UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23352-BLOOM/Louis

DOUG LONGHINI,

Plaintiff,

v.

KENDALL LAKES OFFICE PARK

CONDOMINIUM ASSOCIATION, INC.,

Defendant.

____________________________________/

ORDER ON MOTION TO STRIKE AFFIRMATIVE DEFENSES

THIS CAUSE is before the Court upon Plaintiff’s Motion to Strike Affirmative Defenses,

ECF No. [29] (“Motion”). Defendant filed a Response, ECF No. [30] (“Response”), to which 

Plaintiff filed a Reply, ECF No. [31] (“Reply”). The Court has considered the Motion, all opposing 

and supporting submissions, the record in the case, the applicable law, and is otherwise fully 

advised. For the reasons that follow, the Motion is granted, and Defendant is granted leave to 

amend the Affirmative Defenses at issue.

I. BACKGROUND

On August 12, 2020, Plaintiff initiated the instant action against Defendant for declaratory 

and injunctive relief, and attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 12181, et 

seq. (the “ADA”), and 28 U.S.C. §§ 2201 and 2202. See ECF No. [1] (“Complaint”). On 

September 18, 2020, Defendant filed its Answer and Affirmative Defenses to Plaintiff’s 

Complaint, ECF No. [12] (“Affirmative Defenses”), asserting eight affirmative defenses.

Plaintiff now moves to strike Defendant’s Second, Third, Fourth, Fifth, Sixth, and Seventh 

Affirmative Defenses as bare bones, conclusory allegations that are devoid of any facts. Defendant 

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takes the opposing position, arguing that each challenged affirmative defense sufficiently puts 

Plaintiff on notice of the issues it intends to litigate. Alternatively, Defendant requests leave to 

amend its Affirmative Defenses to assert more specific bases for each defense.

II. LEGAL STANDARD

An affirmative defense is a defense “that admits to 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. 688, 671 (S.D. Fla. 2013). A defense that addresses a defect 

in a party’s claim or that fails to put the opposing party on notice of the nature of the defense is 

not a properly asserted affirmative defense. Id.

Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” and grants 

courts broad discretion in making this determination. Fed. R. Civ. P. 12(f); Morrison v. Exec.

Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19 (S.D. Fla. 2005) (citing Williams v.

Eckerd Family Youth Alt., 908 F. Supp. 908, 910 (M.D. Fla. 1995)). A Rule 12(f) “motion to strike 

will usually be denied unless the allegations have no possible relation to the controversy and may 

cause prejudice to one of the parties.” Harty v. SRA/Palm Trails Plaza, LLC, 755 F. Supp. 2d 1215, 

1218 (S.D. Fla. 2010) (internal quotation and citation omitted); Action Nissan, Inc. v. Hyundai

Motor Am., 617 F. Supp. 2d 1177, 1187 (M.D. Fla. 2008) (same); see also Home Mgmt. Solutions,

Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *1 (S.D. Fla. Aug. 21, 2007) 

(same). Despite the Court’s broad discretion, a motion to strike is considered a drastic remedy and 

is often disfavored. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 

(M.D. Fla. 2002) (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 306 F.2d 

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862, 868 (5th Cir. 1962));1 Fabing v. Lakeland Reg’l Med. Ctr., Inc., No. 8:12-cv-2624-T-33MAP,

2013 WL 593842, at *2 n.2 (M.D. Fla. 2013) (calling Rule 12(f) a “draconian sanction”).

Even so, “an affirmative defense must be stricken when the defense is comprised of no 

more than ‘bare-bones, conclusory allegations’ or is ‘insufficient as a matter of law.’” Northrop &

Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008, 2017 WL 5632041, at *3 (S.D. Fla. Nov. 

22, 2017) (quoting Adams, 294 F.R.D. at 671; Home Mgmt. Sols., Inc., 2007 WL 2412834, at *2). 

“A defense is insufficient as a matter of law only if: (1) on the face of the pleadings, it is patently 

frivolous, or (2) it is clearly invalid as a matter of law.” Microsoft Corp. v. Jesse’s Computers &

Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002).

