Hernandez-Hernandez et al v. Hendrix Produce, Inc. et al

Filing 54

ORDER denying 22 Motion to strike affirmative defenses. Plaintiffs' motion and brief to strike affirmative defenses is denied as to Defendants' First, Fourth, Seventh, Tenth, and Fourteenth defenses. The First defense is deemed a denial. Signed by Judge B. Avant Edenfield on 2/24/14. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

to Hendrix's alleged underpayment of farm
workers. ECF No. 1. Defendants Hendrix
Produce, Inc. and Raymond Earl Hendrix
timely answered, ECF No. 15.

SERGIO HERNANDEZ-HERNANDEZ,
et al., and others similarly situated,

In their answer to the amended
complaint, Hendrix pled fifteen defenses,
including the following five that Plaintiffs
now seek stricken: (1) failure to state a
claim; (2) estoppel; (3) waiver; (4) that any
minimum wage claim is at most de minimis
and subject to dismissal; and (5) that the Fair
Labor Standards Act ("FLSA") preempts
Plaintiffs' breach of contract claim. ECF
Nos. 15 at 1-3; 22.

Plaintiffs,
6:13-cv-53

V.

HENDRIX PRODUCE, INC., et al,
Defendants.

ORDER
I.

INTRODUCTION

Before the Court is Plaintiffs' Motion to
Strike the affirmative defenses of Hendrix
Produce, Inc., and Raymon Hendrix
("Hendrix"). ECF No. 22. Plaintiffs argue
five of Defendants' fifteen affirmative
defenses fail for factual and legal
insufficiencies. Id Defendants contend that
affirmative defenses need only provide
adequate notice to Plaintiffs of the assertions
that Defendants intend to litigate and thus
that Defendants here adequately pled their
defenses. ECF No. 25 at 1-5. Because each
of the challenged defenses meets the
applicable pleading threshold, Plaintiffs'
Motion is DENIED.

III. ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 12(f)
provides that courts "may strike from a
pleading an insufficient defense." Although
reflective of "the inherent power of the
Court to prune down pleadings," TracFone
Wireless, Inc. v. Zip Wireless Prods., Inc.,
716 F. Supp. 2d 1275, 1290 (N.D. Ga.
2010), motions to strike are drastic,
generally disfavored remedies. EEOC v. Joe
Ryan Enters., Inc., 281 F.R.D. 660, 662
(M.D. Ala. 2012). The inquiry, then,
focuses on whether a defense is
insufficiently pled such that the proper
remedy is to strike it from an answer.

Sergio Hernandez-Hernandez filed this
action in May, 2013, asserting claims related

The Supreme Court's decisions in Bell
Atlantic Corp. v. Twombly and Ashcroft v.
lqbal2 have made such analysis murkier.
Those cases demanded a higher level of
factual particularity from a plaintiff's
complaint. Twombly, 550 U.S. at 555. This
Court must therefore answer two questions:

For the factual allegations underlying Plaintiffs'
claims, see ECF No. I at 7-13.

2
Bell Ail. Corp. v. Twombly, 550 U.S. 544 (2007);
Ashcroft v. Jqbal, 556 U.S. 662 (2009).

II.

PROCEDURAL
BACKGROUND'

U

three different assertions parties make in
their pleadings.

first, must a defendant plead an affirmative
defense with the particularity that Twombly
and Iqbal require? And second, if the
Twombly/Jqbal standard does not apply,
what standard does?

Reliance on the plain language of the
different rules is well-founded in this
context—after all, the Supreme Court relied
on the plain text of Rule 8(a) in the Twombly
opinion itself. See 550 U.S. at 556-57
(parsing the Rule's text). That language
counsels against importing the Twombly
standard when analyzing affirmative
defenses. One canon of interpretationexpressio unius est exclusio alteriussuggests Rule 8's language connotes
different pleading standards. See Joe Ryan
Enters., 281 F.R.D. at 663. The Rules must
be read as a whole, and the text of one
provision affects analysis of its neighbor.
See Agility Def.' & Gov't Servs. v. US. Dep 't
of Def., 739 F.3d 586, 590 (11th Cir. 2013)
(emphasizing that text must be read as a
whole and construed to give each provision
meaning). Applying two legal standards in
the context of two differing texts gives
meaning to their differences.

