The Florida Bar

Florida Bar Journal

A Walk Through the Strike Zone

Featured Article

Illustration of baseball diamond by Barbara Kelley

A clever battery of pitches will retire a side. Reading the batters and knowing their strengths and weaknesses can be every bit as important to a defense as a pitcher’s strength of arm. Armed with curveballs, fastballs, knuckleballs, and spitballs, pitchers have many ways to notch a strike. But poorly conceived sequences of pitches can undermine the overall defensive effort. Similarly, Florida law provides many different forms of strikes, and different ways to obtain orders striking material or pleadings. But just like a poorly calculated pitch invites a homerun, a poorly delivered or premature motion to strike can stunt a party’s chances for victory. Confusion and conflation of the different bases and motions to strike can result in missed opportunities and mistakes.

This article surveys and distinguishes various motions to strike under the Florida Rules of Civil Procedure, explaining when to use each type, and movant’s burden for each such motion. More particularly, this article first contrasts motions to strike matter from a pleading from motions to strike sham pleadings. The article then regards other motions to strike, including several of limited application under the Florida Rules of Civil Procedure.

Motion to Strike Redundant, Immaterial, Impertinent, or Scandalous Matter
The motion to strike redundant, immaterial, impertinent, or scandalous matter arises from Fla. R. Civ. P. 1.140(f) and deals with striking these four categories of material from pleadings. Specifically, the rule provides that “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” The motion applies to “any pleading,” and is available to both claimants and defendants, with respect to all manner of complaints, answers, and replies.1 The 1972 amendment to the rule made motions to strike legally insufficient defenses the province of subprovision 1.140(b).2 The separation is appropriate as Rule 1.140(f) does not toll the time for pleading and can be made at any time, unlike the Rule 1.140(b) motion to strike a legally deficient defense.3 Moreover, as described below, these different methods to strike have different standards corresponding to their different purposes.4 I n contrast to a Fla. R. Civ. P. 1.150 motion to strike a sham pleading, a Rule 1.140(f) motion does not require verification or an evidentiary hearing.

“Redundant, immaterial, and impertinent” are often lumped together in the caselaw. But some differentiation is possible. What is “redundant” can prove obvious in some cases, but Florida caselaw does not provide a clear definition of the term as used in this rule. Rule 1.110(b) calls for “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief” from the plaintiff and a short and plain statement of the facts. A claimant should not over-reincorporate allegations. Pick and choose, and certainly do not incorporate preceding causes of action into subsequent, unrelated causes of action. In Varandoe v. Union Planters Mortg. Corp., 898 So. 2d 992 (Fla. 5th DCA 2005), the court considered a motion to strike redundant, immaterial matter, including surplus pleadings titled “Affidavit of Discharge,” “Bill of Exchange,” and “Bill of Acceptance,” which the trial court had found “illogical, incomprehensible, and immaterial” to the issues. The appellate court agreed and affirmed the order striking the material under Rule 1.140(f). Similarly, in Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981), the court struck a prolix, fourth pleading, in part under Rule 1.140(f), as it had with conflated causes of action, excessive allegations and exhibits, and contained scandalous and impertinent material. Ostensibly, two claims could be redundant. But even when different claims could lead to the same, ultimate award, if the elements of proof are distinct, the claims are not necessarily redundant of one another.5

“Immaterial” means evidence “tending to prove some fact that is not properly at issue; lacking any logical connection with the consequential facts.”6 Similarly, “impertinent” matter has been defined as material in a pleading “that is not relevant to the action or defense.”7 Such matter might include superfluous exhibits such as newspaper articles or other material comprised of hearsay or statements by nonparties incorporated to bolster a party’s allegations. A demand letter from counsel might not be immaterial as an exhibit to a pleading if that exhibit’s contents or very existence is incorporated into the pleading in support of, or to stand for elements of a cause of action.8 Whether an exhibit might prove admissible as evidence is an issue distinct and distinguishable from whether the exhibit and its contents are material or pertinent to the pleading.9 In Scott v. City of Venice, 167 So. 654 (Fla. 1936), based on the 1931 Chancery Act, the Florida Supreme Court held that a 58-page exhibit — while potentially admissible as evidence — was not material and violated the rule requiring a statement of the claim in “as brief and succinct terms as reasonably practicable, and shall contain no unnecessary recitals of documents in haec verba, or other irrelevant, redundant, or impertinent matter not relevant to the suit, and that no papers shall be unnecessarily annexed as exhibits.”10 Those same pleading restrictions endure today in Rules 1.110 and 1.140(f).

