; (vii) an issuer of a long-term care policy; (viii)
various federal healthcare programs; and (ix) various State law healthcare plans.
45 C.F.R. § 160.103. Plaintiff has not alleged that the Aetna Defendants meet
any of those definitions. Rather, Plaintiff alleges that the Aetna Defendants
were solely agents who administered the SunTrust FMLA and STD plans–not
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health insurance plans. Am. Cmpl., Dkt. No. [15] at ¶¶ 25, 81. Thus, Aetna is
not a covered entity here.
To overcome this issue, the Plaintiff argues that because the Aetna
Defendants were the “business associates” of the SunTrust Defendants, they
owed the Plaintiff a HIPAA-related duty. Pl.’s Opp., Dkt. No. [37] at 34.
However, the Aetna Defendants can only be liable if the SunTrust Defendants
would be subject to these privacy protections–and they are not. See 45 C.F.R. §
160.103 (defining a business associate as one who acts on behalf of a covered
entity). The Plaintiff has not alleged that the SunTrust Defendants are any of
the three types of “covered entities” mentioned above. Thus, Aetna did not owe
any HIPAA or related privacy duties as the SunTrust Defendants’ agent. This
also means that there was not a HIPAA violation which would have violated the
SunTrust and Aetna contract, even assuming the Plaintiff had alleged she was a
third-party beneficiary and thus has standing under the contract. See Am.
Cmpl., Dkt. No. [15] at ¶ 27 (stating that Aetna and SunTrust agreed to comply
with all “applicable federal and state laws regarding access, use, or disclosure . .
.[including] HIPAA”).

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b. ADA
In her brief, the Plaintiff also claims that the Americans with Disabilities
Act (“ADA”), and specifically 42 U.S.C. § 12112(d), imposes a duty which the
Aetna Defendants breached. Pl.’s Opp., Dkt. No. [37] at 34. However, the
Plaintiff has not brought an ADA action against the Aetna Defendants.3 See
Am. Cmpl., Dkt. No. [15] at 27 (bringing an ADA claim only against the
SunTrust Defendants). Plaintiff instead states that Aetna Defendants are on
notice of their third-party ADA claim by virtue of the Plaintiff’s citation to
Kennestone Hospital v. Hopson, 538 S.E.2d 742 (Ga. 2000) within the factual
section of the Amended Complaint. Pl.’s Opp., Dkt. No. [37] at 32. However,
Hopson has nothing to do with the ADA; it is about an implied waiver of the
Georgia psychiatrist-patient privilege.
As well, where the Plaintiff specifically refers to § 12112(d) in her
Complaint, she only states that the confidential information was obtained
pursuant to that section–without stating how the Aetna Defendants’ actions
were improper and without raising it as a claim against them. See Am. Cmpl.,

