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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22234-JEM/Becerra

LINCO ENTERPRISES, INC., 

Plaintiff / Counter-Defendant, 

v. 

OLEG FIRER, EZ CAPITAL FUND, LLC,

STAR CAPITAL MANAGEMENT, LLC, 

and STAR EQUITIES, LLC 

Defendants / Counter-Plaintiffs.

__________________________________________/

REPORT AND RECOMMENDATION 

ON PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES

THIS CAUSE is before the Court on Plaintiff Linco Enterprises, Inc.’s (“Linco”) Motion 

For Order That Strikes Certain Affirmative Defenses Or Deems Them To Be Denials (“Motion to 

Strike”). ECF No. [62]. Defendants Oleg Firer (“Firer”), EZ Capital Fund, LLC (“EZ Capital”), 

Star Capital Management, LLC (“Star Capital”), and Star Equities, LLC (“Star Equities”) 

(collectively “Defendants”), filed their Response in Opposition to Plaintiff’s Motion to Strike (the 

“Response”), ECF No. [71], and Plaintiff filed its Reply (the “Reply”), ECF No. [73]. Upon due 

consideration of the Motion, the pertinent portions of the record, and being otherwise fully advised 

in the premises, it is hereby RECOMMENDED that Plaintiff’s Motion be GRANTED IN PART 

AND DENIED IN PART. 

I. BACKGROUND

Non-party Sergey Khazarov (“Khazarov”) is the sole owner and president of Plaintiff 

Linco. ECF No. [59] ¶ 2. In November 2016, Khazarov met non-party Gary Gelman (“Gelman”)

at a French airport while waiting to board a flight to New York City. Id. ¶ 11. Khazarov and 

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Gelman reconnected in December 2016 when Gelman invited Khazarov to dinner with Defendant 

Firer. Id. ¶ 12. After dinner and several times thereafter, the three men discussed various securities 

investment opportunities, including a “merchant cash advance business.” Id. ¶ 13–16. Ultimately, 

Gelman helped Khazarov establish Plaintiff Linco, a Florida corporation that Khazarov would use 

to “invest substantial sums of money.” Id. ¶ 17. 

In March 2017, Khazarov, through Plaintiff Linco, invested $300,000.00 in Defendant EZ 

Capital for a five percent interest in the company and an additional $300,000.00 in non-party 

Unified Advance for a ten percent interest in the company. Id. ¶ 35. In both instances and pursuant 

to the operating agreements executed, Plaintiff Linco became a minority member without any 

management authority while Gelman along with Defendant Firer, through Defendant Star Equities

(his investment company), were the majority members. Id. ¶ 35 n.4. Gelman and Defendant Firer 

assured Khazarov that they had previously invested $1.5 million each into Defendant EZ Capital 

and Unified Advance. Id. ¶ 36, 44. Thereafter, in April 2017, Khazarov, through Plaintiff Linco, 

made an additional $100,000.00 investment in Unified Advance. Id. ¶ 41. Moreover, in July 2017, 

Khazarov, through Plaintiff Linco, invested an additional $300,000.00 in Defendant EZ Capital; 

pursuant to the additional investment, the operating agreement was amended to reflect that Plaintiff 

Linco now held a ten percent interest in Defendant EZ Capital based on the additional capital 

investment. Id. ¶ 44. 

Between July and November 2017, Gelman and Defendant Firer proposed an additional 

investment opportunity to Khazarov. Id. ¶¶ 52–54. Specifically, they proposed that Defendant 

Star Capital would acquire fifty percent ownership of a company referred to as “Star 

Development.” Id. ¶ 47. In turn, Star Development would purchase land in Grenada wherein 

Defendant Star Capital would build a hotel. Id. Gelman and Defendant Firer assured Khazarov

that this was an optimal investment opportunity because Star Development could acquire the land 

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significantly under market value. Id. ¶ 55. Pursuant to the representations and assurances made 

by Gelman and Defendant Firer, Khazarov, through Defendant Linco, made a $464,000.00 in 

Defendant Star Capital in exchange for a 16.6 percent interest in the company. Id. ¶ 62–63. 

Gelman and Defendant Firer, through Defendant Star Equities, assured that they had each invested 

$1,158,000.00 in exchange for a 42.5 percent interest each. Id. ¶ 63. 

