Improper Grounds to Strike Affirmative Defenses and Pleadings in Florida

Bernhard Law FirmResponding to shotgun motions to strike affirmative defenses and other portions of pleadings is a typical (becoming hackneyed) step of defending civil lawsuits in Florida. Under Florida Rule of Civil Procedure 1.140(b) and (f), a Florida plaintiff must show that the defendant has not stated a legal defense or that the material is entirely without any possible relation to the controversy, wholly irrelevant, with no bearing on the equities and no influence at all on the decision. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977). Nevertheless, Florida plaintiffs explore and invent a wide array of grounds to support their motions to strike, exacerbating problems caused by limited judicial resources. In an effort to focus some of these motions to strike, this article explores the improper grounds to seek an order to strike affirmative defenses. Please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com with any questions.

Florida’s legal standard on a motion to strike disfavors striking

Generally, the striking of pleadings is not favored and is “a drastic action” to be used sparingly by the courts, with any doubts to be resolved in favor of the pleadings. Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090, 1090 (Fla. 3d DCA 1984) (affirming order denying motion to strike affirmative defenses “since the striking of pleadings is not favored and all doubts are to be resolved in favor of the pleadings”); Sanchez v. LaSalle Bank Nat. Ass’n, 44 So. 3d 227, 228 (Fla. 3d DCA 2010) (holding court improperly struck defenses sua sponte). A court should not strike a pleading on the ground that the party subsequently may not be able to prove her allegations. Id. Indeed, motions to strike are so rarely granted that they have judicially been deemed “time wasters.” Beaulieu v. Bd. Of Trustees of Univ. of West Fla., 2007 WL 2900332 *5 and n.7 (N.D. Fla. Oct. 2, 2007) (quoting Somerset Pharms., Inc. v. Kimball, 168 F.R.D. 69, 71 (M.D. Fla. 1996)); accord Carslon Corporation/Southeast v. School Bd. of Semiole County, Fla., 778 F. Supp. 518, 519 (M.D. Fla. 1991) (characterizing motions to strike as “time wasters” and observing that such motions “will usually be denied”). A party may nevertheless move to strike pleadings where the material is wholly redundant, impertinent, immaterial, or scandalous, or upon a showing that the pleadings is a mere pretense, set up in bad faith and without color of fact, clearly known to be false at the time of pleading. Yunger v. Oliver, 803 So. 2d 884, 886 (Fla. 5th DCA 2002) (citing Ader v. Temple Ner Tamid, 339 So. 2d 268, 270 (Fla. 3d DCA 1976)).

The Roberts Court, October 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg
The Roberts Court, October 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

A court must deny a motion to strike matter as redundant, impertinent, immaterial, or scandalous unless the matter sought to be stricken is (i) wholly irrelevant, (ii) can have no bearing on the equities, and (iii) can have no influence on the final decision either as to the relief to be granted or allowance of costs. Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972); Town of Howey-in-the-Hills v. Graessle, 160 Fla. 638, 645 (Fla. 1948); Westervelt v. Istokpoga Consol. Subdrainage Dist., 160 So. 2d 641 (Fla. 1948). The fact that a court may perceive little prospect in the success of an alleged pleading is not a sufficient ground to grant a motion to strike the pleading. Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2003) (citing St. John Medical Plans, Inc., v. Physician Corp. of America, 711 So. 2d 1329 (Fla. 3d DCA 1998)). A pleading 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, 342 So. 2d at 1006.

A court must deny a motion to strike pleadings as sham unless the trial court conducts an evidentiary hearing and determines that (i) there are no genuine issues to be tried whatsoever, and (ii) the falsity of the pleading clearly and indisputably appears. Herranz v. Siam, 2 So. 3d 1105, 1106 (Fla. 3d DCA 2009) (citing Pacheco v. Waserman, 701 So. 2d 104, 106 (Fla. 3d DCA 1997) and Slatko v. Virgin, 328 So. 2d 499, 500 (Fla. 3d DCA 1976)); Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2003). A regular motions calendar is an inappropriate calendar for a motion to strike a pleading as sham. Id. at 1107. A court must limit its review to determine whether or not there is any falsity to the pleadings, and may not hear testimony as to the merits of the case. Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2003) (citing Menke v. Southland Specialities Corp., 637 So. 2d 285 (Fla. 2d DCA 1994)).

Relevance is almost never a proper basis to strike

Under Florida Rule of Civil Procedure 1.140(f), a court may only strike on relevance only if the material is “entirely without any possible relation to the controversy, . . . wholly irrelevant and can have no bearing on the equities and no influence at all on the decision.” Bay Colony, 342 So. 2d at 1006; McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 216 (Fla. 2d DCA 1998) (reversing order striking paragraphs from complaint where they were relevant and had bearing on the equities). Generally, all relevant matters are proper, unless expressly prohibited by law. Ballard v. State, 66 So. 3d 912, 917–18 (Fla. 2011) (introduction of defendant’s engaging in an illegal sexual relationship with murder victim’s minor daughter was relevant to establish motive and inextricably intertwined with testimony of the chain of events, and thus was proper); Dorsett v. State, 944 So. 2d 1207, 1213–18 (Fla. 3d DCA 2006) (introduction of defendant’s prior uncharged drug transactions was relevant to drug transaction charged, information was relevant to establish entire context of events leading up to charged offense, to establish rationale for other parties’ acts and why no drugs found on defendant).