“Courts have developed two schools of thought regarding the pleading standard required 

for affirmative defenses, and the Eleventh Circuit has not yet resolved the split in 

opinion.” Ramnarine v. CP RE Holdco 2009-1, LLC, No. 12-61716-CIV, 2013 WL 1788503, at 

*1 (S.D. Fla. Apr. 26, 2013). Some courts have concluded that affirmative defenses are subject to 

the heightened pleading standard of Rule 8(a), as set forth in Bell Atlantic Corp. v. Twombly, 550 

U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Moore v. R. Craig Hemphill &

Assocs., No. 3:13-cv-900-J-39-PDB, 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014); see

also Adams v. JP Morgan Chase Bank, N.A., No. 3:11-cv-337-J-37MCR, 2011 WL 2938467, at 

*2-3 (M.D. Fla. July 21, 2011). Other courts have held that affirmative defenses are subject to a 

less stringent standard under Rules 8(b) and 8(c), and that affirmative defenses need only “provide 

fair notice of the nature of the defense and the grounds upon which it rests.” See, e.g., Gonzalez v.

Midland Credit Mgmt., Inc., No. 6:13-cv-1576-Orl-37TBS, 2013 WL 5970721, at *3 (M.D. Fla. 

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Court of Appeals for the Eleventh 

Circuit adopted as binding precedent all decisions of the Court of Appeals of the Fifth Circuit issued prior 

to October 1, 1981.

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Nov. 8, 2013); Jackson v. City of Centreville, 269 F.R.D. 661 (N.D. Ala. 2010); Romero v. S.

Waste Sys., LLC, 619 F. Supp. 2d 1356, 1358 (S.D. Fla. 2009); Sparta Ins. Co. v. Colareta, No. 

13-60579-CIV, 2013 WL 5588140, at *3 (S.D. Fla. Oct. 10, 2013).

The difference in language between Rule 8(a) and Rule 8(b) is subtle, but significant. While 

Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to 

relief,” Rule 8(b) merely requires that a party “state in short and plain terms its defenses to each 

claim asserted against it.” Fed. R. Civ. P. 8(a) and (b). In plain terms, the language of Rule 8(a) 

requires the party to “show” that they are entitled to relief, while Rule 8(b) does not. See Moore, 

2014 WL 2527162, at *2 (“Whereas [Rule 8’s] pleading provision uses, ‘showing,’ its response 

and affirmative-defense provisions use, ‘state,’ and Iqbal’s and Twombly’s analyses relied on 

‘showing’ ”); Ramnarine, 2013 WL 1788503, at *3 (explaining that “the difference in the language 

between Rule 8(a) and Rules 8(b) and (c) requires a different pleading standard for claims and 

defenses”). Comparable to Rule 8(b), Rule 8(c) requires that a party “must affirmatively state any 

avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). “[T]he Eleventh Circuit has stressed 

providing notice as the purpose of Rule 8(c): ‘[t]he purpose of Rule 8(c) is simply to guarantee 

that the opposing party has notice of any additional issue that may be raised at trial so that he or 

she is prepared to properly litigate it.’” Jackson v. City of Centreville, 269 F.R.D. 661, 662 (N.D. 

Ala. 2010) (quoting Hassan v. USPS, 842 F.2d 260, 263 (11th Cir. 1988)).

In this Court’s view, affirmative defenses are not subject to the heightened pleading 

standard elucidated in Twombly and Iqbal. The straightforward construction of Rule 8 delineates 

different standards for pleadings generally, and those applicable to defenses. See Fed. R. Civ. P. 

8. As noted by the Middle District of Alabama, “to artificially supply Rules 8(b)(1) and 8(c)(1) 

with the unique language of Rule 8(a)(2) requiring a ‘showing’ is to contravene well-established 

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principles of statutory construction, which have been found applicable to interpreting the Federal 

Rules of Civil Procedure.” E.E.O.C. v. Joe Ryan Enters., Inc., 281 F.R.D. 660, 663 (M.D. Ala. 

2012) (citing Bus. Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41 (1991)). 

Furthermore, “when one considers that a defendant must answer the complaint within 21 days, 

imposing a different standard for defenses is not unfair.” Floyd v. SunTrust Banks, Inc., No. 1:10-

cv-2620-RWS, 2011 WL 2441744, at *8 (N.D. Ga. June 13, 2011).

III. DISCUSSION

Plaintiff contends that the Second through Seventh Affirmative Defenses should be 

stricken because they are conclusory and fail to present any facts explaining how the affirmative 

defense applies in this case. Defendant, on the other hand, contends that these affirmative defenses 

sufficiently provide Plaintiff with notice that it intends to litigate issues pertaining to whether the 

property modifications sought in this case are readily achievable. 

