The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 24-cv-21612-BLOOM/Elfenbein
DELIA VILLANUEVA CASTELLANOS,
Plaintiff,
v.
BJ’S WHOLESALE CLUB, INC.,
a Foreign Profit Corporation,
Defendant.
________________________________/
ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE
DEFENSES
THIS CAUSE is before the Court upon Plaintiff Delia Villanueva Castellanos’
(“Plaintiff”) Motion to Strike Defendant’s Affirmative Defenses (“Motion”), ECF No. [17].
Defendant BJ’s Wholesale Club, Inc. (“Defendant”) filed a Response in Opposition (“Response”),
ECF No. [21]. The Court has reviewed the Motion, the Response, the record in this case, and is
otherwise fully advised. For the reasons that follow, Plaintiff’s Motion is granted in part and denied
in part.
I. BACKGROUND
On March 20, 2024, Plaintiff filed her Complaint in the Eleventh Judicial Circuit in and
for Miami-Dade County, Florida, claiming damages for injuries sustained at a gas pump/island at
one of Defendant’s stores in Miami, Florida. Delia Villanueva Castellanos v. BJ’s Wholesale Club,
Inc., Case No. 2024-005031-CA-01, ECF No. [1-1]. Plaintiff alleges that on July 20, 2023, she
tripped and fell from an “uneven and/or unleveled floor surface.” Id. at 2. Defendant filed its
Answer and Affirmative Defenses (“Answer”) on April 24, 2024, ECF No. [6], and Plaintiff
thereafter filed the instant Motion seeking to strike four of Defendant’s affirmative defenses:
Defendant’s third affirmative defense (Fabre defense), fifth affirmative defense (Plaintiff assumed
the risk of injury), sixth affirmative defense (Plaintiff failed to mitigate damages), and thirteenth
affirmative defense (Plaintiff had knowledge of the condition). In Response, Defendant withdrew
its fifth and thirteenth affirmative defenses. ECF No. [21] at 5. The Court analyzes Defendant’s
third and sixth affirmative defenses.
II. LEGAL STANDARD
It is well-settled that when parties are in federal court through diversity jurisdiction, federal
law governs the procedural mechanics of the case. Erie Railroad Company v. Tompkins 304 U.S.
64, 78, (1938); Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d 1254, 1257 (11th Cir.
2011). Where a defendant removes a case to federal court, the Federal Rules of Civil Procedure
(“Rules”) and the standards within the Rules govern the case, and state pleading rules do not apply.
Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1260 (11th
Cir. 2015).
A. Standard for Pleading Affirmative Defenses
An affirmative defense is a defense that “admit[s] 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. Oct. 7, 2013) (citation omitted). District courts in the
Eleventh Circuit have been split as to the pleading standard necessary for affirmative defenses.
FAST SRL v. Direct Connection Travel LLC, 330 F.R.D 315, 317 (S.D. Fla. Aug. 30, 2018). While
some courts have held that affirmative defenses are subject to the heightened pleading standard of
Rule 8(a) required by Twombly and Iqbal, see, e.g., Torres v. TPUSA, Inc., No. 2:08-cv-618-FtM-
29DNF, 2009 WL 764466, at *1 (M.D. Fla. Mar. 19, 2009), other courts that include this Court
have concluded that affirmative defenses need only satisfy the “less stringent standards” of Rules
8(b) and 8(c). Laferte v. Murphy Painters, Inc., No. 17-cv-60376-BLOOM/Valle, 2017 WL
2537259, at *2 (S.D. Fla. June 12, 2017). See also Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 681
(S.D. Fla. Sept. 25, 2015). Recently published opinions within this district have reinforced that
affirmative defenses need not “satisfy the strictures of Twombly and Iqbal.” Mad Room, LLC v.
City of Miami, No. 21-cv-23485-ALTMAN/Reid, 2024 WL 2776173 at *1 (S.D. Fla. May 30,
2024). Requiring the lower pleading standard for affirmative defenses “is faithful both to the letter
and the spirit of Rules 8(b) and (c), as revealed through the plain language of Rule 8 and Eleventh
Circuit precedent.” Tsavaris, 310 F.R.D at 682.
Because this Court follows the lower pleading standard requirement set forth in Rules 8(b)
and 8(c), an affirmative defense need only provide the opposing party “notice of any additional
issue that may be raised at trial so that he or she is properly prepared to litigate it.” Hassan v. U.S.
Postal Service, 842 F.2d 260, 263 (11th Cir. 1988) (citing Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.S. 313, 350 (1971)). In other words, an affirmative
defense is sufficiently pled if “a plaintiff has notice that an affirmative defense will be raised at
trial.” Hewitt v. Mobile Research Technology, Inc., 285 Fed. App’x. 694, 696 (11th Cir. 2008)
(citing Hassan, 842 F.2d at 263).
