UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-cv-23992-CIV-SCOLA/GOODMAN

CALVIN JACKSON,

Plaintiff,

v.

CARNIVAL CORPORATION.,

Defendant.

____________________________________/

ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S

AFFIRMATIVE DEFENSES

In this maritime personal injury case, Calvin Jackson (“Plaintiff” or “Jackson”) 

filed a Motion to Strike Defendant’s Affirmative Defenses. [ECF No. 18]. Carnival 

Corporation (“Carnival” or “Defendant”) filed an opposition response [ECF No. 20] and 

Plaintiff filed an optional reply [ECF No. 21]. United States District Judge Robert N. Scola, 

Jr. referred1to the Undersigned Plaintiff’s motion. [ECF No. 19]. For the reasons explained 

below, the Undersigned denies Plaintiff’s motion.

1 The referral was expressly made “consistent with” Local Magistrate Judge Rule 

1(c) (which is for “determination of Non-dispositive Pretrial Matters”) and 28 U.S.C. § 

636(b)(1)(A), which calls for an Order on non-dispositive matters. [ECF No. 19].

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I. Background

Plaintiff seeks compensation for injuries he allegedly suffered as a passenger 

aboard the Elation, a vessel operated by Carnival. [ECF No. 14]. Plaintiff asserts in his

Second Amended Complaint that he slipped and fell after stepping off a waterslide onto 

an “unreasonably slippery” platform and that Defendant’s negligence caused his injuries. 

Id.

Carnival filed an Answer and Affirmative Defenses to Plaintiff’s Amended 

Complaint. [ECF No. 15]. In this pleading, Carnival raised ten affirmative defenses. Id.

Plaintiff now seeks to strike Defendant’s Third, Sixth, Eighth, and Tenth

Affirmative Defenses. [ECF No. 18]. He argues that these affirmative defenses are 

improper for several reasons, including that: (1) Defendant’s affirmative defenses are 

“bare-bones conclusory allegations”; (2) they violate controlling caselaw; and/or (3) they 

are “shotgun affirmative defenses.” Id. 

Carnival opposes the motion. [ECF No. 20]. It argues that affirmative defenses do 

not have to meet the pleading standard set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 

(2007) and that the challenged affirmative defenses are adequate because they put 

Plaintiff on notice of the intent to assert these defenses. Id. Moreover, because discovery 

is still in its early stages, Carnival asserts that the facts supporting the affirmative 

defenses are currently unavailable. Id. Finally, Carnival notes that Judge Scola -- who is 

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the District Judge presiding over this case -- recently denied a near-identical motion filed 

by the same Plaintiff’s counsel. Id.

II. Legal Standard

The Court, either on its own or on a motion made by a party, is permitted to strike 

from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or 

scandalous matter.” Fed. R. Civ. P. 12(f)(1)-(2). “Courts ‘have broad discretion when 

considering a motion to strike,’ however, ‘striking defenses from a pleading’ remains a 

‘drastic remedy to be resorted to only when required for the purposes of justice’ and only 

when the stricken material has ‘no possible relation to the controversy.’” FAST SRL v. 

Direct Connection Travel, LLC, 330 F.R.D. 315, 317 (S.D. Fla. 2018) (quoting Guarantee Ins. 

Co. v. Brand Mgmt. Serv., Inc., No. 12-61670, 2013 WL 4496510, at *2 (S.D. Fla. Aug. 22, 

2013)).

There is a split among the district courts in this Circuit regarding the proper 

pleading standard for an affirmative defense. See Jennings v. Carnival Corp., No. 22-CV20205, 2022 WL 1913249, at *2 n.2 (S.D. Fla. May 17, 2022), report and recommendation 

adopted, No. 1:22-CV-20205, 2022 WL 1908949 (S.D. Fla. June 3, 2022) (recognizing split 

in authority “regarding the pleading standard required for affirmative defenses”); 

Thompson v. Carnival Corp., No. 20-22217-CIV, 2021 WL 7542956, at *2 (S.D. Fla. May 24, 

2021) (“Before we consider the merits of the motion to strike, Plaintiff argues that Twombly

applies to affirmative defenses. We acknowledge that there is a split of authority in the 

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Eleventh Circuit on the question presented.”); Andean Life, LLC v. Barry Callebaut U.S.A. 

