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Tagged Opinion for Print Publication

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

Case No. 18-23930-PDR

Emma Bumshteyn,

Chapter 7

Debtor.

/

Kenneth Welt,

Plaintiff,

v. Adv. Case No. 21-01069-PDR

Emma Bumshteyn and 

Yevgeniya Bumshteyn,

Defendants.

/

ORDER GRANTING IN PART 

RENEWED MOTION TO STRIKE

Peter D. Russin, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on February 1, 2022.

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This is a cautionary tale for parties who wish to demand a jury trial and object 

to the bankruptcy court entering final orders and judgments that emphasizes the 

need to comply with the applicable local rules and orders and, if compliance must be 

delayed or challenged, seek timely relief. Ignoring the requirements risks waiving 

these important rights. That is what happened here. 

Background

The Debtor Emma Bumshteyn, filed a voluntary Chapter 7 petition on 

November 8, 2018, and Kenneth Welt was appointed the Chapter 7 Trustee of the 

Estate.1 On February 26, 2021, the Trustee filed this adversary proceeding which

includes five counts against the Debtor objecting to discharge under 11 U.S.C. § 727 

(Counts I–V), three counts against the Debtor’s granddaughter, Yevgeniya 

Bumshteyn, for avoidance of fraudulent transfers under 11 U.S.C. § 544 (Counts VI–

VIII), and one count against the Granddaughter to recover the avoided fraudulent 

transfers under 11 U.S.C. § 550 (Count IX).2

On March 1, 2021, the Court issued a summons setting March 31, 2021, as the 

deadline for the Defendants to respond to the Trustee’s Complaint (the “Response 

Deadline”) and setting a status conference for April 15, 2021.3 The same day, the 

Court entered its Order Setting Status Conference and Establishing Procedures and 

Deadlines (the “Status Conference Order”), a standard order entered in every 

1 See In re Bumshteyn, No. 18-23930-PDR (Bankr. S.D. Fla.) (the “Main Case”).

2 (Doc. 1).

3 (Doc. 2).

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adversary proceeding in this district.4 The Status Conference Order, in relevant part, 

states:

2. RIGHT TO JURY TRIAL; WAIVER. Unless each party has timely 

filed a statement of consent under Local Rule 9015−1(B), and unless 

otherwise ordered by the Court, not later than fourteen days before 

the date first set for the status conference, each party requesting a jury 

trial on any issue in this proceeding must file with this Court a motion 

for withdrawal of the reference pursuant to Local Rule 5011−1. 

FAILURE OF ANY PARTY TO FILE A MOTION TO WITHDRAW 

THE REFERENCE ON OR BEFORE THE DEADLINE 

PROVIDED IN THIS PARAGRAPH CONSTITUTES WAIVER BY 

SUCH PARTY OF ANY RIGHT TO TRIAL BY JURY IN THIS 

PROCEEDING.

3. OBJECTION TO ENTRY OF FINAL ORDERS AND 

JUDGMENTS BY THE BANKRUPTCY COURT; CONSENT.

Unless otherwise ordered by the Court, not later than fourteen days

before the date first set for the status conference, each party objecting 

to the entry of final orders or judgments by this Court on any issue in 

this proceeding must file with this Court a motion pursuant to Rule 

7016(b), Fed. R. Bankr. P., requesting that this Court determine 

whether this proceeding is subject to the entry of final orders or 

judgments by this Court. Any such motion will be treated as an objection 

to the entry of final orders or judgments by this Court. FAILURE OF 

ANY PARTY TO FILE A MOTION ON OR BEFORE THE 

DEADLINE PROVIDED IN THIS PARAGRAPH CONSTITUTES 

CONSENT BY SUCH PARTY TO THIS COURT ENTERING ALL 

APPROPRIATE FINAL ORDERS AND JUDGMENTS IN THIS 

PROCEEDING. Nothing in this paragraph limits this Court's ability 

to determine whether this proceeding is subject to entry of final orders 

or judgments by this Court.5

The deadline under the Status Conference Order to file motions to withdraw the 

reference and to determine whether this proceeding is subject to the entry of final 

4 (Doc. 3) (the “Status Conference Order”).

5 (Doc. 3) (emphasis in original).

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orders or judgments by this Court (the “Motions Requirement”) was April 1, 2021 (the 

“Motions Deadline”), the day after the Response Deadline. 

