1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Civil No. 20-cv-81254-MATTHEWMAN

JAY MOLBOGOT,

Plaintiff,

vs.

MARINEMAX EAST, INC.,

Defendant.

______________________________________/

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S 

AFFIRMATIVE DEFENSES [DE 15]

THIS CAUSE is before the Court upon Plaintiff, Jay Molbogot’s (“Plaintiff”) Motion to 

Strike Defendant, MarineMax East, Inc.’s Affirmative Defenses (“Motion”) [DE 15]. Defendant 

has filed a response [DE 17], and Plaintiff has filed a reply [DE 21]. The matter is now ripe for 

review. The Court has carefully considered the Answer and Affirmative Defenses, the Motion, the 

response, and the reply, as well as the entire docket in this case.

I. BACKGROUND

On August 2, 2020, Plaintiff filed a Complaint against Defendant alleging fraud in the 

inducement (count 1), violation of the Florida Deceptive and Unfair Trade Practices Act (count 2),

and negligence (count 3) related to Plaintiff’s purchase of a vessel from Defendant. [DE 1]. 

Defendant filed an Answer and Affirmative Defenses [DE 11] on September 8, 2020. It alleged 13

affirmative defenses. Id.

KJZ Nov 12, 2020 West Palm Beach

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 1 of 17
2

II. THE MOTION, RESPONSE, AND REPLY

A. Plaintiff’s Motion [DE 15]

In the Motion, Plaintiff asserts that Defendant’s First, Second, Third, Fourth, Sixth, Eighth, 

Ninth, Eleventh, Twelfth, and Thirteenth affirmative defenses should be stricken from the 

pleadings, as “each is either insufficient to state a valid defense or is wholly irrelevant to the causes 

of action alleged in the Complaint.” [DE 15, p. 1]. 

B. Defendant’s Response [DE 17]

In response, Defendant first argues that Plaintiff “failed to even attempt to make a good 

faith effort to resolve the dispute prior to filing his Motion.” [DE 17, p. 4]. Defendant next contends 

that “Plaintiff has failed to demonstrate that it is proper for the Court to strike MarineMax’s 

Affirmative Defenses,” and that “[i]t appears the Plaintiff is seeking a dispositive ruling from the 

Court on the merits of the defenses, rather than the sufficiency of how they are pleaded.” Id. at p. 

5. According to Defendant, it has asserted properly pled sufficient defenses, Plaintiff has not 

established that he was prejudiced by inclusion of the affirmative defenses, and the defenses put 

Plaintiff on notice, as required. Id. at p. 12.

C. Plaintiff’s Reply [DE 21]

Plaintiff asserts that his counsel failed to properly confer with Defendant’s counsel before 

filing the motion because Plaintiff “was constrained by Rule 12(f)(2), which requires Plaintiff to 

file its Motion to Strike within 21 days,” and defense counsel wanted to confer after that 21-day 

period had elapsed. [DE 21, pp. 1-2]. 

III. FAILURE TO PROPERLY CONFER

The Court has carefully considered Plaintiff’s alleged failure to properly confer prior to 

filing his Motion. While Local Rule 7.1(a)(3) does require conferral before filing a motion, the 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 2 of 17
3

Court does not find it appropriate to deny Plaintiff’s Motion on that basis. First, Plaintiff was trying 

to comply with the deadline set forth by Federal Rule of Civil Procedure 12(f)(2), and Plaintiff’s 

counsel did make an attempt—albeit an insufficient attempt—to confer with Defendant’s counsel 

prior to filing the Motion. Second, the Court prefers to rule on the merits in a situation such as this 

one for purposes of both fairness and judicial economy. However, both parties are hereby put on 

notice that the Court will not tolerate any further violations of the Local Rules in this case, and the 

Court does require good-faith conferral before filing motions. 

IV. ANALYSIS

A. Applicable Law

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

any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Courts have 

held that a 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.” Freestream Aircraft USA Ltd. v. Chowdry, 

No. 16-CV-81232, 2018 WL 2002419, at *3 (S.D. Fla. Apr. 30, 2018) (citing Anchor Hocking 

Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976) (citations omitted)). 

