Case No. 22-cv-24131-BLOOM/Otazo-Reyes

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-24131-BLOOM/Otazo-Reyes

MSP RECOVERY CLAIMS SERIES 44, LLC, 

Plaintiff, 

v. 

STATE FARM MUTUAL

AUTOMOBILE INSURANCE COMPANY,

Defendant. 

_________________________/ 

ORDER ON MOTION TO STRIKE

THIS CAUSE is before the Court upon Plaintiff MSP Recovery Claims, Series 44, LLC’s 

Motion to Strike Affirmative Defenses, ECF No. [44] (“Motion”), filed on June 20, 2023. 

Defendant State Farm Mutual Automobile Insurance Company filed a Response, ECF No. [45], to 

which Plaintiff filed a Reply, ECF No. [46]. The Court has carefully considered the parties’ 

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the 

reasons that follow, the Motion is granted in part and denied in part. 

I. BACKGROUND

This is a dispute arising under the Medicare Secondary Payer Act (“MSPA”), 42 U.S.C. 

§ 1395y(b). According to Plaintiff’s Amended Complaint, Plaintiff has been assigned the right to 

recover conditional payments made by a Medicare secondary payer with respect to medical 

expenses incurred by Medicare beneficiaries, for which Defendant was the primary payer under 

the MSPA. ECF No. [29]. Plaintiff seeks to recover those conditional payments, which Defendant 

should have reimbursed to Plaintiff’s assignor. Id. 

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On May 30, 2023, Defendant filed an Answer in which it asserted eleven (11) Affirmative 

Defenses to Plaintiff’s Second Amended Complaint. ECF No. [43]. Plaintiff moves to strike six of 

those Affirmative Defenses. See generally ECF No. [44]. 

II. LEGAL STANDARD

A. Affirmative Defenses

“An affirmative defense is one 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. 668, 671 (S.D. Fla. 2013). “A defense that simply points out a defect 

or lack of evidence in the plaintiff’s case is not an affirmative defense.” Id. (citing Flav-O-Rich, 

Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 

1988)). “[A]ffirmative defenses are not subject to the heightened pleading standard elucidated in 

Twombly and Iqbal.” Northrop & Johnson Holding Co., Inc. v. Leahy, No. 16-cv-63008-BLOOM, 

2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017) (quotation marks omitted).

B. Motions to Strike

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

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

Civ. P. 12(f). District Courts have “broad discretion in considering a motion to strike under Fed. 

R. Civ. P. 12(f).” Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1317-18 

(S.D. Fla. 2005). Despite this discretion, “[a] motion to strike is a drastic remedy[,] which is 

disfavored by the courts and will usually be denied unless the allegations have no possible relation 

to the controversy and may cause prejudice to one of the parties.” Thompson v. Kindred Nursing 

Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (internal quotation marks omitted); 

see also Gen. Defense Corp. v. Restorick, No. 08-cv-60537, 2008 WL 11417688, at *2 (S.D. Fla. 

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Nov. 3, 2008) (“[T]he standard for striking a defense is extremely high.” (quotation marks 

omitted)). Under this standard, “‘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., 2017 WL 5632041, at *3 (quoting Adams, 294 F.R.D. at 

671 and Home Mgmt. Sols., Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *2 

(S.D. Fla. Aug. 21, 2007)). “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); see also Reyher v. 

Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995) (Where “a defense puts into 

issue relevant and substantial legal and factual questions, it is ‘sufficient’ and may survive a motion 

to strike, particularly when there is no showing of prejudice to the movant.”). 

III. DISCUSSION

Plaintiff moves to strike Affirmative Defenses one, three, five, six, seven, and eleven. ECF No. 

[44].