Sometime prior to the expiration of the Response Deadline, the parties agreed 

to extend it to April 8, 2021. Apparently, there was no agreement to also extend the 

Motions Deadline. The Parties did not provide any notice of the agreed extension to,

or seek approval of, the Court. 

On April 8, 2021, the Defendants filed an answer and affirmative defenses6

that included the Granddaughter’s demand for a jury trial and objection to this Court 

entering final orders and judgments (“Article III adjudication”).7 The Granddaughter

did not, however, comply with the Motions Requirement; to date, she has neither filed 

the required motions nor affirmatively sought relief from the Motions Requirement.

Shortly after the Motions Deadline expired and the Defendants answered, the 

Trustee filed his Motion to Strike Demand for Jury Trial and Affirmative Defenses.8 

The Trustee argues that the Granddaughter implicitly waived her purported jury 

trial and Article III adjudication rights by asserting them in an untimely and 

procedurally improper manner, and that the Defendants have improperly raised 

jurisdiction and standing as affirmative defenses. In opposition, the Granddaughter 

6 (Doc. 7).

7 The Answer clearly indicates that only the Granddaughter objects to the Court’s authority to 

enter final orders, but it does not specifically state who asserts a jury trial right. At the hearing,

counsel for the Defendants clarified that only the Granddaughter, not the Debtor, asserts a right to a 

jury trial. To whatever extent the Debtor does assert a jury trial right, however, the Court notes that 

its analysis would apply equally to both Defendants.

8 (Doc. 8).

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contests waiver and asserts the Court’s procedures are unconstitutional, and the 

Defendants argue they appropriately assert the affirmative defenses.

Ultimately, by agreement, the Trustee filed an Amended Complaint, the 

Defendants answered, and the Trustee renewed his motion to strike, which the 

Defendants opposed.9 These documents are nearly identical to the originals. The 

Court heard the Renewed Motion on November 3, 2021.10

Legal Standard

Under Fed. R. Civ. P. 12(f), made applicable to adversary proceedings by Fed. 

R. Bankr. P. 7012(b), “[t]he court may strike from a pleading an insufficient defense 

or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike 

are a “drastic remedy” that is “disfavored by the courts.” Adams v. Jumpstart 

Wireless Corp., 294 F.R.D. 668, 670 (S.D. Fla. 2013) (quoting Thompson v. Kindred 

Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)) (cleaned up). 

Consequently, courts generally will not strike a pleading unless it is irrelevant to the 

proceedings and is prejudicial. See, e.g., Graveling v. Castle Mortg. Co., 631 F. App’x 

690, 696 (11th Cir. 2015); Adams, 294 F.R.D. at 270; Carter v. Flagler Hospital, Inc. 

(In re Carter), 411 B.R. 730, 742 (Bankr. M.D. Fla. 2009); In re Se. Banking Corp. Sec. 

& Loan Loss Reserves Litig., 147 F. Supp. 2d 1348, 1355 (S.D. Fla. 2001).

9 (Docs. 30, 39, 40, & 63).

10 (Doc. 57).

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Analysis

For the reasons that follow, the Court finds that (1) the Granddaughter has 

waived her right to a jury trial and Article III adjudication, (2) the Court’s procedures 

are appropriate and constitutional, and (3) the Defendants’ jurisdiction and standing 

affirmative defenses are proper.

I. The Granddaughter has waived her jury trial and Article III 

adjudication rights.

A defendant implicitly consents to a bench trial and final adjudication by the 

bankruptcy court where she knowingly and voluntarily waives her rights. Wellness 

Int’l Net., Ltd. v. Sharif, 575 U.S. 665, 675 (2015); Lindsey v. Duckworth Dev. II, LLC 

(In re Lindsey), 854 F. App’x 301, 307 (11th Cir. 2021); Herrera-Edwards v. Moore (In 

re Herrera-Edwards), 578 B.R. 853 (Bankr. M.D. Fla. 2017). To determine whether 

a litigant has knowingly and voluntarily waived, the “key inquiry is whether the 

litigant or counsel was made aware of the need for consent and the right to refuse it, 

and still voluntarily appeared to try the case before the non-Article III adjudicator.” 

Lindsey, 854 F. App’x at 307 (quoting Wellness, 575 U.S. at 675) (cleaned up). Failure 

to make a proper and timely objection constitutes implicit consent. See Exec. Benefits 

Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 566–570 

(9th Cir. 2012), aff’d 573 U.S. 25 (2014); British Am. Ins. Co. Ltd. v. Fullerton (In re 

British Am. Ins. Co. Ltd.), 600 B.R. 890, 896 (Bankr. S.D. Fla. 2019) (“British Am. 

