Products Liability Primer: Civil Rule 1.140 Defenses

Florida Rule of Civil Procedure 1.140 requires that every defense to a complaint must be stated in the responsive pleading, if a responsive pleading is required. Rule 1.140 (b) lists seven defenses that can be made by motion, as opposed to stated in the responsive pleading.

The defenses permitted to be made by motion include:

1.Lack of subject matter jurisdiction

2.Lack of personal jurisdiction

3.Improper venue

4.Insufficiency of process

5.Insufficiency of service of process

6.Failure to state a cause of action and

7.Failure to join indispensable parties.

While these defenses may be made by motion rather than in the “responsive pleading”, such motions must be before any further pleading if a further pleading is permitted. Rule 1.140(b) further requires that:

“[t]he 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 responsive pleading or motion. Any ground not stated shall be deemed to be waived except that any ground showing that he court lacks jurisdiction of the subject matter may be made at any time.”

Generally, the defenses enumerated in Rule 1.140(b) are not asserted unless there is some factual basis in the record to support them. However, for some reason, counsel for product manufacturers seem to feel obliged to state Number 6, the defense of “failure to state a cause of action,” as a matter of course, regardless of whether there is any factual basis to support the defense. “Failure to state a cause of action” or “failure to state a claim” is a narrow defense that should be used only in situations where a count of the complaint fails to state each element of the cause of action, or the complaint states all of the elements of a cause of action but the action is not recognized under Florida law. For example, it has been held that breach of the manufacturer’s duty to inspect and test its product is not a separate cause of action in Florida. Adams v. G.D. Searle & Co., 576 So.2d 728 (Fla. 2d DCA 1991), rev. den. 589 So.2d 290.

When a defendant asserts any of the Rule 1.140 defenses without stating the grounds “specifically and with particularity,” plaintiffs should file a motion to strike the defense for failure to state a legal defense. This motion must be filed within 20 days after service of the answer or reply. Rule 1.140(b).

Motions to strike defenses are not limited only to the defenses stated in Rule 1.140(b). Just as a complaint cannot state a cause of action not recognized in Florida, a defense that is not recognized in Florida should not go unchallenged. Defenses that are frequently asserted, despite the fact that they are no longer recognized under Florida law, include “assumption of the risk” (subsumed in the concept of comparative fault, Kinnebrew v. Kmart Corp. 755 So.2d 187 (Fla. 3d DCA 2000)); and “last clear chance” (also subsumed by the doctrine of comparative negligence no longer applicable in Florida. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)).1

Civil Rule 1.140(f) provides an additional “catchall” avenue to strike defenses. That rule states:

Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

Two important differences between a Rule 1.140(b) and 1.140(f) defense are that a motion to strike under Subdivision (f) can be made at any time rather than twenty days after service of the answer or reply, as required under Subdivision (b). Additionally, a motion to strike filed pursuant to Subdivision (b) tolls the running of time to file a responsive pleading while a motion filed under Subdivision (f) does not.

Next month’s submission will discuss specific affirmative defenses. An example of a simple motion to strike for failure to state a legal defense follows this article.

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT, IN AND

FOR ORANGE COUNTY, FLORIDA

CASE NO.: 06-000-CA

JOHN DOE,

Plaintiff,

v.

ACME MANUFACTURING,

Defendant.

____________________________________/

PLAINTIFFS’ MOTION TO STRIKE DEFENDANTS

SECOND AFFIRMATIVE DEFENSE

Plaintiff, by and through undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.140(b), files this Motion to Strike Defendant, ACME MANUFACTURING’s Second Affirmative Defense and, as grounds therefore, states as follows:

Defendant’s Second Affirmative Defense

Defendants Second Affirmative Defense is not a legal defense as it relies on a legal doctrine that has been abolished in Florida. Defendants’ Second Affirmative Defense states as follows:

Plaintiff knew of the existence of the danger complained of in the complaint, realized and appreciated the possibility of injury as a result of the danger, and, having a reasonable opportunity to avoid it, voluntarily assumed the risk of injury to himself. Accordingly, any award of damages should be barred or reduced in proportion to his own negligence. [for example]

Plaintiff respectfully moves to strike the above Affirmative Defense because the doctrine of assumption of the risk has been subsumed by the doctrine of comparative negligence and is no longer applicable in Florida. Kinnebrew v. Kmart Corp. 755 So.2d 187 (Fla.. 3d DCA 2000). Accordingly, Defendants’ Second Affirmative Defenses should be stricken for failure to state a legal defense. Fla.R.Civ.P. 1.140(b). To the extent Defendants are asserting an Affirmative Defense based solely on the doctrine of comparative negligence, Plaintiff denies any negligence and demands strict proof thereof.

Relief Requested

For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Second and Affirmative Defenses be stricken.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via U.S. Mail, this 12th day of May, 2006 May, 2006, to: Attorney Smith (Counsel for

Defendant, ACME Manufacturing

____________________________________

ATTORNEY JONES

Florida Bar No.: 000000

123 Spring St.

Orlando, FL32801

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attorneys for Plaintiff