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Motion to Strike



REDACTED,                                                 )


            Plaintiff,                                    )

            vs.                                                )



            Defendants.                                    )






       Plaintiff, Redacted, moves pursuant to Rule 12(e) and 12(f) for a more definite statement and to strike certain of the Defendants’ affirmative defenses (Doc. 6).

  1. I.               Motion for More Definite Statement
  2. A.    Applicable Law.

       Rule 12(e) permits a party to move for a “more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). If a pleading “fails to specify the allegations in a manner that provides sufficient notice” or does not contain enough information to allow a responsive pleading to be framed, the proper motion to be filed is a motion for a more definite statement. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Sisk v. Texas Parks and Wildlife Dep’t, 644 F.2d 1056, 1059 (5th Cir.1981).

       As the Supreme Court recently held in Bell Atlantic Corp. v. Twombly, —- U.S. —-, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007), a plaintiff, in framing its complaint, must provide “factual allegations” and not merely a recitation of the elements of a cause of action. “This same logic holds true for pleading affirmative defenses-without alleging facts as part of the affirmative defenses, Plaintiff cannot prepare adequately to respond to those defenses”. Holtzman v. B/E Aerospace, Inc.,  2008 WL 2225668 (S.D. Fla. 2008).  Defendants “must provide more than bare-bones conclusions.” Id.  Moreover, a plaintiff “should not be left to discover the bare minimum facts constituting a defense until discovery, for the ‘purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out whether such a claim exists.’” Id., citing Stoner v. Walsh, 772 F.Supp. 790, 800 (S.D.N.Y.1991)

  1. B.    Argument.

       In this case, the Defendant has failed to allege any particular facts with regard to its boiler plate Defenses numbered 2, 3, 4, 5, 6, 9, 10, 11, 12, and 13.  Moreover, Defense number 1 is also too vague to form a response. Therefore, Plaintiff moves for a more definite statement with regard to these Affirmative Defenses.

  1. II.             Motion To Strike
  2. A.    Applicable Law.

       Rule 12(f) allows the Court to strike a defense on the grounds of insufficiency, immateriality, irrelevancy, or redundancy. Although motions to strike are sometimes disfavored, they should be granted when 1.) the allegations have no possible relation to the controversy and 2.) the allegations may cause prejudice to one of the parties. See Augustus v. Board of Public Instruction, 306 F.2d 862, 868 (5th Cir.1962) see also Kinnear-Weed Corp. v. Humble Oil & Refining Co., 214 F.2d 891, 894 (5th Cir.1954) (holding a motion to strike was proper when the pleading contained claims that “might serve to prejudice the defendant or prolong the trial”).

       In this case, many of these issues should be resolved at the beginning of this litigation otherwise they may later prejudice the Plaintiff given this case involves a fee shifting statute.  In particular, whether Florida’s Whistleblower Act is preempted and/or not a valid cause of action in this case.  It would be unjust for the Defendant to claim attorneys’ fees at the conclusion of this litigation, when it could have and should have raised the Whistleblower issues it believes are proper via a motion to dismiss.  As such, an early resolution of the above noted defenses will assist all parties in narrowing the real issues to this case and resolving any ambiguity in the law that is applicable to this case.

  1. B.    Argument.

       The following affirmative defenses are not recognized by any legal authority, are not applicable to this case and/or would only result in prolong the swift resolution of the real issues of this case or to prejudice the Plaintiff via a delayed resolution of the issues:  Affirmative Defenses 7, 14, 15, 16, 17, and 18.

       As for Defenses Number 7, the Defendant has not provided any legal support for the proposition that there are any procedural requirements to filing an FMLA claim. As such, that Defenses has no possible relationship to this case.  Similarly, Defendant has provided no legal authority for the notion that it would be entitled to a set off for unemployment compensation as alleged in Defense Number 14.

            As for Defenses Number 15, the Defendant has not provided any legal support for the notion that Plaintiff may not recover damages for her Whistleblower claim; there has been no support provided indicating that this claim is somehow preempted by the FMLA; instead, the law clearly indicates otherwise.  See Gray v. WebCo General Partnership, 36 F.Supp.2d 1331 (M.D. Fla. 1999)  (“In the instant case, Defendant points to no provision of Florida’s Whistleblower Act that conflicts with either the plain language or intent of Title VII. Nor does Defendant sufficiently show that Florida’s Whistleblower Act is an obstacle to Title VII, by requiring an act inconsistent with Title VII’s purpose.”).   The mere existence of a federal cause of action does not foreclose the possibility of concurrent and complementary state law.  Id., citing Sandom v. Travelers Mortgage Services, Inc., 752 F.Supp. 1240, 1243 (D.N.J.1990).  Therefore, the Plaintiff may maintain both a Whistleblower case and an FMLA case concurrently.

For the same reason, Defense Number 18 should be struck because there is no doubt that the Family Medical Leave Act is a law, rule or regulation and therefore complaints about it are protected activity.  See Fla. Stat. Sec. 448.101(4)  (“Law, rule, or regulation” includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.”).   Therefore, Plaintiff’s complaints about violations of the FMLA (as alleged in paragraph 23 of the Complaint) are protected by Florida’s Whistelblower Act from retaliation. 

      With regard to Defense 17, the Plaintiff’s claims are based on Fla. Stat. Sec. 448.102(3), and therefore there is no condition precedent requirement for that subsection.  See McEowen v. Jones Chemical, Inc., 758 So.2d 92 (Fla. 2000) (“… when an employee brings a whistle-blower claim pursuant to subsection 448.102(3), on the basis that the employer took prohibited retaliatory personnel action because of the employee’s objection to the employer’s unlawful activity, the employee is not required to comply with the written notice requirement of section 448.103(1)1.”).

  1. III.           Conclusion

            Plaintiff respectfully requests that the Defendant be required to provide a more definite statement as to its Affirmative Defense Numbers 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, and 13.  Moreover, Plaintiff respectfully requests that Affirmative Defense Numbers 7, 14, 15, 16, 17, and 18 be struck.

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