A. Defense No. 1 – Failure to State a Claim

In Defense No. 1, Defendant asserts that “[t]he complaint fails to state a claim upon which 

relief may be granted[.]” ECF No. [43] at 27. Plaintiff argues that the defense is legally insufficient 

and “groups several different defense theories into one affirmative defense without specific facts to 

support the amalgamation of denials.” ECF No. [44] at 3. Defendant responds that it “is entitled to 

assert the substance of this defense in its Answer under Fed. R. Civ. P. 12(b)(6), and this defense 

should be treated as a specific denial.” ECF No. [45] at 2. “[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. 

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Fla. 2007). Defense No. 1 is therefore not a proper affirmative defense, and the Court finds that it 

is properly treated as a denial. See Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 

2015 WL 11197802, at *1 (S.D. Fla. Apr. 27, 2015) (collecting cases for the proposition that 

specific denials labeled as affirmative defenses are to be treated as denials rather than stricken); 

FAST SRL v. Direct Connection Travel LLC, 330 F.R.D. 315, 319 (S.D. Fla. 2018) (same). Plaintiff 

asserts that “[i]f the Court finds that defendant’s first affirmative defense is no more than a specific 

denial MSP states no further position as to the need to strike the superfluous denial.” ECF No. [46] 

at 1. The Court treats the first affirmative defense as a mere denial asserted as Defense No. 1.

B. Defense No. 3

In Defense No. 3, Defendant asserts that “[i]njury, if any, allegedly suffered by Plaintiff 

did not result from and was not proximately caused by any wrongful conduct on the part of State 

Farm.” ECF No. [43] at 28. Plaintiff argues that Defendant’s third affirmative defense does not 

comply with Rule 8(a)’s pleading requirements and that “[D]efendant’s third affirmative defense 

as stated is no more than a denial of MSP’s claims.” ECF No. [44] at 4-5. In response, Defendant 

argues that its third affirmative defense “is sufficient to put Plaintiff on notice that Defendant 

intends to raise issues regarding either comparative fault or superseding causes. ECF No. [45] at 

5. In its Reply, Plaintiff contends that “defendant’s defense doesn’t provide any information as to 

what those comparative faults or superseding causes could be.” ECF No. [46] at 3. While the Court 

agrees with Defendant that Rules 8(b) and (c) are applicable and affirmative defenses do not 

require the heightened pleading standard set out in Rule 8(a), the Court agrees with Plaintiff that 

the affirmative defense “is pleaded as a bare-bones legal conclusion . . . without sufficient facts to 

put Defendant[] on notice as to the nature of the affirmative defense[.]”See Northrop & Johnson 

Holding Co., 2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017). Because Plaintiff states that 

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“defendant’s third affirmative defense as stated is no more than a denial of MSP’s claims” and

Defendant argues that “should the Court decide that this is not an affirmative defense the proper 

remedy is not to strike it, but to instead label it as a specific denial” the Court does precisely that. 

See ECF Nos. [44] at 5, [45] at 5. The Court finds that Defense No. 3 is a specific denial and 

declines to strike it.

C. Defense No. 5 – Exhaustion of Benefits

In Defense No. 5, Defendant asserts that Plaintiff’s claims are barred “to the extent that the 

Medicare Beneficiary’s benefits under the insurance policy were exhausted at the time Plaintiff’s 

assignor allegedly made payment of the bills for which Plaintiff seeks reimbursement.” ECF No. 

[43] at 29. Plaintiff argues that this defense “is insufficient as to Medicare beneficiaries P.W., P.H., 

M.H., and J. Bro. because defendant has already produced documents to MSP relating to each of 

those beneficiaries which demonstrate that their respective insurance policies with State Farm have 

not been fully exhausted.” ECF No. [44] at 4. In response, Defendant convincingly argues that this 

Defense is properly pled because it “puts into issue relevant and substantial legal and factual 

questions to be raised at trial” where Plaintiff’s Amended Complaint does not specify when 

Plaintiff’s assignor made claims for payment against Defendant. ECF No. [45] at 3. Regardless of 

what has been produced in discovery already, this Defense raises a relevant factual dispute and 

will not be stricken.

