Preview
Filing# 163696404 E-Filed 12/27/2022 03:10:29 PM
INTHE CIRCUIT COURT OF THE 17TH
AURORA SOLIS PEREZ, JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
Plaintiff.
CIRCUIT CIVIL DIVISION
VS.
CASE NO.: CACE-2022-015612
WAL-MART STORES
EAST, LP,
Defendant.
I
PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S
AFFIRMATIVE DEFENSES
Plaintiff, AURORA SOLIS PEREZ, ("Plaintiff'),
by and throughundersignedcounsel and
Florida Rules of Civil Procedure, moves for entry of an Order striking
pursuant to Rule 1.140(f), the
Affirmative Defenses asserted by Defendant, WAL-MART STORES EAST, LP ("Defendant")
and in support ofthis Motion states as follows:
I. Legal Standard
"A pleading which sets forth a claim for relief... must state a cause of action and shall
contain... a short and plainstatement of the ultimate facts showing that the pleaderis entitled to
relief." Fla. R. Civ. P. 1.110(b)(2). The "ultimate facts" standard applieswith equal measure
to affirmative defenses, and "forces counsel to recognize the elements of their cause of action
and determine whether they have or can develop the facts necessary to support it." Horowitz v.
Laske, 855 So. 2d 169, 173 (Fla.5th DCA 2003). Florida is a "fact pleading"jurisdiction,
requiringthe pleaderto allegemore than mere conclusoryallegations.
Continental Baking Co. v.
Vincent, 634 So. 2d 242, 244 (Fla.5th DCA 1994).
Allegationsin an Answer that purport to be affirmative defenses but which are nothing
more than denials or conclusions of law must be stricken. Wiggins v. Protmay, 430 So. 2d 541
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2022 03:10:29 PM.****
(Fla. 1 st DCA 1983).The requirement of certaintywill be insisted upon in the pleading of
requiredis that the pleadermust set forth the facts in such a manner
a defense; and the certainty
as to reasonably inform his adversary of what is proposed to be proved in order to provide the
latter with a fair opportunityto meet it and prepare his evidence." Zito v.
Washington Federal
Savings & Loan Ass'n, 318 So. 2d 175, 176 (Fla.3rd DCA 1975).
An affirmative defense which is conclusory as pled and fails to set forth the ultimate facts
upon which it is based should be stricken. Faldes v. Lombert, 568 So. 2d 117 (Fla.5th DCA
1990); Matthews Corp. v. Green's Pool Service, 584 So. 2d 1006 (Fla.3d. DCA 1990). In a civil
action "an affirmative defense is a pleading that,in whole or part, bars or avoids the cause of
action asserted by an opponent in the preceding pleading..."Storhwerke, GMBH v. Mr.
Thiessen's Wallpapering Supplies,Inc., 538 So.2d 1382, 1383 (Fla.5th DCA 1989).
recognizedprincipleof law
it is a "universally
Additionally, that one who raises an issue
as an affirmative defense should have the burden of presentingevidence in support of such
defense. Zundell v. Dade County School Board, 609 So. ld 1367 (Fla.3d DCA 1992). Ades v.
Bank of Montreal, 541 So. 2d 1013 (Fla.3d DCA 1989).An affirmative defense must be proved
by a preponderance of the evidence. Captain'sTable, Inc. v. Khouri, 10% So. 2d 677 (Fla.1968).
In the instant case, the defendant has allegedaffirmative defenses that contain pure conclusions
of law, wholly without support of ultimate facts. The principlesof pleading which apply to
complaint apply equallyto
plaintiff's all affirmative defenses raised in an answer. See Walker v.
Walker, 254 So. 2d 832 (Fla.1st DCA 1971);Zito v.
Washington Fed Sau And Loan Ass'n of
Miami Beach, 318 So. 2d 175 (Fla.3d DCA 1975).A plaintiff
is as much entitled to the certainty
required in the pleading of a defense, as is a defendant to be appraised of the nature of the
claim. Zito, 318 So. 2d
plaintiff's at 176; Walker, 254 So. 2d at 834-835. The degree of certainty
requiredin an Answer is that the defendant must set forth the facts in a manner as to reasonably
of what
inform the plaintiff is proposed to be proved in order to provide the plaintiff
with a fair
opportunityto meet the defense and prepare his evidence accordingly.See Zito, 318 So. 2d at
176; Citizens Nat'l Bank ofOrlando v.
Youngblood,296 So. 2d 92 (Fla.4th DCA 1974).
Plaintiff would concede that the pleading of ideas and conclusions are permissiblewhen
they are pleaded in conduction with ultimate facts. While conclusions do not necessarilymake a
pleadingbad, they serve no useful purpose unless supportedby facts which tend to support the
conclusion. Ellison v.