III”); British American Isle of Venice v. Fullerton (In re British Am. Ins. Co., Ltd.), No. 

11-03117-EPK, 2013 WL 211336, at *4 n. 6 (Bankr. S.D. Fla. Jan. 18, 2013) (“British 

Am. I”); see also United States v. Olano, 507 U.S. 725, 731 (1993).

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The Status Conference Order, which is a standard order entered in all 

adversary proceedings in this district, requires parties who wish to demand a jury 

trial to file a motion to withdraw the reference, and parties who wish to assert Article 

III adjudication rights to file a motion to determine whether the proceeding is subject 

to the entry of final orders or judgments by this Court, both within fourteen days 

before the date first set for the status conference. 

In a recent case, the Eleventh Circuit concluded that a defendant implicitly 

consented to the bankruptcy court’s entry of final orders when he answered the 

complaint without contemporaneously filing his objection “no later than the date set 

for filing a response to the complaint,” as required by the local rules for the 

Bankruptcy Court for the Middle District of Florida. Lindsey, 854 F. App’x at 308 

(quoting Bankr. M.D. Fla. Local Rule 7001-1(k)(6)). The Eleventh Circuit’s conclusion 

is consistent with case law from this district explaining that the failure to comply 

with the Motions Deadline and Motions Requirement constitutes waiver. See British 

Am. I, 2013 WL 211336, at *3–4. 

But the facts of this case present a unique set of circumstances. In comparing 

the language of Bankr. M.D. Fla. Local Rule 7001-1(k)(6) considered by the Eleventh 

Circuit in Lindsey, and the Southern District’s Status Conference Order, there are 

relevant differences. Specifically, the Motions Deadline, unlike Bankr. M.D. Fla. 

Local Rule 7001-1(k)(6), is tied to what may seem to be an arbitrary date two weeks 

before the date first set for the status conference rather than an action establishing 

the defendant’s voluntary appearance to try the case, such as the filing of an answer. 

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The reality, of course, is that the Motions Deadline is not “arbitrary.” In most 

instances, a defendant will have answered and “appeared to try the case” at the time 

of the Motions Deadline. In this case, had the parties not informally agreed to extend 

the Response Deadline, the Defendants’ response would have been due on March 31, 

2021, and the Motions Deadline of April 1, 2021, would have run after the Response 

Deadline. Under most circumstances, therefore, the language of Bankr. M.D. Fla. 

Local Rule 7001-1(k)(6) and the Status Conference Order present a distinction 

without a difference.

However, in cases where the defendant receives an extension of the Response 

Deadline to a date after the Motions Deadline, can one say that the defendant, despite 

not having filed a single pleading, has “voluntarily appeared to try the case” as of the 

Motions Deadline? The unavoidable answer is “no.” Here, the moment the 

Granddaughter first “appeared” was through her initial timely-filed Answer in which

she claimed jury trial and Article III adjudication rights. Under these specific 

circumstances, the Court cannot conclude that the Granddaughter waived those

rights merely because she failed to timely comply with the Motions Deadline because, 

at the time of the deadline, she had yet to “voluntarily appear to try the case.” 

Lindsey, 854 F. App’x at 307 (quoting Wellness, 575 U.S. at 675) (cleaned up).

The problem though is that the Granddaughter completely ignored the Motions 

Requirement even after she filed her Answer and appeared to try the case. The 

Granddaughter does not, anywhere in her response, request that the Court provide 

her relief from the Status Conference Order, the Motions Deadline, or the Motions 

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Requirement. Instead, she argues that the Status Conference Order is 

unconstitutional and simply requests that the Court deny the Trustee’s Renewed 

Motion. To suggest that a litigant may simply disregard the Status Conference Order 

by ignoring the Motions Requirement or failing to seek relief from, or an extension of, 

the Motions Deadline, cannot be countenanced. The failure to follow the proper 

procedures in asserting her rights, or to seek relief from those requirements,

constitutes waiver. See, e.g., British Am. I, 2013 WL 211336, at *4 n. 6 (explaining 

that the failure to file a motion to withdraw the reference, even where a defendant 

includes a jury trial demand in their answer, still constitutes waiver). It is 

undisputed that the Granddaughter failed to meet the requirements of the Status 

Conference Order, but worse, she failed to take any affirmative action at all to 

preserve her ability to meet the requirements at some later date or, alternatively, to 

seek relief from them. 