Motions to strike are generally disfavored and “will usually be denied unless the allegations 

have no possible relation to the controversy and may cause prejudice to one of the parties.” Carlson 

Corp./Southeast v. School Bd. of Seminole Cnty., 778 F. Supp. 518, 519 (M.D. Fla. 1991). “Despite 

the Court’s broad discretion, a motion to strike is considered a drastic remedy and is often 

disfavored.” Laferte, 2017 WL 2537259, at *1 (citing Thompson v. Kindred Nursing Ctrs. E., LLC, 

211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)).

In the Southern District of Florida, some courts have determined that affirmative defenses 

are subject to—and some courts have found that affirmative defenses are not subject to—the 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 3 of 17
4

heightened pleading standard elucidated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), 

and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Laferte v. Murphy Painters, Inc., No. 17-CIV-60376, 

2017 WL 2537259, at *2 (S.D. Fla. June 12, 2017). Although there is a split among courts 

regarding whether affirmative defenses are subject to the heightened pleading standard of Rule 

8(a) or not, the undersigned finds that, absent guidance from the Eleventh Circuit or the Supreme 

Court, the argument that they are not subject to the heightened standard to be more persuasive. See

Mt. Hawley Ins. Co. v. Boca Bayou Condo. Ass'n, Inc., No. 18-CV-81656, 2019 WL 7837288, at 

*3 (S.D. Fla. Dec. 20, 2019), report and recommendation adopted, No. 18-81656-CIV, 2020 WL 

1441921 (S.D. Fla. Mar. 25, 2020; Dionisio v. Ultimate Images & Designs, Inc., 391 F. Supp. 3d 

1187, 1192 (S.D. Fla. 2019) (Bloom, J.) (“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 also Sparta Ins. Co. v. Colareta, No. 13-60579-CIV, 2013 WL 5588140, at *3 

(S.D. Fla. Oct. 10, 2013) (Rosenbaum, J.) (“[T]his Court is ultimately convinced of the correctness 

of the cases holding that the clearness in the difference in the language between Rule 8(a) and 

Rules 8(b) and (c) requires a different pleading standard for claims and defenses.”).

Therefore, as long as the affirmative defenses give Plaintiff notice of the claims Defendant 

will litigate, and vice versa, the defenses are appropriately pled under Rules 8(b) and (c). Sparta 

Ins. Co., 2013 WL 5588140, at *3. 

B. First Affirmative Defense

Defendant’s First Affirmative Defense states: “Plaintiff’s claims are barred by the doctrine 

of caveat emptor.” [DE 11, p. 8]. Plaintiff argues that the defense is “irrelevant and immaterial to 

the causes of action pled by Plaintiff. Plaintiff has pled causes of action sounding in fraud and 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 4 of 17
5

negligence.” [DE 15, p. 2]. Plaintiff further contends that, “[t]he doctrine of caveat emptor is not 

a relevant defense to the claims raised by Plaintiff. This is not an admission of liability with a 

justification but is simply an irrelevant denial that fails to address Plaintiff’s causes of action that 

solely sound in fraud and negligence.” Id. at p. 3. 

In response, Defendant asserts that Plaintiff is improperly asking the Court to rule on the 

merits of the defense in this case. [DE 17, p. 5]. Defendant points out that Plaintiff has asserted 

multiple claims against Defendant, including fraud in the inducement and violation of the 

FDUTPA. Id.

In reply, Plaintiff argues that the affirmative defense is “wholly irrelevant because, even if 

proven,” it does “not reduce or eliminate Plaintiff’s recovery” and because the defense does “not 

apply to the stated causes of action.” [DE 21, p. 2]. 

. Plaintiff does not argue in the Motion that the First Affirmative Defense was improperly 

pled; rather, he argues that the affirmative defense should be stricken as it is irrelevant and 

immaterial. The cases relied on by Plaintiff—Carolina Acquisition, LLC v. Double Billed, LLC, 

07-61738-CIV, 2009 WL 3190807, at *2 (S.D. Fla. Sept. 30, 2009), and Adios Aviation, LLC v. El 

Holdings I, LLC, 15-61218-CIV, 2015 WL 12564317, at *6–7 (S.D. Fla. Sept. 29, 2015)—do not 

support his position that the Motion should be granted. First, Plaintiff has pled causes of action 

other than fraud and negligence in the Complaint. Second, the cases cited by Plaintiff were in a 

very different procedural posture and did not involve motions to strike affirmative defenses. 