No court of appeals has addressed the
first issue, but a majority of district courts
have applied Twombly's heightened standard
to affirmative defenses. See, e.g., Barnes v.
AT&T Pension Benefit Plan, 718 F. Supp.
2d 1167, 1172 (N.D. Cal. 2010) (applying
Twombly standard to defense of failure to
state a claim); Racick v. Dominion Law
Assocs., 270 F.R.D. 228, 233-34 (E.D.N.C.
2010) (same). A minority, including this
Court, disagree, and refuse to subject those
defenses to Twombly's call for particularity.
F.R.D., No.
See Tomason v. Stanley,
6:13-CV-42, 2014 WL 504399, at *1..3
(S.D. Ga. Jan. 30, 2014).
In this Court's recent analysis, it
explained that the starting point for deciding
whether the Twombly standard applies to
defenses is the text of Rule 8. Thomason,
2014 WL 504399, at *2. Rule 8(a)(2)—the
textual basis for Twomb/y—requires that a
"pleading that states a claim for relief.
contain.. . a short and plain statement of the
claim showing that the pleader is entitled to
relief." By contrast, Rule 8(b) requires
responsive pleadings, like answers, to "state
in short and plain terms [a party's] defenses
to each claim." Rule 8(c) then requires
parties to "affirmatively state any avoidance
or affirmative defense." So claims for relief
must be shown by a short and plain
statement; defenses must be stated in short
and plain terms; and affirmative defenses
must be affirmatively stated.
Three
linguistically different requirements exist for

The courts that have transferred
Twombly's heightened standard have often
done so partially for policy reasons. See,
e.g., Racick, 270 F.R.D. at 234 (considering
factors of "fairness, common sense and
litigation efficiency" in deciding proper
standard). To the extent the language of the
Rules is discernable or definite, the text
alone governs any decision. "The judiciary
is commissioned to interpret the Rules as
they are written, not to re-draft them when it
may be convenient." Joe Ryan Enters., 281
F.R.D. at 663.
Yet even if prudential factors were
considered, they would counsel the adoption
2

defenses perish when they do not provide
such basic notice. And the Court may
exercise some leeway in deciding what
constitutes proper notice and in ensuring that
pleadings are "construed so as to do justice."
Fed. R. Civ. P. 8(e).

of two different standards for Rules 8(a)(2)
and 8(c). Other courts have found it unfair
that a plaintiff and a defendant would stand
on unequal footing in their initial pleadings.
See Racick, 270 F.R.D. at 234. But a
plaintiff may have years to develop and
research her claims before filing a
complaint, while a defendant often has only
twenty-one days to respond. Fed. R. Civ. P.
12(a)(1). Holding that defendant to a lower
standard of factual specificity is both fair
and sensible. More fundamentally, plaintiffs
bear the initial burdens of production and
proof and must advance their cases through
the judicial system. Their higher standard of
pleading specificity mirrors their higher
initial burden in the litigation at large.

Many courts have also held that even a
well-pleaded defense should be struck if it
cannot apply to the case at issue. For
example, courts have struck defenses that
would not constitute a valid defense under
facts alleged, defenses previously eliminated
in other litigation or on a prior motion, or
defenses that have already been withdrawn.
See, e.g., Butler v. Adoption Media, LLC,
No. C 04-0135, 2005 WL 1513142, at *5
(N.D. Cal. June 21, 2005). In cases where
settled law clearly forecloses an affirmative
defense, courts will strike that defense.
Fabrica Italiana Lavorazione Materie
Organiche, S.A.S. v. Kaiser Aluminum &
Chem. Corp., 684 F.2d 776, 779 (11th Cir.
1982). But courts are reticent to strike a
marginal defense as legally insufficient
without allowing defendants some benefit of
discovery to develop that defense. See, e.g.,
Alyshah v. Hunter, No. 1:06-CV-0931, 2006
WL 2644910, at *3 (N.D. Ga. Sept. 13,
2006). With these guiding principles in
mind, the Court turns to the five affirmative
defenses that Plaintiff wishes to strike.

