The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-21384-COOKE/DAMIAN
ANDREW DELGADO,
Plaintiff,
vs.
CARNIVAL CORPORATION,
Defendant.
____________________________________/
ORDER ON PLAINTIFF’S
MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES [ECF NO. 15]
THIS CAUSE is before the Court on Plaintiff, Andrew Delgado’s (“Plaintiff”),
Motion to Strike Defendant’s Affirmative Defenses (the “Motion”), filed July 12, 2022. [ECF
No. 15]. This matter was referred to the undersigned by the Honorable Kathleen M. Williams,
United States District Judge, on behalf of the Honorable Marcia G. Cooke, United States
District Judge. [ECF No. 20]. See 28 U.S.C. § 636(b)(1)(A).
The Court has reviewed the parties’ memoranda [ECF Nos. 15, 16 and 19], the
pertinent portions of the record, and all relevant authorities and is otherwise fully advised in
the premises. For the reasons that follow, Plaintiff’s Motion is granted in part.
I. BACKGROUND
This action arises out of injuries allegedly suffered by Plaintiff as the result of a slip
and fall on water on board Defendant, Carnival Corporation’s (“Defendant”), cruise ship.
Plaintiff filed the original complaint on May 3, 2022 [ECF No. 1], and the First
Amended Complaint for Damages (“FAC”) on June 13, 2022. [ECF No. 12]. In the FAC,
Plaintiff asserts three counts against Defendant: Negligent Failure to Warn of Dangerous
Conditions (Count I); Negligent Design, Installation, and/or Approval of the Subject Area
and the Vicinity (Count II); and Negligent Failure to Inspect, Clean, Maintain, Repair,
Remedy, and/or Take Other Reasonable Measures for the Safety of Plaintiff (Count III).
Defendant filed an Answer and Affirmative Defenses to the FAC on June 21, 2022. [ECF
No. 13].
On July 12, 2022, Plaintiff filed the Motion now before the Court challenging eight (8)
of Defendant’s Affirmative Defenses: 1 (Failure to State a Claim); 2 (Terms and Conditions
of Contract); 4 (Assumption of the Risk); 6 (Aggravation of Pre-existing Condition); 8 (Duty
to Mitigate); 9 and 10 (Fabre); and 11 (Intervening Causes). Defendant responded on July 26,
2022 and, in the Response, indicates that it is withdrawing four of the challenged affirmative
defenses: 2, 4, 9 and 10. [ECF No. 16 (the “Response”)]. Defendant also argues that Plaintiff’s
Motion should be denied as to the remaining four affirmative defenses and, alternatively,
seeks leave to amend any defenses the Court is inclined to strike. Id. Plaintiff filed a Reply on
August 2, 2022. [ECF No. 19 (the “Reply”)].
The Motion is fully briefed and ripe for adjudication. In light of Defendant’s
withdrawal of four of the challenged affirmative defenses, the Court will address the
remaining four challenged defenses below.
II. APPLICABLE LEGAL STANDARDS
“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.”
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999). “Affirmative defenses ‘are
subject to the general pleading requirements of Rule 8(a)’ of the Federal Rules of Civil
Procedure.” Mushilla Holdings, LLC v. Scottsdale Ins. Co., No. 20-20832, 2020 WL 6135804, at
*1 (S.D. Fla. June 16, 2020) (Cooke, J.) (quoting Home Mgmt. Sols., Inc. v. Prescient, Inc., No.
07-20608, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007) (Torres, J.)); see also Melaih v.
MSC Cruises, S.A., No. 20-61341, 2021 WL 3727837, at *3 (S.D. Fla. July 27, 2021) (Valle, J.)
(discussing pleading standards and collecting cases).
Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). Although a court has broad discretion when reviewing a motion to
strike, such motions are considered “a drastic remedy” and are often “disfavored by the
courts.” Simmons v. Royal Caribbean Cruises, Ltd., 423 F. Supp. 3d 1350, 1352 (S.D. Fla. 2019)
(Ungaro, J.). Motions to strike are generally denied “unless the matter sought to be omitted
has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice
a party.” Id. (quoting Bank of Am., N.A. v. GREC Homes IX, LLC, No. 13-21718, 2014 WL
351962, at *4 (S.D. Fla. Jan. 23, 2014) (Altonaga, J.)).
