Svistina v. Elbadramany

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-20525-BLOOM/Otazo-Reyes

ELENA SVISTINA,

Plaintiff,

v.

MARK FADEL ELBADRAMANY, et al.,

Defendants.

____________________________________/

ORDER ON MOTION TO STRIKE

THIS CAUSE is before the Court upon Counter-Plaintiff Mark Elbadramany’s

(“Elbadramany”) Motion to Strike Counter-Defendant Elena Svistina’s (“Svistina”) Affirmative

Defense[s], ECF No. [242] (“Motion”), filed on February 28, 2023. Svistina filed a Response, ECF

No. [243], to which Elbadramany filed a Reply, ECF No. [245]. Svistina thereafter filed a Notice

of Supplemental Authority, ECF No. [253]. The Court has carefully considered the parties’

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the

reasons that follow, the Motion is granted in part and denied in part.

I. BACKGROUND

This case arises from events that occurred in a cabana at the Trump Towers Condominium

in Sunny Isles, Florida, on September 21, 2022. See Amended Complaint, ECF No. [121]. Svistina

alleges that Elbadramany sexually assaulted her (Count I), breached his duty of care to her (Count

II), negligently misrepresented his purpose in inviting her to the cabana (Count III), and falsely

imprisoned her (Count IV). Id. at 4-12. She further alleges that Elbadramany videorecorded her

without her knowledge or consent (Count V), and unlawfully recorded her communications (Count

VI). Id. at 13-16.

On January 17, 2023, Elbadramany filed his Amended Counterclaims. ECF No. [215].

Therein, he brings one count of malicious prosecution and one count of abuse of process against

Svistina. Id. at 11-23. Both counts stem from allegations that Svistina made false statements to

police officers, which led to Elbadramany’s arrest and prosecution for battery. ECF No. [215] at

10. The State dropped the criminal charge against Elbadramany after his lawyers “presented

incontrovertible evidence of the truth to the State.” Id. ¶¶ 92-93.

On February 8, 2023, Svistina filed her Answer and Affirmative Defenses. ECF No. [227].

Therein, she raises 25 affirmative defenses. Id. On February 28, 2023, Elbadramany filed the

instant Motion to Strike. ECF No. [242]. He moves to strike all but one of Svistina’s affirmative

defenses. Id.

II. LEGAL STANDARD

“An 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.” Adams v. Jumpstart

Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013). “A defense that simply points out a defect

or lack of evidence in the plaintiff’s case is not an affirmative defense.” Id. (citing Flav-O-Rich,

Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc.), 846 F.2d 1343, 1349 (11th Cir.

1988)). “[A]ffirmative defenses are not subject to the heightened pleading standard elucidated in

Twombly and Iqbal.” Northrop & Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008-BLOOM,

2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017) (quotation marks omitted).

Rule 12(f) of the Federal Rules of Civil Procedure permits a court to “strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

Civ. P. 12(f). District Courts have “broad discretion in considering a motion to strike under Fed.

R. Civ. P. 12(f).” Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1317-18

(S.D. Fla. 2005). Despite this discretion, “[a] motion to strike is a drastic remedy[,] which is

disfavored by the courts and will usually be denied unless the allegations have no possible relation

to the controversy and may cause prejudice to one of the parties.” Thompson v. Kindred Nursing

Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (internal quotation marks omitted);

see also Gen. Defense Corp. v. Restorick, No. 08-60537-CIV-JORDAN, 2008 WL 11417688, at

*2 (S.D. Fla. Nov. 3, 2008) (“[T]he standard for striking a defense is extremely high.” (quotation

marks omitted)). Under this standard, “‘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.’” Northrop & Johnson Holding Co., 2017 WL 5632041, at *3 (quoting Adams, 294 F.R.D. at

671 and Home Mgmt. Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *2

(S.D. Fla. Aug. 21, 2007)). “A defense is insufficient as a matter of law only if: (1) on the face of

the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law.” Microsoft Corp.

v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002); see also Reyher v.

Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995) (Where “a defense puts into

issue relevant and substantial legal and factual questions, it is ‘sufficient’ and may survive a motion

to strike, particularly when there is no showing of prejudice to the movant.”).

III. DISCUSSION

The Court addresses each of Elbadramany’s arguments in turn.