LLC, No. 20-20765-CIV, 2020 WL 1703552, at *2 (S.D. Fla. Apr. 8, 2020) (“[N]o United 

States Court of Appeals has decided the question on whether the plausibility standard 

enunciated in Twombly and Iqbal applies to affirmative defenses[.]”); Ramnarine v. CP RE 

Holdco 2009-1, LLC, No. 12-61716-CIV, 2013 WL 1788503, at *1 (S.D. Fla. Apr. 26, 2013) 

(“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.”).

Judge Scola has determined that Twombly does not apply to the pleading of 

affirmative defenses. See Brito v. Palm Springs Mile Assocs., Ltd., Case No. 20-24701-CIV, 

2021 WL 2634863, at *1 (S.D. Fla. Feb. 3, 2021) (Scola, J.) (“An affirmative defense is 

sufficient as long as it provides the opposing party with notice of an additional issue (not 

directly related to liability) that may be raised at trial so that the opposing party can 

litigate the new issue.”); Gonzalez v. Scottsdale Ins. Co., No. 20-20747-CIV, 2020 WL 

1891328, at *1 (S.D. Fla. Apr. 16, 2020) (Scola, J.) (“The Twombly/Iqbal jurisprudence does 

not govern affirmative defenses.”); Doral Boulevard Hotel, LLC v. Hartford Steam Boiler 

Inspection & Ins. Co., No. 16-20697-CIV, 2016 WL 8793344, at *1 (S.D. Fla. May 23, 2016) 

(Scola, J.) (same).

Instead, a defendant need only “state in short and plain terms its defenses to each 

claim asserted against it.” Fed. R. Civ. P. 8(b)(1)(A). It is sufficient that “the opposing 

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

prepared to properly litigate it.” Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 

1988). Therefore, a defendant is not obligated to “set forth detailed factual allegations” so 

long as the defendant “give[s] the plaintiff ‘fair notice’ of the nature of a defense and the 

grounds on which it rests.” Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015)

(quoting Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013)).

III. Analysis

As noted above, Plaintiff seeks to strike Defendant’s Third, Sixth, Eighth, and 

Tenth Affirmative Defenses. [ECF No. 20]. Before turning to the merits-based analysis of 

Plaintiff’s motion, the Undersigned writes to address Plaintiff’s counsel’s failure to 

inform the Court that it has filed near-identical motions in multiple other cases and these 

arguments have been near-uniformly rejected.

2

In this case and the other cases, Plaintiff’s 

counsel has challenged affirmative defenses because they say the defendant did not 

admit the essential facts of the Complaint. Indeed, the instant motion is hardly tailored 

to the specifics of this case; instead, as detailed below, many of the arguments appear to 

be lifted (or copied-and-pasted) from other prior motions:

2

In his reply, Plaintiff relies exclusively on a decision from Chief United States 

Magistrate Judge Edwin G. Torres, in which Judge Torres opined that the affirmative 

defenses are subject to the heightened pleading standard required by Twombly. Donaldson 

v. Carnival Corp., No. 20-23258-CIV, 2021 WL 8775733, at *1 (S.D. Fla. Apr. 20, 2021). 

However, other than providing a block quote from Donaldson, Plaintiff makes no effort to 

persuade the Undersigned to reconsider my prior rulings on this issue or to persuade the 

Undersigned that Judge Scola should reconsider his prior rulings on this issue.

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Compare [ECF No. 18]

However, because this affirmative defense squarely violates controlling 

authority, it should be stricken. As an initial matter, a “‘defendant must 

admit the essential facts of the complaint and bring forth other facts in 

justification or avoidance to establish an affirmative defense.’” Andean Life, 

2020 WL 1703552, at *1 (quoting Royal Palm Sav. Ass'n, 716 F. Supp. 1416, 

1420). Here, CARNIVAL fails to admit the essential facts of the complaint, 

and as such, these affirmative defenses should be stricken for this reason 

alone.

with [Case No. 22-cv-21638-RNS, ECF No. 30]

However, because this affirmative defense squarely violates controlling 

authority, it should be stricken. As an initial matter, a “‘defendant must 

admit the essential facts of the complaint and bring forth other facts in 

justification or avoidance to establish an affirmative defense.’” Andean Life, 

2020 WL 1703552, at *1 (quoting Royal Palm Sav. Ass'n, 716 F. Supp. 1416, 

1420). Here, CARNIVAL fails to admit the essential facts of the complaint, 

and as such, these affirmative defenses should be stricken for this reason 

alone.

and [Case No. 22-cv-20945-RNS, ECF No. 20]

However, because this affirmative defense squarely violates controlling 

authority, it should be stricken.