D. Defense Nos. 6 & 7

In Defense No. 6, Defendant asserts that its “actions were both reasonable and in 

compliance with the applicable laws, rules, and regulations.” ECF No. [43] at 29. In Defense No. 

7, Defendant asserts that “Plaintiff’s claims are barred to the extent that the claimed expenses were 

not reasonable, necessary and related to treatment of injuries caused by an accident covered by the 

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applicable contract of insurance. For such claims, State Farm is not a primary payer under the 

[MSPA].” ECF No. [43] at 29. 

Plaintiff argues that Defendant’s sixth and seventh affirmative defenses do not comply with 

Rule 8(a)’s pleading requirements and do not include sufficient facts to put Plaintiff on notice of 

the affirmative defenses. ECF No. [44] at 4. In response, Defendant correctly argues that Rule 

8(a)’s pleading standard does not apply, and that a lower pleading standard is required for 

affirmative defenses which is one of “‘fair notice’ of the nature of the defense and the grounds on 

which it rests.” ECF No. [45] at 4. 

Even applying the appropriate pleading standard, Defenses No. 7 and 8 fail to provide 

Plaintiff fair notice. As Plaintiff correctly points out “both affirmative defenses fail to identify 

which specific laws, rules, regulations (sixth affirmative defense) or applicable contract provision 

(seventh affirmative defense) that render defendant’s actions reasonable or bar MSP’s recovery.” 

ECF No. [44] at 6. The Court agrees with Plaintiff that the sixth and seventh affirmative defenses

should be stricken.

E. Defense No. 11 – Reservation of Rights

In Defense No. 11, Defendant asserts: “State Farm expressly reserves the right to amend 

this Answer to assert such other additional defenses as may become apparent subsequent to the 

filing of this Answer, whether in discovery, at trial, or otherwise.” ECF No. [43] at 33. Plaintiff 

argues that the eleventh affirmative defense is essentially a clause reserving rights which courts in 

this district have found to be impermissible. ECF No. [44] at 6. Defendant responds that the 

reservation of rights does not warrant striking because it is not prejudicial to Plaintiff and does not 

bestow any additional right upon Defendant.

“The decision whether to allow amendment other than as of right rests within the Court's 

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discretion. A ‘reservation of rights within an answer is essentially meaningless’ and ‘does not 

prejudice [a party] in any way or somehow confer a right to amend ... without the Court’s

approval.’” Northrop & Johnson Holding Co., 2017 WL 5632041, at *3 (internal citations omitted) 

(denying motion to strike reservation of right to amend or assert additional affirmative defenses). 

Consistent with Northrop & Johnson Holding Co., this Court has routinely denied striking 

defendants’ reservation of right to assert additional affirmative defenses. See, e.g., Jones v. Kohl's 

Dep’t Stores, Inc., 15-CIV-61626, 2015 WL 12781195, at *3 (S.D. Fla. Oct. 16, 2015) (denying 

motion to strike reservation of right to assert additional affirmative defenses, but noting that the 

Court “does not condone the Defendant’s attempt to reserve the right to assert additional defenses 

in the future”); Sport Mgmt. Sys., LLC v. Woolley Grp., LLC, No. 15-CV-62224, 2016 WL 

8793334, at *4 (S.D. Fla. May 11, 2016) (same); United States Commodity Futures Trading 

Comm’n v. Mintco LLC, No. 15-CV-61960, 2016 WL 3944101, at *5 (S.D. Fla. May 17, 2016) 

(same). Accordingly, the Court declines to strike the Eleventh Affirmative Defense.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion, ECF No. [45], 

is GRANTED IN PART AND DENIED IN PART. Affirmative Defenses No. 6 and 7 are 

STRICKEN. 

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DONE AND ORDERED in Chambers at Miami, Florida, on August 10, 2023.

__________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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