GREGORY J. KELLY, Magistrate Judge.
This cause came on for consideration without oral argument on the following motion filed herein:
The parties are two insurance companies who shared a common insured party, Southern Pride Transport, Inc. ("Southern Pride"). Doc. No. 10 at 2. The following facts are taken from the amended complaint. Doc. No. 10. Defendant is Southern Pride's primary insurer and Plaintiff is an excess insurer. Id. at 2. On or about February 8, 2013, an accident occurred between Andrea Salickram and Travis Crawford, a driver who worked for Southern Pride. Id. Ms. Salickram twice sought to settle the case with Defendant, but it refused. Id. at 3-4. Defendant also failed to notify Plaintiff of Ms. Salickram's prior settlement attempts. Id. Defendant did not notify Plaintiff of Ms. Salickram's lawsuit until April 11, 2016, five days after she made a third offer to settle the case for $2,500,000. Id. Ms. Salickram's lawsuit eventually settled for $2,400,000, with Ms. Salickram receiving $1,000,000 from Defendant and $1,400,000 from Plaintiff. Id. at 5. On October 17, 2016, Plaintiff filed the amended complaint against Defendant, alleging that it acted in bad faith when it failed to settle Ms. Salickram's claim earlier. Id. at 5-7. Plaintiff seeks recovery of the $1,400,000 it paid to Ms. Salickram under equitable subrogation. Id. at 7.
On November 22, 2016, Defendant filed a motion to dismiss (the "Motion to Dismiss") arguing, inter alia: 1) Plaintiff does not have standing to bring suit; and 2) Plaintiff fails to state a claim because the common insured, Southern Pride, suffered no damages as a result of Defendant's alleged bad faith. Doc. No. 15 at 1, 19-22. On March 21, 2017, U.S. District Judge Roy B. Dalton, Jr. denied the Motion to Dismiss, finding that: 1) Plaintiff has standing to assert its common law bad faith claim; and 2) Plaintiff properly asserts a common law bad faith claim. Doc. No. 43 at 5-8. On April 10, 2017, Defendant filed its answer, asserting twenty-four affirmative defenses. Doc. No. 47 at 5-8.
On April 28, 2017, Plaintiff filed a motion to strike certain affirmative defenses (the "Motion"). Doc. No. 54. Plaintiff argues that: 1) Judge Dalton essentially rejected affirmative defenses one, two, and three when he denied the Motion to Dismiss; 2) affirmative defenses four, five, six, nine, ten, twelve, fifteen, seventeen, and twenty-two are not affirmative defenses; and 3) affirmative defenses seven, eight, eleven, and twenty-three are conclusory. Id. at 3. On May 11, 2017, Defendant filed its response to the Motion. Doc. No. 58.
A true affirmative defense is "one that admits to the complaint, but avoids liability, wholly, or partly, by new allegations of excuse, justification or other negating matters." Royal Palm Sav. Ass'n. v. Pine Trace Corp., 716 F.Supp. 1416, 1420 (M.D. Fla. 1989). Affirmative defenses are subject to the general pleading requirements of Federal Rule of Civil Procedure 8. Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 684 (M.D. Fla. 2002). As such, a party must "state in short and plain terms its defenses to each claim asserted against it[.]" Fed. R. Civ. P. 8(b)(1)(A).
Pursuant to Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Id. However, when the Court finds that an affirmative defense is actually a specific denial, the Court will generally treat the affirmative defense as a specific denial rather than striking it. See Premium Leisure, LLC v. Gulf Coast Spa Mfrs., Inc., Case No. 8:08-cv-1048-T-24EAJ, 2008 WL 3927265, at *3 (M.D. Fla. Aug. 21, 2008).
A motion to strike is subject to the Court's discretion. See Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000 (M.D. Fla. 1976). However, motions to strike are generally disfavored due to their drastic nature. Thompson v. Kindred Nursing Ctrs., East, LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., 306 F.2d 862, 868 (5th Cir. 1962)).
Defendant's first affirmative defense states:
Doc. No. 47 at 5. Thus, Defendant argues that Plaintiff lacks standing and, as a result, the Court lacks subject matter jurisdiction. Id.