This Court therefore declines to import
Twombly's heightened pleading standard
into the Rule 8(c) arena.
Although this Court adopts a lenient
view on the factual specificity required for a
Rule 8(c) pleading, some standard must still
govern Rule 12(0's application. That
standard is malleable and situational—
commentators have noted that it is
"impossible to reduce the variegated judicial
practice under Rule 12(f) to a simple or
easily applied formula." Motion to Strike—
Insufficient Defense, 5C Fed. Prac. & Proc.
Civ. § 1381 (3d ed.). An affirmative
defense should survive if it comports with
Rule 8(c)'s purpose—"guarantee[ing] that
the opposing party has notice of any
additional issue that may be raised at trial.
." Hassan v. US. Postal Serv., 842 F.2d
260, 263 (11th Cir. 1988); see also, e.g.,
Ramnarine v. CF RE Holdco 2009-1, LLC,
No. 12-61716-dy, 2013 WL 1788503, at
*5 (S.D. Fla. Apr. 26, 2013). Affirmative

B. Affirmative Defenses
1. First Defense: Failure to State a
Claim upon which Relief can be
Granted
Defendants' first affirmative defense is
that Plaintiffs "fail to state a claim upon
which relief can be granted." ECF No. 15 at
1. Plaintiffs argue both that such an
C)

.1

Program, 718 F. Supp. 2d 1167, 1174 (N.D.
Cal. 2010).

assertion must be made by motion pursuant
to Rule 12(b)(6), and that the defense is
"merely a recitation" of the applicable
standard in a motion to dismiss. ECF No.
22 at 3. Defendants contend that the defense
may be raised in a pleading and that they
have provided adequate factual specificity.
ECF No. 25 at 5-6.

However, the Court notes that
Defendants were entitled to assert the
substance of this defense in their Answer.
Fed. R. Civ. P. 12(b)(6). Other courts in
similar situations have acknowledged that
while failure to state a claim is not an
affirmative defense, it may serve as a
specific denial. See Biscayne Cove, 2013
WL 2646799, at *11. Therefore, the Court
DENIES the Motion to Strike the First
Defense but views that defense as a denial.

The Court rejects Plaintiffs' assertion
that a Motion to Dismiss under Rule
12(b)(6) may only be made by motion. The
Rule's plain text requires only that if a
defendant chooses to file a motion, he must
do so before submitting a responsive
pleading. Fed. R. Civ. P. 12(b).

2. Fourth and Seventh Defenses:
Estoppel and Waiver

But the First Defense is not an
affirmative defense because failure to state a
claim "is a defect in the plaintiff's claim; it
is not an additional set of facts that bars
recovery notwithstanding the plaintiff's
valid prima facie case." Boldstar Technical,
LLC v. Home Depot, Inc., 517 F. Supp. 2d
1283, 1292 (S.D. Fla. 2007). "A defense
which points out a defect in the plaintiff's
prima facie case is not an affirmative
defense." In re Rawson Food Service, Inc.,
846 F.2d 1343, 1349 (11th Cir. 1988).
Other courts have similarly held that this
broad principle applies specifically to
pleadings that treat failure to state a claim as
an affirmative defense. See, e.g., F.T.C. v.
Johnson, No. 2:10-cv-002203, 2013 WL
4039069, at *3 (D. Nev. Aug. 5, 2013);
Biscayne Cove Condo. Assn, Inc. v. QBE
Ins. Corp., No. 10-23728-dY, 2013 WL
2646799, at *11 (S.D. Fla. June 12, 2013)
(noting that defense was not true affirmative
defense and deeming it a denial); Barnes v.
AT&T Pension Ben. Plan-Nonbargained

In the Fourth and Seventh Defenses,
Defendants assert that Plaintiffs have
waived or should be estopped from asserting
some of the claims in their complaint. ECF
No. 15 at 2. Plaintiffs argue that the FLSA
does not permit waiver and that the defense
contains insufficient detail. ECF No. 22 at
3-4. Defendants counter that some courts
have acknowledged waiver as an FLSA
defense, that estoppel is a well-known
contract defense, and that the Court should
decline to strike the defense at the early
pleading stage. ECF No. 25 at 6-7.
Plaintiffs cite authorities demonstrating
that waiver and estoppel do not bar some
FLSA actions. For example, Plaintiffs show
that they could not have contractually
See, e.g.,
waived their FLSA rights.
Morrison v. Exec. Aircraft Refinishing, Inc.,
434 F. Supp. 2d 1314, 1319-20 (S.D. Fla.
2005).
'

Both Plaintiffs and Defendants combined the Fourth
and Seventh Defenses in their respective motions.
The Court therefore analyzes them together.

4

Courts have found that the FLSA does
not compensate workers for brief periods of
off-duty time spent working. See, e. g.,
Burton v. Hillsborough Cnly., 181 F. App'x
829, 838-39 (11th Cir. 2006). But the
exception is limited and relies heavily on the
individual facts of a given case, see Id., and
upon whether the statute in question asks the
Court to examine time periods that may
indeed be "trifles." Sandifer v. US. Steel
Corp., 134 S. Ct. 870, 880 (2014). Courts
may consider "(1) the practical
administrative difficulty of recording the
additional time; (2) the aggregate amount of
compensable time; and (3) the regularity of
the additional work." Burton, 181 F. App'x
at 838 (quoting Lindlow v. US., 738 F.2d
1057, 1063 (9th Cir. 1984)).

