TAGGED OPINION

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

www.flsb.uscourts.gov

In re: 

BAL HARBOUR QUARZO, LLC Case No. 18-11793-SMG 

a/k/a Synergy Capital Group, LLC, 

a/k/a Synergy Investments Group, LLC, Chapter 11 

Debtor. 

_________________________________________/ 

DREW M. DILLWORTH, as Trustee, 

Plaintiff, 

v. Adv. No. 20-1079-SMG

CARLOS ELIAS MAHECHA DIAZ, 

MARIA ANASTASIA CASAS MATIZ, 

FELIPE MAHECHA CASAS, and 

CAMILO E. MAHECHA, 

Defendants. 

_________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART 

PLAINTIFF’S MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on June 7, 2022.

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Plaintiff, Drew M. Dillworth, moves the Court to strike five affirmative 

defenses, along with a purported reservation of rights and “catch-all” defense, raised 

by the defendants in their answer and affirmative defenses1 to the plaintiff’s 

amended complaint.2 For the reasons discussed below, the Court will deny the motion 

to strike3 as to all but one affirmative defense.

Legal Standards

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.”4 Under Federal Rule of Civil Procedure 12(f),5 “[t]he court may strike from 

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

scandalous matter.”6 Courts have “broad discretion” to strike affirmative defenses, 

but doing so “is considered a drastic remedy and is often disfavored.”7 Where an 

affirmative defense “is comprised of no more than bare-bones, conclusory allegations 

or is insufficient as a matter of law,” it must be stricken.8 “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.”9

1 ECF No. 127.

2 ECF No. 117.

3 ECF No. 137.

4 Royal Palm Sav. Ass’n v. Pine Trace Corp., 716 F. Supp. 1416, 1420 (M.D. Fla. 1989).

5 Applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7012.

6 Fed. R. Civ. P. 12(f).

7 Dionisio v. Ultimate Images & Designs, Inc., 391 F. Supp. 3d 1187, 1191 (S.D. Fla. 2019). 8 Id. at 1191-92 (quoting Northrop & Johnson Holding Co., Inc. v. Leahy, 2017 WL 5632041, at *3 (S.D. 

Fla. Nov. 22, 2017) (quoting Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 2013) 

and Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834, at *2 (S.D. Fla. 2007)) (cleaned 

up).

9 Id. at 1192 (quoting Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. 

Fla. 2002)).

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Courts differ as to whether the heightened pleading standard set forth by the 

Supreme Court in Bell Atlantic Corp. v. Twombly10 and Ashcroft v. Iqbal,11 apply to 

affirmative defenses.12 This Court agrees with those cases holding that the 

heightened pleading standard of Twombly and Iqbal does not apply to affirmative 

defenses.13 Thus, “so long as Defendants’ affirmative defenses give Plaintiffs notice 

of the claims Defendants will litigate, the defenses will be appropriately pled under 

Rules 8(b) and (c).”14

Analysis

The plaintiff moves to strike the defendants’ first, second, third, fourth, fifth, 

and twenty-eighth affirmative defenses, which raise the following: (i) failure to state 

a claim upon which relief can be granted; (ii) lack of standing to recover transfers 

made by Synergy Capital Group, LLC and Synergy Investments Group, LLC

(together, the “Synergy Entities”); (iii) lack of standing to pursue claims of specific 

creditors; (iv) to the extent the relief sought requires extraterritorial application of 

Bankruptcy Code sections 548 or 550, the relief sought should be barred or otherwise 

precluded; (v) lack of personal jurisdiction over the defendants; and (vi) a “catch all” 

affirmative defense and purported reservation of rights to assert additional defenses.

10 550 U.S. 544 (2007). 11 556 U.S. 662 (2009). 12 Compare Dionisio, 391 F. Supp. 3d at 1193 (Twombly and Iqbal do not apply to affirmative defenses); 

Ramnarine v. CP RE Holdco 2009-1, LLC, 2013 WL 1788503, at *1 (S.D. Fla. 2013) (Rosenbaum, J.) 

(same); Jackson v. City of Centreville, 269 F.R.D. 661, 662 (N.D. Ala. 2010) (same), with Progressive 

Express Ins. Co. v. Star Painting & Waterproofing, Inc., 333 F.R.D. 600, 601 (S.D. Fla. 2019)

(“affirmative defenses are subject to the same pleading scrutiny imposed by Rule 8(a) and 

Twombly/Iqbal”); Losada v. Norwegian (Bahamas) Ltd., 296 F.R.D. 688, 691 (S.D. Fla. 2013) (same).

13 See, e.g., Dionisio, 391 F. Supp. 3d at 1192; Ramnarine, 2013 WL 1788503, at *1; Jackson, 269 F.R.D. 

at 662. 14 Ramnarine, 2013 WL 1788503, at *3.