Defendant's second affirmative defense states:
Id. Thus, Defendant argues that Plaintiff fails to state a valid cause of action for common law bad faith. Id.
Defendant's third affirmative defense states:
Id. Thus, Defendant argues that Plaintiff's bad faith claim fails as a matter of law because Southern Pride has not suffered damages. Id. Defendant also argues that Plaintiff waived or released its claim when it voluntarily agreed to pay $1,400,000 to settle Ms. Salickram's claim. Id. Plaintiff argues that Judge Dalton essentially rejected affirmative defenses one, two, and three when he denied the Motion to Dismiss. Doc. No. 54 at 3. Defendant argues that such affirmative defenses should not be stricken because: 1) the portion of Judge Dalton's order regarding Plaintiff's standing is subject to a pending certification for interlocutory appeal; and 2) subject matter jurisdiction can be challenged at any time, and thus Defendant should be able to preserve the aforementioned affirmative defenses.
Defendant's first affirmative defense states that Plaintiff lacks standing and, as a result, the Court lacks subject matter jurisdiction. Doc. No. 47 at 5. Federal Rule of Civil Procedure 12(b)(1) states that such defense is to be raised in a motion to dismiss. See Fed. R. Civ. P. 12(b)(1). Here, Defendant properly asserted such a defense in the Motion to Dismiss. Doc. No. 15 at 21. Despite Judge Dalton's finding that Plaintiff has standing to bring a common law bad faith claim, the undersigned does not find Defendant's first affirmative defense to be "redundant, immaterial, impertinent, or scandalous" to warrant striking it. See Fed. R. Civ. P. 12(f). Accordingly, the undersigned recommends that the Court decline to strike Defendant's first affirmative defense.
Defendant's second affirmative defense states that Plaintiff fails to state a cause of action for common law bad faith. Doc. No. 47 at 5. Such a defense is not a true affirmative defense. Rather, it is a defense under Rule 12(b)(6) that points to an alleged defect in Plaintiff's claim. See In Re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) ("A defense which points out a defect in the plaintiff's prima facie case is not an affirmative defense"). Thus, Defendant's second affirmative defense is properly characterized as a specific denial rather than an affirmative defense. Id. When a specific denial is labeled as an affirmative defense, a court will generally treat the defense as a denial and not strike it. See Premium Leisure, LLC, 2008 WL 3927265 at *3. The undersigned recognizes that Defendant asserted its second affirmative defense in the Motion to Dismiss, which Judge Dalton denied. Doc. No. 43. Nevertheless, the undersigned does not find such defense to be "redundant, immaterial, impertinent, or scandalous" to warrant striking it. See Fed. R. Civ. P. 12(f). Accordingly, the undersigned recommends that the Court deem Defendant's second affirmative defense as a specific denial.
Defendant's third affirmative defense contains two separate arguments. First, Defendant's third affirmative defense states that Plaintiff's bad faith claim fails as a matter of law because Southern Pride has not been damaged. Doc. No. 47 at 5. Such a statement is not a true affirmative defense, but instead points to an alleged defect in Plaintiff's common law bad faith claim. See In Re Rawson Food Service, Inc., 846 F.2d at 1349 ("A defense which points out a defect in the plaintiff's prima facie case is not an affirmative defense"). Thus, the portion of Defendant's third affirmative defense alleging Southern Pride's lack of damages is properly characterized as a specific denial rather than an affirmative defense. Id. When a specific denial is labeled as an affirmative defense, a court will generally treat the defense as a denial and not strike it. See Premium Leisure, LLC, 2008 WL 3927265 at *3. Thus, the undersigned recommends that the Court deem Defendant's third affirmative defense as a specific denial to the extent that it states that Plaintiff's bad faith claim fails as a matter of law because Southern Pride has not suffered any damages.
