This is the third in a three part series of articles discussing the several varieties of motions to strike available during the litigation of Florida civil cases.
This article addresses motions to strike legally insufficient defenses under Rule 1.140(b), as well as, less common motions to strike available under different Florida Civil Rules.
The first article addressed motions to strike redundant, immaterial, impertinent, or scandalous matter under Fla. R. Civ. P. 1.140(f).
The second article addressed motions to strike sham pleadings under Fla. R. Civ. P. 1.150.
Motion to Strike Legally Insufficient Defenses under Fla. R. Civ. P. 1.140(b)
Before having to file an answer to a complaint, a defendant can argue that a plaintiff failed to state a cause of action, meaning even if everything the plaintiff alleges is true, those allegations do not form the basis for a lawsuit.
Similarly, a plaintiff may argue that an affirmative defense, asserted by the defendant, fails to state a legally cognizable defense. However, a plaintiff makes this argument in a motion to strike defenses rather than a motion to dismiss. See Fla. R. Civ. P. 1.140(b).
A motion to strike defenses applies where a responsive pleading fails to state a legally cognizable defense. A motion to strike a defense is akin to a motion to dismiss a cause of action for failure to state a claim. This motion pertains to the sufficiency of a pleading, as opposed to the merits of the case. See Burns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978) (“A motion to strike a defense tests only the legal sufficiency of the defense.”).
Florida is a fact-pleading jurisdiction, meaning the defending party must articulate ultimate facts supporting the defenses. In other words, the motion has to do with the pleading party’s ability to state the legal elements of a defense. See Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (“Where … a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.”).
The motion does not and should not incorporate evidence. See Gonzalez v. NAFH Nat. Bank, 93 So. 3d 1054, 1057 (Fla. 3d DCA 2012) (quotation omitted) (“An affirmative defense may not be stricken ‘merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.’”).
Importantly, timing is critical for a motion to strike defenses. The motion must be filed within 20 days of the defendant’s answer or pleading, which raises an insufficient defense. Fla. R. Civ. P. 1.140(b). Failure to timely move to strike improperly pled defenses might leave a party to the more narrow motion to strike under Rule 1.140(f), for redundant, immaterial, impertinent, or scandalous matter—but that standard is different and limited. See Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).
Motion to Strike for Failure to Comply with Discovery Order
Florida’s Civil Rules also permit a motion to strike a claim or a pleading as a sanction when the opposing party or its representative “fails to obey an order to provide or permit discovery,” among other forms of relief. See Fla. R. Civ. P. 1.380(b)(2). The circumstances for the Rule 1.380(b)(2) motion to strike, therefore, are relegated to discovery misconduct or the like.
However, an order striking pleadings is “the most severe of all possible sanctions and therefore should be employed only in extreme circumstances.” Ferrante v. Waters, 383 So. 2d 749, 750 (Fla. 4th DCA 1980). Consequently, the bar for such relief is high. The movant must demonstrate the subject’s “deliberate and contumacious disregard of the court’s authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).
Motion to Strike a Third-Party Pleading
A third-party complaint is a claim asserted by a defendant against a nonparty (now a third-party defendant) who is or may be liable to the defendant for all or part of the plaintiff’s claim. Fla. R. Civ. P. 1.180 provides for a motion to strike an improper third-party claim. Specifically, the rule provides: “Any party may move to strike the third-party claim or for the severance or separate trial.” Fla. R. Civ. P. 1.180(a).
A third-party claim brought under Rule 1.180 must include a claim for indemnification, subrogation, or contribution and other, applicable claims may be added thereto. Tsafatinos v. Family Dollar Stores of Florida, Inc., 116 So. 3d 576, 582 (Fla. 2d DCA 2013). If a third-party claim fails to state the underlying claim for indemnification, subrogation, or contribution, all third-party claims could be subject to strike. Id. “The policy behind the rule is to avoid multiple actions.” Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So. 2d 484, 486 (Fla. 4th DCA 2000).
Motion to Strike Pleadings for Failure to Attend a Case Management Conference
Generally, a case management conference is set by court order. At a case management conference, the judge will often set forth a schedule for court appearances, the submission or completion of the relevant pleadings, deadlines for discovery, and other matters. Fla. R. Civ. P. 1.200 authorizes a trial court to strike pleadings for a party’s failure to attend a case management conference. See Decker v. Cnty. of Volusia, 698 So. 2d 650, 651, n.1 (Fla. 5th DCA 1997) (noting Rule 1.200’s power to strike pleadings).
Motion to Strike for Failure to Comply with Order Granting Motion for More Definite Statement
Finally, the trial court is empowered to strike a pleading if the opposing party fails to comply with a court order requiring an amendment to the pleading with a more definite statement.
Sometimes parties will file pleadings that are extremely vague and devoid of details, which makes it hard for the opposing party to respond. In such cases, the opposing party can a motion for more definite statement, which if granted requires the other party to amend its pleading with relevant details and facts.
Rule 1.140(e) governs motions for more definite statements and provides: “If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.” Fla. R. Civ. P. 1.140(e).
If the motion is granted, the trial court will establish a deadline for the amendment with a more definite statement. This type of motion to strike is uncommon because it only arises in the scenario where a party has first successful moved for a more definite statement but the opposing party failed to make the necessary amendment to the pleading within the time allowed by the court.