Plaintiff alleges that Gelman and Defendant Firer lied with respect to the investments, 

including regarding the capital contributions made by each, the operating agreements for the 

companies, and the companies’ ownership of any assets. Id. ¶¶ 36, 64, 67, 71. Accordingly, 

Plaintiff filed the Amended Complaint containing six counts against Defendants: (1) Count I: 

Violation of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 

240.10b-5 against Defendants EZ Capital, Star Capital, and Star Equities; (2) Count II: Liability 

of Controlling Persons, 15 U.S.C. § 78t against Defendant Firer; (3) Count III: Violation of 

Florida’s Securities Investor Protection Act, Fla. Stat. § 517.011, et seq., against all Defendants; 

(4) Enforcement of the Right to Inspect Books and Records, Fla. Stat. § 605.0411 against 

Defendant Star Capital; (5) Count V: Fraudulent Misrepresentation against all Defendants; and (6) 

Count VI: Judicial Dissolution of EZ Capital and Appointment of a Receiver, Fla. Stat. §§ 

605.0702, 605.0703. Id. at 22–32. In response, Defendants filed their Answer and Affirmative 

Defenses. ECF No. [60]. Defendants assert twenty affirmative defenses.1

 ECF No. [60] at 9–17. 

Plaintiff requests that eight of those affirmative defenses be stricken or deemed denials. 

Specifically, Plaintiff contends that:

a. the Second Affirmative Defense (derivative not direct claim) should be stricken; 

1 Defendants’ twentieth and twenty-first affirmative defenses are incorrectly numbered given the 

omission of a nineteenth defense. 

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b. the Third Affirmative Defense (knowledge), Eleventh Affirmative Defense (failure 

to state a cause of action), and Twelfth Affirmative Defense (no punitive damages) 

should be deemed denials; 

c. the Seventh Affirmative Defense (not a dissociated member) should be stricken; 

d. the Eighteenth Affirmative Defense (no loss causation) should be deemed a denial; 

and 

e. the Twentieth Affirmative Defense (impossibility) and Twenty-First Affirmative 

Defense (commercial impracticability) should be stricken.2

 

ECF No. [62] at 3–8. 

II. LEGAL STANDARDS 

Federal Rule of Civil Procedure 12(f) provides that a court may “strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. 

P. 12(f). Although the district courts are afforded broad discretion, striking is considered a drastic 

remedy that is often disfavored. Birren v. Royal Caribbean Cruises, Ltd., 336 F.R.D. 688, 691 

(S.D. Fla. 2020) (citing Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 

(M.D. Fla. 2002)). As such, affirmative defenses should only be stricken if they are insufficient 

as a matter of law. Morrison v. Executive Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 

(S.D. Fla. 2005) (citing Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 

(M.D. Fla. 1976)). An affirmative defense is insufficient as a matter of law “if, on the face of the 

pleadings, it is patently frivolous, or if it is clearly invalid as a matter of law.” Id. (quoting Anchor 

Hocking Corp., 419 F. Supp. at 1000). In addition, a court should strike ambiguous affirmative 

defenses that do not respond to any count or allegation. ECF No. [73] at 3 (citing Morrison, 434 

F. Supp. 2d at 1318). 

2 Plaintiff also sought to strike Defendants’ First Affirmative Defense for failure to join an 

indispensable party. ECF No. [62] at 3. In their Response, Defendants assert that they “do not 

oppose striking this affirmative defense.” ECF No. [71] at 2. Accordingly, Plaintiff’s Motion as 

to the First Affirmative Defense should be GRANTED. 

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III. ANALYSIS

a. Defendants’ Second Affirmative Defense 

Defendants’ Second Affirmative Defense states: 

Second Affirmative Defense – Derivative Claim Not Direct Claim

Linco’s claims are barred in whole or in part because Linco’s claims 

are derivative claims, not direct claims, and are wrongfully asserted 

as direct claims. Linco makes claims against Defendants that purport 

to allege wrongs against and harm suffered by all members of EZ 

Capital, Star Capital, and Unified Advance and not solely to and by 

Linco.