Plaintiff has not met his burden of establishing that the allegations have no possible relation to the 

controversy and may cause prejudice to Plaintiff. At this early stage, the Court will allow this issue

to be more fully developed. Thus, the Motion is DENIED as to the First Affirmative Defense.

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 5 of 17
6

C. Second Affirmative Defense

Defendant’s Second Affirmative Defense states as follows: 

Plaintiff is estopped from and has waived recovering damages from MARINEMAX

because, prior to purchasing the Vessel, Plaintiff inspected and accepted the Vessel 

and purchased it “AS IS,” signing an agreement that expressly waived reliance on 

any representations and acknowledged MARINEMAX did not assert warranties. 

Further, Plaintiff continued using the Vessel despite being aware of alleged 

misrepresentations made by MarineMax.

[DE 11, p. 8].

Plaintiff argues that this defense is “irrelevant and immaterial to the causes of action pled 

by Plaintiff.” [DE 15, p. 3]. According to Plaintiff, this is not an admission of liability with a 

justification, and the Second Affirmative Defense fails to address Plaintiff’s causes of action that 

solely sound in fraud and negligence. Id. at p. 5.

In response, Defendant asserts that Plaintiff is improperly asking the Court to determine 

the merits of the case and that it “is disingenuous to this Court and is a waste of this Court’s time 

and judicial resources for Plaintiff to argue that the fact that Plaintiff signed a Purchase Agreement, 

acknowledging that the Vessel at issue was sold ‘AS IS’ and expressly waiving reliance on any 

representations and acknowledged MarineMax did not assert warranties it is immaterial, irrelevant, 

or unrelated to the claims asserted.” [DE 17, p. 7]. According to Defendant “[t]he law is replete 

with examples of this being not just a defense to fraud and FDUTPA claims, but the essence of 

many opinions wherein the Court analyzed the applicability of the language of contracts signed in 

connection with purported fraud and FDUTPA violations.” Id. Defendant argues that this defense 

clearly has a possible relation to the claims presented. Id.

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 6 of 17
7

In reply, Plaintiff argues that the affirmative defense is “wholly irrelevant because, even if 

proven,” it does “not reduce or eliminate Plaintiff’s recovery” and because the defense does “not 

apply to the stated causes of action.” [DE 21, p. 2]. 

The Motion is DENIED as to the Second Affirmative Defense for the same reasons the 

Court denied the Motion as to the First Affirmative Defense. 

D. Third Affirmative Defense

Defendant’s Third Affirmative Defense states as follows: 

Plaintiff’s claims fail as a matter of law because the sale of the Vessel is governed

by the Purchase Agreement, which expressly states MARINEMAX makes no 

warranties, express or implied, the Vessel was purchased "AS IS," and the Purchase 

Agreement constituted the entire agreement between the parties, any other 

statements or representations were expressly disclaimed, and Plaintiff 

acknowledged he did not rely on any such statements or representations.

[DE 11, p. 8].

Plaintiff argues that this defense is irrelevant and immaterial to the fraud and negligence

causes of actions that he pled because “[a]ny allegations of an ‘as-is’ agreement does not defeat 

same.” [DE 15, p. 5]. Plaintiff additionally argues that the Eleventh Circuit holds that, in order for 

a defendant to negate a claim for fraud in Florida, the contract must expressly state that it is 

incontestable on the ground of fraud, but the contract at issue in this case does not do so. Id. at p. 

6. 

In response, Defendant asserts that Plaintiff is improperly asking the Court to determine 

the merits of the case and that it “is disingenuous to this Court and is a waste of this Court’s time 

and judicial resources for Plaintiff to argue that the fact that Plaintiff signed a Purchase Agreement, 

acknowledging that the Vessel at issue was sold ‘AS IS’ and expressly waiving reliance on any 

representations and acknowledged MarineMax did not assert warranties it is immaterial, irrelevant, 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 7 of 17
8

or unrelated to the claims asserted.” [DE 17, p. 7]. According to Defendant “[t]he law is replete 

with examples of this being not just a defense to fraud and FDUTPA claims, but the essence of 

many opinions wherein the Court analyzed the applicability of the language of contracts signed in 

connection with purported fraud and FDUTPA violations.” Id. Defendant argues that this defense 

clearly has a possible relation to the claims presented. Id. Finally, as to Plaintiff’s argument that 

the defense should be stricken on the basis that the contract does or does not contain requisite 

language to defeat a fraud claim, Defendant points out that the Court cannot consider matters 

beyond the pleadings, and the contract was not attached to Plaintiff’s Complaint. Id. at p. 8. 