B. Motion to Strike
Federal Rule of Civil Procedure 12(f) states “[t]he court may strike from a pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court
may act: (1) on its own; or (2) on a motion made by a party.” Fed. R. Civ. P. 12(f). When deciding
on a party’s motion to strike, courts have broad discretion. FAST SRL, 330 F.R.D at 317. Striking
defenses from a pleading, however, “remains a drastic remedy to be resorted to only when required
for the purposes of justice and only when the stricken material has no possible relation to the
controversy.” Id. (citing Guarantee Ins. Co. v. Brand Mgmt. Serv. Inc., No. 12-61670, 2013 WL
4496510, at *2 (S.D. Fla. Aug. 22, 2013). An affirmative defense can also be stricken by a court
if it is insufficient as a matter of law. Morrison v. Executive Aircraft Refinishing, Inc., 434
F.Supp.2d 1314, 1319 (S.D. Fla. Apr. 8, 2005). An affirmative defense is insufficient as a matter
of law when “(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) (citing Anchor Hocking Corp. v. Jacksonville Elec. Authority, 419 F. Supp. 992, 1000
(M.D. Fla. Aug. 10, 1976)).
III. DISCUSSION
A. Defendant’s Third Affirmative Defense: Fabre/Non-Party Tortfeasor Defense
In its third affirmative defense, Defendant alleges that “any damages awarded to the
Plaintiff are subject to apportionment by the jury of the total fault of all participants which may be
responsible for damages claimed by Plaintiff.” ECF No. [6] at 40. Plaintiff moves to strike
Defendant’s third affirmative defense because Defendant alleges the fault of a non-party tortfeasor
without identifying the tortfeasor or providing “any details as to how this non-party is alleged to
be at fault.” ECF No. [17] at 4. Plaintiff maintains that she “is unable to rebut this affirmative
defense in any meaningful way.” Defendant responds that it has not yet had the opportunity to
investigate the circumstances surrounding the Plaintiff’s claim to identify the potential non-party.
ECF No. [21] at 4. Defendant further states that it pled this affirmative defense in its Answer to
“absolve the risk of being prevented from asserting the Fabre Affirmative Defense” later in the
litigation. Id.
Florida Statutes § 768.81(3) provides that “[i]n a negligence action, a court shall enter
judgment against each party liable on the basis of such party’s percentage of fault and not on the
basis of the doctrine of joint and several liability.” In Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993),
the Supreme Court of Florida held that under this statute, a defendant may request to add non-
parties on a verdict form to apportion liability between the defendant and non-parties. Id. at 1185.
In order to do so, “a defendant must plead the negligence of a non-party as an affirmative defense
and specifically identify the non-party.” Nash v. Wells Fargo Guard Services, Inc. 678 So. 2d
1262, 1264 (Fla. 1996). After the pleading stage but before the issue can go to the jury, defendant
must prove, by a preponderance of the evidence, the non-party’s fault in causing the plaintiff’s
injuries. Id. at 1265, n.1. See also Fla. Stat. § 768.81(3)(a)(2).
While not explicitly mentioned by the parties, federal district courts in Florida have
acknowledged and permitted the use of the Fabre defense. See Trice v. Ft. Lauderdale Owner,
LLC., No. 08-61673-CIV, 2010 WL 11504396, at *1 (S.D. Fla. Sept. 23, 2010); Pantages v.
Cardinal Health 200, Inc., No. 5:08-cv-116-Oc-10GRJ, 2009 WL 10670299, at *1 (M.D. Fla. July
31, 2009). Moreover, a defendant may raise the Fabre defense without identifying the non-party
when discovery is still being conducted. Pantages, 2009 WL 10670299, at *2. The Fabre defense
permits a defendant to go forward with the defense so long as the defendant subsequently amends
its answer sufficiently before trial to give the plaintiff notice, and there is no material prejudice to
the plaintiff. Id.
In the instant case, Plaintiff correctly points out that “Florida law requires that in order to
include a non-party on the verdict form, the defendant must specifically identify the non-party.”
ECF. No. [17] at 4. Defendant responds that it “has not yet had the opportunity to investigate and
analyze the facts and circumstances surrounding the subject incident to identify potential non-party
tortfeasors who may have contributed. . . to the Plaintiff’s alleged damages.” ECF. No. [21] at 4.
Fla. Stat. § 768.81(3)(a) supports Defendant’s argument: “a defendant must affirmatively plead
the fault of a non-party, and absent a showing of good cause, identify the party, if known, or
describe the non-party as specifically as practicable. . . .” Id. (emphasis added). Pantages makes
clear that it is permissible for Defendant to go forward with this affirmative defense, so long as
Defendant “subsequently provides adequate notice of the Fabre non-party in an amended
answer[.]” 2009 WL 10670299, at *2.
Discovery in this case is due to be completed on January 7, 2025. ECF No. [9] at 2.
Consistent with Pantages, Defendant is not required at this early stage to name the non-party, and
it is permissible to raise the Fabre defense without identifying the non-party. Accordingly, the
Court denies Plaintiff’s Motion to strike Defendant’s third affirmative defense.