3

Plaintiff also states in her Opposition Brief that “there may be no cause of action
against AETNA specifically under the ADA. . .” Pl.’s Opp., Dkt. No. [37] at 34.
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Dkt. No. [15] at ¶¶ 81-84. She then summarily states that the Aetna Defendants
violated “applicable state and federal law,” without directing the Defendants or
this Court to what those provisions would be. This lack of notice coupled with
the Plaintiff’s failure to plausibly allege any facts which would support such a
claim causes the Court to find that the ADA has not been plead as the basis for
a breached duty by the Aetna Defendants.
c. Agency Relationship
Beyond Plaintiff’s statutory bases to substantiate negligence, the Court
also struggles with the Plaintiff’s argument that on one hand the Aetna
Defendants were the SunTrust Defendants’ agents–and thus anything in Aetna’s
possession would also be for the benefit of SunTrust–and on the other hand, the
Aetna Defendants should have held any confidential information obtained by
Aetna by virtue of their agency relationship from SunTrust. If SunTrust had not
employed Aetna as its FMLA and STD plan administrator, then SunTrust would
have already had this information in its direct possession. In fact, any
information which Aetna possessed is imputed to SunTrust under agency
principles. Witcher v. JSD Props., LLC, 690 S.E.2d 855, 857 (Ga. 2010)
(“Notice to the agent of any matter connected with his agency shall be notice to
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the principal.”) (quoting O.C.G.A. § 10-6-58). Therefore, placing the
information in an agency relationship does not change the fact that SunTrust
was the ultimate possessor of the information–even when it was physically
housed with Aetna. To argue that the Aetna Defendants were the SunTrust
Defendants’ agents contradicts any assertion that information sharing between
the two would somehow be nefarious. Therefore, for the aforementioned
reasons, Plaintiff’s claims for negligence, gross negligence, and negligence per
se are DISMISSED.
d. Negligent Supervision
Plaintiff also claims that Aetna negligently supervised Alexander by
failing to “train, supervise, or otherwise prevent” Defendant Alexander from
disclosing the confidential information to the SunTrust Defendants. Am. Cmpl.,
Dkt. No. [15] at ¶ 116. However, in Georgia, “[a]n employer may be held liable
for negligent supervision only where there is sufficient evidence to establish
that the employer reasonably knew or should have known of an employee's
tendencies to engage in certain behavior relevant to the injuries allegedly
incurred by the plaintiff.” Leo v. Waffle House, Inc., 681 S.E.2d 258, 262 (Ga.
Ct. App. 2009) (alterations omitted). First, the Court notes that the Plaintiff has
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not plausibly plead any facts that Aetna knew or should have known that
Alexander specifically would make any improper disseminations to SunTrust.
However, even if she had, this Court has found that the exchange of information
as plead did not cause actionable injury to the Plaintiff. Thus, there is nothing
else Aetna should have done in the way of training which would have prevented
any injury. The negligent supervision claim is also DISMISSED.
3. § 1985 Conspiracy Claim
The Aetna Defendants have also moved to dismiss the Plaintiff’s 42
U.S.C. § 1985 conspiracy claim. "Section 1985 provides a vehicle to redress
conspiracies [which] interfere with civil rights." Farase v. Scherer, 342 F.3d
1223, 1230 (11th Cir. 2003). Section 1985(2) contains two parts. The deterrence
prong creates a private cause of action against any two or more persons who (1)
conspire; (2) to deter a witness by force, intimidation, or threat from attending
or testifying before a federal court; (3) which results in injury to the plaintiff.
Morast v. Lance, 807 F.2d 926, 929-30 (11th Cir. 1987). And, the retaliation
prong is established when Plaintiff alleges “(1) a conspiracy, (2) retaliation
spawned by the attendance or testimony in federal court, (3) an act in
furtherance of the conspiracy, and (4) injury to the plaintiff.”Aque v. Home
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Depot U.S.A., Inc., 629 F. Supp. 2d 1336, 1343 (N.D. Ga. 2009). “A conspiracy
is an “agreement between parties to inflict a wrong against or injury upon
another....” Id. at 1346. In determining whether a meeting of the minds has
occurred, the Supreme Court has stated that
“[a] conspiracy may exist even if a conspirator does not agree to
commit or facilitate each and every part of the substantive offense.
The partners in the criminal plan must agree to pursue the same
criminal objective and may divide up the work, yet each is
responsible for the acts of the other.”
Salinas v. U.S., 522 U.S. 52, 63-64 (1997).
Here, Plaintiff has not sufficiently plead a meeting of the minds. The
only allegation regarding a criminal objective is that the SunTrust Defendants
“informed Defendants Alexander and AETNA that [their] purpose in seeking
Plaintiff’s FMLA file was to use such records in a lawsuit filed by Plaintiff.”
Am. Cmpl., Dkt. No. [15] at ¶ 40. There is no allegation that the Aetna
Defendants knew that the SunTrust Defendants could not use the records in the
lawsuit, or even what type of lawsuit the underlying claim regarded. Moreover,
the Aetna Defendants were not told that this evidence would be used either to
retaliate against the Plaintiff or to deter her from pursuing the underlying suit.
Therefore, the Plaintiff has not plausibly pled that the Aetna Defendants knew
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the intended objective was inappropriate. Plaintiff’s § 1985 claim against the
Aetna Defendants is DISMISSED.
4. § 1986 Failure to Prevent a Conspiracy Claim
The Aetna Defendants also move to dismiss Plaintiff’s 42 U.S.C. § 1986
claim. Section 1986 makes actionable any conduct by a person who "has
knowledge that any of the wrongs conspired to be done, and mentioned in
[§1985] are about to be committed, and having the power to prevent or aid in
preventing the commission of the same, neglects or refuses to do so." Park v.
City of Atlanta, 120 F.3d 1157, 1159 (11th Cir. 1997) (quoting 42 U.S.C.
§1986). However, this claim cannot exist without an underlying § 1985
violation. Id. at 1159-1160 (holding that § 1986 claims are derivative of § 1985
claims). Because the Court has already dismissed Plaintiff’s § 1985 claim
against the Aetna Defendants, this claim is also DISMISSED. As a result, the
Aetna Defendant’s Motion to Dismiss [30] is GRANTED.
C. Defendant Alexander’s Motion to Dismiss for Lack Personal
Jurisdiction
Defendant Alexander has also challenged whether this Court has personal
jurisdiction over her. Because all claims against her have been dismissed,