ECF No. [60] at 10. Plaintiff states that this affirmative defense should be stricken as legally 

insufficient. ECF No. [62] at 4. Specifically, Plaintiff states that it was damaged in the amount of 

$1,480,000, its total investment in the Defendant companies. Id. Plaintiff states that the damages 

alleged support a direct claim because they were incurred solely by Plaintiff Linco and not by and 

of the Defendant companies. Id. In response, Defendants argue that Plaintiff’s allegations are, at 

their core, self-dealing and mismanagement claims that resulted in injury to Plaintiff and other 

members of the companies. ECF No. [71] at 5. As such, because Plaintiff does not allege an injury 

that is separate and distinct from that sustained by other members of the companies, the claims 

asserted are derivative in nature. Id. 

Although the Parties go to great lengths in describing the law on derivative and direct 

claims, the Court notes that a motion to strike should not be used as an attempt to obtain judgment 

on the merits. Achievement & Rehab. Centers, Inc. v. City of Lauderhill, No. 2-61628-CIV, 2012 

WL 6061762, at *1 (S.D. Fla. Dec. 6, 2012) (“Motions to strike should not be used to obtain a 

summary adjudication on the merits; the Federal Rules provide other mechanisms for achieving 

such ends.”). As such, the Court declines to issue any opinion as to whether Plaintiff’s claims are 

derivative or direct. Moreover, the Court notes that this has been raised, and can be more 

appropriately addressed, on summary judgement. See ECF No. [92] at 3–4. The Court focuses 

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only on the nature of the pleadings in finding that there is no basis to strike Defendants’ Second 

Affirmative Defense because it is not patently frivolous or invalid as a matter of law. See id.

(concluding that an affirmative defense that challenges standing is not frivolous or invalid as a 

matter of law). Specifically, because the Second Affirmative Defense raises substantial questions 

of law, it is more appropriately adjudicated following the appropriate factual development of this 

case. Therefore, Plaintiff’s Motion as to the Second Affirmative Defense should be DENIED. 

b. Defendants’ Third, Eleventh, and Twelfth Affirmative Defenses

Defendants’ Third, Eleventh, and Twelfth, Affirmative Defenses state: 

Third Affirmative Defense – Knowledge

Linco’s claims are barred in whole or in part because before 

executing the Operating Agreement for EZ Capital and Unified 

Advance and making contributions, Linco represented and agreed 

that Linco was fully informed of the terms, contents, conditions and 

effects of the Operating Agreement of EZ Capital and Unified 

Advance; Linco relied solely and completely upon its own judgment 

in executing the Operating Agreements; Linco had the opportunity 

to seek and has obtained the advice of its own legal, tax and business 

advisors before executing the Operating Agreements; Linco acted 

voluntarily and of its own free will in executing the Operating 

Agreements; and the Operating Agreements was the result of arm's 

length negotiations conducted with Linco and its respective counsel.

Eleventh Affirmative Defense – Failure To State A Cause Of Action

Linco’s claims fail to state a cause of action. There was no 

misrepresentations, omissions, or deception to Linco in connection 

with the sale of any securities, and any alleged misrepresentations, 

omissions, or deception were not the direct or proximate cause of 

any alleged damages to Linco.

Twelfth Affirmative Defense – No Punitive Damages

Punitive damages are barred because Defendants have at all times 

acted in good faith compliance with the law and there are no 

circumstances of fraud, malice, or willful and wanton conduct. 

Defendants have not engaged in any of the wrongdoing alleged in 

this case and Linco fails to state a cause of action.

ECF No. [60] at 10, 13. Plaintiff argues that these defenses, according to their substance, are 

merely denials and should be deemed as such. ECF No. [62] at 11. In response, Defendants argue 

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that the affirmative defenses allege new facts beyond those stated in the Second Amended 

Complaint, and as such, properly constitute a defense to Plaintiff’s claim. ECF No. [71] at 6–7. 

An affirmative defense admits an allegation in 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. 2013) (citing Royal Palm Sav. Ass’n v. 

Pine Trace Corp., 716 F. Supp. 1416, 1420 (M.D. Fla. 1989)). However, a defense that highlights 

a defect in the complaint or the lack of evidence in support of the allegation is not an affirmative 

defense. McMullen v. GEICO Indem. Co., No. 14-CIV-62467, 2015 WL 11199534, at *2 (S.D. 

Fla. Jan. 13, 2015) (citing Royal Caribbean Cruises, Ltd. v. Jackson, 921 F. Supp. 2d 1366, 1372 

(S.D. Fla. 2013)). As such, an affirmative defense that disputes the allegations stated in the 

complaint is more appropriately treated as a denial. Id. (citing Home Mgmt. Solutions, Inc. v. 