City of Ft. Lauderdale,175 So. 2d 198 (Fla.1965). In fact,when supported
by ultimate facts,conclusions serve a very importantfunction in pointingout the inference which
the pleaderintends to relyupon. Id. at 200. However, pleading conclusions of law unsupported
by allegationsof ultimate fact is legallyinsufficient. Bliss v. Carmona, 418 So. 2d 1017 (Fla.3d
DCA 1982).See also Cady v. Chevy Chase and Loan, Inc.,51% So. ld 136 (Fla.4th DCA 1988)
(holdingaffirmative defenses that are nothing more than conclusoryare not good defenses to the
complaint).
immaterial, vague, and plead mere legal
Defendant's Affirmative Defenses are irrelevant,
conclusions that are not supported by ultimate facts and are therefore improper. In fact,
is requiredwhen pleading defenses and pleading conclusions of law unsupported by
"[clertainty
of ultimate
allegations fact is legallyinsufficient. Bliss v. Carmona, 418 So. 2d 1019 (Fla.3d
DCA 1982); Cady v.
Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4?h DCA
1988). Further, each element of a defense recognized by law must be pled. L.B. McLeod
Construction Co. v.
Cooper, 101 Fla. 441, 134 So. 224 (1931);Foley v. Hialeah Race Course,
Inc.,53 So. 2d 771 (Fla.1931).
First Affirmative Defense
In its First Affirmative Defense, Defendant claims it owed no duty to the Plaintiff. As
pled,it is a mere denial o f the allegationsin Plaintiff' s Complaint. See Gatt v.
Keyes Corp., 446
So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied
the facts contained in the broker's complaint and did not raise any new matters to defeat the
Accordingly, this defense should be stricken.
complaint.").
Second Affirmative Defense
In its Second Affirmative Defense, Defendant claims it did not breach any duty to the
Plaintiff. As pled,it is a mere denial o f the allegations
in Plaintiff' s Complaint. See Gatt v.
Keyes
Corp.,446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense
simply denied the facts contained in the broker's complaint and did not raise any new matters to
Accordingly,this defense should be stricken.
defeat the complaint.").
Third Affirmative Defense
In its Third Affirmative Defense, Defendant claims it "acted in a reasonable manner
under the circumstances". As pled,it is a mere denial of the allegations
in Plaintiff's Complaint.
See Gatt v.
Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's
affirmative defense simply denied the facts contained in the broker's complaint and did not raise
any new matters to defeat the Accordingly,this defense should be
complaint."). stricken.
Fifth Affirmative Defense
In its Fifth Affirmative Defense, Defendant claims that in the event Plaintiff is awarded
in this action,the court should enter judgment againstthe Defendant on the basis of each part or
non-party's percentage of fault and not on the basis of the doctrine ofjoint and several liability,
to the extent and in the manner providedby Section 768.81, Florida Statutes and Fabre v. Marin,
618 So. 2d 209 (Fla.1993). This is not an affirmative defense; it is merely a denial of the
allegationsin Plaintiff's Complaint. See Gatt v.
Keyes Corp., 446 So. 2d 211, 212 (3d DCA
1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the
broker's complaint and did not raise any new matters to defeat the In addition,
complaint.").
Defendant's Fifth Affirmative Defense is merely a repetitionof Defendant's prior affirmative
defenses regarding comparative fault. Florida Rule o f Civil Procedure 1.140(f) states that a
"...court may strike redundant, immaterial, or scandalous matter from any pleading
impertinent,
at any time." Even if the defense is legallycognizable,Defendant's Fifth Affirmative Defense is
insufficient as it contains no identification whatsoever as to the nature of the third persons
in this matter. In order to have fault assessed
referred to or the third persons'responsibilities
againsta nonparty in a manner that would reduce the Plaintiff's recovery againstthe Defendant,
the Defendant must plead the type of negligence committed by the nonparty and specifically
identifythe nonparty. Fla. Stat. § Nash v. Wells Fargo Guard Services, Inc.,678
768.81(3)(a);
So.2d 1262 (Fla.1996).
Sixth Affirmative Defense
In its Sixth Affirmative Defense, Defendant contends that Plaintiff failed to mitigateits
damages. Defendant's Sixth Affirmative Defense fails because Defendant does not allegeany
how
facts indicating
specific Plaintiff could have, but failed to, mitigatetheir damages. See, e.g,
Merrill Lynch Bus. Fin. Serv., Inc., No. 04-60861-CIVMARTINEZ, 2005 WL 975773 at
* 12
(S.D. Fla. Mar. 4,2005) (recommending that affirmative defense of failure to mitigatedamages
be stricken because it which simply named
contained only "bare-bones conclusory allegation"
legaltheory but does not indicate how the theory is connected to the case at hand). Accordingly,
this Court should strike Defendant's Sixth Affirmative Defense.
