UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO.: 0:22-cv-62268-BB

JESSE IWUJI MOTORSPORTS, LLC,

Plaintiff/Counter-defendant,

v.

EQUITY PRIME MORTGAGE, LLC,

Defendant/Counterclaimant.

______________________________________/

PLAINTIFF/COUNTER-DEFENDANT’S 

MOTION TO STRIKE AFFIRMATIVE DEFENSES

Plaintiff/Counter-Defendant, JESSE IWUJI MOTORSPORTS, LLC (“JIM”), by and 

through undersigned counsel and in accordance with Rule 12(f) of the Federal Rules of Civil 

Procedure and Court Order [D.E. 16], hereby moves to strike Defendant/Counterclaimant’s, 

EQUITY PRIME MORTGAGE, LLC (“EPM”), Affirmative Defenses and, in support thereof, 

states as follows:

OVERVIEW

1. On December 7, 2022, JIM filed a Second Amended Complaint against EPM 

seeking damages for breach of contract due to EPM’s failure to make payment in accordance with 

the terms set forth in the Sponsorship Agreement entered into between the parties. 

2. On February 9, 2023, EPM filed an Answer and Affirmative Defenses and 

Counterclaim to JIM’s Second Amended Complaint. See [D.E. 10].

3. For the reasons set forth below, JIM moves for an order striking each of EPM’s 

Affirmative Defenses.

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 1 of 12
ARGUMENT

A. Legal Standard

“An affirmative defense is a defense that ‘admits the essential facts of a complaint and sets 

up other factsin justification or avoidance.’” See Losada v. Norwegian (Bahamas) Ltd., 296 F.R.D. 

688, 690 (S.D. Fla. 2013). Rule 12(f) of the Federal Rules of Civil Procedure states, “[t]he court 

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

scandalous matter.”

A defense that either: (i) merely points out a defect in the plaintiff’s prima facie case, or 

(ii) simply denies the complaint’s allegations, is not an affirmative defense. Id. Furthermore, an 

affirmative defense must be stricken if it is insufficient as a matter of law; a defense is insufficient 

as a matter of law if: (i) on the face of its pleadings, it is patently frivolous, or (ii) it is clearly 

invalid as a matter of law. Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 

684 (M.D. Fla. 2002).

Where an affirmative defense amounts to “no more than bare bones conclusory allegations, 

it must be stricken.” Id. at 683. In analyzing the pleading standard needed to properly assert an 

affirmative defense, the Southern District of Florida has stated:

[T]his Court finds that affirmative defenses should be subject to the same general 

pleading standards of complaints. A plaintiff should be given sufficient notice of 

the defense asserted and the ground upon which it rests.... the Court finds there 

should be sufficient facts pleaded in an affirmative defense to show how and why 

the defense asserted applies to a case.

Losada, 296 F.R. D. at 691.; see also Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 

671 (S.D. Fla. 2013) (stating affirmative defenses are also subject to the general pleading 

requirements of FRCP 8(b)(1)(A), which requires the defendant to give the plaintiff fair notice of 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 2 of 12
the nature of the defense and the grounds upon which it rests.). Other districts have further 

elaborated on the necessary pleading standard, stating:

As this Court recently discussed in some detail, affirmative defenses must comply 

with two separate pleading requirements. First, the defense, as plead, must contain 

“some facts establishing a nexus between the elements of an affirmative defense 

and the allegations in the complaint,” so as to provide the plaintiff fair notice of the 

grounds upon which the defense rests. Daley v. Scott, No: 2:15-cv-269-FtM29DNF, 2016 WL 3517697, at *3 (M.D. Fla. June 28, 2016). Boilerplate pleading 

– that is, merely listing the name of the affirmative defense without providing any 

supporting facts – is insufficient to satisfy Rule 8(c), because it does not provide 

notice sufficient to allow the plaintiff to rebut or properly litigate the defense. Id. 

(citing Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989); 

Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)). Requiring 

defendants to allege some facts linking the defense to the plaintiff’s claims 

“streamlines the pleading stage, helps the parties craft more targeted discovery 

requests, and reduces litigation costs.” Id. (citations omitted).

PK Studios Inc. v. R.L.R. Investments, LLC, 2016 WL 4529323, at *2 (M.D. Fla. August 30, 2016).