Prescient, Inc., 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007)). 

Here, as to the Third Affirmative Defense, the Court finds that this defense has been 

properly pled. Specifically, although not labeled as such, Defendants essentially argue that 

Plaintiff is estopped from contesting the validity of the business arrangement between the Parties 

because Plaintiff had knowledge of the contents of the subject operating agreements and had the 

opportunity to seek an opinion from its own advisors. This affirmative defense does not contest 

the elements of Plaintiff’s claims, but instead, it properly provides a purported justification for the 

allegations made. See Fed. R. Civ. P. 8(c)(1) (listing estoppel as an affirmative defense). 

Therefore, Plaintiff’s Motion as to Defendants’ Third Affirmative Defense should be DENIED.

The same argument does not apply to the Eleventh and Twelfth Affirmative Defenses. In 

support of the validity of the Eleventh and Twelfth Affirmative Defenses, Defendants rely on 

Confianca Mudancas E Transportes LTDA v. Confianca Moving, Inc., where the District Court 

noted that “[a]n affirmative defense is defined as [an] assertion raising new facts and arguments 

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that, if true, will defeat the plaintiff’s or prosecutions claim, even if all allegations in the complaint 

are true.” No. 09-21763-CIV, 2009 WL 10667442, at *2 (S.D. Fla. Dec. 23, 2009) (quoting Green 

v. Amjak Enter., Inc., 2006 WL 2265455, at *2 (M.D. Fla. 2006)). In that case, the Court concluded 

that a “bare” request for attorneys’ fees should be stricken because it did not “vitiate plaintiff’s 

claims” and was not a “viable defense.” Id. Unlike Defendants suggest, the holding in Confianca 

does not stand for the proposition that an affirmative defense survives if it merely states new facts 

that were not asserted in the complaint. 

In this case, the Eleventh and Twelfth Affirmative Defenses should be stricken because 

they dispute Defendants’ liability by pointing out defects in the Second Amended Complaint. 

Specifically, the Eleventh Affirmative Defense highlights defects in the Second Amended 

Complaint by emphasizing the lack of evidence in support of the claims asserted, stating that there 

were no misrepresentations, omissions, or deception, and as such, that Plaintiff is unable to state a 

claim for relief. Thus, although labeled as an affirmative defense, Defendants are in fact taking 

issue with Plaintiff’s prima facie case such that the Eleventh Affirmative Defense is more 

appropriately deemed a denial. See Bluewater Trading LLC v. Willmar USA, Inc., No. 07-61284-

CIV, 2008 WL 4179861, at *2 (S.D. Fla. Sept. 9, 2008) (concluding that an affirmative defense, 

which provides that plaintiff has failed to state a claim, is in fact a denial). 

As to the Twelfth Affirmative Defense, Defendants merely deny the allegations of the 

Second Amended Complaint because they state that Plaintiff cannot prove punitive damages, that 

they have not engaged in any wrongdoing, and that Plaintiff has failed to state a claim. Because 

the Twelfth Affirmative Defense provides that Plaintiff’s claim fails on the facts alleged, it is 

simply not an affirmative defense but should instead be treated as a denial. As a result, Plaintiff’s 

Motion as to the Eleventh and Twelfth Affirmative Defenses should be GRANTED, and those 

defenses should be deemed denials. 

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c. Defendants’ Seventh Affirmative Defense

Defendants’ Seventh Affirmative Defense states: 

Seventh Affirmative Defense – Not A Dissociated Member

Linco’s claims are barred in whole or in part because Linco is not a 

dissociated member of Star Capital. Linco states Linco is a 

dissociated member because Star Capital had notice of Linco’s 

express will to withdraw as a member. Linco did not seek to, and 

did not withdraw as, a member of Star Capital. Instead Linco sought 

to, and did, sell Linco’s interest in Star Capital through the Class B 

Common Share Purchase Agreement.

ECF No. [60] at 11–12. Plaintiff argues that the Seventh Affirmative Defense is legally 

insufficient because Defendants admit to Plaintiff’s dissociation from Defendant Star Capital and 

attempt to sell its interest in the company. ECF No. [62] at 13. As a result, Plaintiff submits that 

under Florida law, a member’s transfer of its interest in limited liability company triggers 

dissociation from the company. Id. In the alternative, Plaintiff argues that the affirmative defense 

should be deemed a denial. Id. In response, Defendants argue that the provisions of the Florida 

limited liability company statute relied upon by Plaintiff are inapplicable here. ECF No. [71] at 8. 