As an initial matter, a “‘defendant must admit the essential facts of the 

complaint and bring forth other facts in justification or avoidance to 

establish an affirmative defense.’” Andean Life, 2020 WL 1703552, at *1 

(quoting Royal Palm Sav. Ass'n, 716 F. Supp. 1416, 1420). Here, CCL fails to 

admit the essential facts of the complaint, and as such, this affirmative 

defense should be stricken for this reason alone.

and [Case No. 20-cv-61341-RS, ECF No. 29]

However, because this affirmative defense squarely violates controlling 

authority, it should be stricken . . . .

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As an initial matter, a “‘defendant must admit the essential facts of the 

complaint and bring forth other facts in justification or avoidance to 

establish an affirmative defense.’” Andean Life, 2020 WL 1703552, at *1 

(quoting Royal Palm Sav. Ass'n, 716 F. Supp. 1416, 1420). Here, Defendant 

fails to admit the essential facts of the complaint, and as such, this 

affirmative defense should be stricken for this reason alone.

Essentially, Plaintiff offers no argument which is unique to his case -- instead,

taking the position that Carnival’s affirmative defenses are per se impermissible. 

However, in each of those other cases, the Court -- including Judge Scola and the 

Undersigned -- has rejected this identical argument. See [Case No. 22-cv-21638-RNS, ECF 

No. 33; Case No. 22-cv-20945-RNS, ECF No. 24; Case No. 20-cv-61341-RNS, ECF Nos. 87; 

111].

With this background in mind, the Undersigned will turn to the merits of 

Plaintiff’s argument. Rather than adopt the parties’ non-numerical ordering of the 

challenged affirmative defenses, the Undersigned will address them in numerical order. 

a) Third Affirmative Defense

In its Third Affirmative Defense, Carnival avers that “[t]his action is governed by 

and subject to the terms, limitations, and conditions contained in the ticket contract. 

Carnival adopts and incorporates by reference same herein in their entirety.” [ECF No. 

15]. Plaintiff says that to allow this affirmative defense to stand will result in “trial by 

ambush” and Carnival should be required to identify its terms and conditions. Defendant 

responds by saying that it cannot, at this time, provide additional facts as to which of the 

ticket contract provisions Plaintiff failed to comply with because discovery is still at an 

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early stage. Plaintiff’s reply says that this response makes no sense and that Plaintiff 

“suspects that . . . this is simply a boiler plate affirmative defense that CARNIVAL cut 

and pastes into every answer it files.” [ECF No. 21].

Addressing the same boiler plate argument Plaintiff’s counsel raised in a motion 

filed in another case against Carnival, Judge Scola stated the following concerning this 

affirmative defense:

The Court finds that the third affirmative defense functions, at worst, as a

denial of the Plaintiff’s claims through its reference to the ticket contract’s

terms. Therefore, the appropriate remedy is not to strike the third 

affirmative defense, but to treat it as a specific denial. Isola Condo. Assoc., 

Inc. v. Rockhill Ins. Co., No. 21-23114-CIV, 2021 WL 6066126, at *2 (S.D. Fla. 

Nov. 15, 2021) (Goodman, Mag. J.) (“When this occurs, the proper remedy 

is not [to] strike the claim, but rather to treat [it] as a specific denial.”) 

(brackets in original). The Court therefore declines to strike this defense.

[Case No. 22-cv-21638, ECF No. 33].

The Undersigned agrees with Judge Scola’s reasoning. This affirmative defense, 

although lacking factual detail, suffices to put Plaintiff on notice that Carnival intends to 

argue that Plaintiff did not abide by the terms of the ticket contract. If Carnival is unable 

to present any evidence to support this affirmative defense, then Plaintiff can move for 

summary judgment on the issue. The Undersigned declines to strike this affirmative 

defense.

b) Sixth Affirmative Defense

In its Sixth Affirmative Defense, Defendant states that 

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Plaintiff's injuries, if any, are the result of a pre-existing injury or condition 

that was not aggravated by the alleged accident claimed herein. 

Alternatively, if any pre-existing injury or condition was aggravated by any 

actions alleged in the Compliant [sic], then Plaintiff is only entitled to 

recovery for the damages resulting from the aggravation.

[ECF No. 15].