B. Defendant’s Sixth Affirmative Defense: Failure to Mitigate Damages
In its sixth affirmative defense, Defendant alleges that Plaintiff “failed to mitigate her
damages” and her damages “if any, should be reduced by the amount by which the Plaintiff could
have lessened her claims, injuries, or damages.” ECF No. [6] at 41. Plaintiff moves to strike this
affirmative defense as Defendant “provide[d] no underlying facts to support this claim.” ECF No.
[17] at 5. Plaintiff also argues that, under Florida law, a properly pled affirmative defense “includes
ultimate facts sufficient to provide notice of the proof of the defendant intends to rely upon to
defeat the plaintiff’s claims.” So. Fla. Coastal Elec. Inc., v. Treasures on Bay II Condo Ass’n, 89
So.3d 264, 267 (Fla. 3d DCA 2012). Defendant responds that Florida law requires a defendant’s
“answer to state in short and plain terms, but specifically and with particularity, the grounds on
which every defense in law or fact to each claim asserted is based.” ECF No. [21] at 5. Defendant
contends that the plain language is “legally sufficient on [its] face and provide[s] sufficient detail
to place Plaintiff on fair notice of the nature of each defense.” Id. at 6.
As discussed above, applicable federal procedural law requires an affirmative defense to
provide the opposing party with notice of the defendant’s use of a particular defense. Hassan v.
U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988). While a defendant need not set forth
detailed factual allegations, a defendant must provide fair notice of the nature of the defense and
the grounds on which it rests. Suffolk Constr. Co. Inc. v. Edenburg Hospitality, Inc., No. 22-cv-
20431-KMM, 2023 WL 2714183, at *1 (S.D. Fla. Mar. 7, 2023). In other words, an affirmative
defense may not be “bare-bone conclusions of law without any supporting facts.” Tsavaris v.
Pfizer, Inc., 310 F.R.D. at 678, 682 (S.D. Fla. Sept. 25, 2015).
Here, Defendant alleges that “Plaintiff failed to mitigate her damages” without stating any
facts on which it bases this defense. ECF No. [6] at 41. Defendant further alleges that “the recovery
of the Plaintiff’s damages, if any, should be reduced by the amount by which the Plaintiff could
have lessened her claims, injuries, or damages” again without stating how Plaintiff could have
lessened her claims, injuries, or damages. Id. As discussed above, Florida pleading requirements
have no bearing on a case in federal court, even in cases based on diversity jurisdiction. Palm
Beach Golf Center-Boca, Inc. v. John. G. Sarris, D.D.S., P.A., 781 F.3d, 1245, 1260 (11th Cir.
2015). Defendant’s affirmative defense must meet the standards required by the Federal Rules of
Civil Procedure: that is, Defendant’s affirmative defense must provide fair notice of the nature of
the defense and contain allegations that connect the defense to Plaintiff’s claim. Brown v. Wright
National Flood Company, No. 18-cv-10034-KMM, 2018 WL 7291069, at *3 (S.D. Fla. Aug. 13,
2018).
Courts within this district have previously granted motions to strike affirmative defenses
that employ similar language. See Suffolk Construction Co., 2023 WL 2714183 at *2 (striking an
affirmative defense where the defendant argued that the plaintiff’s claims are “barred, in whole or
in part, by [the plaintiff’s] failure to mitigate damages”); Brown, 2018 WL 7291069, at *3 (striking
an affirmative defense where the defendant failed to explain “how [the] plaintiff failed to mitigate
her damages”). Conversely, where a defendant alleged that a plaintiff “failed to mitigate its
damages by failing to accept an available refund of amounts paid[,]” the court found that the
affirmative defense was sufficient, provided the plaintiff with adequate notice, and declined to
strike the defense. FAST SRL v. Direct Connection Travel LLC, 330 F.R.D 315, 320 (S.D. Fla.
Aug. 30, 2018). Defendant’s sixth affirmative defense contains no factual allegations that connect
its defense to Plaintiff’s claim. For the affirmative defense to stand, Defendant must allege facts
on which it bases the defense. Accordingly, the Court grants Plaintiff’s motion to strike
Defendant’s sixth affirmative defense.
Leave to amend should be “freely given” absent a showing of “futility of amendment.”
Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). Here, Defendant’s sixth affirmative defense is insufficient because it lacks
supporting facts to provide Plaintiff fair notice of the nature of the defense but may otherwise be
a valid affirmative defense. The Court concludes that Defendant should be granted leave to amend
its sixth affirmative defense.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike, ECF
No. [17], is GRANTED in part and DENIED in part as follows:
1. The Motion to Strike is DENIED as to Defendant’s third affirmative defense.
2. The Motion to Strike is GRANTED as to Defendant’s sixth affirmative defense.
3. Defendant may amend its sixth affirmative defense by filing an Amended Answer by
Case No. 24-cv-21612-BLOOM/Elfenbein
August 26, 2024.
DONE AND ORDERED in Chambers at Miami, Florida, on August 15, 2024.
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies To:
Counsel of Record