A coul't ddmay strike from a pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.'' Fed.R.CiV.P. 1249. fsAlthough motions to strike
a defense are generally disfavored, a Rule 1249 motion to dismiss a defense is proper when the
defense is insufficient as a matter of law.'' Kaiser Aluminum dr Chem. Sales, lnc. v. Avondale
Shipyards, Inc. , 677 F.2d 1045, 1057 (5th Cir. 1982), ccr/. denied, 459 U.S. 1 105 (1 983).
An affirmative defense is an assertion by the defendant raising new facts and argumentsthat, if tnze, will defeat the plaintiff s claim, even if al1 allegations in the complaint are true. :$A
defense which points out a defect in the plaintiffs prima facie case is not an affirmative
defense.'' In re Rawson Food Svc., Inc., 846 F.2d 1343, 1349 (1 1th Cir. 1988). Because
aftirmative defenses are often proven by facts extrinsic to the plaintiff s claim, a plaintiff needs toreceive fair notice of an affirmative defense as early as possible so that the parties can focusdiscovery accordingly.Therefore, the general rule is that affirmative defenses must be set forthin the pleadings or be deemed waived. Am. Nat '1 Bank v. Fed Deposit Ins. Corp., 710 F.2d
1537 (1 1th Cir. 1983).
Affirmative defenses are also subject to the general pleading standards of the Federal
Rules of Civil Procedure. See Romero v. 51 Waste 5'â'., f f C, 619 F. Supp. 2d 1356, 1358 (S.D.
Fla. 2009). As such,affinnative defenses that fail to recite more than bare-bones conclusory
allegations are legally insufficient and will be stricken. Morrison v. Executive Aircra
Rehnishing, Inc., 434 F.supp.zd 1314, 1318 (S.D. Fla. 2005).
a defendant does not waive an affirmative defense if the earlier omission from a responsive
pleading does not prejudice the plaintiff. Edwards v. Fulton Cn@., Ga., 509 F. App'x 882, 887-88 (1 1th Cir. 20 l 3)
(raising an affirmative defense in a motion for summary judgment did not constitute a waiver because the opposing
party had sufficient time to respond to the defense); see also Hassan v. U.S. Postal Scrv. , 842 F.2d 260, 263 (1 1th
Cir. 1988) (ttlWqhen the failure to raise an affirmative defense does not prejudice the plaintiff, it is not error for the
trial court to hear evidence on the issue.'').
Case 1:13-cv-24231-PAS Document 12 Entered on FLSD Docket 02/05/2014 Page 2 of 5