Seventh Affirmative Defense
Defendant's Seventh Affirmative Defense, implied assumption of the risk, should be
stricken because it no longerindependentlyexists under Florida law, as it has been merged into
the doctrine of comparative fault. Blackburn v. Dorm, 348 So.2d 287 (Fla.1977) (Holding that
implied assumption of the risk is inapplicableas an affirmative defense, and that the principlesof
Kendrick v. Ed's Beach Serv., 577 So. ld 936,
comparativenegligencemust be appliedinstead);
66
937-38 (Fla. 1991) (holding that 'the doctrine of primary-implied assumption of the risk has
been totally'subsumed in the principleof negligence itself,'...and the doctrine of secondary
impliedassumption of the risk has been merged into the principles
of comparativenegligence.");
See also Millette v. DEK Technologies, Inc., No. 08-60639-CV, 2009 WL 3242010, at *6
(S.D.Fla.2009) (Granting summary judgment to dismiss affirmative defense of assumption of
the risk on the grounds that the Florida Supreme Court held that the defense of implied
assumption of the risk was merged with the doctrine of comparative fault.).
Since Defendant's
affirmative defense of implied assumption of risk has been merged into and is duplicativeof the
doctrine of comparative fault,which is asserted as its Seventh affirmative defense, it should be
stricken.
Eighth Affirmative Defense
This defense fails because the allegationsregarding whether Plaintiff had actual or
constructive knowledge are conclusory and lacking in any real allegationsof ultimate fact
demonstratinga good defense to the complaint.Certaintyis requiredwhen pleadingaffirmative
defenses, and "pleading conclusions of law unsupported by allegations
of ultimate fact is legally
insufficient." Cady v.
Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4th DCA
1988).Accordingly,this Court should strike Defendant's Eighth Affirmative Defense.
Ninth Affirmative Defense
In its Ninth Affirmative Defense, Defendant allegesthat the dangerous condition was
open and obvious. This is not an affirmative defense; it is merely a denial of the allegations
in
Plaintiff's Complaint. See Gatt v.
Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The
matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's
complaint and did not raise any new matters to defeat the complaint.").In addition,Defendant's
ninth Affirmative Defense is merely a repetitionof Defendant's prior affirmative defenses
regardingcomparativefault. Florida Rule of Civil Procedure 1.140(f)states that a "... court may
strike redundant, immaterial, impertinent,or scandalous matter from any pleading at any time."
The obviousness of the danger is simply part of the defense of comparativenegligenceand is not
Auburn Mach. Works Co., Inc.
an exception to liability. v. Jones, 366 So. 2d 1167, 1171 (Fla.
1979).Accordingly, this defense should be stricken.
Tenth Affirmative Defense
As its Tenth Affirmative Defense, Defendant asserts that Plaintiff' s were a result
injuries
of independent,supersedingand/or interveningcauses over which the Defendant had no control.
This is not a recognizableaffirmative defense. This is merely a general denial of Plaintiff's
claim. To the extent Defendant is allegingthat there was an interveningcause of the damages,
the defense fails because it does not set forth such facts as may be necessary to apprisePlaintiff
fullyof the specificnature and character of the defense. Certaintyis requiredwhen pleading
affirmative defenses, and "pleading conclusions of law unsupported by allegationsof ultimate
fact is legallyinsufficient." Cady v. Chevy Chase Savings and Loan, Inc., 51% So. ld 136,138
(Fla.4th DCA 1988). Accordingly, this Court should strike Defendant's Sixth Affirmative
Defense.
Eleventh Affirmative Defense
In its Eleventh Affirmative Defense, Defendant claims it "acted in a reasonable manner
under the circumstances". As pled,it is a mere denial of the allegations
in Plaintiff's Complaint.
See Gatt v.
Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's
affirmative defense simply denied the facts contained in the broker's complaintand did not raise
any new matters to defeat the complaint.").Accordingly, this defense fails and should be
stricken.
Twelfth Affirmative Defense
Defendant's Twelfth Affirmative Defense is merely a repetitionof Defendant's previous
affirmative defenses and a general denial. Florida Rule o f Civil Procedure 1.140(f)states that a
"...court may strike or scandalous matter from any pleading
redundant, immaterial, impertinent,
at any time." Accordingly, this Court should strike Defendant's Twelfth Affirmative Defense.