If her failure to comply with the Motions Requirement was simply a mistake 

(which the Granddaughter has never argued and apparently does not believe), once 

she realized it, the Granddaughter could easily have sought some form of affirmative 

relief from the Motions Requirement such as, for example, filing a motion seeking an 

extension of the Motions Deadline. Had she sought affirmative relief in a timely 

manner, she likely would have – at the very least – preserved her ability to comply 

with the Motion Requirements. 

But she has utterly failed to do so. In fact, to date, nearly ten months since 

she first appeared to try the case before the Court, she has still failed to seek any 

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affirmative relief. Instead, she chose only to respond to the Trustee’s Motion by

raising a laundry list of broad and unpersuasive arguments about the 

inappropriateness and unconstitutionality of the Court’s procedures in an apparent 

attempt to justify ignoring them.

In short, the Granddaughter’s failure to follow (timely or otherwise) or to seek 

an extension of, or relief from, the Motions Deadline and Motions Requirement is 

fatal to her argument that she has not waived her rights. As a result, the Court 

strikes the Granddaughter’s assertion of her jury trial and Article III adjudication 

rights in the Answer.

II. The Court’s procedures are appropriate and constitutional.

The Granddaughter’s response challenges the appropriateness and 

constitutionality of the Status Conference Order, but the arguments fail to justify the 

dramatic holding she seeks. Under 28 U.S.C. § 1334(b), the district courts “have 

original but not exclusive jurisdiction of all civil proceedings arising under title 11, or 

arising in or related to cases under title 11.” Under 28 U.S.C. § 157(a), the district 

courts may refer “any or all cases under title 11 and any or all proceedings arising 

under title 11 or arising in or related to a case under title 11” to the bankruptcy court. 

The United States District Court for the Southern District of Florida has provided 

just such a standing general order of reference. See S.D. Fla. Local Rule 87.2(a). 

However, the reference may be withdrawn under 28 U.S.C. § 157(d) which provides, 

the district court may withdraw, in whole or in part, any case or 

proceeding referred under this section, on its own motion or on timely 

motion of any party, for cause shown. The district court shall, on timely 

motion of a party, so withdraw a proceeding if the court determines that 

resolution of the proceeding requires consideration of both title 11 and 

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other laws of the United States regulating organizations or activities 

affecting interstate commerce.

The Federal Rules of Bankruptcy Procedure, consistent with the precise 

language of § 157(d), require that any motion to withdraw the reference be decided 

by the district court. See Fed. R. Bankr. P. 5011(a). The Court’s Local Rules set forth 

procedures for ensuring that all the necessary information, such as the record, are 

properly transmitted to the district court for that purpose. See S.D. Fla. Local Rule 

5011-1. Due to the labor and other resources necessary to appropriately administer 

a motion to withdraw the reference, it carries a $188 filing fee.11 The Granddaughter 

argues the Court’s requirement that she timely file a motion to withdraw the 

reference (1) impermissibly ties the right to a jury trial with the filing of a motion to 

withdraw the reference and (2) is facially unconstitutional due to the $188 filing fee.12

A. Motion to Withdraw the Reference

The Granddaughter asserts that the Local Rules and Status Conference Order 

impermissibly tie the motion to withdraw the reference and jury trial demand. She 

argues that any requirement beyond making a basic jury trial demand under Fed. R. 

Civ. P. 38 is improper. None of the Granddaughter’s case law in support of her 

argument in this regard, however, arises in a bankruptcy or other relevant context. 

See, e.g., Thomas v. Home Depot USA, Inc., 661 F. App’x 575, 577 (11th Cir. 2016)

11 See https://www.flsb.uscourts.gov/clerks-summary-fees.

12 The Granddaughter further makes broad arguments related to whether her jury trial or 

Article III adjudication rights exist. Those issues are of no consequence here because the 

Granddaughter has yet to, in any identifiable way, put her rights at issue. The question before the 

Court is whether, by her inaction, she has implicitly consented to a bench trial and final order and 

judgment from this Court.

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(holding that a job applicant was entitled to a jury trial on his racial discrimination 

claim where the initial answer, but not the amended answer, contained a jury trial 

demand); Solis v. City of Los Angeles, 514 F.3d 946, 955 (9th Cir. 2008) (holding that 

a pro se prisoner had not waived his jury trial demand by failing to file jury 

instructions and special verdict forms). Her argument misses the mark because she 

fails to address the most fundamental reasons that a motion to withdraw the 

reference must accompany a jury trial demand made in the bankruptcy court.