A. Defense No. 1

In Defense No. 1, Svistina argues that Elbadramany’s “counterclaims are barred pursuant

to Florida Statutes 776.085 as any injuries or damages he is claiming occurred during the

commission or attempted commission of a forcible felony[.]” ECF No. [227] at 3. This Defense is

inapplicable to the facts of Elbadramany’s counterclaims, which seek damages caused by

Svistina’s initiation of criminal charges against him. Even assuming Svistina is factually correct

that Elbadramany assaulted her, and further assuming she is legally correct that Elbadramany’s

legal fees can be considered “injury to property” within the meaning of Florida Statute

§ 776.085(1), Svistina has not alleged, and unable to show, that Elbadramany’s alleged injury was

sustained “during the commission” of the assault, as that statute requires. Id. (emphasis added).

Rather, Elbadramany’s “injury” of defending himself in the criminal case occurred after the

alleged assault occurred.

Defense No. 1 is stricken

B. Defense No. 2

In Defense No. 2, Svistina argues that Elbadramany’s counterclaims are barred due to

“spoliation/destruction of evidence[.]” ECF No. [227] at 3. The parties’ citations reveal conflicting

authority as to whether spoliation is properly considered an affirmative defense. Compare Barnext

Offshore, Ltd. v. Ferretti Gr. USA, Inc., No. 10-cv-23869-ALTONAGA, 2012 WL 13012762, at

*5 (S.D. Fla. Mar. 6, 2012) (recognizing spoliation as an affirmative defense), with Sparta Ins. Co.

v. Colareta, No. 13-cv-60579-ROSENBAUM, 2013 WL 5588140, at *6 (S.D. Fla. Oct. 10, 2013)

(“[A]n allegation of spoliation is not an affirmative defense.”). In light of this conflicting authority,

Defense No. 2 “puts into issue relevant and substantial legal and factual questions,” so it will not

be dismissed at this stage. Reyher, 881 F. Supp. at 576 (M.D. Fla. 1995).

C. Defense No. 3

In Defense No. 3, Svistina asserts that Elbadramany’s claims are barred by Florida Statute

§ 768.36, which prohibits a plaintiff’s recovery if, “at the time the plaintiff was injured,” his

faculties were impaired by drugs or alcohol and he was “more than 50 percent at fault for his or

her own harm.” Fla. Stat. § 768.36(2). Like Svistina’s Defense No. 1, this Defense is inapplicable

to the facts alleged regarding Elbadramany’s counterclaims, which seek to recover the costs

Elbadramany incurred in defending against criminal charges.

Defense No. 3 is stricken.

D. Defense No. 4

In Defense No. 4, Svistina asserts that Elbadramany’s counterclaims are barred to the

extent he intends to invoke his Fifth Amendment privilege against incrimination and refuse to

testify[.]” ECF No. [227] at 4. Elbadramany correctly argues that invocation of his Fifth

Amendment right to remain silent is an evidentiary issue, not an affirmative defense to

Elbadramany’s counterclaims. ECF No. [242] at 11.

Defense No. 4 is stricken.

E. Defense Nos. 5-7

In Defense Nos. 5, 6, and 7, Svistina asserts that Elbadramany’s counterclaims for

attorneys’ fees and legal expenses are barred (a) because he failed to allege facts concerning the

existence of the nature of his retainer agreement with his attorneys (Defense No. 5); (b) because

he failed to plead a contractual or factual basis for his claim for attorneys’ fee (Defense No. 6);

and (c) to the extent that his fees were paid from other sources (Defense No. 7). The Court finds

that Defense Nos. 5 and 6 are essentially arguments regarding a “a defect or lack of evidence” in

Elbadramany’s claim for damages and, accordingly, are not valid affirmative defenses. See Adams,

294 F.R.D. at 671. Defense No. 7, by contrast, is a valid affirmative defense, as it may limit

Elbadramany’s recovery despite Elbadramany otherwise meeting his burden. See Adams, 294

F.R.D. at 671.

Defense Nos. 5 and 6 are stricken. Defense No. 7 is sufficient.

F. Defense No. 8

Defense No. 8 asserts “comparative negligence.” ECF No. [227] at 4. Svistina agrees to

withdraw this affirmative defense. ECF No. [243] at 10.

Defense No. 8 is stricken.

G. Defense No. 9

Defense No. 9 asserts that Elbadramany’s counterclaims “are subject to be setoff in the

amount of any award to the Plaintiff for her claims.” ECF No. [227] at 4. Elbadramany argues that,

in Florida, setoff is designed to prevent awards for double damages, and it presupposes the

existence of two or more defendants. ECF No. [242] at 13 (citing Am. Prime Title Servs., LLC v.

