Misuse of Motions to Strike Affirmative Defenses: "I do not think it means what you think it means."

In the past several months, I have handled cases in a couple of distinct areas of law, where Plaintiffs’ counsel have filed motions "to strike" the Defendant's Affirmative Defenses. This happens near the very beginning of the litigation, shortly after the Defendant has filed its Answer. While the substance of these motions isn’t entirely uniform, the basic thrust of the argument is that the Defendant has asserted “mere legal conclusions,” and that the Affirmative Defenses as pled don’t contain sufficient factual support. Plaintiffs' counsel contend that the Defendant should have to plead specific facts in its Answer/Affirmative defenses, instead of simply asserting the legal basis for the affirmative defense. 

I am sure that this practice has been going on for a long time, because it seems to be rather widespread. And, call me cynical, but it appears to happen much more frequently (though not always) in cases where the Plaintiff is entitled to prevailing party attorney’s fees. Even when the judge grants the Plaintiff's Motion, the most likely result is that the Defendant has to amend its answer to plead its affirmative defenses with greater specificity (i.e., to change the form of the pleading, rather than the substance of the defense). Simply put, it’s a huge waste of time and money.

While it certainly bothers me to see these motions being used as a bill-churning vehicle, what bothers me more is that these motions have no actual basis in law. The Florida Rules of Civil Procedure are clear on this point, and actual Florida case law is as well. And, stepping back for a moment, let's think about the purpose of such a motion. Why would you be required to plead all of the facts substantiating your defenses at the very beginning of litigation? Isn’t the whole point of discovery to gather the facts you need to substantiate your claims? And, if at the close of discovery, you haven’t pulled together those facts, isn’t the proper vehicle for dispensing with unsupported claims a Motion for Summary Judgment?  

To answer my own questions: I don’t know, yes, and yes. 

Nevertheless, these Motions are filed and granted with great frequency. Most of the time, Plaintiffs' counsel misleadingly cite either (1) cases that discuss the sufficiency of affirmative defenses in the context of summary judgment; or (2) cases that address the pleading requirements when a party asserts an affirmative defense of fraud. See, e.g., Cady v. Chev Chase Sav. And Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988) (an opinion arising from a summary judgment order relating to a foreclosure, which primarily addresses allegations of fraud); Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (an opinion arising from a post-trial final judgment order relating to a foreclosure, which primarily addresses the sufficiency of the appellant’s response); Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996) (an opinion arising from a challenge to a jury verdict on the grounds that the court’s jury instructions relating to the seatbelt defense were improper); Jacobs v Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (an opinion arising from an order granting a directed verdict in a landlord tenant dispute); Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989) (an opinion arising from a post-trial final judgment order relating to a probate dispute, which does not address the standards for properly pleading an affirmative defense); Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996) (an opinion arising from an order on a motion for new trial, which sets out standards for naming a Fabre Defendant).

While all of the aforementioned opinions have little pieces of language that can be misleadingly quoted and then strung together into a motion that someone might fall for if they weren't paying attention, the common thread that ties them all together is that they consider the sufficiency of Affirmative Defenses after the close of discovery. And, naturally, after discovery has concluded, the Court would be in the proper position to determine whether the Defendant has uncovered evidence and facts which are sufficient to support the Affirmative Defenses as pled. But, it makes no sense to apply this same test at the beginning of discovery, because it presumes that the Defendant already knows everything there is to know. 

            Next, let’s take a look at the language of the operative rule. Florida Rule of Civil Procedure § 1.140(f) provides that:

“[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”

Based on the actual language of this rule, a Motion to Strike would only be proper if I asserted the same Affirmative Defense ten times (redundant), if I asserted an Affirmative Defense of Accord and Satisfaction in a Wrongful Death case (immaterial), or if one of my Affirmative Defenses was that the Plaintiff was an alcoholic communist (impertinent, scandalous). I don’t see any language directing the Court to strike allegations which have not yet been factually substantiated. 

            I see that language in this rule: 

RULE 1.510 SUMMARY JUDGMENT

            (c) [..] The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

            And while it appears that numerous Trial Courts aren’t inclined to adhere to the actual Rules of Civil Procedure (perhaps because Defense Counsel aren’t actually arguing the law), it turns out that multiple Florida Appellate Courts agree that the rules says what they actually say. Thus, these Courts have held that in the context of a motion to strike (i.e., prior to the close of discovery), the proper inquiry is only whether the affirmative defense is “legally sufficient on its face.” Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). Indeed, at the beginning of discovery, when a party asserts its Affirmative Defenses, the purpose of same is to establish what the Defendant seeks to prove, thereby putting the opposing party on notice. Thus, in Zito v. Washington Federal Sav. & Loan Asso., 318 So. 2d 175 (Fla. 3d DCA 1975), the Third DCA noted:

As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.