Plaintiff challenges this defense by stating that Carnival does not allege sufficient 

supporting facts. [ECF No. 18]. Plaintiff also argues that although “[t]here does not 

appear to be controlling authority in maritime law on the subject,” Defendant “misstates 

the law as it related to pre-existing conditions,” arguing that the Court should look to

Florida Jury Instruction 501.5(a). Id. Carnival argues that the Eleventh Circuit has issued 

numerous opinions addressing pre-existing conditions and that, although a defendant 

must take a plaintiff as is, there are certain reductions which are permitted based on preexisting conditions.

The arguments presented by the parties concerning Carnival’s Sixth Affirmative 

Defense are the same as the arguments proffered by Plaintiff’s counsel in Birren v. Royal 

Caribbean Cruises, Ltd.:

[The] [p]laintiffs, in challenging this defense, assert both that it fails to allege 

sufficient facts and that, as a matter of law, this defense misstates the law 

regarding pre-existing conditions, citing to the language of Florida Jury 

Instruction 501.5(a) as the authority on pre-existing conditions. [The] 

[d]efendant responds that the Florida Jury Instruction provision is 

inapplicable here and that, in order to plead more facts in support of this 

defense, it must be allowed to conduct discovery to obtain [the] [p]laintiffs’ 

medical records. Thus, [the] [d]efendant argues that the Fifth Affirmative 

Defense should not be stricken.

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336 F.R.D. 688, 694 (S.D. Fla. 2020).

In Birren, United States District Judge Beth Bloom noted that a similar affirmative 

defense raised a “question of causation—i.e., whether [the] [p]laintiffs’ injuries were 

caused by pre-existing conditions or by [the] [d]efendant.” Id. Judge Bloom determined 

that the affirmative defense provided the plaintiff with fair notice of the defense the 

defendant intended to raise -- the presence of a pre-existing injury. Id.

Judge Bloom also noted that any evidence supporting this affirmative defense 

would be “largely, if not exclusively” within the plaintiffs’ medical records. Id. (quoting

Incardone v. Royal Carribean Cruises, Ltd., No. 16-20924-CIV, 2019 WL 2709810, at *11 (S.D. 

Fla. June 28, 2019), report and recommendation adopted, No. 16-20924-CIV, 2019 WL 

8989849 (S.D. Fla. Oct. 1, 2019)). Finally, she did not strike this affirmative defense,

notwithstanding the plaintiffs’ argument concerning Florida Jury Instruction 501.5(a). Id.; 

see also Melaih v. MSC Cruises, S.A., No. 20-CV-61341, 2021 WL 3727837, at *6 (S.D. Fla. 

July 27, 2021), report and recommendation adopted, No. 20-61341-CIV, 2021 WL 3726210 

(S.D. Fla. Aug. 23, 2021) (finding that an affirmative defense asserting that “[the] 

[p]laintiff’s damages were caused by [the] [p]laintiff’s pre-existing injuries and not by any 

act or omission of “[the] [d]efendant” was “not inconsistent with governing law or 

[Florida Jury Instruction 501.5(a)]”).

Similarly, here, the Undersigned concludes that this affirmative defense is proper 

because it puts Plaintiff on notice regarding the issue of causation and any evidence 

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supporting this affirmative defense would be within Plaintiff’s own medical records. 

Additionally, Plaintiff has not shown that this affirmative defense is contrary to law or, 

if applicable, Florida Jury Instruction 501.5(a). Therefore, the Undersigned will not strike

the Sixth Affirmative Defense.

c) Eighth Affirmative Defense

In this affirmative defense, Carnival states that “[t]he incident and injuries alleged 

in the Complaint were the result of intervening and unforeseeable causes for which 

Carnival had no duty to protect Plaintiff from [sic].” [ECF No. 15]. Plaintiff’s arguments

in support of striking this affirmative defense are identical to those he raised as grounds 

to strike Defendant’s Third Affirmative Defense. Plaintiff says that this is a shotgun 

affirmative defense and complains that Defendant has not included which specific 

“intervening and unforeseeable causes” Defendant believes occurred. Plaintiff claims 

that, on this issue, Defendant has “equal, if not better knowledge of than [sic] [Plaintiff].”

Defendant says that this affirmative defense meets the necessary requirement to 

put Plaintiff on notice. It is possible, Defendant argues, that because Plaintiff’s incident 

occurred in a crowded pool area, some other individual might be liable, or Plaintiff’s own 

actions might have contributed to the incident. According to Defendant, this is 

information which will be further developed in discovery.