A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermann's Microcosm of London (1808–11).
A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermann’s Microcosm of London (1808–11).

Information that goes to intent, motive, preparation, plan or common plan, knowledge, identity, scheme, and absence of mistake or accident is relevant and should not be stricken. Williams v. State, 110 So. 2d 654, 662–63 (Fla. 1959) (holding information on wrongs and crimes outside the charges is relevant and admissible if it tends to show a common scheme or plan); Dorsett, 944 So. 2d at 1212 (“evidence totally unrelated to the charged offenses” is proper, relevant, and “admissible to prove a material fact in issue, such as motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”); Harden v. State, 87 So. 3d 1243, 1249 (Fla. 4th DCA 2012) (finding that certain MySpace messages were relevant because they showed motive). Information relating to prior bad acts is thereby relevant and proper, and the Court should not strike it. Dorsett, 944 So. 2d at 1212.

Other information held generally relevant under Florida law is that which is inextricably intertwined with the claims being prosecuted. Id. Such inextricably intertwined information is that which is necessary to: (1) adequately describe the events leading up to the charged wrongs (see Griffin, 639 So. 2d at 970; Vail, 890 So. 2d at 376); (2) establish the entire context out of which the charged wrongs arose (see Hunter v. State, 660 So. 2d 244, 251 (Fla. 1995); Foster v. State, 679 So. 2d 747, 753 (Fla. 1996); Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994); Ruffin v. State, 397 So. 2d 277, 280 (Fla. 1981); Vail, 890 So. 2d at 376); (3) provide an intelligent account of the wrongs charged (see Vail v. State, 890 So. 2d 373, 376 (Fla. 3d DCA 2004); Burgos v. State, 865 So. 2d 622, 624 (Fla. 3d DCA 2004); Austin v. State, 500 So. 2d 262, 265 (Fla. 1st DCA 1986)); or (4) adequately describe the wrong itself (see Smith v. State, 866 So. 2d 51, 52 (Fla. 2004); Gray v. State, 873 So. 2d 374 (Fla. 2d DCA 2004); Canion v. State, 793 So. 2d 80, 81 (Fla. 4th DCA 2001). Id. at 1213. Thus, the Court should not strike this type of information.

Florida motions to strike on relevance grounds usually fail to clearly enunciate why portions of the pleadings are entirely without any possible relation to the controversy, are wholly irrelevant, and can have no bearing on the equities and no influence at all on the decision, as required to strike them. Bay Colony, 342 So. 2d at 1006. Given the various ways that information can be relevant to a lawsuit, the Court should almost always deny a motion to strike on relevance.

Prejudice, firsthand knowledge, frivolity, fraud, Rule 1.110(d), and general denials are not grounds to strike under Rule 1.140(f)

 The limited scope of Rule 1.140(f) is to strike redundant, immaterial, impertinent, or scandalous matter from a pleading. Fla. R. Civ. P. 1.140(f). Nevertheless, many Florida defendants move to strike affirmative defenses or portions of pleadings under Rule 1.140(f) by describing allegations therein as: prejudicial, lacking firsthand knowledge, frivolous, fraudulent, lacking factual merit (or some derivative thereof), or improper under Rule 1.110(d). Most motions to strike also rely on factual denials.

Florida Supreme Court
Florida Supreme Court

None of these are a proper basis for a motion to strike under Rule 1.140(b) or (f). Prejudice and firsthand knowledge are evidentiary matters, to be determined at trial upon submission of evidence to the jury. See, e.g., § 90.403, Fla. Stat. (2014) (exclusion on grounds of prejudice or confusion); § 90.701, Fla. Stat. (2014) (on opinion testimony of lay witnesses). Frivolity is a matter to be determined in a § 57.105 motion for sanctions. § 57.105, Fla. Stat. (2014). Fraud, the factual merit of allegations and denials thereof are matters for the jury to decide. See, e.g., Knight v. State, 107 So. 3d 449, 458 (Fla. 5th DCA 2013) (“If the judge concludes that either of the two results . . . is fairly possible, he must let the jury decide the matter.”). Rule 1.110(d) is determined on a motion to dismiss. Fla. R. Civ. P. 1.140(d). In sum, none of these are proper grounds to strike pleadings or sections therein, and thus a court must deny a motion to strike on any of these grounds.

Rule 1.110(d) is not an exhaustive list of available affirmative defenses

Many defendants allege that Rule 1.110(d)“contains an exhaustive list of affirmative defenses that can be pled. Under this theory, defendants allege that a affirmative defenses are not recognized under law as they “are not included on the list of defenses pursuant to Rule 1.110(d).” Motion at *8. However, Rule 1.110(d) expressly provides that a party may allege “any other matter constituting an avoidance or affirmative defense.” Fla. R. Civ. P. 1.110(d). In other words, the list provided under subsection (d) is not exhaustive. Accordingly, a court should deny a motion to strike affirmative defenses on the grounds that the defense is not listed in Rule 1.110(d).

In sum, a well drafted and carefully crafted motion to strike should limit itself to proper grounds for striking, namely that the defendant has not stated a legal defense or that the material is entirely without any possible relation to the controversy, wholly irrelevant, with no bearing on the equities and no influence at all on the decision.

Please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com with any questions.

Bernhard Law Firm

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