An affirmative defense must be stricken when the defense is comprised of no more
than bare-bones, conclusory allegations or is insufficient as a matter of law. Pandora Jewelers
1995, Inc. v. Pandora Jewelry, LLC, No. 09-61490-CIV, 2010 WL 5393265, at *2 (S.D. Fla. Dec.
21, 2010) (Cooke, J.) (“Affirmative defenses, however, are subject to the general pleading
requirements of [Federal Rule of Civil Procedure] 8(a) and will be stricken if they fail to recite
more than bare-bones conclusory allegations.”) (quoting Home Mgmt. Solutions, Inc., 2007 WL
2412834, at *2); Birren v. Royal Caribbean Cruises, Ltd., 336 F.R.D. 688, 692 (S.D. Fla. 2020)
(Bloom, J.). “A defense is insufficient as a matter of law if, on the face of the pleadings, it is
patently frivolous, or if it is clearly invalid as a matter of law.” Morrison v. Exec. Aircraft
Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005) (Ryskamp, J.) (citation omitted).
Further, “a court must not tolerate shotgun pleading of affirmative defenses, and should strike
vague and ambiguous defenses which do not respond to any particular count, allegation or
legal basis of a complaint.” Id. Therefore, when considering a motion to strike affirmative
defenses, the Court assesses whether the defense is legally sufficient to provide “fair notice”
of the nature of the defense. Mushilla, 2020 WL 6135804, at *1 (quoting Grovenor House, L.L.C.
v. E.I. Du Pont De Nemours & Co., No. 09-21698, 2010 WL 3212066, at *2 (S.D. Fla. Aug. 12,
2010) (Cooke, J.)).
III. DISCUSSION
With the foregoing in mind, the Court considers whether Defendant’s first, sixth,
eighth, and eleventh affirmative defenses are sufficient as a matter of law and whether they
provide fair notice of the nature of the defenses and the grounds upon which they rest.
A. Affirmative Defense Number 1
Defendant’s First Affirmative Defense states: “Plaintiff’s Amended Complaint and
each purported cause of action therein fails to state facts which are sufficient to constitute a
cause of action against Defendant.” [ECF No. 13 at 5, ¶ 1]. Plaintiff argues this is not a valid
affirmative defense because it does not negate the allegations in the complaint and should
have been raised as a motion to dismiss, and Plaintiff argues this affirmative defense is
conclusory and fails to provide facts indicating how Plaintiff has failed to state a claim. See
Motion 9–10. Defendant responds that this affirmative defense gives Plaintiff “notice of
certain arguments Defendant will make should the facts developed during discovery support
them.” Response at 11.
Courts in this District routinely strike “failure to state a claim” defenses labeled as
“affirmative defenses,” because they do not constitute valid affirmative defenses. See, e.g.,
Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, No. 09–cv-61490, 2010 WL 5393265, at *2
(S.D. Fla. Dec. 21, 2010) (Cooke, J.) (striking “failure to state a claim” affirmative defense
and noting “[w]hile treating the ‘failure to state a claim’ affirmative defense as a denial, and
allowing it to remain as an affirmative defense may be permissible, I believe the better practice
is to properly label denials and affirmative defenses, and to keep these two defenses separate”);
Northrop & Johnson Holding Co. v. Leahy, No. 16-cv-63008, 2017 WL 5632041, at *3 (S.D. Fla.
Nov. 22, 2017) (Bloom, J.) (citing Boldstar Tech. LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283,
1292 (S.D. Fla. 2007) (Hurley, J.) (“Failure to state a claim is a defect in [a party]’s claim; it
is not an additional set of facts that bars recovery notwithstanding [a party]’s valid prima facie
case.”)).
Consistent with the foregoing authority, the Court finds that Defendant’s First
Affirmative Defense, alleging failure to state sufficient facts to state a cause of action, is not a
proper affirmative defense and must be stricken. Although Defendant sought leave to amend
any stricken affirmative defenses, given that the defense is a legally invalid affirmative
defense, it may not be reasserted, even if in a less conclusory manner, as an affirmative
defense. However, should Defendant seek to assert this defense as a general denial in an
amended pleading, it may do so.