Defendants further argue that their affirmative defense should not be deemed a denial because it 

properly introduces new facts, namely that Plaintiff sold its interest in Defendant Star Capital 

through the Class B Common Share Purchase Agreement. Id. 

Here, as set forth above, the Court declines to reach a conclusion on the merits of this case. 

Therefore, whether Plaintiff dissociated from Defendant Star Capital is not an issue before the 

Court now. Instead, the Court focuses only on the sufficiency of the pleadings. Upon reviewing 

the Seventh Affirmative Defenses the Court finds that this defense is more accurately categorized 

as a denial. Defendants assert that Plaintiff’s claims are barred because Plaintiff has not dissociated 

from Defendant Star Capital, as the Second Amended Complaint suggests. The Seventh 

Affirmative Defense does not admit the allegations or add any excuse or justification, instead it 

plainly contests the facts asserted by Plaintiff. Thus, Plaintiff’s Motion should be GRANTED IN 

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PART AND DENIED IN PART. Although the Seventh Affirmative Defense should not be 

stricken, it should be considered a denial. 

d. Defendants’ Eighteenth, Twentieth, and Twenty-First Affirmative Defenses 

Defendants’ Eighteenth, Twentieth, and Twenty-First Affirmative Defenses state: 

Eighteenth Affirmative Defense – No Loss Causation

Linco’s claims are barred in whole or in part by the doctrine of no 

loss causation as Defendants’ alleged actions were not the proximate 

reason for Linco’s alleged loss. First, Linco pleads that Linco could 

not allegedly sell the alleged unregistered securities at issue in this 

case, or there was no market for the alleged unregistered securities, 

and therefore suffered its loss complained of in this case. 

Additionally, due to the COVID-19 pandemic, Star Capital’s assets 

suffered, which caused a loss to all members of Star Capital, and 

any loss for which Linco complains of in this case. Furthermore, VG 

Financing is the primary asset of EZ Capital. Due to the COVID-19 

pandemic, the business of VG Financing suffered, and therefore EZ 

Capital suffered as well, and caused a loss to all members of EZ 

Capital, and any loss for which Linco complains of in this case.

Twentieth Affirmative Defense – Impossibility

Linco’s claims are barred in whole or in part by the doctrine of 

impossibility. The COVID- 19 pandemic was totally unexpected 

and unforeseeable to Linco and Defendants, and Linco and 

Defendants did not provide for the risk of the COVID-19 pandemic 

in any of their dealings. Due to the COVID-19 pandemic, Star 

Capital’s assets suffered which caused a loss to all members of Star 

Capital, which caused any loss for which Linco complains of in this 

case. VG Financing is the primary asset of EZ Capital. Due to the 

COVID-19 pandemic, the business of VG Financing suffered, and 

therefore EZ Capital suffered as well, and caused a loss to all 

members of EZ Capital, and any loss for which Linco complains of 

in this case.

Twenty-First Affirmative Defense – Commercial Impracticability

Linco’s claims are barred in whole or in part by the doctrine of 

impossibility. The COVID- 19 pandemic was totally unexpected 

and unforeseeable to Linco and Defendants, and Linco and 

Defendants did not provide for the risk of the COVID-19 pandemic. 

Due to the COVID-19 pandemic, Star Capital’s assets suffered 

which caused a loss to all members of Star Capital, and which 

caused any loss for which Linco complains of in this case. VG 

Financing is the primary asset of EZ Capital. Due to the COVID-19 

pandemic, the business of VG Financing suffered, and therefore EZ 

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Capital suffered as well, and caused a loss to all members of EZ 

Capital, and any loss for which Linco complains of in this case.

 

ECF Nos. [60] at 15–16. First, Plaintiff argues that the Eighteenth Affirmative Defense should be 

treated as a denial because it merely contests the fraud allegations asserted. ECF No. [62] at 7. In 

addition, Plaintiff states that the Twentieth and Twenty-First Affirmative Defenses are duplicative 

of the Eighteenth Affirmative Defense to the extent that they attribute the companies’ losses to 

COVID-19. Id. at 14–15. Moreover, Plaintiff states that the doctrines of impossibility and 

impracticability are excuses for non-performance under a contract, not defenses to the tort claim 

of fraudulent inducement. Id. at 14. In response, Defendants assert that the affirmative defenses 

are not denials because they assert new facts not included in the Second Amended Complaint. 

