Svistina v. Elbadramany
1:22-cv-20525
S.D. Fla.Jan 10, 2023Background
- On September 21, 2022, plaintiff Elena Svistina alleges she was sexually assaulted and unlawfully recorded in a cabana at Trump Towers Condominium; claims include assault, negligent care, negligent misrepresentation, false imprisonment, unlawful video/audio recording, negligent security, and condo-related negligence theories.
- Defendants are the alleged assailant Mark Fadel Elbadramany, the condominium association TDR Towers Master Association, Inc. (TDR), management company FirstService Residential Florida, Inc. (FirstService), and security provider Universal Protection Service, LLC d/b/a Allied Universal (Allied Universal).
- Each defendant filed an Answer asserting multiple affirmative defenses; Svistina filed motions to strike many of those defenses under Fed. R. Civ. P. 12(f).
- The Court evaluated whether particular defenses were (a) improper denials framed as affirmative defenses, (b) conclusory/bare-bones and thus insufficient, or (c) legally invalid as a matter of law.
- Rulings: Elbadramany — four defenses struck (Failure to State a Cause of Action; No Legal Duty; No Causation; Lack of Subject Matter Jurisdiction) and the rest permitted; TDR — Failure to State a Cause of Action struck, all other challenged defenses denied; FirstService — one duplicative apportionment defense struck, the rest denied; Allied Universal — motion denied in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "failure to state a claim" and similar denials may stand as affirmative defenses | Svistina: these are not affirmative defenses but denials and should be stricken | Defendants: some courts treat them as denials; leave them in pleading | Court: struck those that were pure denials (Elbadramany 1,4,6; TDR 1) as judicially efficient; others survived when substantive or factual issues implicated |
| Whether bare-bones/conclusory affirmative defenses lacking factual detail must be stricken | Svistina: defenses pleaded as legal conclusions without facts give no notice | Defendants: alleged facts suffice for notice; factual sufficiency better tested on summary judgment | Court: declined to strike defenses that supplied factual allegations (consent, mitigation, estoppel, unclean hands, etc.) — these survive discovery |
| Whether assumption of risk/express assumption of risk applies here and is invalid as matter of law | Svistina: express assumption of risk inapplicable (citing Mazzeo) to aberrant/intentional conduct | Defendants: factual dispute, massages involve contact unlike noncontact sports; mixed question | Court: assumption-of-risk defenses not stricken at this stage — mixed law/fact unresolved |
| Whether apportionment/identification of nonparties and duplicative apportionment defenses are permissible | Svistina: apportionment must identify nonparties and cannot apportion vicarious liability; duplicative defenses should be struck | Defendants: apportionment often directed at co-defendants; some defenses refer to co-defendants not nonparties; alleged scrivener errors | Court: apportionment defenses allowed when directed at co-defendants or properly pled; duplicative defense (FirstService ¶17) stricken as redundant |
Key Cases Cited
- Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668 (S.D. Fla. 2013) (definition and treatment of affirmative defenses)
- In re Rawson Food Serv., Inc., 846 F.2d 1343 (11th Cir. 1988) (a defect in plaintiff's prima facie case is not an affirmative defense)
- Birren v. Royal Caribbean Cruises, Ltd., 336 F.R.D. 688 (S.D. Fla. 2020) (intervening/superseding cause defense may survive motion to strike with factual support)
- Mazzeo v. City of Sebastian, 550 So. 2d 1113 (Fla. 1989) (limitations on express assumption of risk doctrine in certain contexts)
- Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574 (M.D. Fla. 1995) (affirmative defenses that raise relevant legal and factual issues are sufficient)
- Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681 (M.D. Fla. 2002) (standards for striking defenses as frivolous or clearly invalid)
- Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345 (M.D. Fla. 2002) (motions to strike are drastic and disfavored)
- Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314 (S.D. Fla. 2005) (district court's broad discretion on Rule 12(f) motions)