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The plaintiff’s primary argument is that each of the five substantive 

affirmative defenses were “disposed of” by the Court’s December 3, 2021 Order 

Granting in Part and Denying in Part Motions to Dismiss, Denying as Moot Motion 

for Leave to Amend Complaint, and Granting Leave to Further Amend Complaint15

and the plaintiff’s amended complaint filed thereafter.16 The plaintiff next argues 

that these five substantive defenses “are not legally recognizable affirmative 

defenses.”17 And the plaintiff argues that the reservation of rights defense should be 

stricken because there is no rule of procedure that permits such a reservation.18

Rather, the ability to amend a pleading (e.g., to raise additional affirmative defenses) 

is governed by Rules 12(b), 15(a)-(d), and 16(b) of the Federal Rules of Civil 

Procedure.19

By granting in part and denying in part the defendants’ motion to dismiss the 

original complaint – but granting the plaintiff leave to file an amended complaint –

the Court did not dispose of any of these issues on the merits. For the issues other 

than personal jurisdiction, the Court was only ruling on the sufficiency of the original 

complaint. And with respect to personal jurisdiction, the Court ruled only that the 

plaintiff sustained his initial burden of making a prima facie case for personal 

jurisdiction, and that the moving defendants failed to satisfy their burden to rebut 

those allegations.20 The Court did not conclusively determine that it has personal 

15 Dillworth v. Mahecha Diaz (In re Bal Harbour Quarzo, LLC), 634 B.R. 827 (Bankr. S.D. Fla. 2021); 

ECF No. 112.

16 ECF No. 117.

17 ECF No. 137, at 6.

18 ECF No. 137, at 7.

19 Id.

20 Bal Harbour Quarzo, 634 B.R. at 833.

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jurisdiction over the defendants; it only determined that the original complaint made 

an unrebutted prima facie case that there was personal jurisdiction over them. 

Certainly, there is nothing “insufficient,” “redundant, immaterial, impertinent, or 

scandalous,” in the defendants maintaining lack of personal jurisdiction in their 

affirmative defenses.21 This affirmative defense adequately puts the plaintiff on 

notice that the defendants challenge personal jurisdiction and that this is an issue 

that will need to be resolved on the merits. Thus, the motion to strike this affirmative 

defense will be denied.

With respect to lack of “standing,” the Court granted the defendants’ motion to 

dismiss the original complaint on this issue, but with leave for the plaintiff to replead, 

which the plaintiff did here.22 Having replead, the defendants again challenge the 

plaintiff’s authority to avoid or recover transfers made by the non-debtor Synergy

Entities, or to redress harm to specific creditors. Again, there is nothing “insufficient,” 

“redundant, immaterial, impertinent, or scandalous,” about these defenses.23 They 

adequately put the plaintiff on notice of this issue, and therefore the motion to strike 

these affirmative defenses will be denied as well.

21 See Fed. R. Civ. P. 12(f). 22 Bal Harbour Quarzo, 634 B.R. at 836-837. It is important to note – as pointed out by the Court in 

its dismissal order – that the “characterization of this issue as one of ‘standing,’ is a misnomer. . . . The 

arguments concern a plaintiff’s authority to bring these claims, not the justiciability of the claims.” Id.

at 834 n.35 (citing Gierum v. Glick (In re Glick), 568 B.R. 634, 656 (Bankr. N.D. Ill. 2017)). This is an 

important distinction because – as argued by both parties with respect to the motion to strike the 

affirmative defenses – “standing” could implicate the Court’s subject matter jurisdiction. But whether 

the plaintiff can seek to avoid or recover transfers made by the non-debtor Synergy Entities, or can 

seek to redress harm to specific creditors, goes to the plaintiff’s authority to bring the claims – not 

whether they are justiciable and whether the Court has subject matter to adjudicate them.

23 See Fed. R. Civ. P. 12(f).

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In their motion to dismiss the original complaint, the defendants also argued 

that “to the extent Plaintiff is seeking to avoid or recover property transferred outside 

of the United States,” the complaint fails to provide any basis for that relief. In 

response to that motion, however, the plaintiff made clear that he was not seeking to 

avoid the transfer of any property located outside the United States, and that the 

relief sought did not involve any extraterritorial application of sections 548 or 550 of 

the Bankruptcy Code. With that clarification – which was clear to the Court from the 

complaint itself – the Court determined that this argument was moot and therefore 

not a basis for dismissal.24

The defendants again raise this issue as an affirmative defense to the amended 

complaint, because – according to the defendants – the plaintiff did not make any 

representation in the amended complaint that he did not seek to apply Bankruptcy 

Code sections 548 and 550 extraterritorially. In response, the plaintiff argues that he 

“has already stated on the record that this issue is not relevant to this case, and this 

Court has already denied this issue as moot.”25 While this is an accurate statement, 

what is now before the Court is the amended complaint and affirmative defenses 

thereto. But nowhere in the amended complaint does the plaintiff make the 

representation made in his briefs opposing the defendants’ motions to dismiss – that 

he is not seeking to avoid the transfer of any property located outside the United 

States, and that the transfers sought to be avoided and recovered do not require 

extraterritorial application of Bankruptcy Code sections 548 and 550. Thus, the 

24 Bal Harbour Quarzo, 634 B.R. at 838.

25 ECF No. 156, at 7.

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defendants’ affirmative defense is entirely appropriate and is not “insufficient,” 

“redundant, immaterial, impertinent, or scandalous.”26 The motion to strike this 

affirmative defense will therefore be denied as well.