Accordingly, Plaintiff’s Motion to Strike Defendant’s First Affirmative Defense is
granted without prejudice to reassert the defense as a general denial in an amended pleading.
B. Affirmative Defense Number 6
Defendant’s Sixth Affirmative Defense states:
Plaintiff’s injuries, if any, are the result of one or more pre-existing injuries or
conditions which were not aggravated by the incident alleged in the Amended
Complaint. Alternatively, if any pre-existing injury or condition was
aggravated by any alleged incident herein, the Plaintiff is only entitled to
reimbursement for the degree of aggravation, and any recovery Plaintiff obtains
must be limited to the percentage of aggravation Plaintiff suffered as a result of
the incident alleged.
[ECF No. 13 at 5, ¶ 6].
Plaintiff argues Defendant’s Sixth Affirmative Defense should be stricken for several
reasons: it is conclusory and fails to allege any facts supporting the affirmative defense;
aggravation of a pre-existing condition is not a legally valid affirmative defense; and setoff for
medical bill “write offs” is not a valid affirmative defense. Motion at 4–5, 8–9. Defendant
responds that it is too early in the litigation to require any further details regarding its
affirmative defense because it has not yet had the opportunity to conduct discovery. Response
at 8–10. Defendant also argues that aggravation of a pre-existing condition is a legally valid
affirmative defense under the law in the Eleventh Circuit and that the Eleventh Circuit’s
decision in Higgs v. Costa Crociere, 969 F.3d 1295 (11th Cir. 2020), governing medical write-
offs, has no application here. Id. at 8–10.
Defendant’s Sixth Affirmative Defense asserts that Defendant should not be liable for
injuries resulting from Plaintiff’s pre-existing conditions or from aggravation of such pre-
existing conditions and that Defendant should only be liable for damages attributable to
injuries or aggravation caused by injuries attributable to Defendant. A defense that a plaintiff’s
injuries are attributable in whole or in part to a preexisting condition is a legally valid
affirmative defense in an admiralty action. See Melaih, 2021 WL 3727837, at *6, report and
recommendation adopted, 2021 WL 3726210 (S.D. Fla. Aug. 23, 2021) (Smith, J.) (pre-existing
condition); Birren, 336 F.R.D. at 694.
Although Plaintiff argues that the affirmative defense misstates the law, citing Florida
Jury Instruction 501.5(a), the Court disagrees, finding, instead, that the wording of this
affirmative defense does not conflict with governing law or Florida’s jury instruction. See
Birren, 336 F.R.D. at 694 (refusing to strike nearly identical defense despite plaintiff’s
argument that the language of the defense misstated the law regarding pre-existing conditions
in Florida Jury Instruction 501.5(a)); Melaih, 2021 WL 3727837, at *6 (same).
Plaintiff’s argument based on the availability of setoffs for medical write-offs, however,
does not appear to apply here. Defendant’s Sixth Affirmative Defense, on its face, does not
seek a setoff based on collateral source payments toward Plaintiff’s medical bills or medical
write-offs, and, therefore, the Court agrees with Defendant that the Eleventh Circuit’s Higgs
decision does not apply.
Thus, the Court finds that Defendant’s Sixth Affirmative Defense is a legally valid
affirmative defense. Given that this affirmative defense is legally valid, it is not “patently
frivolous” or “clearly invalid as a matter of law.” See Morrison, 434 F. Supp. 2d at 1318. The
issue, then, is whether the defense is adequately pled such that it provides sufficient notice to
Plaintiff of the nature of the defense and the grounds upon which it rests. The Court is mindful
that Defendant has not yet had the opportunity to conduct discovery regarding facts to
support its defenses, as well as the general understanding that a party need not plead such
extensive facts in support of an affirmative defense as with a complaint. Nevertheless, as pled,
the Sixth Affirmative Defense does not give any indication of the grounds upon which it rests
and provides no facts whatsoever to show “how and why the defense . . . applies to [the]
case.” Losada v. Norwegian (Bah.) Ltd., 296 F.R.D. 688, 691 (S.D. Fla. 2013) (King, J.). Rather,
the barebones affirmative defense appears to have been asserted in an abundance of caution
in case facts come to light upon which the defense may be relevant. If that were a sufficient
basis for an affirmative defense, then every defendant would have a basis for asserting nearly
any legitimate affirmative defense that might arguably, eventually apply in any given case.
