Summary Judgment by Ambush: Motion to Strike Affirmative Defenses

Posted by  MotionToStrikeAffirmativeDefenses

Attorney Nick Mermiges (Miami, I think) has written an excellent article on motion practice which is very illuminating and extremely clear. In essence he has called out the bank lawyers who are filing motions to strike affirmative defenses and then using the law on summary judgment to argue their case. The result is that most of the homeowner’s affirmative defenses are indeed struck, eventually with prejudice and it is all tied to attorney fees for the benefit of the bank lawyers. The Judges are hearing these motions as though the he or she was hearing evidence, which is obviously not the case. For myself I am considering whether to file interlocutory appeals where the Judge has essentially decided the entire case based legal argument that does not even apply to the motion filed.

the basic thrust of the argument is that the Defendant has asserted “mere legal conclusions,” and that the Affirmative Defenses as pled don’t contain sufficient factual support. Plaintiffs’ counsel contend that the Defendant should have to plead specific facts in its Answer/Affirmative defenses, instead of simply asserting the legal basis for the affirmative defense.

I fell into this trap and reworded the affirmative defenses to provide a long narrative of the facts supporting the affirmative defenses. By doing that I was forced to both disclose specific facts outside of discovery and assume others because I had not received discovery. And THEN adding insult to injury I am prohibited from pursuing discovery on issues that the court has already ruled “irrelevant.”

I’ll admit that it is a clever tactic but it is only working because the Judges are letting it happen. This is summary Judgment by ambush.

these Motions are filed and granted with great frequency. Most of the time, Plaintiffs’ counsel misleadingly cite either (1) cases that discuss the sufficiency of affirmative defenses in the context of summary judgment; or (2) cases that address the pleading requirements when a party asserts an affirmative defense of fraud. See, e.g., Cady v. Chev Chase Sav. And Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988) (an opinion arising from a summary judgment order relating to a foreclosure, which primarily addresses allegations of fraud); Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (an opinion arising from a post­trial final judgment order relating to a foreclosure, which primarily addresses the sufficiency of the appellant’s response); Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996) (an opinion arising from a challenge to a jury verdict on the grounds that the court’s jury instructions relating to the seatbelt defense were improper); Jacobs v Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (an opinion arising from an order granting a directed verdict in a landlord tenant dispute); Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989) (an opinion arising from a post­trial final judgment order relating to a probate dispute, which does

not address the standards for properly pleading an affirmative defense); Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996) (an opinion arising from an order on a motion for new trial, which sets out standards for naming a Fabre Defendant).
While all of the aforementioned opinions have little pieces of language that can be misleadingly quoted and then strung together into a motion that someone might fall for if they weren’t paying attention, the common thread that ties them all together is that they consider the sufficiency of Affirmative Defenses after the close of discovery. And, naturally, after discovery has concluded, the Court would be in the proper position to determine whether the Defendant has uncovered evidence and facts which are sufficient to support the Affirmative Defenses as pled. But, it makes no sense to apply this same test at the beginning of discovery, because it presumes that the Defendant already knows everything there is to know.

The author takes dead aim at judges and lawyers who ignore the rules of engagement in litigation. The only basis to strike affirmative defenses is that the stated affirmative defense is not an affirmative defense or is scandalous as worded. Bank lawyers are using this tactic because the court won’t grant summary judgment on the same issues. After getting this order from the court, the Plaintiff pretender lender has clear sailing over the objections and affirmative defenses as properly pled because the order from the court has struck them.

The general umbrella for these spurious motions to strike is “relevance” which is by definition an evidentiary matter not a legal sufficiency matter. If you are challenging the lawsuit filed the purpose of the affirmative defenses is to put the Plaintiff on notice of what you intend to prove — not to provide a target for the Plaintiff to argue matters of evidence or the law of civil procedure for summary judgment.

let’s take a look at the language of the operative rule. Florida Rule of Civil Procedure § 1.140(f) provides that:
“[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”
Based on the actual language of this rule, a Motion to Strike would only be proper if I asserted the same Affirmative Defense ten times (redundant), if I asserted an Affirmative Defense of Accord and Satisfaction in a Wrongful Death case (immaterial), or if one of my Affirmative Defenses was that the Plaintiff was an alcoholic communist (impertinent, scandalous). I don’t see any language directing the Court to strike allegations which have not yet been factually substantiated.

And while it appears that numerous Trial Courts aren’t inclined to adhere to the actual Rules of Civil Procedure (perhaps because Defense Counsel aren’t actually arguing the law), it turns out that multiple Florida Appellate Courts agree that the rules says what they actually say. Thus, these Courts have held that in the context of a motion to strike (i.e., prior to the close of discovery), the proper inquiry is only whether the affirmative defense is “legally sufficient on its face.” Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). Indeed, at the beginning of discovery, when a party asserts its Affirmative Defenses, the purpose of same is to establish what the Defendant seeks to prove, thereby putting the opposing party on notice. Thus, in Zito v. Washington Federal Sav. & Loan Asso., 318 So. 2d 175 (Fla. 3d DCA 1975), the Third DCA noted:
As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.

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