ECF No. [71] at 9. Moreover, Defendants argue that COVID-19 was an intervening and 

superseding event that caused the losses suffered by Plaintiff. Id. at 9–10. 

In support of the Eighteenth Affirmative Defense, Defendants cite to three cases in which 

courts in other jurisdictions analyze the element of causation within the context of motions to 

dismiss. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 772 (2d Cir. 1994) 

(affirming the dismissal of fraud claim because the alleged misrepresentations were not the 

proximate cause of the injuries); Bastian v. Petren Res. Corp., 892 F.2d 680, 686 (7th Cir. 1990) 

(concluding that the plaintiff’s claims were properly dismissed given their failure to allege loss 

causation); Patel v. Patel, 761 F. Supp. 2d 1375, 1381 (N.D. Ga. 2011) (granting motion to dismiss 

because the plaintiffs had not adequately alleged loss causation in order to state a 10b-5 claim). 

Defendants’ reliance on cases that analyze causation as an element supports Plaintiff’s position 

that the Eighteenth Affirmative Defense is merely an attack on the sufficiency of the allegations 

in the Second Amended Complaint. Indeed, the Eighteenth Affirmative Defense does nothing 

more than contest Plaintiff’s ability to prove its prima facia case, and as such, is more appropriately 

deemed a denial. The Court, again, rejects Defendants’ contention that the Eighteenth Affirmative 

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Defense is not a denial merely because it states new facts, as there is simply no support for that 

conclusion. Therefore, as to the Eighteenth Affirmative Defense, Plaintiff’s Motion should be

GRANTED and the defense should be treated as a denial. 

Moreover, as to the Twentieth and Twenty-First Affirmative Defenses, Defendants assert 

that Plaintiff’s claims are barred based on the doctrines of impossibility and impracticability 

because the loss suffered by Plaintiff was caused by an intervening and superseding event, namely 

COVID-19. ECF No. [71] at 9. As an initial matter, there is no question that impossibility and 

impracticability are affirmative defenses. See Kolmat Do Brasil, LDTA v. Evergreen United 

Investments, LLC, No. 14-81320-CIV, 2015 WL 11422291, at *3 (S.D. Fla. May 11, 2015) (noting 

that impossibility and impracticability are properly pled as affirmative defenses). However, these 

doctrines only apply to excuse performance under a contract. See LSREF2 Baron, LLC v. Beemer 

& Associates XLVII, L.L.C., No. 3:10-CV-576-J-32JBT, 2011 WL 6838047, at *3 (M.D. Fla. Dec. 

29, 2011) (defining impossibility and impracticability). None of the claims asserted in this action 

are predicated upon a breach of contract theory, and as such, none are subject to contract defenses.

See, e.g., Weisler v. Safeco Ins. Co. of Illinois, No. 14-CV-81107, 2015 WL 11281290, at *3 (S.D. 

Fla. Apr. 9, 2015) (concluding that affirmative defenses that relate to claims for breach of contract 

do not apply to tort claims). Therefore, Plaintiff’s Motion as to the Twentieth and Twenty-First 

Affirmative Defenses should be GRANTED, and the defenses should be stricken. 

IV. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s Motion to Strike, ECF

No. [62], be GRANTED IN PART AND DENIED IN PART. Specifically, the First, Twentieth, 

and Twenty-First Affirmative Defenses should be STRICKEN, and the Seventh, Eleventh,

Twelfth, and Eighteenth Affirmative Defenses should be DEEMED DENIALS. 

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V. OBJECTIONS

A party shall serve and file written objections, if any, to this Report and Recommendation 

with the United States District Court Judge for the Southern District of Florida, within 

FOURTEEN (14) DAYS of being served with a copy of this Report and Recommendation. 

Failure to timely file objections will bar a de novo determination by the District Judge of anything 

in this Recommendation and shall constitute a waiver of a party’s “right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1 

(2016); 28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade Police Dep’t Station #4, 977 

F.3d 1185, 1191-92 (11th Cir. 2020).

DONE AND SUBMITTED in Chambers at Miami, Florida, on September 17, 2021.

____________________________

JACQUELINE BECERRA

United States Magistrate Judge

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