That is more akin to shotgun pleading than fair notice.
If Defendant intends to pursue this defense, it will need to plead some factual basis to
give Plaintiff fair notice of its defense. “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.”
Home Mgmt. Sols., 2007 WL 2412834, at *3 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–556 (2007)).
Thus, Defendant’s Sixth Affirmative Defense is insufficiently pled and will be stricken
without prejudice to replead the defense in an amended pleading setting forth additional
information demonstrating how the defense applies in this case.1
C. Affirmative Defense Number 8
Defendant’s Eighth Affirmative Defense states:
To the extent that Plaintiff has failed to mitigate his damages, any recovery
herein should be precluded or reduced to the extent that such mitigation by
Plaintiff would have diminished or avoided Plaintiff’s alleged losses, injuries,
and/or damages.
[ECF No. 13 at 6, ¶ 8].
Plaintiff argues Defendant’s Eighth Affirmative Defense should be stricken on the
grounds it is a conclusory shotgun pleading. Motion at 2–3. The Court agrees.
Failure to mitigate damages is a valid affirmative defense in admiralty cases. Frederick
v. Kirby Tankships, Inc., 205 F.3d 1277, 1286 (11th Cir. 2000). However, like Defendant’s Sixth
1 The Court notes that this case has now been pending for six months, and the affirmative
defenses at issue were asserted nearly five months ago. Thus, by this point, Defendant should
have adequate information to know whether and how its alleged affirmative defenses apply
in this case.
Affirmative Defense, as pled, Defendant’s Eighth Affirmative Defense fails to provide any
information regarding how it applies to the facts in this case and, instead, does appear to be
pled in a shotgun manner.
Thus, Defendant’s Eighth Affirmative Defense is insufficiently pled and will be
stricken without prejudice to replead the defense in an amended pleading setting forth
additional information demonstrating how the defense applies in this case.
D. Affirmative Defense Number 11
Defendant’s Eleventh Affirmative Defense states:
The incident alleged in Plaintiff’s Amended Complaint and the injuries flowing
therefrom, if any, were the result of intervening and unforeseeable causes for
which Defendant owed Plaintiff no duty.
[ECF No. 13 at 6, ¶ 11].
Plaintiff argues Defendant’s Eleventh Affirmative Defense should be stricken on the
grounds it is also a conclusory shotgun pleading. Motion at 9–11. The Court agrees.
Intervening or superseding cause is a legally valid affirmative defense in admiralty
proceedings. Wiegand v. Royal Caribbean Cruises Ltd., 473 F. Supp. 3d 1348, 1352 (S.D. Fla.
2020) (Graham, J.) (“Under general federal maritime law, a superseding cause defense, if
successful, completely exculpates the defendant of any liability in the matter.”).
However, like the preceding two affirmative defenses addressed above, Defendant’s
Eleventh Affirmative Defense is also conclusory and insufficiently pled, giving no clue as to
what the intervening or superseding cause of Plaintiff’s injuries was or may have been.
Therefore, Defendant’s Eleventh Affirmative Defense is stricken without prejudice to
replead with more facts demonstrating how the defense applies in this case.
IV. CONCLUSION
Accordingly, for the reasons set forth above, it is hereby
ORDERED AND ADJUDGED that Plaintiffs Motion to Strike Defendant’s
Affirmative Defenses [ECF No. 15] is GRANTED IN PART AND DENIED IN PART as
follows:
1. GRANTED as to Affirmative Defense Numbers One, Six, Eight, and Eleven, and
these affirmative defenses are STRICKEN without prejudice to replead; and
2. DENIED AS MOOT as to Affirmative Defense Numbers Two, Four, Nine, and
Ten.
It is further
ORDERED AND ADJUDGED that any Amended Answer setting forth amended
affirmative defenses consistent with the foregoing shall be filed within fourteen (14) days of
the date of the instant Order.
DONE AND ORDERED in Chambers at Miami, Florida this 4 day of November
2022.
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UNITED STATES MAGISTRATE JUDGE
Copies to:
Hon. Marcia G. Cooke, U.S. District Judge
Counsel of Record
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