Losada v. Norwegian (Bahamas) Ltd.
296 F.R.D. 688
S.D. Fla.2013Background
- Plaintiff, a briefly hired employee, alleges Defendant obtained consumer reports and took adverse employment actions without proper FCRA disclosures/authorization (15 U.S.C. § 1681 et seq.).
- Defendant answered and asserted multiple affirmative defenses; Plaintiff moved to strike them as redundant, legal arguments, or conclusory/lacking facts.
- The Court had previously denied Defendant’s motion to dismiss before this Answer/affirmative defenses were filed.
- The court reviewed Rule 12(f) standards and considered whether Twombly/Iqbal pleading requirements apply to affirmative defenses.
- The Court held that affirmative defenses must give sufficient notice and factual footing (but need not match the volume of facts required of a complaint given timing constraints).
- Court resolved each contested defense: some reclassified as denials, one stricken with prejudice, two stricken without prejudice to replead with facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Defenses 1–4 proper affirmative defenses or improper denials/attacks on the complaint? | They are boilerplate or baseless affirmative defenses that should be stricken. | They assert failure of proof and challenge elements; thus they are defenses. | Defenses 1–4 are not affirmative defenses; court treats them as specific denials (not stricken). |
| Does a good‑faith defense apply to failure-to-disclose claims under the FCRA (Defense 5)? | Good faith is inapplicable; FCRA §1681b(b)(2)(A)(ii) does not excuse lack of consent. | Good faith bars or mitigates liability. | Good faith is not a viable defense here; Defense 5 is stricken with prejudice. |
| Is a setoff for payments to Plaintiff a permissible affirmative defense in FCRA cases (Defense 6)? | Setoff is improper or unsupported by FCRA precedent. | Setoff is available; defendant pleads it as affirmative defense. | Area is uncertain; Defense 6 allowed to be repleaded but stricken for lack of factual detail (without prejudice). |
| Is mitigation of damages a valid affirmative defense as pleaded (Defense 7)? | Plaintiff says mitigation claim is boilerplate and factually unsupported. | Defendant asserts failure to mitigate damages. | Failure-to-mitigate is a valid defense but must be pleaded with sufficient facts; defense stricken without prejudice to replead. |
Key Cases Cited
- Will v. Richardson-Merrell, Inc., 647 F. Supp. 544 (S.D. Ga. 1986) (defines affirmative defense as admitting complaint and asserting justification or avoidance)
- In re Rawson Food Serv., Inc., 846 F.2d 1343 (11th Cir. 1988) (defense pointing out defect in prima facie case is not an affirmative defense)
- Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681 (M.D. Fla. 2002) (bare-bones conclusory affirmative defenses should be stricken)
- Exhibit Icons, LLC v. XP Cos., LLC, 609 F. Supp. 2d 1282 (S.D. Fla. 2009) (striking a pleading is a drastic remedy to be used sparingly)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading requires more than labels and conclusions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Twombly standard applied to plausibility of factual allegations)
- Hassan v. U.S.P.S., 842 F.2d 260 (11th Cir. 1988) (affirmative defenses give opposing party notice to prepare litigation)