Zhi Wang, 317 So. 3d 1183, 1186 (Fla. 3d DCA 2021). Here, Svistina is the only Defendant to

Elbadramany’s counterclaims. Her Response fails to meaningfully respond to Elbadramany’s

argument that setoff is inapplicable in these circumstances. See ECF No. [243] at 9 (citing to Fla.

Stat. § 768.041, which has no apparent relevance to this case).

Defense No. 9 is stricken.

H. Defense No. 10

Defense No. 10 asserts that “Elbadramany’s counterclaims are barred to the extent his

damages are the result of preexisting conditions including physical, psychological or emotional

disturbances, diseases and conditions which would have caused the alleged damages he is

claiming.” ECF No. [227] at 4. Elbadramany correctly points out that this defense has nothing to

do with Elbadramany’s counterclaims, which seek to recover legal fees and costs that Elbadramany

incurred while defending himself in the criminal case Svistina instigated against him.

Defense No. 10 is stricken.

I. Defense Nos. 11-12

Defense Nos. 11 and 12 assert that Elbadramany’s counterclaims are barred because

Elbadramany “failed to prevail in any action including the criminal action against him” (Defense

No. 11), and there “was probable cause to arrest” him (Defense No. 12). Elbadramany correctly

argues that these are not affirmative defenses, but rather negations of elements of Elbadramany’s

claim for malicious prosecution. See Phelan v. City of Coral Gables, 415 So. 2d 1292, 1294 (Fla.

3d DCA 1982) (setting forth the elements of malicious prosecution).

Defense Nos. 11 and 12 are stricken.

J. Defense No. 13

Defense No. 13 asserts that “Elbadramany’s counterclaims are barred as they arise out of

actions and events concerning the instant lawsuit.” ECF No. [227] at 5. Elbadramany correctly

points out that the Court squarely considered and rejected this argument in its Order on Svistina’s

Motion to Dismiss Counterclaims, ECF No. [202] at 5-7.

Defense No. 13 is stricken.

K. Defense Nos. 14 and 15

Svistina asserts that Elbadramany’s counterclaims are barred because Elbadramany “has

failed to establish causation and/or that Plaintiff made any false or malicious statement to the

police” (Defense No. 14), and Svistina’s statements were “truthful and not malicious” (Defense

No. 15). These are not affirmative defenses, but rather negations of the “malice” element of

Elbadramany’s claim for malicious prosecution. See Phelan, 415 So. 2d at 1294.

Defense Nos. 14 and 15 are stricken.

L. Defense Nos. 16 and 17

Svistina asserts that Elbadramany’s counterclaims are barred because Elbadramany “failed

to obtain the necessary consent from the Plaintiff for any of the alleged conduct which occurred

during the subject incident” (Defense No. 16), and “it was illegal and unlawful to be present in the

cabana . . . after midnight and it was illegal and unlawful for [Elbadramany] to bring Plaintiff to

this location” (Defense No. 17).

The relevancy of these statements to Elbadramany’s counterclaims is not immediately

clear. As for Defense No. 16, it is true, as Svistina notes, that “lack of consent” may be considered

an affirmative defense. See ECF No. [243] at 14. However, the only apparent relation between

Svistina’s lack of consent to conduct that occurred at the cabana and Elbadramany’s counterclaims

is that her lack of consent would support her argument that she did not make false statements to

the police. As such, her “lack of consent” argument merely contests an element of Elbadramany’s

counterclaims and is, therefore, not a valid affirmative defense.

As for Defense No. 17, Svistina is correct that the Court considered Svistina’s alleged

status as a trespasser to be a valid affirmative defense raised by TDR Towers Master Association,

Inc. (“TDR”), but that is because Svistina’s status as a guest or trespasser is directly relevant to

TDR’s liability for events that occurred on TDR’s premises. ECF No. [211] at 8. Here, by contrast,

Svistina’s alleged status as a trespasser does not relate to the issues raised in Elbadramany’s

counterclaims.

Defense Nos. 16 and 17 are stricken.