Defendant's third affirmative defense also argues that Plaintiff's bad faith claim fails because Plaintiff voluntarily agreed to pay $1,400,000 to settle Ms. Salickram's claim. Doc. No. 47 at 5. The undersigned interprets such a statement as asserting the defenses of waiver or release, which are both affirmative defenses under Federal Rule of Civil Procedure 8(c). Fed. R. Civ. P. 8(c). While Defendant asserted the same argument in the Motion to Dismiss that was later denied, the undersigned does not find Defendant's third affirmative defense to be "redundant, immaterial, impertinent, or scandalous" to warrant striking it. See Fed. R. Civ. P. 12(f). Thus, the undersigned recommends that the Court decline to strike Defendant's third affirmative defense to the extent that it asserts the defenses of waiver or release.
The following is a list of Defendant's fourth, fifth, sixth, ninth, tenth, twelfth, fifteenth, seventeenth, and twenty-second affirmative defenses:
Doc. No. 47 at 5-8. Plaintiff states that the aforementioned affirmative defenses are not true affirmative defenses. Doc. No. 54 at 3. The undersigned agrees. None of the aforementioned affirmative defenses admit to the Complaint's allegations. Doc. No. 47 at 5-8. Instead, these affirmative defenses point to alleged defects in Plaintiff's bad faith claim. See In Re Rawson Food Service, Inc., 846 F.2d at 1349 ("A defense which points out a defect in the plaintiff's prima facie case is not an affirmative defense"). Thus, the aforementioned affirmative defenses are properly characterized as specific denials rather than affirmative defenses. Id. When a specific denial is labeled as an affirmative defense, a court will generally treat the defense as a denial and not strike it. See Premium Leisure, LLC, 2008 WL 3927265 at *3. Accordingly, the undersigned recommends that the Court deem Defendant's fourth, fifth, sixth, ninth, tenth, twelfth, fifteenth, seventeenth, and twenty-second affirmative defenses as specific denials.
The following is a list of Defendant's seventh, eighth, eleventh, and twenty-third affirmative defenses:
Doc. No. 47 at 6, 8. Plaintiff argues that the aforementioned affirmative defenses should be stricken because they "are conclusory and do not allege any facts supporting their applicability." Doc. No. 54 at 3. Defendant argues that the aforementioned affirmative defenses are not conclusory and provide Plaintiff with proper notice of the defenses based upon the release or waiver of Ms. Salickram's claim. Doc. No. 58 at 5-6.
As pled, Defendant's seventh and eleventh affirmative defenses do not provide proper notice that Defendant intends to challenge Plaintiff's bad faith claim based on the release from Ms. Salickram's claim. Doc. No. 47 at 6. The affirmative defenses only state legal doctrines and provide no facts in support of such defenses. Id. The Eleventh Circuit has held that Rule 8's purpose is "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." Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988). However, "merely asserting the nature of legal defenses does not meaningfully serve this purpose." BioGin Biochemicals Co., Ltd. v. Pharma Science Nutrients, Inc., No. 1:15-cv-20322-UU, 2015 WL 3622286, at *1 (S.D. Fla. Apr. 3, 2015). See also Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) ("Without some factual allegation in the affirmative defense, it is hard to see how a defendant could satisfy the requirement of providing not only `fair notice' of the nature of the defense, but also `grounds' on which the defense rests"). Accordingly, the undersigned recommends that the Court strike Defendant's seventh and eleventh affirmative defenses with leave to amend because they do not contain any facts in support. In contrast, Defendant's eighth affirmative defense states facts in support of the defense, noting the release from Ms. Salickram's settlement with Southern Pride. Doc. No. 47 at 6. Thus, the undersigned recommends that the Court decline to strike Defendant's eighth affirmative defense.
Defendant's twenty-third affirmative defense, however, does not present sufficient facts showing that Plaintiff failed to perform conditions precedent. Federal Rule of Civil Procedure 9(c) states that whenever a party denies that a condition precedent has occurred, that party must make a particularized showing of such denial. Fed. R. Civ. P. 9(c). Here, Defendant's twenty-third affirmative defense states that Plaintiff "failed to satisfy conditions precedent to suing [Defendant] for bad faith, including but not limited to [Plaintiff's] failure to comply with Section 624.155, Florida Statutes." Doc. No. 47 at 8. Section 624.155(3) provides:
Fla. Stat. § 624.155(3) (emphasis added).
Based on the foregoing, it is
A party has fourteen days from this date to file written objections to the report and recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the report and recommendation. See 11th Cir. R. 3-1.