In reply, Plaintiff argues that the affirmative defense is “wholly irrelevant because, even if 

proven,” it does “not reduce or eliminate Plaintiff’s recovery” and because the defense does “not 

apply to the stated causes of action.” [DE 21, p. 2]. 

The Motion is DENIED as to the Third Affirmative Defense for the same reasons the Court 

denied the Motion as to the First and Second Affirmative Defenses. Furthermore, Defendant is 

correct that the Court cannot, at this time, consider the language of the contract at issue.

E. Fourth Affirmative Defense

Defendant’s Fourth Affirmative Defense states as follows: 

As plead, Plaintiff's complaint fails to state any claim upon which relief may be 

granted as the essential elements of the claims do not exist. Specifically, Plaintiff 

fails to specify or claim damages resulting from negligence or alleged 

misrepresentations.

[DE 11, p. 8].

Plaintiff argues that this defense is legally insufficient as a matter of law because it is 

actually a denial. [DE 15, p. 6]. 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 8 of 17
9

In response, Defendant argues that this is not a denial and should not be stricken. [DE 17, 

p. 9]. Defendant contends that, even if the Court determines that this affirmative defense is a denial, 

striking it would be improper under the applicable law. Id. 

In reply, Plaintiff maintains that “a defense which points out a defect in the plaintiff's prima 

facie case is not an affirmative defense.” [DE 21, p. 3]. According to Plaintiff, this defense is 

“simply [a] challenge[ ] to an element of Plaintiff’s prima facie case,” which renders it a “negative 

defense[ ]” that should be stricken, rather than an affirmative defense. Id.

The Court agrees with Plaintiff that Defendant’s Fourth Affirmative Defense is not a valid 

affirmative defense. “[F]ailure to state a claim is a defect in [a party]’s claim; it is not an additional 

set of facts that bar recovery notwithstanding [a party]’s valid prima facie case.” Boldstar Tech. 

LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 2007). However, in light of the 

disfavor with which courts view striking portions of pleadings, the Court will treat the 

Fourth Affirmative Defense as a specific denial.1 See Birren v. Royal Caribbean Cruises, Ltd., No. 

20-CV-22783, 2020 WL 6487517, at *7 (S.D. Fla. Nov. 4, 2020); JazAtlanta 519 LLC v. Beazley 

Underwriting, Ltd., No. 18-cv-60498, 2018 WL 4743634, at *2 (S.D. Fla. Oct. 2, 2018); McMullen 

v. GEICO Indem. Co., No. 14-cv-62467, 2015 WL 11199534, at *3 (S.D. Fla. Jan. 13, 2015) 

Bluewater Trading LLC v. Willmar USA, Inc., No. 07-61284-CIV, 2008 WL 4179861, at *2 (S.D. 

Fla. Sept. 9, 2008). Thus, the Court DENIES Plaintiff’s Motion as to the Fourth Affirmative 

Defense but will treat said affirmative defense as a denial.

1 The Court also notes that this is not a situation where Defendant filed a motion to dismiss for failure to state a 

claim, it was denied, and then Defendant attempted to reframe the same argument as an affirmative defense. Thus, 

there is no redundancy issue here. 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 9 of 17
10

F. Sixth Affirmative Defense

Defendant’s Sixth Affirmative Defense states: “MARINEMAX is not responsible for any 

alleged defects in design or manufacturing.” [DE 11, p. 9].

Plaintiff argues that this defense is “a conclusory statement with no factual support” and 

that it “lacks certainty and specificity” in that it “does not sufficiently place Plaintiff on notice as 

to what ‘defects in design or manufacturing’ [Defendant] claims.” [DE 15, p. 7]. Plaintiff contends 

that the defense “is also immaterial to the claims at issue because Plaintiff’s Complaint alleges that 

Defendant knew about these things yet fraudulently induced Plaintiff regardless. As such, it should 

be stricken.” Id.