However, waiver and estoppel are not
universally inapplicable to FLSA actions.
Courts have applied those defenses in
narrow factual circumstances. See, e.g.,
Brumbelow v. Quality Mills, Inc., 462 F.2d
1324, 1326 (5th Cir. 1972) (estopping claim
based on plaintiffs proffer of false data to
employer). Further, the Court notes that 29
U.S.C. § 216(c) specifically provides for a
waiver defense if the Secretary of Labor has
previously negotiated a settlement with
affected workers.
Plaintiffs' Reply asks the Court to
assume that this is not the sort of case where
waiver could apply without the benefit of
discovery. ECF No. 29 at 2-3. But authority
that Plaintiffs have cited shows that after
discovery, courts may revisit the estoppel
and waiver defenses and strike them before
trial if necessary. See Ojeda-Sanchez v.
Bland Farms, LLC, No. 608CV096, 2010
WL 3282984, at *17..18 (S.D. Ga. Aug. 18,
2010). Because factual scenarios exist
where the defenses apply, and because
Defendants might unearth those facts during
discovery, the Motion to Strike the Fourth
and Seventh Defenses is DENIED.

Though Plaintiffs' complaint is best read
to primarily allege hour-by-hour
underpayment, it is possible that the de
minimis exception might apply to certain
claims. Plaintiffs are correct that it would
not fundamentally bar a claim that the
Defendants failed to pay the proper hourly
wage. But the de minimis exception relies
on the presence or absence of specific facts
that discovery can illuminate. Further, the
affirmative defense puts the Plaintiffs on
notice that Defendants will invoke the de
minimis exception if it applies. The Motion
to Strike the Tenth Defense is DENIED.

3. Tenth Defense: Plaintiffs' Claims are
De Minimis
Defendants next assert that "[amy
minimum wage claim is at most de minimus
under applicable law and thus subject to
dismissal." ECF No. 15 at 2. Plaintiffs
allege that their claims center on true hourly
under-compensation and not on unpaid de
minimis time. ECF No. 22 at 4-5.
Defendants argue that some requested relief
might be based on claims that fall within the
de minimis exception. ECF No. 25 at 7-8.

4. Fourteenth Defense: Stale Claims
Preempted by FLSA
Defendants' Fourteenth Defense is that
to whatever extent Plaintiffs' contract claims
are congruent to their FLSA claims, the
FLSA preempts contract recovery. ECF No.
15 at 3. Plaintiffs say that the Eleventh
5

Fourteenth Defenses. The First Defense is
deemed a denial.

Circuit allows no FLSA preemption of
contract claims. ECF No. 22 at 5.
Defendants maintain that the FLSA can
preempt some contract claims that rely on
FLSA elements but seek to broaden a
plaintiffs array of potential remedies. ECF
No. 25 at 8.

This Lay of February 2014.

The Eleventh Circuit has held that the
FLSA does not pre-empt a "state law
contractual claim that seeks to recover
wages for time that is compensable under
the contract though not under the FLSA."
Avery v. City of Talladega, 24 F.3d 1337,
1348 (11th Cir. 1994). However, it does bar
a claim that relies directly on the FLSA. Id.
From these principles, it appears highly
unlikely that the FLSA would bar Plaintiffs
from alleging that they had not been paid a
contractually-owed rate that the FLSA did
not prescribe.

B. AVANT EDENFIELD, JUDGE
UNITED STATES DISTR1Øt COURT
SOUTHERN DISTRICT F GEORGIA

But Plaintiffs' complaint, under its
breach of contract sub-heading, notes that
the contract obligated Defendants to pay
federal minimum wage. ECF No. I at 14.
The pleadings, therefore, at least make
credible the idea that this contract was
inextricably intertwined with ELSA
mandates. The Court does not rule on that
issue today, but it finds the contention
credible enough to survive this noticepleading phase.
Therefore, the Motion to Strike the
Fourteenth Defense is DENIED.
IV. CONCLUSION

For the foregoing reasons, Plaintiffs'
Motion and Brief to Strike Affirmative
Defenses is DENIED as to Defendants'
First, Fourth. Seventh, Tenth, and

n.