Thirteenth Affirmative Defense
As its Thirteenth Affirmative De fense, Defendant asserts that Plaintiff' s Complaint fails
to state a claim upon which relief may be granted.In doing so, however, Defendant fails to
identifythe particular and/or element(s)of the Complaint
allegation(s) that fails to state a cause
of action. Defendant's conclusory defense that Plaintiff has not stated a cause of action fails
because it does not set forth any facts in support so that Plaintiff may know the defense asserted
and respond accordingly.
Defendant fails to identifyany specificfactual deficiencyin Plaintiff's Complaint. This is
improper under the Florida Rules of Civil Procedure which expresslyrequirethe defense of
"failure to state a cause of action" to be set forth and with particularity.
specifically See Fla. R.
Civ. P. 1.140(b)("The grounds on which any of the enumerated defenses are based and the
substantial matters of law intended to be argued shall be stated specifically
and with particularity
in the responsivepleading or motion.").
Therefore, Defendant's Thirteenth Affirmative Defense should be stricken. See Merrill
Lynch Bus. Fin. Serv., Inc. v. Performance Machine Sys. US.A., Inc., 2005 WL 975773, *11
(S.D. Fla. Mar. 4,2005) (recommending that affirmative defense of "fails in whole or in part to
state a claim for relief upon which relief may be granted" be stricken because it is no more than a
recitation of the standard for dismissal and is a "bare-bones conclusory allegation"
that fails to
notifythe Plaintiff of the deficiencies in the complaint).
Fourteenth Affirmative Defense
Defendant's Fourteenth Affirmative Defense states that any recovery should be reduced
by any collateral source as enumerated by Florida Law. Any such alleged setoff is not an
affirmative defense to be considered by the jury but is a determination regarding damages to be
made by the court after the verdict is rendered. Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla.2d
DCA 2004). Therefore, because Defendant failed to raise new facts and arguments that,if true,
will defeat Plaintiffs claims, it is not an affirmative defense and must be stricken under Rule
1.140(b).See Gatt v.
Keyes Corp.,446 So. 2d 211, 212 (Fla.3d DCA 1984). Accordingly,this
defense fails and should be stricken with the understanding that Defendant may raise set off as a
post-verdictissue for the Court's determination only. In addition, Defendant's Fourteenth
of Defendant's previousaffirmative defense regarding
Affirmative Defense is merely a repetition
collateral sources. Florida Rule of Civil Procedure 1.140(f)states that a "...court may strike
redundant, immaterial, impertinent,or scandalous matter from any pleading at any time."
Accordingly,this Court should strike Defendant's Fourteenth Affirmative Defense.
Fifteenth Affirmative Defense
Defendant's Fifteenth Affirmative Defense is not an affirmative defense to be considered
by the jury but is a determination regardingdamages to be made by the court after the verdict is
rendered. Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla. 2d DCA 2004). Therefore, because
Defendant failed to raise new facts and arguments that,if true, will defeat Plaintiffs claims, it is
not an affirmative defense and must be stricken under Rule 1.140(b).See Gatt v.
Keyes Corp.,
446 So. 2d 211, 212 (Fla.3d DCA 1984).
Sixteenth Affirmative Defense
This is merely a general denial of Plaintiff" s claim. The defense does not set forth such
facts as may be necessary to apprisePlaintiff fullyof the specificnature and character of the
defense. Certaintyis requiredwhen pleading affirmative defenses, and "pleadingconclusions of
law unsupported by allegationsof ultimate fact is legallyinsufficient." Cady v.
Chevy Chase
Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4th DCA 1988). Accordingly,this Court
should strike Defendant's Sixteenth Affirmative Defense.
Seventeenth, Eighteenth and Nineteenth Affirmative Defenses
These affirmative defenses are to be considered by the jury but is a determination
regarding damages to be made by the court after the verdict is rendered. Felgenhauer v. Bonds,
891 So. 2d 1043 (Fla.2d DCA 2004). Therefore,because Defendant failed to raise new facts and
arguments that,if true, will defeat Plaintiffs claims, it is not an affirmative defense and must be
stricken under Rule 1.140(b).See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla.3d DCA 1984).
Accordingly, these affirmative defenses should be stricken with the understanding that
Defendant may raise set issue for the Court's determination only.
off as a post-verdict
Reservation of Rights
Defendant attempts to reserve the rightto amend its defenses. First,a party may amend a
pleading once as a matter of course at any time before a responsivepleading is served or, if the
pleading is one to which no responsivepleading is permitted and the action has not been placed
on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise, a
party may amend a pleading only by leave of court or by written consent of the adverse
party. See Fla. R. Civ. P. 1.190. As such, Defendant has no such rightto amend. Second, this is
not a valid affirmative defense because it does not raise new facts and arguments that,if true,
will defeat Plaintiffs claim. See Gatt, 446 So. 2d at 212. Accordingly, Defendant's
Reservation fails and should be stricken.
