JOHN E. STEELE, District Judge.
This matter comes before the Court on Plaintiff's Motion to Strike Defendant Wingo's Affirmative Defenses (Doc. #59) filed on May 26, 2018. Defendant Kasey P. Wingo filed a Response in Opposition (Doc. #64) on June 11, 2018. For the reasons set forth below, the motion is granted in part and denied in part.
Robert Dale Harris (Plaintiff) filed a twenty-count Amended Complaint (Doc. #51) pursuant to 42 U.S.C. § 1983 against Kevin Rambosk in his official capacity as the Sheriff of Lee County (the Sheriff), and deputies Kasey P. Wingo (Deputy Wingo), Michael D. Chapman (Deputy Chapman), Brian R. Wiedel (Deputy Wiedel), Scott Pepin (Deputy Pepin), and Ross Anthony (Deputy Anthony). Deputy Wingo individually filed his Answer and Affirmative Defenses (Doc. #54) on May 14, 2018, in which he raises thirteen affirmative defenses, including failure to mitigate damages, preexisting condition, and probable cause. Plaintiff seeks to strike Deputy Wingo's First, Third, Fourth, Ninth, and Thirteenth Affirmative Defenses because they are conclusory and unsupported by any facts.
The Federal Rules require defendants to "affirmatively state any avoidance or affirmative defense." Fed. R. Civ. P. 8(c). "An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence."
As this Court recently discussed in some detail, affirmative defenses must comply with two separate pleading requirements. First, the defense, as pled, must contain "some facts establishing a nexus between the elements of an affirmative defense and the allegations in the complaint," so as to provide the plaintiff fair notice of the grounds upon which the defense rests.
Second, a defendant must avoid pleading shotgun affirmative defenses, viz., "affirmative defenses [that] address[] the complaint as a whole, as if each count was like every other count."
Deputy Wingo agrees to withdraw his First Affirmative Defense. The First Affirmative Defense is therefore deemed withdrawn.
Deputy Wingo's Third Affirmative Defense asserts that Plaintiff failed to mitigate his damages by not seeking "advice from medical and mental health professionals, failing to seek and obtain the benefit of any and all economic opportunities to limit claims for lost earnings, failing to submit to lawful arrest, minimizing the necessity for use of force and responding to his resistance, and intentionally publicizing his arrest . . . ." (Doc. #54, p. 23.) The Court finds this Affirmative Defense is sufficiently pled because it alleges Plaintiff's basis for seeking a reduction of damages.
These Affirmative Defenses allege pre-existing condition, probable cause to arrest, and proper trespass warnings. These Affirmative Defenses are all shotgun defenses because each is pled indiscriminately against Plaintiff's ten claims against Deputy Wingo. This leaves Plaintiff (and the Court) to speculate as to which count or counts each is directed. Thus, the Court strikes these shotgun Affirmative Defenses with leave to replead.
Accordingly, it is hereby
1. Plaintiff's Motion to Strike (Doc. #59) is
2. The Motion is
3. Affirmative Defense One is