As to the affirmative defense of failure to state a claim upon which relief can 

be granted, courts differ as to whether this is a proper affirmative defense or more 

appropriately characterized as a denial.27 This Court believes the better reasoning is 

that failure to state a claim is an appropriate affirmative defense. Although this 

defense is usually raised by motion under Federal Rule of Civil Procedure 12(b)(6),28

that is not the only way to raise it. Rule 12(b) states that “[e]very defense to a claim 

for relief in any pleading must be asserted in the responsive pleading if one is 

required.”29 Rule 12(b) then goes on to list seven defenses (including failure to state 

a claim) that “a party may assert . . . by motion.”30 Thus, although listed as a defense 

that a party may assert by motion, “failure to state a claim upon which relief can be 

granted” is a clearly delineated “defense to a claim for relief” that must be asserted 

in an answer.31 Rule 12(h)(2)(A) also states that failure to state a claim upon which 

relief can be granted “may be raised . . . in any pleading allowed or ordered 

26 See Fed. R. Civ. P. 12(f).

27 Compare Zeron v. C & C Drywall Corp., Inc., 2009 WL 2461771, at *2 (S.D. Fla. 2009) (failure to 

state a claim is not an affirmative defense but rather a denial), with S.E.C. v. Toomey, 866 F. Supp. 

719, 723 (S.D.N.Y. 1992) (“it is well settled that the failure-to-state-a-claim defense is a perfectly 

appropriate affirmative defense to include in the answer”). Even so, where courts construe failure to 

state a claim as a denial rather than an affirmative defense, “the proper remedy is not to strike the 

claim, but rather to treat is as a specific denial.” Zeron, 2009 WL 2461771, at *2 (quoting Home Mgmt. 

Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834 (S.D. Fla. 2007)) (cleaned up). 28 Made applicable here by Federal Rule of Bankruptcy Procedure 7012.

29 Fed. R. Civ. P. 12(b) (emphasis added).

30 Id.

31 Id.

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under Rule 7(a).”32 That is exactly what the defendants did here – they raised 

failure to state a claim as an affirmative defense in their answer – which is a pleading 

allowed under Rule 7(a)(2).33 Failure to state a claim is therefore an entirely 

appropriate affirmative defense to raise in an answer, so the Court will deny the 

motion to strike this affirmative defense as well.

Finally, in their last affirmative defense the defendants state that they “assert 

all defenses available under federal law and under any applicable state law,” and 

then go on to include a broad reservation of rights to assert additional defenses.34

Standing alone, a reservation of rights is harmless enough because notwithstanding 

any purported reservation, the “ability to amend . . . affirmative defenses is governed 

by the scheduling order required by Federal Rule of Civil Procedure 16(b), the timing 

rules of Federal Rules of Civil Procedure 12(b), and the amendment rules of Federal 

Rule of Civil Procedure 15(a) through (d).”35 Thus, little purpose would be served in 

striking this equally “purposeless” defense.36 But, this last affirmative defense does 

more than just seek to reserve the defendants’ rights: this defense also purports to 

“assert all defenses available under federal law and under any applicable state law.”37

That is where the defense goes too far. Such a “catch-all defense” is clearly 

32 Fed. R. Civ. P. 12(h)(2)(A) (emphasis added).

33 Rule 12(h) also notes that failure to state a claim can be raised in a motion for judgment on the 

pleadings under Rule 12(c) or at trial. Fed. R. Civ. P. 12(h)(2)(B), (C); see also Fed. R. Civ. P. 50 

(judgment as a matter of law in a jury trial); Fed. R. Civ. P. 52(c) (judgment on partial findings in a 

bench trial).

34 ECF No. 127, at 48.

35 Moore v. R. Craig Hemphill & Assocs., 2014 WL 2527162, at *1 (M.D. Fla. 2014).

36 Id.

37 ECF No. 127, at 48.

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“insufficient,” and “redundant” of the other affirmative defenses, and therefore must

be stricken.38

Accordingly, it is

ORDERED that:

1. Plaintiff’s Motion to Strike Certain Affirmative Defenses39 is GRANTED 

IN PART AND DENIED IN PART, as set forth herein.

2. The Defendants’ Twenty-Eighth Affirmative Defense40 is STRICKEN.

3. All other relief requested in the Plaintiff’s Motion to Strike Certain 

Affirmative Defenses is DENIED.

# # #

Copies furnished to all parties by CM/ECF.

38 See Fed. R. Civ. P. 12(f).

39 ECF No. 137.

40 ECF No. 127, at 48.

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