WHEREFORE, Plaintiff respectfully requests the Court enter an
Defendant's Affirmative Defenses as well as any and
order striking all further relief the Court
deems equitableand just.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed and
served upon Counsel for Defendant, at cmm@lgplaw.com and ngn@lgplaw.com on this 27th
day of December 2022.
Respectfullysubmitted,
Jimenez Hart Mazzitelli Mordes
Attorneysfor the Plaintijf
9350 South Dixie Hwy
Penthouse #5
Miami, FL 33156
Telephone: (305) 548-8750
Fax: (786) 800-3890
/si Sahara Fonseca
Sahara Fonseca (FBN 1017991)
:
Sahara@jhmllp.com
Benjamin Mordes (FBN: 75370)
benjamin@jhmllp.com
Preview
Filing# 163696404 E-Filed 12/27/2022 03:10:29 PM INTHE CIRCUIT COURT OF THE 17TH AURORA SOLIS PEREZ, JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Plaintiff. CIRCUIT CIVIL DIVISION VS. CASE NO.: CACE-2022-015612 WAL-MART STORES EAST, LP, Defendant. I PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES Plaintiff, AURORA SOLIS PEREZ, ("Plaintiff'), by and throughundersignedcounsel and Florida Rules of Civil Procedure, moves for entry of an Order striking pursuant to Rule 1.140(f), the Affirmative Defenses asserted by Defendant, WAL-MART STORES EAST, LP ("Defendant") and in support ofthis Motion states as follows: I. Legal Standard "A pleading which sets forth a claim for relief... must state a cause of action and shall contain... a short and plainstatement of the ultimate facts showing that the pleaderis entitled to relief." Fla. R. Civ. P. 1.110(b)(2). The "ultimate facts" standard applieswith equal measure to affirmative defenses, and "forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it." Horowitz v. Laske, 855 So. 2d 169, 173 (Fla.5th DCA 2003). Florida is a "fact pleading"jurisdiction, requiringthe pleaderto allegemore than mere conclusoryallegations. Continental Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla.5th DCA 1994). Allegationsin an Answer that purport to be affirmative defenses but which are nothing more than denials or conclusions of law must be stricken. Wiggins v. Protmay, 430 So. 2d 541 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2022 03:10:29 PM.**** (Fla. 1 st DCA 1983).The requirement of certaintywill be insisted upon in the pleading of requiredis that the pleadermust set forth the facts in such a manner a defense; and the certainty as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunityto meet it and prepare his evidence." Zito v. Washington Federal Savings & Loan Ass'n, 318 So. 2d 175, 176 (Fla.3rd DCA 1975). An affirmative defense which is conclusory as pled and fails to set forth the ultimate facts upon which it is based should be stricken. Faldes v. Lombert, 568 So. 2d 117 (Fla.5th DCA 1990); Matthews Corp. v. Green's Pool Service, 584 So. 2d 1006 (Fla.3d. DCA 1990). In a civil action "an affirmative defense is a pleading that,in whole or part, bars or avoids the cause of action asserted by an opponent in the preceding pleading..."Storhwerke, GMBH v. Mr. Thiessen's Wallpapering Supplies,Inc., 538 So.2d 1382, 1383 (Fla.5th DCA 1989). recognizedprincipleof law it is a "universally Additionally, that one who raises an issue as an affirmative defense should have the burden of presentingevidence in support of such defense. Zundell v. Dade County School Board, 609 So. ld 1367 (Fla.3d DCA 1992). Ades v. Bank of Montreal, 541 So. 2d 1013 (Fla.3d DCA 1989).An affirmative defense must be proved by a preponderance of the evidence. Captain'sTable, Inc. v. Khouri, 10% So. 2d 677 (Fla.1968). In the instant case, the defendant has allegedaffirmative defenses that contain pure conclusions of law, wholly without support of ultimate facts. The principlesof pleading which apply to complaint apply equallyto plaintiff's all affirmative defenses raised in an answer. See Walker v. Walker, 254 So. 2d 832 (Fla.1st DCA 1971);Zito v. Washington Fed Sau And Loan Ass'n of Miami Beach, 318 So. 2d 175 (Fla.3d DCA 1975).A plaintiff is as much entitled to the certainty required in the pleading of a defense, as is a defendant to be appraised of the nature of the claim. Zito, 318 So. 2d plaintiff's at 176; Walker, 254 So. 2d at 834-835. The degree of certainty requiredin an Answer is that the defendant must set forth the facts in a manner as to reasonably of what inform the plaintiff is proposed to be proved in order to provide the plaintiff with a fair opportunityto meet the defense and prepare his evidence accordingly.See Zito, 318 So. 2d at 176; Citizens Nat'l Bank ofOrlando v. Youngblood,296 So. 2d 92 (Fla.4th DCA 1974). Plaintiff would concede that the pleading of ideas and conclusions are permissiblewhen they are pleaded in conduction with ultimate facts. While conclusions do not necessarilymake a pleadingbad, they serve no useful purpose unless supportedby facts which tend to support the conclusion. Ellison v. City of Ft. Lauderdale,175 So. 2d 198 (Fla.1965). In