B. EPM’s Affirmative Defenses Must Be Stricken For Each of the Reasons Set Forth 

Below.

a. EPM’s First Affirmative Defense

EPM’s first affirmative defense states that JIM’s Second Amended Complaint “fails to 

state a claim upon which relief may be granted because there is a complete failure to allege 

sufficient facts to support a legally cognizable claim that is plausible on its face.” [D.E. 10, pg. 4]. 

In Havana Docks Corp. v. Carnival Corp., 592 F. Supp. 3d 1088, 1194 (S.D. Fla. 2022), 

the Southern District of Florida stated, “Failure to state a claim is not an affirmative defense...” 

(emphasis added). In Delgado v. Carnival Corp., No. 22-CV-21384, 2022 WL 16714188, at *2–3 

(S.D. Fla. Nov. 4, 2022), the Southern District of Florida further stated:

Courts in this District routinely strike “failure to state a claim” defenses 

labeled as “affirmative defenses,” because they do not constitute valid 

affirmative defenses. See, e.g., Pandora Jewelers 1995, Inc. v. Pandora Jewelry,

LLC, No. 09-cv-61490, 2010 WL 5393265, at *2 (S.D. Fla. Dec. 21, 2010) (Cooke, 

J.) (striking “failure to state a claim” affirmative defense and noting “[w]hile 

treating the ‘failure to state a claim’ affirmative defense as a denial, and allowing 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 3 of 12
it to remain as an affirmative defense may be permissible, I believe the better 

practice is to properly label denials and affirmative defenses, and to keep these two 

defenses separate”); Northrop & Johnson Holding Co. v. Leahy, No. 16-cv-63008, 

2017 WL 5632041, at *3 (S.D. Fla. Nov. 22, 2017) (Bloom, J.) (citing Boldstar

Tech. LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 2007) 

(Hurley, J.) (“Failure to state a claim is a defect in [a party]’s claim; it is not an 

additional set of facts that bars recovery notwithstanding [a party]’s valid prima 

facie case.”)).

Consistent with the foregoing authority, the Court finds that Defendant's First 

Affirmative Defense, alleging failure to state sufficient facts to state a cause of 

action, is not a proper affirmative defense and must be stricken.

(emphasis added). Because EPM’s first affirmative defense amounts to nothing more than an 

allegation that JIM’s Second Amended Complaint fails to state a claim, EPM’s first affirmative 

defense must be stricken by the Court.

b. EPM’s Second Affirmative Defense

EPM’s second affirmative defense alleges that JIM’s claims are barred by reason of 

unclean hands. [D.E. 10, pg. 4]. This affirmative defense is patently frivolous and therefore fails 

as a matter of law. Specifically, in this defense, EPM alleges that JIM engaged in a scheme to 

deceive EPM by knowingly concealing violations of the Sponsorship Agreement. Though not 

specifically mentioned in its affirmative defense, JIM assumes these alleged violations are those 

mentioned in EPM’s Counterclaim. See [D.E. 10, pg.8, ¶14] (“In fact, JIM knowingly concealed 

that another racecar driver was now driving the EPM sponsored racecar.”).

The Sponsorship Agreement does not include any terms or contractual provisions requiring 

that Jesse Iwuji be the sole and agreed upon driver of the EPM sponsored racecar. Because no such 

requirement is included in the Sponsorship Agreement, the basis on which this affirmative defense 

is alleged is patently frivolous; as a result, EPM’s second affirmative defense must be stricken by 

the Court as a matter of law.

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 4 of 12
c. EPM’s Third Affirmative Defense

EPM’s third affirmative defense alleges that JIM’s claims are barred by reason of JIM’s 

antecedent breach. [D.E. 10, pg. 4]. This affirmative defense is patently frivolous and therefore 

fails as a matter of law. Specifically, for this defense, EPM alleges that JIM’s claim that EPM 

breached the Sponsorship Agreement came after JIM had already acknowledged its own breach of 

the agreement at a meeting with EPM on or about May 11, 2022. Though not specifically 

mentioned in this affirmative defense, JIM assumes this allege breach by JIM is the one mentioned 

in EPM’s Counterclaim. See [D.E. 10, pg. 8, ¶¶14-15) (stating that the alleged breach was JIM 

concealing that Jesse Iwuji was no longer driving the EPM sponsored racecar).

