LAW OFFICES OF ANTHONY F. SANCHEZ, P.A. 

6701 SUNSET DRIVE, SUITE 101, MIAMI, FL, 33143 • TELEPHONE (305) 665-9211

PLAINTIFFS’ MEMORANDUM OF LAW RE: “ISSUE TO BE BRIEFED” NO. 3 

Issue No. 3: Whether a court (as opposed to a jury) determines before a jury trial 

whether the pre-suit written notice was sent and received? 

A. No binding (or published) authority determining who resolves any question of 

fact, since it is not jurisdictional or an element of any claim. The purpose of 

“notice” is to provide notice early in the case. 

There is no binding authority for the idea that a determination is required, or that it must 

be made by the Court or a jury. However, the issue is required to be raised early in the case to 

facilitate notice and avoid prejudice. VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 991-92 

(Fla. 2d DCA 2000). There is binding authority for the proposition that there is no question before 

the Court regarding the supposed non-performance of a condition precedent. Such a defense must 

be raised early pled “specifically and with particularity”. Jackson v. Seaboard Coast Line R. Co., 

678 F.2d 992, 1010 (11th Cir. 1982). This is true both under Rule 9(c), Fed. R. Civ. P., and under 

Rule 1.120(c), Fla. R. Civ. P., which are the same. Id.; Ingersoll v. Hoffman, 589 So. 2d 223, 225 

(Fla. 1991); When a defendant fails to deny the occurrence of a condition “specifically and with 

particularity”, they have no right to demand proof. See Cooke v. Ins. Co. of N. Am., 652 So.2d 

1154, 1156 (Fla. 2d DCA 1995); Scarborough Assocs. v. Financial Federal Savings & Loan Ass’n 

of Dade Cnty., 647 So.2d 1001, 1004 (Fla. 3d DCA 1994). Only upon specific and particular denial 

does the burden revert to the claimant. Griffin v. Am. Gen. Life & Accident Ins. Co., 752 So.2d 

621, 623 n.1 (Fla. 2d DCA 1999). “[T]o construct a proper denial under the rule, a defendant must, 

at a minimum, identify both the nature of the condition precedent and the nature of the alleged 

non-compliance or nonoccurrence.” Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So. 3d 701, 703-

04 (Fla. 2d DCA 2016); Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 

2015); Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 

648 So. 2d 772, 774 (Fla. 1st DCA 1994). In the context of a Title VII case, where the plaintiff 

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undisputedly filed his lawsuit more than 90 days following receipt of the notice of right to sue, the 

Court determined that it was insufficient pleading under Rule 9(c) for the defendant to have denied 

that plaintiff “timely filed his complaint” or for it to have pled a defense alleging that “Plaintiff’s 

claims are barred by his failure to exhaust administrative remedies and satisfy conditions precedent 

prior to instituting this action.” Wilshin v. Allstate Ins. Co., 212 F. Supp. 2d 1360, 1369-70 (M.D. 

Ga. 2002), cited with approval, Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 

2010). There, the defense was held insufficient for failure to plead “the ninety-one days, the date 

the right-to-sue was received, the date the Complaint was filed, or any fact that could have 

indicated that the Defendant intended to assert that Plaintiff had failed to meet the condition 

precedent of filing within ninety days of receipt of the right-to-sue”. Wilshin, 212 F. Supp. 2d at 

1370. 

B. The question of whether there has been noncompliance with a statutory notice 

requirement condition precedent almost always occurs upon timely motion to 

dismiss, however, the determination must occur before prejudice accrues. 

Statutory notice requirements are not jurisdictional. A properly raised defense typically 

arises early by way of a motion to dismiss. Plaintiffs are not aware of any authority suggesting that 

any asserted lack of statutory notice is properly determined by a jury because waiting until trial to 

properly frame or raise the issue defeats the purpose of statutory notice requirements. 

1. By failing to plead non-occurrence of a condition precedent 

“specifically and with particularity”, the Defense is barred.

Under controlling authority, Rule 9(c) makes clear that the non-performance of a condition 

precedent must be pleaded specifically and “with particularity”. Rule 9(c), Fed. R. Civ. P. The 

failure to so plead bars the defense: 

If . . . the defendant does not deny the satisfaction of the preconditions specifically 

and with particularity, then the plaintiff’s allegations are assumed admitted, and the 

defendant cannot later assert that a condition precedent has not been met.

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Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982), cited with approval 

by Ingersoll v. Hoffman, 589 So.2d 223, 225 (Fla. 1991). The result is the same under Rule 9(c), 

Fed. R. Civ. P., as under the Rule 1.120(c), Fla. R. Civ. P. Id.

“[T]o construct a proper denial under the rule, a defendant must, at a minimum, identify 

both the nature of the condition precedent and the nature of the alleged non-compliance or

nonoccurrence.” Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 

2016); Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 2015); Cooke v. 

Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 648 So. 2d 772, 

774 (Fla. 1st DCA 1994). In the context of a Title VII case, where the plaintiff undisputedly filed 

his complaint more than 90 days following receipt of the notice of right to sue, the Court 

determined that it was insufficient pleading under Rule 9(c) for the defendant to have denied that 

plaintiff “timely filed his complaint” or that it had pled a defense alleging that “Plaintiff’s claims 

are barred by his failure to exhaust administrative remedies and satisfy conditions precedent prior 

to instituting this action.” Wilshin v. Allstate Ins. Co., 212 F. Supp. 2d 1360, 1369-70 (M.D. Ga. 

