Summary
striking an affirmative defense of fraud where the defendant's answer stated only the "conclusory allegation[]" of "fraud/inequitable conduct" when setting forth that defense
Summary of this case from Aguilar v. City Lights of China Restaurant, Inc.Opinion
Case No. 6:08-cv-506-Orl-28GJK.
October 8, 2008
ORDER
This case is before the Court on Plaintiff's Combined Motion to Strike and Dismiss (Doc. No. 43) filed June 23, 2008. The United States Magistrate Judge has submitted a report recommending that the motion be granted.
After an independent de novo review of the record in this matter, and consideration of the objections to the Report and Recommendation filed by both parties (Doc. Nos. 59, 60), the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation. Therefore, it is ORDERED as follows:
1. That the Report and Recommendation filed September 12, 2008 (Doc. No. 58) is ADOPTED and CONFIRMED and made a part of this Order.
2. Plaintiff's Combined Motion to Strike and Dismiss is GRANTED.
3. Defendant's first, eleventh, and twelfth Affirmative Defenses should be stricken because the matters pled do not constitute affirmative defenses.
4. Defendant's third, fifth, sixth, and ninth Affirmative Defenses should be stricken because they are conclusory allegations.
5. Counts III and IV of Defendant's Counterclaim are dismissed for failure to put Plaintiff on notice regarding the factual basis for the legal theories asserted.
6. Defendant may, within ten (10) days from the date of this Order, amend its Answer, Affirmative Defenses, and Counterclaim.
DONE and ORDERED in Chambers, Orlando, Florida.