In response, Defendant argues that “it is important for the Court to understand the various 

claims that Plaintiff asserted and the specific allegations that pertain to each. To list all facts that 

would support these defenses requires extensive discovery, but also a recitation of nearly every 

one of the 116 allegations in the Complaint.” [DE 17, p. 10]. According to Defendant, “Plaintiff 

has not specifically identified his theory of the ‘defects’ with the Vessel and its components with 

enough specificity for MarineMax to have each and every one of its defense theories established.” 

Id. Defendant contends that it has met “its burden under the law and Rule 8, which is to put Plaintiff 

on notice of the defenses claimed.” Id. at p. 11.

In reply, Plaintiff contends that Defendant has basically admitted that the defense lacks

specific facts. [DE 21, p. 3]. Thus, according to Plaintiff, it “is not on fair notice of the grounds 

upon which each defense rests, as each is wholly conclusory in nature. When a defendant states no 

more than bare-bones, conclusory allegations, the court must strike the affirmative defense.” Id.

As stated above, the Court finds merit in the body of case law which states that affirmative 

defenses are not subject to the heightened pleading standard of Rule 8(a). Accordingly, the Sixth 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 10 of 17
11

Affirmative Defense gives Plaintiff notice of the defense claimed and is appropriately pled under 

Rules 8(b) and (c). Further, in the Sixth Affirmative Defense, Defendant is clearly referring to the 

alleged defects in design or manufacturing alleged in the Complaint. Moreover, it would be 

impossible this early in the case, before the discovery process has been concluded, for Defendant 

to be more specific here. Therefore, Plaintiff’s Motion is DENIED as to the Sixth Affirmative 

Defense.

G. Eight Affirmative Defense

Defendant’s Eighth Affirmative Defense states: “Plaintiff’s claims are barred, in whole or 

in part, to the extent the claimed defect or deficiency was patent, open, obvious, or otherwise 

discoverable upon a reasonable inspection.” [DE 11, p. 9].

Plaintiff maintains that this defense “lacks at least one ultimate fact and is legally 

insufficient as a matter of law,” “lacks certainty and specificity,” and is “irrelevant to Plaintiff’s 

claims at bar, which sound in fraud and in negligence.” [DE 15, p. 7]. Finally, Plaintiff contends 

that “despite greater knowledge, Defendant fraudulently induced Plaintiff into the purchase by 

stating false information.” Id.

In response, Defendant argues that “it is important for the Court to understand the various 

claims that Plaintiff asserted and the specific allegations that pertain to each. To list all facts that 

would support these defenses requires extensive discovery, but also a recitation of nearly every 

one of the 116 allegations in the Complaint.” [DE 17, p. 10]. According to Defendant, “Plaintiff 

has not specifically identified his theory of the ‘defects’ with the Vessel and its components with 

enough specificity for MarineMax to have each and every one of its defense theories established.” 

Id. Defendant contends that it has met “its burden under the law and Rule 8, which is to put Plaintiff 

on notice of the defenses claimed.” Id. at p. 11.

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 11 of 17
12

In reply, Plaintiff contends that Defendant has basically admitted that the defense lacks 

specific facts. [DE 21, p. 3]. Thus, according to Plaintiff, it “is not on fair notice of the grounds 

upon which each defense rests, as each is wholly conclusory in nature. When a defendant states no 

more than bare-bones, conclusory allegations, the court must strike the affirmative defense.” Id.

As stated above, the Court finds merit in the body of case law which states that affirmative 

defenses are not subject to the heightened pleading standard of Rule 8(a). Accordingly, the Eighth

Affirmative Defense gives Plaintiff notice of the defense claimed and is appropriately pled under 

Rules 8(b) and (c). Additionally, it seems that Defendant is clearly referring to the alleged defects

and deficiencies in design or manufacturing alleged in the Complaint. Moreover, it would be 

impossible this early in the case, before the discovery process has been concluded, for Defendant 

to be more specific. Therefore, Plaintiff’s Motion is DENIED as to the Eighth Affirmative 

Defense.

H. Ninth Affirmative Defense

Defendant’s Ninth Affirmative Defense states: “Plaintiff’s claims are barred to the extent 

Plaintiff failed to mitigate his damages.” [DE 11, p. 9]. 

Plaintiff argues that the defense “lacks at least one ultimate fact” and “is legally insufficient 

as a matter of law.” [DE 15, p. 8]. According to Plaintiff, “Defendant is required to state how 

Plaintiff failed to mitigate his damages yet fails to do so.” Id.