fact,when supported by ultimate facts,conclusions serve a very importantfunction in pointingout the inference which the pleaderintends to relyupon. Id. at 200. However, pleading conclusions of law unsupported by allegationsof ultimate fact is legallyinsufficient. Bliss v. Carmona, 418 So. 2d 1017 (Fla.3d DCA 1982).See also Cady v. Chevy Chase and Loan, Inc.,51% So. ld 136 (Fla.4th DCA 1988) (holdingaffirmative defenses that are nothing more than conclusoryare not good defenses to the complaint). immaterial, vague, and plead mere legal Defendant's Affirmative Defenses are irrelevant, conclusions that are not supported by ultimate facts and are therefore improper. In fact, is requiredwhen pleading defenses and pleading conclusions of law unsupported by "[clertainty of ultimate allegations fact is legallyinsufficient. Bliss v. Carmona, 418 So. 2d 1019 (Fla.3d DCA 1982); Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4?h DCA 1988). Further, each element of a defense recognized by law must be pled. L.B. McLeod Construction Co. v. Cooper, 101 Fla. 441, 134 So. 224 (1931);Foley v. Hialeah Race Course, Inc.,53 So. 2d 771 (Fla.1931). First Affirmative Defense In its First Affirmative Defense, Defendant claims it owed no duty to the Plaintiff. As pled,it is a mere denial o f the allegationsin Plaintiff' s Complaint. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaint and did not raise any new matters to defeat the Accordingly, this defense should be stricken. complaint."). Second Affirmative Defense In its Second Affirmative Defense, Defendant claims it did not breach any duty to the Plaintiff. As pled,it is a mere denial o f the allegations in Plaintiff' s Complaint. See Gatt v. Keyes Corp.,446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaint and did not raise any new matters to Accordingly,this defense should be stricken. defeat the complaint."). Third Affirmative Defense In its Third Affirmative Defense, Defendant claims it "acted in a reasonable manner under the circumstances". As pled,it is a mere denial of the allegations in Plaintiff's Complaint. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaint and did not raise any new matters to defeat the Accordingly,this defense should be complaint."). stricken. Fifth Affirmative Defense In its Fifth Affirmative Defense, Defendant claims that in the event Plaintiff is awarded in this action,the court should enter judgment againstthe Defendant on the basis of each part or non-party's percentage of fault and not on the basis of the doctrine ofjoint and several liability, to the extent and in the manner providedby Section 768.81, Florida Statutes and Fabre v. Marin, 618 So. 2d 209 (Fla.1993). This is not an affirmative defense; it is merely a denial of the allegationsin Plaintiff's Complaint. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaint and did not raise any new matters to defeat the In addition, complaint."). Defendant's Fifth Affirmative Defense is merely a repetitionof Defendant's prior affirmative defenses regarding comparative fault. Florida Rule o f Civil Procedure 1.140(f) states that a "...court may strike redundant, immaterial, or scandalous matter from any pleading impertinent, at any time." Even if the defense is legallycognizable,Defendant's Fifth Affirmative Defense is insufficient as it contains no identification whatsoever as to the nature of the third persons in this matter. In order to have fault assessed referred to or the third persons'responsibilities againsta nonparty in a manner that would reduce the Plaintiff's recovery againstthe Defendant, the Defendant must plead the type of negligence committed by the nonparty and specifically identifythe nonparty. Fla. Stat. § Nash v. Wells Fargo Guard Services, Inc.,678 768.81(3)(a); So.2d 1262 (Fla.1996). Sixth Affirmative Defense In its Sixth Affirmative Defense, Defendant contends that Plaintiff failed to mitigateits damages. Defendant's Sixth Affirmative Defense fails because Defendant does not allegeany how facts indicating specific Plaintiff could have, but failed to, mitigatetheir damages. See, e.g, Merrill Lynch Bus. Fin. Serv., Inc., No. 04-60861-CIVMARTINEZ, 2005 WL 975773 at * 12 (S.D. Fla. Mar. 4,2005) (recommending that affirmative defense of failure to mitigatedamages be stricken because it which simply named contained only "bare-bones conclusory allegation" legaltheory but does not indicate how the theory is connected to the case at hand). Accordingly, this Court should strike Defendant's Sixth Affirmative Defense. Seventh Affirmative Defense Defendant's Seventh Affirmative Defense, implied assumption of the risk, should be stricken because it no longerindependentlyexists under Florida law, as it has been merged into the doctrine of comparative fault. Blackburn v. Dorm, 348 So.2d 287 (Fla.1977) (Holding that implied assumption of the risk is inapplicableas an affirmative defense, and that the