Opinion
Case No. 6:08-cv-721-Orl-31GJK.
June 25, 2009
ORDER
This matter came before the Court without oral argument upon consideration of Plaintiff's, Romelia Petit ("Plaintiff"), Motion to Dismiss Affirmative Defenses (the "Motion" or the "Motion to Strike") (Doc. 37), which the Court has construed as a Motion to Strike Affirmative Defenses, Defendant's, South Florida Express Bankserv, Inc. ("Defendant"), response in opposition to the Motion (the "Response") (Doc. 37), and Defendant's Motion to Strike (Doc. 39).
I. Background
Plaintiff filed this Fair Labor Standards Act (the "FLSA") suit on May 2, 2008, alleging, inter alia, that Defendant failed to pay Plaintiff minimum wages and overtime compensation during the past three years (Doc. 1). In her Motion, Plaintiff argues that Defendant's First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Affirmative Defenses should be stricken because these defenses are insufficient as a matter of law.
See 29 U.S.C. § 201 et seq.
In its Response, Defendant has agreed to withdraw its Eighth and Tenth Affirmative Defenses (Doc. 8). With respect to its remaining affirmative defenses, however, Defendant contends, inter alia, that Plaintiff's Motion is untimely pursuant to FED. R. CIV. P. 12(f) inasmuch as Plaintiff failed to file her Motion within twenty (20) days of being served with Defendant's Answer and Affirmative Defenses (Doc. 38 at 3).
The Court addresses these arguments, infra. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
II. Standard of Review
III. Analysis
See, e.g., Great Am. Assur. Co. v. Elliott,2009 WL 1653573Fabrica Italiana Lavorazione Materie Organiche S.A.S. v. Kaiser Aluminum Chem. Corp., 684 F.2d 776 Thompson v. Kindred Nursing Ctrs. East, LLC, 211 F. Supp. 2d 1345 In re Sunbeam Secs. Litig., 89 F. Supp. 2d 132612Reyher v. Trans World Airlines, Inc.,881 F. Supp. 574576Microsoft Corp. v. Jesse's Computers Repair, Inc.,211 F.R.D. 681683Reyher, 881 F. Supp. at 576 Jesse's Computers Repair, Inc.,211 F.R.D. at 683Reyher, 881 F. Supp. at 576Id.12
Plaintiff responds by suggesting that the Court's standard FLSA Scheduling Order — which is entered in every FLSA suit brought in the Orlando Division of the Middle District — prohibits all motion practice until all attempts at settlement have failed (Doc. 37 at 1, n. 1 and 2, n. 2, citing Urshan v. Orlando Utils. Comm., Case No. 06:08-cv-2029 (M.D. Fla. 2008) (Doc. 18) (denying without prejudice a motion to strike affirmative defenses because the Orlando Division's FLSA Scheduling Order "effectively limits any motions practice until the conclusion of attempts to settle have failed")).
Upon review, the Court finds that Plaintiff's Motion to Strike is untimely. Notwithstanding Judge Baker's Order in the Urshan case, this Court has not had occasion to address whether its standard FLSA Scheduling Order prohibits some, or even all, motion practice until settlement efforts have been exhausted. The Court need not answer that question today. Even assuming, arguendo, that the standard FLSA Scheduling Order prohibits all motion practice until settlement efforts have been exhausted, the parties filed a "Report Regarding Settlement" on October 15, 2008, in which they represented to the Court that they had "exhausted all settlement efforts" (Doc. 15). Furthermore, the parties filed their Case Management Report on January 16, 2009 (Doc. 31) and the Court entered its Case Management and Scheduling Order on January 21, 2009 (Doc. 32). Irrespective, then, of whether the standard FLSA Scheduling Order prohibits some or all motion practice until settlement efforts have been exhausted, motion practice clearly resumed no later than January 21, 2009 (if not earlier). Pursuant, then, to FED. R. CIV. P. 12(f), Plaintiff's Motion to Strike should have been filed no later than Friday, February 13, 2009. Accordingly, Plaintiff's Motion to Strike is untimely and will denied.
III. Conclusion
Based on the foregoing, it is ORDERED that Plaintiff Romelia Petit's Motion to Strike (Doc. 37) is DENIED. It is FURTHER ORDERED that Defendant South Florida Express Bankserv, Inc.'s Motion to Strike (Doc. 39) is DENIED as MOOT. DONE and ORDERED.