The Sponsorship Agreement does not include any terms or contractual provisions requiring 

that Jesse Iwuji be the sole and agreed upon driver of the EPM sponsored racecar. Because no such 

requirement is included in the Sponsorship Agreement, the basis for which this affirmative defense 

is alleged is patently frivolous; as a result, EPM’s third affirmative defense must be stricken by 

the Court as a matter of law.

d. EPM’s Fourth Affirmative Defense

EPM’s fourth affirmative defense alleges that JIM’s claims are barred by the doctrine of 

modification. [D.E. 10, pg. 4]. This affirmative defense fails as a matter of law. Section 12(f) of 

the Sponsorship Agreement (Modification, Waiver) states, in pertinent part, “No modification of 

or amendment to this Agreement, nor any waiver of any rights under this Agreement, will 

be effective unless in writing signed by the Parties.” (emphasis added). EPM has not presented 

or cited to any writing signed by the Parties, or provided any other facts, in support of this 

affirmative defense. In Stearns Bank Nat'l Ass'n v. IALP, LLC, No. 12-62402-CIV, 2013 WL 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 5 of 12
12092064, at *2 (S.D. Fla. Apr. 15, 2013), the Southern District of Florida struck a similarly 

asserted affirmative defense, stating:

... Plaintiff argues that Defendants' Fourth, Twelfth, Thirteenth, Fifteenth, 

Seventeenth, and Eighteenth Affirmative Defenses (the oral modification 

affirmative defenses) should be stricken because they are barred as a matter of law 

by ... (c) anti-oral modification clauses... Moreover, the loan documents at issue 

in this action repeatedly provide that any amendments or modifications must 

be made in writing and signed by the parties. See [DE 1-2] at Ex. A, VI(C). 

Accordingly, the Court will strike Defendants' Fourth, Twelfth, Thirteenth, 

Fifteenth, Seventeenth, and Eighteenth Affirmative Defenses because they fail 

as a matter of law.

(emphasis added). As the Sponsorship Agreement contains parallel language to the documents 

referenced in Stearns Bank, because the Court in Stearns Bank struck the modification affirmative 

defense for failure to comply with the terms of the documents (i.e. that all modifications must be 

set forth in writing and signed by the parties), the Court must similarly here strike EPM’s fourth 

affirmative defense due to failure as a matter of law. 

e. EPM’s Fifth Affirmative Defense

EPM’s fifth affirmative defense alleges that JIM’s claims are barred “by reason of there 

not having been a meeting of the minds as to certain material terms of the Sponsorship 

Agreement.” [D.E. 10, pg. 4]. “[A] meeting of the minds of the parties on all essential elements is 

a prerequisite to the existence of an enforceable contract, and where it appears that the parties are 

continuing to negotiate as to essential terms of an agreement, there can be no meeting of the 

minds.” Merle Wood & Assocs., Inc. v. Trinity Yachts, LLC, 857 F. Supp. 2d 1294, 1301 (S.D. Fla. 

2012), aff'd, 714 F.3d 1234 (11th Cir. 2013).

JIM and EPM negotiated and signed the Sponsorship Agreement based on the essential 

terms contained therein (i.e. sponsorship price, services to be performed, duration of term). The 

Sponsorship Agreement is fully executed, as evidenced by the signatures of both parties on the 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 6 of 12
agreement. Furthermore, the parties fully performed under the agreement up until EPM’s breach, 

as alleged in the Second Amended Complaint. Therefore, a meeting of the minds occurred upon 

execution and subsequent performance (until breach), as there were no essential terms left open 

for negotiation. As a result, EPM’s fifth affirmative defense fails as a matter of law, and must be 

stricken by the Court.

f. EPM’s Sixth Affirmative Defense

EPM’s sixth affirmative defense alleges that JIM has “breached the implied duty of good 

faith and fair dealing inherent in every agreement.” [D.E. 10, pg. 4-5]. In relying upon case 

precedent established by the Eleventh Circuit, the Middle District of Florida stated the following:

The duty of good faith must relate to the performance of an express term of the 

contract and is not an abstract and independent term of a contract which may be 

asserted as a source of breach when all other terms have been performed pursuant 

to the contract requirements... The Eleventh Circuit has held that ‘no independent 

cause of action exists under Florida law for breach of the implied covenant of good 

faith and fair dealing. Where a party to a contract has in good faith performed the 

express terms of the contract, an action for breach of the implied covenant of good 

faith will not lie.’...Thus it is clear that in order to maintain a claim for breach 

of the implied duty of good faith and fair dealing, there must be an express 

term of the contract that has been breached, and the implied duty cannot vary 

the terms of the written contract.