principlesof Kendrick v. Ed's Beach Serv., 577 So. ld 936, comparativenegligencemust be appliedinstead); 66 937-38 (Fla. 1991) (holding that 'the doctrine of primary-implied assumption of the risk has been totally'subsumed in the principleof negligence itself,'...and the doctrine of secondary impliedassumption of the risk has been merged into the principles of comparativenegligence."); See also Millette v. DEK Technologies, Inc., No. 08-60639-CV, 2009 WL 3242010, at *6 (S.D.Fla.2009) (Granting summary judgment to dismiss affirmative defense of assumption of the risk on the grounds that the Florida Supreme Court held that the defense of implied assumption of the risk was merged with the doctrine of comparative fault.). Since Defendant's affirmative defense of implied assumption of risk has been merged into and is duplicativeof the doctrine of comparative fault,which is asserted as its Seventh affirmative defense, it should be stricken. Eighth Affirmative Defense This defense fails because the allegationsregarding whether Plaintiff had actual or constructive knowledge are conclusory and lacking in any real allegationsof ultimate fact demonstratinga good defense to the complaint.Certaintyis requiredwhen pleadingaffirmative defenses, and "pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient." Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4th DCA 1988).Accordingly,this Court should strike Defendant's Eighth Affirmative Defense. Ninth Affirmative Defense In its Ninth Affirmative Defense, Defendant allegesthat the dangerous condition was open and obvious. This is not an affirmative defense; it is merely a denial of the allegations in Plaintiff's Complaint. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaint and did not raise any new matters to defeat the complaint.").In addition,Defendant's ninth Affirmative Defense is merely a repetitionof Defendant's prior affirmative defenses regardingcomparativefault. Florida Rule of Civil Procedure 1.140(f)states that a "... court may strike redundant, immaterial, impertinent,or scandalous matter from any pleading at any time." The obviousness of the danger is simply part of the defense of comparativenegligenceand is not Auburn Mach. Works Co., Inc. an exception to liability. v. Jones, 366 So. 2d 1167, 1171 (Fla. 1979).Accordingly, this defense should be stricken. Tenth Affirmative Defense As its Tenth Affirmative Defense, Defendant asserts that Plaintiff' s were a result injuries of independent,supersedingand/or interveningcauses over which the Defendant had no control. This is not a recognizableaffirmative defense. This is merely a general denial of Plaintiff's claim. To the extent Defendant is allegingthat there was an interveningcause of the damages, the defense fails because it does not set forth such facts as may be necessary to apprisePlaintiff fullyof the specificnature and character of the defense. Certaintyis requiredwhen pleading affirmative defenses, and "pleading conclusions of law unsupported by allegationsof ultimate fact is legallyinsufficient." Cady v. Chevy Chase Savings and Loan, Inc., 51% So. ld 136,138 (Fla.4th DCA 1988). Accordingly, this Court should strike Defendant's Sixth Affirmative Defense. Eleventh Affirmative Defense In its Eleventh Affirmative Defense, Defendant claims it "acted in a reasonable manner under the circumstances". As pled,it is a mere denial of the allegations in Plaintiff's Complaint. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (3d DCA 1984) ("The matters raised by Gatt's affirmative defense simply denied the facts contained in the broker's complaintand did not raise any new matters to defeat the complaint.").Accordingly, this defense fails and should be stricken. Twelfth Affirmative Defense Defendant's Twelfth Affirmative Defense is merely a repetitionof Defendant's previous affirmative defenses and a general denial. Florida Rule o f Civil Procedure 1.140(f)states that a "...court may strike or scandalous matter from any pleading redundant, immaterial, impertinent, at any time." Accordingly, this Court should strike Defendant's Twelfth Affirmative Defense. Thirteenth Affirmative Defense As its Thirteenth Affirmative De fense, Defendant asserts that Plaintiff' s Complaint fails to state a claim upon which relief may be granted.In doing so, however, Defendant fails to identifythe particular and/or element(s)of the Complaint allegation(s) that fails to state a cause of action. Defendant's conclusory defense that Plaintiff has not stated a cause of action fails because it does not set forth any facts in support so that Plaintiff may know the defense asserted and respond accordingly. Defendant fails to identifyany specificfactual deficiencyin Plaintiff's Complaint. This is improper under the Florida Rules of Civil Procedure which expresslyrequirethe defense of "failure to state a cause of action" to be set forth and with particularity. specifically