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Filing # 122494282 E-Filed 03/04/2021 11:58:37 AM
IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
SMALL CLAIMS DIVISION
PRESGAR IMAGING OF CMI SOUTH,
L.C., as assignee of Omarys Mondejar
Plaintiff, CASE NO.: 21-CC-005603
v. DIVISION: S
INFINITY AUTO INSURANCE COMPANY,
a foreign corporation
Defendant.
____________________________________/
PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE
DEFENSES OR IN THE ALTERNATIVE MOTION FOR MORE
DEFINITE STATEMENT
COMES NOW the Plaintiff, by and through its undersigned counsel, and hereby files
this, its Motion to Strike and/or moves for More Definite Statement of Defendant’s Affirmative
Defenses and in support would state as follows:
1. Defendant has not pled with specificity for the Plaintiff to be able to ascertain
whether an avoidance is necessary. “Pleadings frame the matters at issue. Parties are
entitled to be fairly placed on notice of specific language which is sought to be
applied by one party to a contract to avoid liability for payment, in whole or in part.”
St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483, 487 (Fla. 5 DCA 2002).
2. The Defendant’s defenses are deficient in that the defenses fail to identify specific
facts and therefore fails to provide the requisite certainty so as to reasonably inform the
Plaintiff of what the defenses are proposed to prove in order to provide the Plaintiff with
a fair opportunity to meet those defenses and prepare its evidence. See Horowitz v.
Laske, 855 So.2d 169, 173 (Fla. 5th DCA 2003) (“Florida is a fact-pleading
3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
jurisdiction”); see also Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A.
v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988) (“We conclude that
litigants at the outset of a suit must be compelled to state their pleadings with
sufficient particularity for a defense to be prepared”).
3. The affirmative defenses are legally insufficient if they are not pled with any specific
facts upon which the Plaintiff could take issue. Cady v. Chevy Chase Savings and
Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); see also L.B. McLeod Constr.
Co. v. Cooper, 134 So. 224, 225 (Fla. 1931). Florida courts recognize that certainty
is required when pleading both claims and defenses. Walker v. Walker, 254 So. 2d
832, 833-34 (Fla. 1st DCA 1971).
4. Accordingly, this defense should be stricken or amended to state the specific facts to be
applied in this case. Alternatively, to the extent that a reply is necessary, the Plaintiff
denies the Defendant’s affirmative defenses and demands strict proof thereof.
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3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
WHEREFORE, the Plaintiff hereby requests this Honorable Court strike Defendant’s
Affirmative Defenses and any other relief this Court deems just and appropriate.
Respectfully submitted by,
s/ Kendra A. Washington
KENDRA A. WASHINGTON, ESQUIRE
Florida Bar #: 81742
Philip A. Friedman, Esquire
Florida Bar #: 0635243
FL Legal Group
2700 W. Dr. MLK Jr. Blvd. Suite 400
Tampa, FL 33607
Phone: (813) 221-9500
Primary E-mail: KAWashington@FLLegalGroup.com
Secondary E-mail: Filings@FLLegalGroup.com
Attorneys for Plaintiff
KAW /adc
CERTIFICATE OF SERVICE
I CERTIFY that a copy hereof has been furnished to Rebecca A. Glenn, Esquire, Law
Offices of Gabriel O. Fundora & Associates, TampaLegal@ipacc.com;; (813) 280-3180, 506
West Fletcher Ave., Suite 107 Tampa, FL 33612, by e-mail service, pursuant to Rule 2.516,
using the Florida Courts E-Filing Portal’s Notice of Electronic Filing, on March 4, 2021.
s/ Kendra A. Washington
Attorney
Page 3 of 3
3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
Preview
Filing # 122494282 E-Filed 03/04/2021 11:58:37 AM IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA SMALL CLAIMS DIVISION PRESGAR IMAGING OF CMI SOUTH, L.C., as assignee of Omarys Mondejar Plaintiff, CASE NO.: 21-CC-005603 v. DIVISION: S INFINITY AUTO INSURANCE COMPANY, a foreign corporation Defendant. ____________________________________/ PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT COMES NOW the Plaintiff, by and through its undersigned counsel, and hereby files this, its Motion to Strike and/or moves for More Definite Statement of Defendant’s Affirmative Defenses and in support would state as follows: 1. Defendant has not pled with specificity for the Plaintiff to be able to ascertain whether an avoidance is necessary. “Pleadings frame the matters at issue. Parties are entitled to be fairly placed on notice of specific language which is sought to be applied by one party to a contract to avoid liability for payment, in whole or in part.” St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483, 487 (Fla. 5 DCA 2002). 2. The Defendant’s defenses are deficient in that the defenses fail to identify specific facts and therefore fails to provide the requisite certainty so as to reasonably inform the Plaintiff of what the defenses are proposed to prove in order to provide the Plaintiff with a fair opportunity to meet those defenses and prepare its evidence. See Horowitz v. Laske, 855 So.2d 169, 173 (Fla. 5th DCA 2003) (“Florida is a fact-pleading 3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 jurisdiction”); see also Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988) (“We conclude that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared”). 3. The affirmative defenses are legally insufficient if they are not pled with any specific facts upon which the Plaintiff could take issue. Cady v. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); see also L.B. McLeod Constr. Co. v. Cooper, 134 So. 224, 225 (Fla. 1931). Florida courts recognize that certainty is required when pleading both claims and defenses. Walker v. Walker, 254 So. 2d 832, 833-34 (Fla. 1st DCA 1971). 4. Accordingly, this defense should be stricken or amended to state the specific facts to be applied in this case. Alternatively, to the extent that a reply is necessary, the Plaintiff denies the Defendant’s affirmative defenses and demands strict proof thereof. Page 2 of 3 3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 WHEREFORE, the Plaintiff hereby requests this Honorable Court strike Defendant’s Affirmative Defenses and any other relief this Court deems just and appropriate. Respectfully submitted by, s/ Kendra A. Washington KENDRA A. WASHINGTON, ESQUIRE Florida Bar #: 81742 Philip A. Friedman, Esquire Florida Bar #: 0635243 FL Legal Group 2700 W. Dr. MLK Jr. Blvd. Suite 400 Tampa, FL 33607 Phone: (813) 221-9500 Primary E-mail: KAWashington@FLLegalGroup.com Secondary E-mail: Filings@FLLegalGroup.com Attorneys for Plaintiff KAW /adc CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished to Rebecca A. Glenn, Esquire, Law Offices of Gabriel O. Fundora & Associates, TampaLegal@ipacc.com;; (813) 280-3180, 506 West Fletcher Ave., Suite 107 Tampa, FL 33612, by e-mail service, pursuant to Rule 2.516, using the Florida Courts E-Filing Portal’s Notice of Electronic Filing, on March 4, 2021. s/ Kendra A. Washington Attorney Page 3 of 3 3/4/2021 11:58 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3