In response, Defendant argues that “it is important for the Court to understand the various 

claims that Plaintiff asserted and the specific allegations that pertain to each. To list all facts that 

would support these defenses requires extensive discovery, but also a recitation of nearly every 

one of the 116 allegations in the Complaint.” [DE 17, p. 10]. According to Defendant, “Plaintiff 

has not specifically identified his theory of the ‘defects’ with the Vessel and its components with 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 12 of 17
13

enough specificity for MarineMax to have each and every one of its defense theories established.” 

Id. Defendant contends that it has met “its burden under the law and Rule 8, which is to put Plaintiff 

on notice of the defenses claimed.” Id. at p. 11.

In reply, Plaintiff contends that Defendant has basically admitted that the defense lacks 

specific facts. [DE 21, p. 3]. Thus, according to Plaintiff, it “is not on fair notice of the grounds 

upon which each defense rests, as each is wholly conclusory in nature. When a defendant states no 

more than bare-bones, conclusory allegations, the court must strike the affirmative defense.” Id.

As stated above, the Court finds merit in the body of case law which states that affirmative 

defenses are not subject to the heightened pleading standard of Rule 8(a). Accordingly, the Ninth

Affirmative Defense gives Plaintiff notice of the defense claimed and is appropriately pled under 

Rules 8(b) and (c). Defendant is clearly asserting that Plaintiff failed to mitigate his own damages

and is simply unable to provide more specific examples at this early point in the case. Therefore, 

Plaintiff’s Motion is DENIED as to the Ninth Affirmative Defense.

I. Eleventh Affirmative Defense

Defendant’s Eleventh Affirmative Defense states as follows: “The alleged damages 

sustained by the plaintiff are the proximate result of the acts and/or omissions of parties over whom 

the defendant exercised no control.” [DE 11, p. 9]. 

Plaintiff argues that this defense “lacks at least one ultimate fact” and consists of 

“conclusory, bare-boned allegations that fails to give Plaintiff fair notice of the facts or grounds of 

the defense.” [DE 15, p. 8]. Plaintiff contends that Defendant has failed “to articulate what these 

‘acts and/or omissions’ are and whom these ‘parties’ might be.” Id. He claims that he needs to 

know who these parties are so that he can set them for deposition. Id. at p. 9. 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 13 of 17
14

In response, Defendant argues that “it is important for the Court to understand the various 

claims that Plaintiff asserted and the specific allegations that pertain to each. To list all facts that 

would support these defenses requires extensive discovery, but also a recitation of nearly every 

one of the 116 allegations in the Complaint.” [DE 17, p. 10]. According to Defendant, it needs a 

“better understanding of the specific complaints and the reasons for the issues that may have

actually existed.” Id. at p. 12. Defendant also explains that, “[b]ecause Plaintiff complains of nearly 

every component of the Vessel, but the cause of those purported problematic components are not 

identified in the Complaint, there are countless manufacturers that may have culpability for the 

alleged defects.” Id. Defendant also argues that Plaintiff has notice of the defense claimed because 

Plaintiff knows all of the individuals with other companies who were involved in servicing or 

repairing his Vessel. Id.

In reply, Plaintiff contends that Defendant has basically admitted that the defense lacks 

specific facts. [DE 21, p. 3]. Thus, according to Plaintiff, it “is not on fair notice of the grounds 

upon which each defense rests, as each is wholly conclusory in nature. When a defendant states no 

more than bare-bones, conclusory allegations, the court must strike the affirmative defense.” Id.

As stated above, the Court finds merit in the body of case law which states that affirmative 

defenses are not subject to the heightened pleading standard of Rule 8(a). Accordingly, the 

Eleventh Affirmative Defense gives Plaintiff notice of the defense claimed and is appropriately 

pled under Rules 8(b) and (c). It is clear that Defendant is asserting that Plaintiff’s alleged damages 

may be the proximate result of the acts and/or omissions of parties over whom the defendant 

exercised no control and that Defendant has not yet had the opportunity, though the discovery 

process, to determine the specific acts and omissions and the specific third parties at this point in 

the case. Moreover, the Court agrees with Defendant’s argument that Plaintiff himself knows 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 14 of 17
15

which third parties worked on the vessel at issue. Therefore, Plaintiff’s Motion is DENIED as to 

the Eleventh Affirmative Defense.