See Fla. R. Civ. P. 1.140(b)("The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsivepleading or motion."). Therefore, Defendant's Thirteenth Affirmative Defense should be stricken. See Merrill Lynch Bus. Fin. Serv., Inc. v. Performance Machine Sys. US.A., Inc., 2005 WL 975773, *11 (S.D. Fla. Mar. 4,2005) (recommending that affirmative defense of "fails in whole or in part to state a claim for relief upon which relief may be granted" be stricken because it is no more than a recitation of the standard for dismissal and is a "bare-bones conclusory allegation" that fails to notifythe Plaintiff of the deficiencies in the complaint). Fourteenth Affirmative Defense Defendant's Fourteenth Affirmative Defense states that any recovery should be reduced by any collateral source as enumerated by Florida Law. Any such alleged setoff is not an affirmative defense to be considered by the jury but is a determination regarding damages to be made by the court after the verdict is rendered. Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla.2d DCA 2004). Therefore, because Defendant failed to raise new facts and arguments that,if true, will defeat Plaintiffs claims, it is not an affirmative defense and must be stricken under Rule 1.140(b).See Gatt v. Keyes Corp.,446 So. 2d 211, 212 (Fla.3d DCA 1984). Accordingly,this defense fails and should be stricken with the understanding that Defendant may raise set off as a post-verdictissue for the Court's determination only. In addition, Defendant's Fourteenth of Defendant's previousaffirmative defense regarding Affirmative Defense is merely a repetition collateral sources. Florida Rule of Civil Procedure 1.140(f)states that a "...court may strike redundant, immaterial, impertinent,or scandalous matter from any pleading at any time." Accordingly,this Court should strike Defendant's Fourteenth Affirmative Defense. Fifteenth Affirmative Defense Defendant's Fifteenth Affirmative Defense is not an affirmative defense to be considered by the jury but is a determination regardingdamages to be made by the court after the verdict is rendered. Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla. 2d DCA 2004). Therefore, because Defendant failed to raise new facts and arguments that,if true, will defeat Plaintiffs claims, it is not an affirmative defense and must be stricken under Rule 1.140(b).See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla.3d DCA 1984). Sixteenth Affirmative Defense This is merely a general denial of Plaintiff" s claim. The defense does not set forth such facts as may be necessary to apprisePlaintiff fullyof the specificnature and character of the defense. Certaintyis requiredwhen pleading affirmative defenses, and "pleadingconclusions of law unsupported by allegationsof ultimate fact is legallyinsufficient." Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla.4th DCA 1988). Accordingly,this Court should strike Defendant's Sixteenth Affirmative Defense. Seventeenth, Eighteenth and Nineteenth Affirmative Defenses These affirmative defenses are to be considered by the jury but is a determination regarding damages to be made by the court after the verdict is rendered. Felgenhauer v. Bonds, 891 So. 2d 1043 (Fla.2d DCA 2004). Therefore,because Defendant failed to raise new facts and arguments that,if true, will defeat Plaintiffs claims, it is not an affirmative defense and must be stricken under Rule 1.140(b).See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla.3d DCA 1984). Accordingly, these affirmative defenses should be stricken with the understanding that Defendant may raise set issue for the Court's determination only. off as a post-verdict Reservation of Rights Defendant attempts to reserve the rightto amend its defenses. First,a party may amend a pleading once as a matter of course at any time before a responsivepleading is served or, if the pleading is one to which no responsivepleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Fla. R. Civ. P. 1.190. As such, Defendant has no such rightto amend. Second, this is not a valid affirmative defense because it does not raise new facts and arguments that,if true, will defeat Plaintiffs claim. See Gatt, 446 So. 2d at 212. Accordingly, Defendant's Reservation fails and should be stricken. WHEREFORE, Plaintiff respectfully requests the Court enter an Defendant's Affirmative Defenses as well as any and order striking all further relief the Court deems equitableand just. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed and served upon Counsel for Defendant, at cmm@lgplaw.com and ngn@lgplaw.com on this 27th day of December 2022. Respectfullysubmitted, Jimenez Hart Mazzitelli Mordes Attorneysfor the Plaintijf 9350 South Dixie Hwy Penthouse #5 Miami, FL 33156 Telephone: (305) 548-8750 Fax: (786) 800-3890 /si Sahara Fonseca Sahara Fonseca (FBN 1017991) : Sahara@jhmllp.com Benjamin Mordes (FBN: 75370) benjamin@jhmllp.com