JPMorgan Chase Bank v. Synergy Pharmacy Servs., Inc., No. 8:18-CV-1253-VMC-SPF, 2021 

WL 2351179, at *5 (M.D. Fla. June 9, 2021) (emphasis added). 

EPM alleges in its Counterclaim that JIM breached the Sponsorship Agreement by: (i) 

failing to participate in certain events in accordance with the Scope of Work incorporated into the 

Sponsorship Agreement, and (ii) knowingly concealing that Jesse Iwuji was no longer the sole 

driver of the EPM sponsored racecar. See [D.E. 10, pg. 10-11, ¶23]. However, (a) in its affirmative 

defense, EPM fails to allege what events JIM failed to participate in (thereby, providing nothing 

more than a conclusory bare bone allegation that JIM breached the Sponsorship Agreement, due 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 7 of 12
to the lack of sufficient facts needed to put JIM on proper notice of the claims alleged against it), 

and (b) the Sponsorship Agreement does not include any terms or contractual provisions requiring 

that Jesse Iwuji be the sole and agreed upon driver of the EPM sponsored racecar. For such reasons, 

EPM’s sixth affirmative defense fails as a matter of law, and must be stricken by the Court.

g. EPM’s Seventh Affirmative Defense

EPM’s seventh affirmative defense alleges that JIM’s claims are “barred by the doctrines 

of waiver, equitable estoppel, and release.” [D.E. 10, pg. 5]. EPM’s seventh affirmative defense 

must be stricken, as each of the aforementioned defenses are discrete defenses that must be pled 

separately. See Dionisio v. Ultimate Images & Designs, Inc., 391 F. Supp. 3d 1187, 1195 (S.D. 

Fla. 2019) (striking Defendant’s seventh affirmative defense – which stated “The action and/or the 

damages claimed in this action are barred by res judicata, waiver, estoppel (collateral or 

otherwise), laches, satisfaction, release or agreement” – because these defenses were improperly 

combined and should have been pled separately) (emphasis added). 

Moreover, upon review of the adequacy of each defense, the Court must strike EPM’s 

seventh affirmative defense(s) because the defenses are nothing more than bare recitations of 

boiler-plate affirmative defenses and do not provide JIM fair notice as to the basis of each defense. 

See, e.g., Id. 

h. EPM’s Eighth Affirmative Defense

EPM’s eighth affirmative defense states “To the extent that Plaintiff failed to set forth its 

claim with sufficient particularity to permit Defendant to determine all applicable and available 

defenses, Defendant reserves the right to amend and/or supplement this Answer with additional 

defenses when and if such information is ascertained.” [D.E. 10, pg. 5]. EPM’s eighth affirmative 

defense amounts to a reservation of reservation of rights, which does not constitute an affirmative 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 8 of 12
defense because it does not respond to JIM’s Second Amended Complaint or raise facts that negate 

JIM’s claims. See Gonzalez v. Spears Holdings, Inc., 2009 WL 2391233, at *4 (S.D. Fla. July 31, 

2009); See also Ayers v. Consol. Constr. Servs. Of SW Florida, 2007 U.S. Dist. LEXIS 86596, at 

*5 (M.D. Fla. Nov. 26, 2007) (striking a reservation of rights clause asserted as an affirmative 

defense). As a result, EPM’s eighth affirmative defense must be stricken.

i. EPM’s Ninth Affirmative Defense

EPM’s ninth affirmative defense alleges that JIM engaged in conduct constituting a waiver 

of its rights under any agreements with EPM. Not only does this affirmative defense fail due to 

being nothing more than a bare bones conclusory allegation that fails to provide JIM with fair 

notice as to the basis of the defense (i.e. EPM’s ninth affirmative defense fails to allege what 

conduct occurred or was engaged in by JIM that constituted a waiver of its rights), but EPM’s 

ninth affirmative defense further fails for the reasons provided relating to EPM’s fourth affirmative 

defense. Specifically, because Section 12(f) of the Sponsorship Agreement expressly states that 

“No modification of or amendment to this Agreement, nor any waiver of any rights under this 

Agreement, will be effective unless in a writing signed by the Parties,” and no such writing has 

been alleged, provided, or cited as basis in support of this defense, EPM’s ninth affirmative defense 

must be stricken due to failing as a matter of law.