M. Defense No. 18

Defense No. 18 asserts that “Elbadramany’s counterclaims are barred on the grounds of

fraud and unclean hands[.]” ECF No. [227] at 6. In his Motion, Elbadramany asserts that the

defense of unclean hands is only applicable to actions in equity, and his counterclaims solely assert

claims in law. ECF No. [242] at 16. Svistina responds with persuasive authority that contradicts

Elbadramany’s position. See ECF No. [243] at 14 (citing May v. Nygard Holdings Ltd., No. 6:03-

cv-1832-Orl-DAB, 2007 WL 2120269, at *3 (M.D. Fla. July 20, 2007)). This defense “puts into

issue relevant and substantial legal and factual questions,” so it will not be dismissed at this stage.

Reyher, 881 F. Supp. at 576 (M.D. Fla. 1995).

N. Defense No. 20

Defense No. 20 asserts that Svistina “made use of the judicial process for its intended

purpose.” ECF No. [227] at 8. This is not an affirmative defense, but rather a negation of an

element of Elbadramany’s claim for abuse of process. See EMI Sun Village, Inc. v. Catledge, 779

F. App’x 627, 635 (11th Cir. 2019) (listing as the first element of abuse of process “defendant

made an illegal, improper, or perverted use of process”).

Defense No. 20 is stricken.

O. Defense No. 21

Defense No. 20 asserts that Elbadramany’s counterclaims are barred under the litigation

privilege doctrine. ECF No. [227] at 8. Elbadramany correctly points out that the Court squarely

considered and rejected this argument in its Order on Svistina’s Motion to Dismiss Counterclaims,

ECF No. [202] at 10-12. For the reasons discussed therein, the absolute litigation privilege doctrine

does not bar Elbadramany’s counterclaims, although Svistina may possibly invoke “a qualified”

privilege. See id. (quoting Am. Nat’l Title & Escrow of Fla., Inc. v. Guarantee Title & Tr. Co., 810

So. 2d 996, 998 (Fla. 4th DCA 2002)). That, however, is an evidentiary issue, not an affirmative

defense.

Defense No. 21 is stricken.

P. Defense No. 22

Defense No. 22 assets that Elbadramany’s counterclaims “have been brought in violation

of [Federal Rule of Civil Procedure] 11(b).” ECF No. [227] at 8. Elbadramany correctly argues

that Rule 11 is not a recognized affirmative defense, but rather a basis for sanctions. ECF No. [242]

at 18-19 (citing FAST SRL v. Direct Connection Travel LLC, 330 F.R.D. 315, 319-20 (S.D. Fla.

2018) (striking a defendant’s request for Rule 11 sanctions as an invalid affirmative defense).

Defense No. 22 is stricken.

Q. Defense No. 23

Defense No. 23 asserts that Elbadramany’s counterclaims “do not meet the minimum

amount in controversy and thus this Court lacks jurisdiction.” ECF No. [227] at 8. Svistina agrees

to withdraw this affirmative defense. ECF No. [243] at 16.

Defense No. 23 is stricken.

R. Defense No. 24

Defense No. 24 asserts that “Elbadramany’s counterclaims are premature and should be

stricken and or deferred contingent on the outcome of the subject lawsuit.” ECF No. [227] at 8.

This is essentially an argument that Elbadramany’s counterclaims should be severed from

Svistina’s case because certain evidence may be inadmissible in the present proceeding – an

argument she previously made in her Motion to Dismiss. See ECF No. [137]. For the reasons

explained in the Court’s Order, the Court denied her motion to sever without prejudice, allowing

Case No. 22-cv-20525-BLOOM/Otazo-Reyes

her to renew it at the summary judgment stage. ECF No. [202] at 14-15. Regardless, Svistina’s

arguments in favor of severance or exclusion of evidence do not constitute an affirmative defense.

Defense No. 24 is stricken.

S. Defense No. 25

Defense No. 25 asserts that “Elbadramany’s counterclaims are barred as any statements

made by the Plaintiff were done so in good faith and any grammatical errors or errors in the syntax

or composition of her written statement were the result of her inability to speak and/or lack of

fluency in English which is not her first language.” ECF no. [227] at 9. This is not an affirmative

defense but an attempt to negate a necessary element of Elbadramany’s malicious prosecution

claim. See Phelan, 415 So. 2d at 1294.

Defense No. 25 is stricken.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Elbadramany’s Motion to Strike Svistina’s Affirmative Defenses, ECF No. [242], is

GRANTED IN PART AND DENIED IN PART.

2. The following affirmative defenses asserted by Svistina in her Affirmative Defenses,

ECF No. [227], are STRICKEN: 1, 3-6, 8-17, and 20-25.

DONE AND ORDERED in Chambers at Miami, Florida, on 30, 2023.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

ce: Counsel of Record

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