To strike or not to strike?

Birren v. Royal Caribbean Cruises, Ltd., No. 20-cv-22783, 2020 U.S. Dist. LEXIS 205890; 2020 WL 6487517 (S.D.F.L. Nov. 4, 2020).

Ava Maria Wolf

Justice Scalia once said: “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” In Birren v. Royal Caribbean Cruises, Ltd., the United States District Court for the Southern District of Florida adopted a textualist approach in determining whether to grant a Motion to Strike.[1]

On October 9, 2020, Defendant, Royal Caribbean Cruises, Ltd., filed its Answer and Affirmative Defenses to Plaintiffs’ First Amended Complaint asserting twelve affirmative defenses.[2] Following, Plaintiffs, Kathryn Birren and Mandy Birren, moved to strike the first, second, fifth, seventh, eighth, eleventh, and twelfth affirmative defenses, alleging the defenses “assert[ed] bare conclusions, fail[ed] to allege any facts upon which the defenses are based, and fail[ed] to comply with the applicable pleading standards.”[3] After withdrawing its seventh defense, Defendant argued its defenses “provide[d] the basic notice required by law[] and relate[d] directly to Plaintiff’s claims.”[4]

Before deciding which affirmative defenses to strike, the district court noted courts have adopted two pleading standards required for affirmative defenses: The “heightened pleading standard of Rule 8(a) [of the Federal Rules of Civil Procedure],” or the “less stringent standard under Rules 8(b) and 8(c),” which states “affirmative defenses need only provide fair notice of the nature of the defense and the grounds upon which it rests.”[5] Reviewing Rules 8(a), 8(b), and 8(c) of the Federal Rules of Civil Procedure, the district court noted “Rule 8(a) requires the party to ‘show’ that they are entitled to relief, while Rule 8(b) does not.”[6] Moreover, looking at Rule 8(c), the district court noted Rule 8(c) “requires that a party ‘must affirmatively state any avoidance or affirmative defense.’”[7] Relying heavily off of the plain language of Rule 8, the district court decided not to follow the heightened pleading standard, noting: “The straightforward construction of Rule 8 delineates different standards for pleadings generally, and those applicable to defenses.”[8]

Turning away from its textalist approach, the district court relied heavily off of case law when deciding to strike only the second and eighth affirmative defenses.[9] In response to Defendant’s second affirmative defense, Plaintiffs argued the defense “fail[ed] to set forth any additional facts in support.”[10] Following the 11th Circuit’s precedent set forth in Johnson v. Royal Caribbean Cruises, Ltd., the district court struck the second affirmative defense because “‘[l]imitations of liability in cruise-ship tickets are not enforceable against negligence claims.’”[11] The district court also struck the eighth defense, holding it was “clearly invalid as a matter of law.”[12] Looking towards Higgs v. Costa Crociere S.P.A., Co., and the collateral source, the district court noted the defense “attempts to read Higgs in a manner that would permit a tortfeasor to set off payments made by third parties in order to reduce its own liability amount – a reading that is clearly contrary to Higgs’s holding and to the collateral source rule.”[13]

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[1] Birren v. Royal Caribbean Cruises, Ltd., No. 20-cv-22783, 2020 U.S. Dist. LEXIS 205890, at *1 (S.D.F.L. Nov. 4, 2020).

[2] Birren, 2020 U.S. Dist. LEXIS 205890,at *2. Plaintiffs originally filed their maritime personal injury action on July 7, 2020. Their First Amended Complaint was filed on September 18, 2020, asserting nine counts. Id.

[3] Id. at *3. Plaintiffs also alleged the affirmative defenses were “legally insufficient, irrelevant, and/or immaterial.” Id.

[4] Id.

[5] Id. The heightened pleading standard arose from Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

[6] Id. at *5-6 (citing Moore v. R. Craig Hemphill & Assocs., No. 3:13-cv-900-J-39-PDB, 2014 U.S. Dist. LEXIS 79592, 2014 WL 2527162, at *2 (M.D. Fla. May 6, 2014)).

[7] Id. at *6 (citing Fed. R. Civ. P. 8(c)). The Eleventh Circuit has found “[t]he purpose of Rule 8(c) is simply to guarantee that the opposing party has notice of any additional issue that maybe raised at trial so that he or she is prepared to properly litigate it.” Hassan v. United States Postal Service, 842 F.2d 260, 263 (11th Cir. 1988).

[8] Id.

[9] This summary will only discuss the district court’s decisions and reasoning in striking the second and eighth affirmative defenses.

[10] Birren, 2020 U.S. Dist. LEXIS 205890,at *9.

[11] Id. (citing Johnson v. Royal Caribbean Cruises, Ltd., 449 F. App’x 846, 848 (11th Cir. 2011)).

[12] Birren, 2020 U.S. Dist. LEXIS 205890,at *18.

[13] Id. at *17. See Higgs v. Crociere S.P.A., Co., 969 F.3d 1295 (11th Cir. 2020).