Certainly, the Court agrees that district courts and bankruptcy courts alike 

may not “circumvent the Federal Rules of Civil Procedure by implementing local rules 

or ‘procedures’ which do not afford parties rights that they are accorded under the 

Federal Rules.” Brown v. Crawford Cnty., Ga., 960 F.2d 1002, 1008 (11th Cir. 1992). 

However, S.D. Fla. Local Rule 5011-1, which underpins the Status Conference Order,

does not circumvent Fed. R. Civ. P. 38 or any other rule. In fact, the local rule 

provides the means of implementation of Rule 38 in the bankruptcy context. 

Withdrawal of the reference is necessary to assert a jury trial right in the 

bankruptcy court because, absent consent of the parties, bankruptcy courts cannot 

preside over jury trials.13 See 28 U.S.C. § 157(e); British American Isle of Venice v. 

Fullerton (In re British Am. Ins. Co., Ltd.), 488 B.R. 205, 221 (Bankr. S.D. Fla. 2013) 

(“British Am. II”) (“[I]f a party to a proceeding before the bankruptcy court has a right 

13 Some courts’ procedures allow them to treat a jury trial demand in an answer as a motion 

to withdraw the reference. See, e.g., Exec. Benefits, 702 F.3d at 566–570. This Court’s procedures do 

not and the Granddaughter neither argues that her jury trial demand constitutes a motion to 

withdraw the reference nor asks that the Court construe it as one. Rather, she argues that the Status 

Conference Order is unconstitutional and simply requests that the Court deny the Trustee’s Renewed 

Motion.

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to trial by jury under applicable law, the bankruptcy court may conduct a jury trial 

only with the consent of all parties.”); see also Fed. R. Bankr. P. 9015; S.D. Fla. Local 

Rule 9015-1. So, if a party wants a jury trial, the parties must consent to the 

bankruptcy court conducting it, or the party demanding the jury trial must file a 

motion to withdraw the reference so the district court can preside over it. The district 

court must then determine whether to withdraw the reference. Unless the district 

court withdraws it, the order of reference stands in which case the jury trial must 

occur before the bankruptcy court, which – again – is not possible absent consent. In 

short, absent consent, a jury trial demand in the bankruptcy court that is 

unaccompanied by a motion to withdraw the reference would sit endlessly in limbo 

because the bankruptcy court can neither conduct the jury trial nor withdraw the 

reference. This is a simple fact of litigating claims in bankruptcy court. The 

Granddaughter has not provided, nor can the Court find, any support for the notion

that requiring parties to file a motion to withdraw the reference to assert a jury trial 

demand in adversary proceedings before bankruptcy courts is improper. 

This Court not only finds the requirement appropriate, but necessary. Neither 

this Court’s Status Conference Order nor the Local Rules, as suggested by the 

Granddaughter, tie the withdrawal of the reference to jury trials. Rather, the Status 

Conference Order and Local Rules merely require what is procedurally necessary 

based on the limitations of the bankruptcy court’s authority to preside over a jury 

trial and inability to withdraw the reference on its own. That inescapable fact more 

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than justifies the requirement that the party demanding a jury trial file a motion to 

withdraw the reference. 

B. The Filing Fee

The Granddaughter further claims that the Court’s $188 filing fee for a motion 

to withdraw the reference is facially unconstitutional.14 For the Court to conclude 

the filing fee is facially unconstitutional, the Granddaughter must establish that “no 

set of circumstances exists” under which the filing fee would be valid. United States 

v. Salerno, 481 U.S. 739, 745 (1987); Indigo Room, Inc. v. City of Ft. Myers, 710 F.3d 

1294, 1302 (11th Cir. 2013). 

The Court notes, again, that the Granddaughter never sought relief from the 

filing fee. Only after the Trustee revealed the Granddaughter’s mishandling of the 

Status Conference Order did the Granddaughter challenge the legitimacy of the 

obligation to file the motion and pay the fee by arguing that the fee is facially 

unconstitutional. 

In support of her argument, the Granddaughter cites case law that is not 

remotely relevant and focuses on inapplicable constitutional provisions. See, e.g., 

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (finding poll taxes to be 

inconsistent with the Equal Protection Clause of the Fourteenth Amendment); 

Murdock v. Pennsylvania, 319 U.S. 105 (1943) (holding that a local ordinance 

14 The Granddaughter has not expressly stated whether her constitutional argument is based 

on facial or “as applied” unconstitutionality. Her arguments, however, sound exclusively in facial 

unconstitutionality; she has raised no argument, nor provided any evidence, to suggest that the filing 

fee is uniquely unconstitutional as applied to her.