j. EPM’s Tenth Affirmative Defense

EPM’s tenth affirmative defense alleges that JIM’s “actions and/or any agreements 

between the parties constituted a full release and waiver...of any and all claims” JIM may have 

against EPM. Again, this affirmative defense fails as a matter of law for the reasons set forth herein 

and applied to EPM’s fourth and ninth affirmative defenses. Furthermore, EPM’s tenth affirmative 

defense fails to provide any facts (i.e. JIM’s supposed actions and/or the existence of any 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 9 of 12
agreement(s) between the parties) as basis in support this defense. As such, this defense must be 

stricken as a matter of law. 

k. EPM’s Eleventh Affirmative Defense

EPM’s eleventh affirmative defense alleges that JIM’s Second Amended Complaint is 

barred because JIM “engaged in acts and courses of conduct which rendered it in pari delicto.”

[D.E. 10, pg. 5]/ “The equitable defense of in pari delicto, which literally means ‘in equal fault,’ 

is rooted in the common-law notion that a plaintiff's recovery may be barred by his own wrongful

conduct.” Pinter v. Dahl, 486 U.S. 622, 632, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988); see Official 

Cmte. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1152 (11th Cir.2006) (“The 

doctrine of in pari delicto is an equitable doctrine that states ‘a plaintiff who has participated in 

wrongdoing may not recover damages resulting from the wrongdoing.’”) (quoting Black's Law 

Dictionary 794 (7th ed.1999)). An in pari delicto defense may be successfully asserted at the 

pleading stage only where “the facts establishing the defense are: (1) definitively ascertainable 

from the complaint and other allowable sources of information, and (2) suffice [sic] to establish 

the affirmative defense with certitude.” Gray v. Evercore Restructuring, LLC, 544 F.3d 320, 325 

(1st Cir.2008).

Because the Sponsorship Agreement does not include any terms or contractual provisions 

requiring that Jesse Iwuji be the sole and agreed upon driver of the EPM sponsored racecar, there 

exists no facts ascertainable from JIM’s Second Amended Complaint or EPM’s Counterclaim that 

could establish this defense. Furthermore, JIM has not alleged any facts relating to this affirmative 

defense. As such, this affirmative defense amounts to nothing more than a bare bones conclusory 

allegation / boiler-plate recitation, and must be stricken as a matter of law.

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 10 of 12
l. EPM’s Twelfth Affirmative Defense

EPM’s twelfth affirmative defense alleges JIM is not entitled to recovery “because of the 

failure to mitigate damages.” [D.E. 10, pg. 5]. EPM’s twelfth affirmative defense does not contain 

any allegations connecting the failure to mitigate damages to JIM’s claims against EPM. For such 

reason, this affirmative defense is improperly pled and must be stricken as a matter of law. See, 

e.g., Hernandez v. Ticketmaster, LLC, No. 18-20869-CIV, 2018 WL 2198457, at *5 (S.D. Fla. 

May 14, 2018) (finding a failure to mitigate defense legally insufficient because it did not contain 

any allegations connecting the defense to plaintiff's claim).”

CONCLUSION

WHEREFORE, JIM respectfully requests that the Court enter an Order: (i) striking EPM’s 

Affirmative Defenses with prejudice; and (ii) granting such other relief as the Court deems just 

and appropriate.

L.R. 7.1(a)(3) Certification

The undersigned counsel has conferred with all parties who may be affected by the relief sought 

hereunder (i.e., EPM), and counsel for EPM has indicated that EPM opposes the requested relief 

sought herein and that counsel will not be voluntarily withdrawing any of its affirmative defenses.

May 1, 2023 Respectfully submitted. 

HEITNER LEGAL, P.L.L.C 

Attorney for 

Plaintiff/Counterclaimant

215 Hendricks Isle 

Fort Lauderdale, FL 33301 

Phone: 954-558-6999

Fax: 954-927-3333 

By:

DARREN A. HEITNER 

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 11 of 12
Florida Bar No.: 85956 

Darren@heitnerlegal.com 

CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2023, a true and correct copy of the foregoing was electronically 

filed using CM/ECF, which serves electronic notice on all counsel of record and registered 

CM/ECF users.

By:

DARREN A. HEITNER

Case 0:22-cv-62268-BB Document 22 Entered on FLSD Docket 05/01/2023 Page 12 of 12