J. Twelfth Affirmative Defense

Defendant’s Twelfth Affirmative Defense states: “Plaintiff has not shown and cannot show 

a reasonable basis for seeking punitive damages.” [DE 11, p. 9].

Plaintiff argues that this defense is legally insufficient as a matter of law because it is 

actually a denial. [DE 15, p. 6]. 

In response, Defendant argues that this is not a denial and should not be stricken. [DE 17, 

p. 9]. Defendant contends that, even if the Court determines that this affirmative defense is a denial, 

striking it would be improper under the applicable law. Id. Defendant also points that this defense 

addresses Plaintiff’s prayer for punitive damages in Counts I and III of the Complaint, and Plaintiff 

provides no further mention of entitlement to seeking punitive damages or otherwise addresses the 

basis for seeking punitive damages in the “wherefore clause” of Count III, and paragraph 76 of 

Count I. Id. at p. 8. 

In reply, Plaintiff maintains that “a defense which points out a defect in the plaintiff's prima 

facie case is not an affirmative defense.” [DE 21, p. 3]. According to Plaintiff, this defense is 

“simply [a] challenge[ ] to an element of Plaintiff’s prima facie case,” which renders it a “negative 

defense[ ]” that should be stricken, rather than an affirmative defense. Id.

The Court agrees with Plaintiff that Defendant’s Twelfth Affirmative Defense is not a valid 

affirmative defense. However, in light of the disfavor with which courts view striking portions of 

pleadings, the Court will treat the Fourth Affirmative Defense as a specific denial. See Birren, 

2020 WL 6487517, at *7; JazAtlanta 519 LLC, 2018 WL 4743634, at *2; McMullen, 2015 WL 

11199534, at *3; Bluewater Trading LLC, 2008 WL 4179861, at *2. Thus, the Court DENIES 

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 15 of 17
16

Plaintiff’s Motion as to the Twelfth Affirmative Defense but will treat the affirmative defense as 

a denial

K. Thirteenth Affirmative Defense

Defendant’s Thirteenth Affirmative Defense states as follows: 

Plaintiff’s alleged reliance on any misrepresentations was unreasonable and/or 

unjustified given he expressly acknowledged he was not relying upon any 

statements made by MarineMax and pursuant to the terms of the contract.

[DE 11, p. 10].

Plaintiff argues that this defense is “irrelevant and immaterial to the causes of action pled 

by Plaintiff.” [DE 15, p. 3]. According to Plaintiff, this is not an admission of liability with a 

justification, and the Thirteenth Affirmative Defense fails to address Plaintiff’s causes of action 

that solely sound in fraud and negligence. Id. at p. 5.

In response, Defendant asserts that Plaintiff is improperly asking the Court to determine 

the merits of the case and that it “is disingenuous to this Court and is a waste of this Court’s time 

and judicial resources for Plaintiff to argue that the fact that Plaintiff signed a Purchase Agreement, 

acknowledging that the Vessel at issue was sold ‘AS IS’ and expressly waiving reliance on any 

representations and acknowledged MarineMax did not assert warranties it is immaterial, irrelevant, 

or unrelated to the claims asserted.” [DE 17, p. 7]. According to Defendant “[t]he law is replete 

with examples of this being not just a defense to fraud and FDUTPA claims, but the essence of 

many opinions wherein the Court analyzed the applicability of the language of contracts signed in 

connection with purported fraud and FDUTPA violations.” Id. Defendant argues that this defense 

clearly has a possible relation to the claims presented. Id.

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 16 of 17
17

In reply, Plaintiff argues that the affirmative defense is “wholly irrelevant because, even if 

proven,” it does “not reduce or eliminate Plaintiff’s recovery” and because the defense does “not 

apply to the stated causes of action.” [DE 21, p. 2]. 

The Motion is DENIED as to the Thirteenth Affirmative Defense for the same reasons the 

Court denied the Motion as to the First, Second, and Third Affirmative Defenses.

V. CONCLUSION

In light of the foregoing, it is ORDERED and ADJUDGED that Plaintiff’s Motion to 

Strike Defendant, MarineMax East, Inc.’s Affirmative Defenses [DE 15] is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, 

this 12th day of November, 2020.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

Case 9:20-cv-81254-WM Document 25 Entered on FLSD Docket 11/12/2020 Page 17 of 17