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requiring door-to-door salespeople to pay a license fee was an unconstitutional tax 

against Jehovah’s Witnesses as applied under the free exercise clause of the First 

Amendment). The Granddaughter’s argument seeking the drastic remedy of 

declaring the filing fee facially unconstitutional is not only insufficiently supported, 

but worse, fails to apprise the Court of relevant, but adverse, case law. 

Filing fees, as a general matter, are constitutional. See, e.g., United States v. 

Kras, 409 U.S. 434 (1973) (holding that filing fees in bankruptcy cases does not deny 

an indigent debtor due process of law). Further, where a litigant is indigent or 

otherwise unable to pay the filing fee, the Court can waive it, thereby providing a 

reasonable alternative means for accessing the remedy to those that otherwise cannot

afford the fee.15 See 28 U.S.C. §§ 1915(a)(1) & 1930(f); see, e.g., In re Richmond, 247 

F. App’x 831 (7th Cir. 2007); Palestino v. Palestino (In re Palestino), 4 B.R. 721 

(Bankr. M.D. Fla. 1980). This eviscerates any potential concern that the filing fee for 

a motion to withdraw the reference might impermissibly alienate a party’s Seventh 

Amendment rights.

To whatever extent a legitimate argument against the constitutionality of this 

filing fee exists, the Granddaughter has failed to sufficiently articulate it. Therefore, 

the Court finds the filing fee constitutional.

15 See Lubin v. Panish, 415 U.S. 709 (1974) (holding that a California statute requiring that 

political candidates pay a fixed filing fee was unconstitutional as applied to an indigent political 

candidate to the extent the statute failed to provide reasonable alternative means of ballot access).

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III. The Defendants’ affirmative defenses are appropriately raised.

The Trustee seeks to strike the Defendants’ second affirmative defense, lack of 

personal and subject matter jurisdiction, and fourth affirmative defense, lack of 

standing, arguing they are not appropriately raised as affirmative defenses, but 

rather must be asserted by motion before an answer is filed. Though Fed. R. Civ. P. 

8(c) lists a series of non-exhaustive examples of affirmative defenses that neither 

includes jurisdictional nor standing defenses, “nothing in the language of Rule 8(c) 

purports to limit what may be pled as affirmative defenses.” Ramnarine v. CP RE 

Holdco 2009-1, LLC, No. 12-61716-CIV, 2013 WL 1788503, at *4 (Bankr. S.D. Fla. 

Apr. 26, 2013).

The Court notes that subject matter jurisdiction “can never be waived or 

forfeited” and “may be resurrected at any point in the litigation.” Gonzalez v. Thaler, 

565 U.S. 134, 141 (2012). Striking the Defendants’ subject matter jurisdiction defense 

would provide no relief to the Trustee, as the Defendants would be well within their 

rights to raise the challenge at any time regardless of the affirmative defense.

Further, personal jurisdiction and standing are appropriately raised as 

affirmative defenses. There is nothing preventing a party from raising either of these 

arguments as affirmative defenses so long as they are raised in the Defendants’ first 

Rule 12 response. See Fed. R. Civ. P. 12(b). Both personal jurisdiction and standing 

often raise “substantial questions of law better decided after factual development.”16 

16 Because the Court has already addressed, and ruled against, the personal jurisdiction 

argument in its Order Denying Motion to Transfer, it notes that nothing in this Order should be 

construed as determining that additional arguments on personal jurisdiction and standing that were 

raised or should have been raised on adjudication of that motion are not waived. (Doc. 75).

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Ramnarine, 2013 WL 1788503, at *4 (quoting Achievement & Rehabilitation Ctrs., 

Inc. v. City of Lauderhill, No. 12-61628-CIV, 2012 WL 6061762, *1 (S.D. Fla. Dec. 6, 

2012)). Consequently, the Court denies the Motion to the extent it seeks to strike the 

Defendants’ jurisdiction and standing affirmative defenses.

Accordingly, the Court ORDERS that the Renewed Motion (Doc. 40) is 

GRANTED IN PART. The Court strikes the Granddaughter’s demand for jury trial 

and Article III adjudication rights. The Renewed Motion is otherwise DENIED.

# # #

Copies To:

Zach Shelomith, Esq.

Zach Shelomith, Esq. is directed to serve this Order on all interested parties.

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