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Defendant is not required to plead specific facts nor to admit liability in order to 

raise this defense. At worst, the affirmative defense functions as a denial. Therefore, the 

Undersigned denies Plaintiff’s request to strike this affirmative defense.

d) Tenth Affirmative Defense

Carnival’s Tenth Affirmative Defense reads as follows: “Third parties over whom 

Carnival, at the time of their actions, had no control and their intentional acts are the 

proximate cause of any loss, injury or damage to Plaintiffs [sic]. The actions of the third 

party was [sic] an intervening and superseding event.” [ECF No. 15]. Plaintiff says that 

this affirmative defense is an attempt to apply “Florida’s Fabre doctrine,”3 which Plaintiff 

argues is impermissible in a maritime case. As with the other defenses, Plaintiff also 

claims that the affirmative defense should be stricken due to a lack of factual detail. In 

Plaintiff’s view, this “cannot be asserting an intervening cause [because] CARNIVAL’s 

eighth affirmative defense is clearly CARNIVAL’s intervening cause defense, and 

3 The Fabre doctrine comes from the Florida Supreme Court case Fabre v. Martin, 623 

So. 2d 1182, 1185 (Fla. 1993), receded from on other grounds, Wells v. Tallahassee Mem'l 

Reg'l Med. Ctr., Inc., 659 So. 2d 249 (Fla. 1995). For background, Florida's comparative 

fault statute provides “[i]n a negligence action, the court shall enter judgment against 

each party liable on the basis of such party's percentage of fault and not on the basis of 

the doctrine of joint and several liability.” Fla. Stat. § 768.81(3). The Fabre Court explained 

that damages must be “apportioned among all participants to the accident,” regardless if 

said participant was joined as a defendant. 623 So. 2d at 1185. As such, “[d]amages from 

negligent acts may be apportioned among parties and nonparties to a case, provided that 

the defendant pleads the negligence of the nonparty as a defense and specifically 

identifies the nonparty.” Btesh v. City of Maitland, Fla., No. 6:10-cv-71-Orl-19DAB, 2011 

WL 13298505, at *1 (M.D. Fla. Apr. 19, 2011) (citing Nash v. Wells Fargo Guard Servs., Inc., 

678 So. 2d 1262, 1264 (Fla. 1996)).

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therefore, if this affirmative defense is asserting any affirmative defense at all, it must be 

asserting it based on the non-applicable Fabre doctrine.” [ECF No. 18 (emphasis 

removed)].

Defendant responds that the affirmative defense is an “intervening/superseding 

cause” defense, which “is a legally valid defense.” [ECF No. 20]. The Undersigned agrees. 

In an Order rejecting an identical argument raised by Plaintiff’s counsel in another case, 

Judge Scola stated:

[T]he intervening and superseding cause defense is applicable in maritime 

actions and functions as a complete bar to recovery, rather than 

apportioning recovery. Wiegand v. Royal Caribbean Cruises Ltd., 473 F. Supp. 

3d 1348, 1351 (S.D. Fla. 2020) (Graham, J.) (“The Supreme Court has held, 

the superseding cause doctrine, which serves to exculpate the defendant 

from liability entirely, is applicable in admiralty cases.”) (citing Exxon Co., 

U.S.A. v. Sofec, Inc., 517 U.S. 830, 836-837 (1996)). The tenth affirmative 

defense explicitly asserts the intervening and superseding cause doctrine 

and is worded as to seek a complete bar to recovery. Therefore, it comports 

with the requirements of maritime law. Id.

[Case No. 22-cv-21638, ECF No. 33].

Judge Scola further noted that the eighth affirmative defense and tenth affirmative 

defense (which are identical to corresponding affirmative defenses in this case) differed 

because “the eighth affirmative defense asserts that Carnival did not owe the Plaintiff a 

duty of care[] and the tenth affirmative defense asserts a lack of proximate cause[.]” Id. 

Because the affirmative defenses differ in this key respect, they are not redundant of each

other.

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Based on the above reasoning, the Undersigned denies Plaintiff’s motion to strike 

Defendant’s Tenth Affirmative Defense.

IV. Conclusion

For the reasons stated herein, the Undersigned denies Plaintiff’s motion.

DONE AND ORDERED in Chambers, in Miami, Florida, on March 24, 2023.

Copies furnished to:

The Honorable Robert N. Scola, Jr.

All Counsel of Record

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