            Further, lest you be concerned that this reading of the rule is only supported by stale law from the 1970s, in Gonzalez v. NAFH Nat'l Bank, 93 So. 3d 1054 (Fla. 3d DCA 2012), the Third DCA reaffirmed the Court’s general prohibition on torturing the English language as follows:

Florida Rule of Civil Procedure 1.140(f) provides that "[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time." "A motion to strike a defense tests only the legal sufficiency of the defense." Burns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978). "Where . . . a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike." Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (citations omitted); Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fl. 4th DCA 1976) (reversing an order striking an affirmative defense where "[t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact . . . created"); Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972) (finding that a Rule 1.140(f) motion to strike "should only be granted if material is wholly irrelevant, can have no bearing on the equities and no influence on the decision"). An affirmative defense may not be stricken "merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense." Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).

            As you can see, at this point, the Motion to Strike is somewhat akin to a Motion to Dismiss. Its purpose, generally, is to test the legal sufficiency of the allegations in the opposing party’s pleading. Its purpose is certainly not to dispatch with legally cognizable defenses that have not yet been proven. Because parties are allowed to conduct discovery before the factual sufficiency of their claims are tested, because that is the whole point of discovery. 

            Now, all that being said, you could probably argue that there is some kind of “common law” Motion to Strike, which exists separate and apart from the actual Florida Rule of Civil Procedure 1.140(f). This is akin to the distinction between a common law Motion for Reconsideration (which can be filed at any time, and can be directed to any non-final order) and a “Motion for Rehearing” which is provided for in Florida Rule 1.530, applies only post verdict, and has a 10 day time limitation. Indeed, it seems that lawyers love to use the word “strike,” almost as much as the word “pursuant.” Strike that. What I meant to say was that if Plaintiffs’ counsel is relying upon some vacuous common law procedural tool, which makes no sense, generally has no real impact on a case and directly conflicts with actual codified rules of civil procedure, they should probably be called on it. Because it’s a damn waste of time and money. Because judge’s salaries are paid by taxpayers. Because inflated attorney’s fee awards in Home Insurance/FLSA/Foreclosure/Condo Association/PIP claims wind up coming out of someone’s pocket, whether it’s all of us (in the forms of higher insurance rates, taxes, etc.), or just one unlucky sap who gets screwed out of an extra $3,000.00+ of home equity, because some greedy Association Law Firm wanted to churn the bill by filing a 16 page form Motion to Strike Affirmative Defenses.

            So the next question is, as a litigant, how do you protect your client from having to incur the time and expense required in defending such a frivolous motion? 

            Well, I would recommend that when you file an Answer and Affirmative Defenses, you (1) assert only meritorious defenses (i.e., limit the number you initially file); and (2) assert whatever general facts  that would support your defense. With respect to (1), you can always move to amend your answer if you discover some new and exciting defense during the course of litigation (I am still searching for “duress”). With respect to (2), while pleading specific facts really isn’t really required (see law, Infra), it will make the Plaintiff’s position on any Motion to Strike far more frivolous.

            Then, when the Plaintiff files their bill-churning Motion to Strike Affirmative Defenses, respond with a 57.105 letter and attached motion for sanctions. And if the Plaintiff doesn’t withdraw their Motion to Strike during the 21 day safe harbor, and insists that you appear for a hearing their Motion to Strike, file your Motion for Sanctions, document your time, show up, and demand attorney’s fees. Since the motion itself is patently frivolous, the Plaintiff’s attorneys will be partly on the hook as well (if you’re worried about a judgment proof Plaintiff).

            By the way, when you’re arguing your Motion for Sanctions, remember that what you’re doing is good for the legal profession, and that it’s the right thing to do. While Defense lawyers aren’t usually paid the big bucks to make arguments with such moral clarity, this is one of those rare instances when you can have your cake and eat it too. Good luck!

            PS – for those of you who can’t “figure it out,” I’ll go ahead and post a primer on filing Motions for Sanctions pursuant to Fla. Stat. § 57.105 at some point in the future. There also happen to be several thorough and informative articles on this subject (in the Florida Bar Journal, for example).