2002), cited with approval by Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010).

In this case, the Defendants fail to plead such non-compliance specifically and with 

particularity. Defendants purport to raise a statutory notice requirement as a condition precedent 

without making any reference to the statute1 in question and without even articulating “condition 

precedent”. In “eleventh hour” briefings on this supposed defense, Defendants allege they were 

entitled to receive a statutory “notice of intent to sue”, and that they were entitled to be afforded a 

15-day period within which to “tender” the full amount of a specifically calculated unpaid 

1 / In the context of statutory notice under Fla. Stat. § 768.28(6), mentioning the statute in an 

affirmative defense was insufficient; the defense still requires specificity and particularity in 

pleading. Gardner v. Broward County, 631 So. 2d 319, 321 at n.1 (Fla. 4th DCA 1994). 

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minimum wage only. However, the Defendants’ pleadings make no reference to the 15-day period 

nor is there any suggestion that they are prejudiced. A party entitled to notice as a condition 

precedent to the exercise of a right must allege and establish that they were prejudiced. See Gorel 

v. Bank of New York, 165 So. 3d 44, 47 (Fla. 5th DCA 2015); see also Denton v. HSBC Bank USA, 

N.A., 290 So. 3d 72 (Fla. 4th DCA 2020). Defendants have not alleged (as part of their duty to 

plead with specificity), nor do they now submit, that they were denied the opportunity to tender 

the unpaid minimum wage. Id. at p. 75, n.1 (“. . . prejudice is an essential element of the affirmative 

defense that a condition precedent was materially breached. Thus, the burden would be on the 

proponent of the defense to provide prejudice sufficient to warrant the avoidance . . .”).

Accordingly, Defendants are barred from raising this issue by failing to plead, and by failing to 

even proffer evidence of prejudice resulting from the falsely alleged lack of notice. 

2. The purpose of statutory notice requirements is to ensure early 

compliance and encourage early resolution of claims. As such, fact 

questions must be resolved early in the case.

The Defendants attempt to reduce the litigation of remedial hourly wage claims into a 

“sport of clever knaves”. Jones v. Sec. & Ech. Comm’n, 298 U.S. 1, 31-32 (1936) (Benjamin J. 

Cardoza, dissenting opinion). As many courts have emphasized, statutory notice requirements are 

not intended to provide special “gotcha” benefits to defendants hoping to “sandbag” plaintiffs on 

the eve of trial. VonDrasek v. City of St. Petersburg, 777 So. 2d at 991.2 Rather, notice 

requirements represent a tool designed to identify and encourage settlement of claims without 

expensive, extended litigation. Id., citing Kuper v. Perry, 718 So. 2d 859, 860 (Fla. 5th DCA 1998); 

Williams v. Henderson, 687 So. 2d 838 (Fla. 2d DCA 1996); Gardner v. Broward County, 631 

2 / See also Cabot v. Clearwater Construction Co., 89 So.2d 662, 664 (Fla.1956) (“No longer 

are we concerned with the ‘tricks and technicalities of the trade’”.); Gardner v. Broward County, 

631 So. 2d 319, 321 (Fla. 4th DCA 1994) (“The ‘gotcha’ school of litigation will not be tolerated”, 

quoting Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)). 

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So. 2d 319, 321 (Fla. 4th DCA 1994). Pleadings are intended to disclose each party’s positions on 

the legal issues involved in the lawsuit and, as such, particularly with respect to conditions 

precedent to sue, it is necessary that such pleadings be set forth “specifically and with 

particularity”. See VonDrasek v. City of St. Petersburg, 777 So. 2d at 991, citing Ingersoll v. 

Hoffman, 589 So. 2d 223 (Fla. 1991). Waiting until the time for filing a motion for summary 

judgment was too late even for even a valid defense since courts are unwilling to wait over two 

years for Defendants to frame the issue. Wilshin v. Allstate Ins. Co., 212 F. Supp. 2d at 1370.

However, as detailed below, in this case, the evidence is unrebutted and clear that Plaintiff 

complied with the pre-suit notice requirement. 

3. Compliance with the statutory requirement is established by the 

Plaintiff’s pleading and by a subsequent verified response to a Court 

order, which remains unrebutted.

Plaintiff alleged compliance with the pre-suit notice requirement. Defendants’ failure to 

specifically plead otherwise works as an “admission”. Jackson v. Seaboard Coast Line R. Co., 678 

F.2d at 1010. As such, there is no determination to be made. Further, compliance with the pre-suit 

notice of intent to sue requirement is also established by a verified response [ECF No. 171] which 

establishes Plaintiff’s compliance. This evidence is unrebutted. Defendants have neither provided 

an affidavit from either Defendant or the registered agent, although they have had ample 

opportunity within which to do so. To be clear, there is absolutely no evidence before the Court 

that the Plaintiff has not complied with the statutory requirement. Compliance has been admitted 

by pleading and it is established by the only evidence before the Court. 

Because compliance with the statute is admitted as a matter of pleading, and because 

compliance is established by evidence which remains unrebutted, there is no question on this 

defense to be determined by the Court, pretrial or post-trial, or by the jury at trial. 

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