The affirmative defenses at issue state as follows:

Second Affirmative Defense: “[Defendant] is permitted to depart from the ADA

and ADA Standards, to the extent that it provides ‘equivalent facilitation’ in the 

form of alternative designs and technologies that provide substantially equivalent

or greater access to and usability of the facility. See 28 C.F.R. PART 36 

APPENDIX B, § 103.”

Third Affirmative Defense: “To the extent Plaintiff’s claims require 

accommodations which are not ‘readily achievable’ or easily accomplishable and 

able to be carried out without much difficulty or expense within the meaning of 42 

U.S.C. § 12181(9), Defendant is under no obligation to make such 

accommodation.”

Fourth Affirmative Defense: “To the extent that any accommodations sought by 

Plaintiff (a) are not readily achievable, (b) pose an undue burden, and/or (c) pose a

significant health and/or safety risk, Defendant is not required to make such 

accommodation.”

Fifth Affirmative Defense: “To the extent that Plaintiff seeks modifications which 

will be disproportionate in cost or cost in excess of 20% of the alteration to the

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primary function area, such modification is not an ‘alteration’ within the meaning 

of the ADA.”

Sixth Affirmative Defense: “To the extent that Plaintiff seeks alterations where 

the nature of the existing facility makes it virtually impossible to comply fully with

applicable accessibility standards through a planned alteration, [Defendant] is not 

required to make such alteration pursuant to 28 C.F.R. § 36.402(a)(1); 42 U.S.C.

§ 12183(a)(2).”

Seventh Affirmative Defense: “Assuming arguendo, that the alleged barriers

about which Plaintiff complains exist, to the extent it is structurally impracticable 

to alter or remove alleged barriers, [Defendant] is not required to alter or remove 

such barriers.”

ECF No. [12] at 4-5.

Each of the challenged affirmative defenses above states a reason why Defendant believes 

it is exempt from certain modifications or complying with the requirements of the ADA. However, 

these defenses fail to set forth any facts explaining why Defendant believes an exemption applies 

in this case. Indeed, Defendant’s affirmative defenses simply reiterate the statutory language, 

without any further clarification. The Court concludes that, even under a lower pleading standard 

for affirmative defenses, Defendant’s affirmative defenses fail to provide Plaintiff with reasonable 

notice of what issues might be raised. See, e.g., Cohan v. Angler’s Cove Condo. Ass’n, Inc., No. 

2:14-cv-453-FtM-29CM, 2015 WL 3627172, at *2 (M.D. Fla. June 10, 2015) (concluding that 

defendant’s affirmative defense was sufficiently pled where it alleged that “its property is waterfront and Plaintiff’s requested modifications or alterations (e.g., pathways, parking lot and/or entry 

to pools) could fundamentally alter the nature of services because they would interfere with the 

water-front nature of the property”).

Although Rule 8 does not obligate a defendant to set forth detailed factual 

allegations, a defendant must give the plaintiff “fair notice” of the nature of a 

defense and the grounds on which it rests. Adams v. Jumpstart Wireless Corp., 294 

F.R.D. 668, 671 (S.D. Fla. 2013); see also Twombly, 550 U.S. at 555. “A court must 

not tolerate shotgun pleading of affirmative defenses, and should strike vague and 

ambiguous defenses which do not respond to any particular count, allegation or 

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legal basis of a complaint.” Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.

Supp. 2d 1314, 1318 (S.D. Fla. 2005) (internal citations omitted). 

Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015). 

Because Defendant’s Second through Seventh Affirmative Defenses state bare-bones 

conclusions of law without any relevant factual support, they do not provide Plaintiff fair notice 

of the issues Defendant intends to raise. As such, Plaintiff’s Motion is granted. Defendant is 

granted leave to amend its Second, Third, Fourth, Fifth, Sixth, and Seventh Affirmative Defenses 

to provide more factually specific allegations.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion, ECF No. [29], 

is GRANTED. Defendant is permitted to amend its Second, Third, Fourth, Fifth, Sixth, and 

Seventh Affirmative Defenses on or before December 15, 2020.

DONE AND ORDERED in Chambers at Miami, Florida, on December 3, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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