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Defendant Alexander’s Motion to Dismiss for Lack of Personal Jurisdiction
[29] is MOOT.
D. Plaintiff’s Partial Motion to Strike Defendants’ Answer and
Affirmative Defenses
Under Federal Rule of Civil Procedure 12(f), the Court may strike an
"insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter" from the pleadings on its own motion or "on a motion made by a party
either before responding to the pleading, or if a response is not allowed, within
21 days after being served with the pleadings." FED. R. CIV. PRO. 12(f). Motions
to strike are typically denied “unless the matter sought to be admitted has no
possible relationship to the controversy, may confuse the issue, or otherwise
prejudice a party.” Allen v. Life Ins. Co. of No. Am., 267 F.R.D. 407, 410
(N.D. Ga. 2009). First, the Court notes that the SunTrust Defendants have
agreed to admit paragraphs 40, 44,4 54, and 64. Therefore, those paragraphs are
DEEMED ADMITTED. As to the remaining paragraphs, the Court has

4

It appears the SunTrust Defendants mistakenly refer to paragraph 44 as paragraph
41 because paragraph 44 was not challenged by the Plaintiff. Even assuming that the
Defendants have not agreed to admit paragraph 44, the Court has reviewed the substance
of their response and finds that it is an admission.
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reviewed Plaintiff’s motion and finds no merit. None of these responses or the
affirmative defenses are prejudicial, irrelevant, or confusing.
Furthermore, as for the affirmative defenses, Defendants are not required
to meet the heightened standard of Iqbal and Twombly. The Eleventh Circuit
has not spoken on this issue, and district courts in this Circuit have reached
conflicting results. Compare Jackson v. City of Centreville, 269 F.R.D. 661
(N.D. Ala. 2010)(holding that affirmative defenses need not meet Iqbal
standard), and Castillo v. Roche Laboratories Inc., Case No. 10-20876-CIV,
2010 WL 3027726 (S.D. Fla. Aug. 2, 2010)(holding that affirmative defenses
must meet Iqbal standard). A defendant is required by Rule 8(b) to “state in
short and plain terms its defenses to each claim asserted against it.” Fed. R.
Civ. P. 8(b)(1)(B). But, a plaintiff is required to provide “a short and plain
statement showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2)
(emphasis added). In adopting the plausibility standard, the Supreme Court
“relied heavily on the rule language purporting to require a ‘showing’ of
entitlement to relief.” 2 Moore’s Federal Practice §8.08 (Matthew Bender 3d
ed.). “The quite different rule language covering pleading of affirmative
defenses should eliminate any plausibility requirement.” Id.
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Also, when one considers that a defendant must answer the complaint
within 21 days, imposing a different standard for defenses is not unfair.
“Unlike plaintiffs, defendants do not have the luxury of prefiling investigation. .
. . [R]equiring factual pleading of affirmative defenses is likely to accomplish
little more than encouraging a flurry of motions to strike affirmative defenses.”
Id.
Therefore, as to the remaining paragraphs and the affirmative defenses,
the Motion to Strike [19] is DENIED.
E. SunTrust Defendants’ Motion for Extension of Time to File Reply
to Their Motion to Quash
The SunTrust Defendants ask this Court to extend their time to reply to
their motion to quash. The SunTrust Defendants filed their Motion to Quash on
February 24, 2011. Dkt. No. [44]. However, on March 9, 2011, this Court
stayed all discovery pending its resolution of the Aetna Defendants Motion to
Dismiss. Dkt. No. [50]. Notwithstanding the stay, Plaintiff then filed her
opposition brief to the motion to quash on March 14, 2011. Dkt. No. [52].
As the Clerk has submitted the Motion to Quash to the Court, the
SunTrust Defendants move for an extension of time to file a reply brief. That

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motion is GRANTED. The SunTrust Defendants have 14 days from the date of
this Order to file their reply brief.
III. Conclusion
Plaintiff’s Motion to Strike Answer to Amended Complaint [24] is
GRANTED, in part and DENIED, in part and the Aetna Defendants’ Motion
to Dismiss Plaintiff’s First Amended Complaint [30] is GRANTED. As well,
the SunTrust Defendants’ Motion for Extension of Time to File Reply Brief in
Support of Motion to Quash Subpoenas [54] is GRANTED. The SunTrust
Defendants have 14 days from the date of this Order to file their reply brief.
Based upon the Plaintiff’s Amended Complaint filing and the foregoing
rulings, Plaintiff’s Motion to Strike Answer to Complaint [8] and Defendant
Christina Alexander’s Motion to Dismiss for Lack of Personal Jurisdiction [29]
are MOOT.
SO ORDERED this 13th day of June, 2011.

________________________________
RICHARD W. STORY
United States District Judge

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