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M2Strike Affirmative Defenses Legally Insufficient

M2Strike Affirmative Defenses Legally Insufficient

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Published by zonelizzard

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Published by: zonelizzard on Jun 15, 2012
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, by and through her undersigned attorneys, moves to strikeDefendant, affirmative defenses for failure to satisfy the Florida Rules of Civil Procedure pleading requirements and in support thereof state:I.
In another attempt to increase fees and delay this action, Defendant asserts thirteenfrivolous affirmative defenses. Each paragraph set forth numerous conclusory affirmativedefenses without pleading any facts that form the basis for those defenses. As pled, all of the “affirmative defenses” are legally insufficient therefore without merit and must bestricken pursuant Rule 1.140(b). Florida Rule of Civil Procedure 1.140(b).Significantly, each and every one of Defendant’s thirteen affirmative defenses areshort on facts and long on legal conclusions. Each lacks specificity and appear to have been asserted with no factual investigation or regard to relevance. In sum, all of Defendant’s allegations are insufficiently pled, fail to properly state a legal defense, andoffer no cognizable legal claim for relief.II.
The Affirmative Defenses
Each of Defendant’s affirmative defenses falls short of satisfying Rule 1.140’s “fair notice” pleading requirement. Indeed, as pled, Defendant’s affirmative defenses provideabsolutely no indication of what the factual basis of those affirmative defenses might be,and therefore, force Plaintiff to guess and wonder. Defendant’s recitation of affirmativedefenses reads, in its entity:
For ANMPA [Defendant Alberto N. Moris PA], First AffirmativeDefense, ANMPA states that Plaintiff has failed to state a proper causeof action for which relief can be granted.
For ANMPA’s Second Affirmative Defense, ANMPA states that allconditions precedent to bringing this action by Plaintiff have notoccurred and have not been excused or waived.For ANMPA’s Third Affirmative Defense, ANMPA states thatPlaintiff’s claims are barred due to the doctrine of Laches. Plaintiff’sdelay in making its claim has prejudiced ANMPA.For ANMPA’s Fourth Affirmative Defense, ANMPA states that anyliability of ANMPA (without admitting that any such liability exists) isthe direct result of Plaintiff’s actions herein.For ANMPA’s Fifth Affirmative Defense, ANMPA states that Plaintiff has released ANMPA from any liability by virtue of its signature on theHUD-1 Settlement Statement.For ANMPA’s Sixth Affirmative Defense, ANMPA states that Plaintiff (without admitting that any damages exist) has failed to mitigate itsdamages, even though the Plaintiff had the opportunity and means of doing so.For ANMPA’s Seventh Affirmative Defense, ANMPA states thatPlaintiff has waived its claim by virtue of its due diligence performancebefore the subject transaction took place, specifically, Plaintifacknowledged in writing that the parking spots were NOT included inthe subject purchase.For ANMPA’s Eighth Affirmative Defense, ANMPA states thatPlaintiff’s tort claim is barred by the economic loss rule, whichprecludes Plaintiff from recovering a purely economic loss sufferedthrough a breach of contract.For ANMPA’s Ninth Affirmative Defense, ANMPA states thatPlaintiff’s claims are barred against ANMPA due to the doctrine of agency.For ANMPA’s Tenth Affirmative Defense, ANMPA states thatPlaintiff’s claims are barred against ANMPA due to the doctrine of waiver. Plaintiff waived its right to make the claims in its Complaintby acknowledging that there were no parking spots included in thistransaction, fully executing the “as-is” contract and HUD-1 SettlementStatement, and by accepting the bill of sale for the subject property.For ANMPA’s Eleventh Affirmative Defense, ANMPA states thatPlaintiff is barred from recovery due to the Plaintiff’s own failure tocomplete the transaction because Plaintiff refused to pick up themembership certificate from the condominium association after the
condominium association approved the issuance of the certificate, thetransaction had closed, moneys were disbursed, and the Plaintiff wasnotified that there were no issues with the transfer of the subject boatdock. Plaintiff’s claims simply amount to buyer’s remorse.For ANMPA’s Twelfth Affirmative Defense, ANMPA states thatPlaintiff is comparatively negligent due to Plaintiff’s performance of due diligence before closing on the subject transaction, Plaintiff’sfailure to completely perform under the agreements between theparties, and Plaintiff’s obfuscation.For ANMPA’s Thirteenth Affirmative Defense, ANMPA states that anydamages (without admitting that any damages exist) must be setoff byany amounts received by Plaintiff.
Unquestionably, this bare bones boilerplate pleading of affirmative defenses isinadequate. Defendant’s bald assertions of failure to state a cause of action, failure of condition precedent, waiver, laches, setoff, economic loss, doctrine of agency, comparativefault, etc. do not provide Plaintiff with “fair notice” of the defenses being advanced. It issimply unacceptable for a party’s attorney to simply to mouth affirmative defenses informula-like fashion (laches, agency, waiver, or what have you) for that does not do the jobof apprising undersigned or this Court of the predicate for the claimed defense which isafter all the goal of notice factual pleading. The Defendant’s Answer and AffirmativeDefenses is so evasive, so rambling and so wanton that no one can but a gifted psychic candecipher it. The record in this case is devoid of factual support for these defenses andDefendant has made no attempt to introduce or allege any similar supporting facts. Nofacts are contained in Defendant’s pleadings other than denials of the facts alleged inPlaintiff’s complaint and no notice is given as to how or why any of Defendant’s allegedaffirmative defenses apply.
III.Legal Argument

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