Scandalous matter provides the most firm basis to move to strike under Rule 1.140(f). In Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125 (Fla. 4th DCA 2003), the court reviewed scandalous and immaterial allegations regarding a violent outburst by a city employee. Evaluating the city’s motion to strike the allegations, the court looked for a “causal connection” between the plaintiff’s whistleblower-claims on a city’s discriminatory employment practices and the violent outburst. Finding none, the court affirmed the trial court’s order striking any reference in the pleading to the violent outburst.11 In practice, bold allegations that a party violated criminal law might be deemed scandalous. Publication of confidential material in violation of Fla. R. Jud. Admin. 2.425 could be grounds for both a motion to strike as well as for involuntary dismissal under Fla. R. Civ. P. 1.420(b).

This motion to strike is not used when a party has failed to comply with a court order; rather, in that instance, a party should move for involuntary dismissal under Rule 1.420(b).12 Read in context of Rule 1.140, this motion to strike is a tool for refining pleadings, which are defined and limited by Rule 1.100(a).

A motion to strike a matter as redundant, immaterial, or scandalous should only be granted if the material is 1) wholly irrelevant, 2) can have no bearing on the equities, and 3) has no influence on the decision.13 The court might utilize a “causal connection” test to determine whether the subject material met the three factors.14

Motion to Strike Sham Pleading
Though sometimes conflated, the motion to strike scandalous or impertinent matter differs from a motion to strike a sham pleading. Shams and scandals diverge in the Florida Rules of Civil Procedure.15 Though shams and scandals are notorious bed-fellows in other corners of academia,16 that odious union should not be recognized in Florida motion practice. Sham pleadings are demonstrably false such that the movant can show the pleading-party knows of the falsity. Consider motions to strike scandalous or impertinent matter under Rule 1.140(f) like surgery performed with scalpels: potentially lethal ( i.e. , dispositive) but more useful in resecting an outlier, offensive lump of surface tissue.17 way of contrast, the motion to strike a sham pleading is akin to guillotine-style amputation via bone saw of entire claims or defenses, i.e. , to hew through the body of a pleading. Scandalous/impertinent allegations and sham pleadings are not mutually exclusive maladies, but they are not codependent. The motions bear different burdens and standards and are made through different procedures.

The well-known but seldom applicable or utilized motion to strike a sham pleading is governed not by Rule 1.140(f) but rather 1.150. Specifically, Rule 1.150 states that “[i]f a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken.”18

A Rule 1.150 motion can be dispositive. The remedies of “[d]efault and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.”19

The rule requires the movant to verify the motion to strike a sham pleading. Substantively, the motion must “set forth fully” the facts upon which the movant relies. The movant may support the motion with an affidavit.20 Failure to verify the motion could lead the court to construe the motion as a motion to strike under Rule 1.140(f).21

As the text of Rule 1.150 describes, the trial court must hold an evidentiary hearing.22 The argument of counsel at such a hearing is not evidence.23 Mere submission of affidavits does not give rise to an evidentiary hearing.24 The court must hold a proper hearing and permit both sides to present evidence.

The movant must demonstrate that the pleading is “a mere pretense, set up in bad faith and without color of fact,” or that it is “inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made.”25 This standard is high,26 as described by the Florida Supreme Court in Rhea v. Hackney, 157 So. 190, 193-94 (1934):

“[A] pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. As otherwise expressed, to warrant the rejection of a pleading as sham, it must evidently be a mere pretense set up in bad faith and without color of fact. The rule cannot be applied to any case except where the defense is shown to be a plain fiction.”

Generally, the striking of pleadings is not favored and all doubts are to be resolved in favor of the attacked pleadings.27 A hearing on a motion to strike a pleading as sham is not meant to try the issues, but rather determine whether there are any genuine issues to be tried.28 Notably, when a party submits evidence to support his or her allegations and that evidence directly contradicts the other party’s position, the court cannot strike one party’s pleadings simply because the opposing party contends the existence of a falsehood.29

More recently, the motion has been the subject of diminished expectations and questioned utility.30 T his criticism concerns the motion’s misuse, lack of requisite evidentiary hearings, frequent reversal on appeal, and the effectiveness of motions for partial summary judgment and to strike under Rule 1.140(f).31

Still, when properly executed by a movant, the motion to strike a sham pleading can be a powerful tool. Provided the movant secures and properly notices an evidentiary hearing, and the trial court permits the hearing, a plaintiff with questionable allegations may be tested before the trial court, locking the plaintiff into a sworn, sham position early in the case.

Motion to Strike Defenses
Just like a defendant can argue that a plaintiff fails to state a cause of action in an initial motion to dismiss or responsive pleading,32 a plaintiff may argue that an affirmative defense fails to state a legally cognizable defense. A plaintiff argues this point not by a motion to dismiss affirmative defenses, but rather by a motion to strike defenses.33

Timing is critical. The motion to strike a defense must be asserted within 20 days of the responsive pleading or motion.34 Additionally, the defendant, though not able to file a pleading in response to a plaintiff’s reply pleading, may nonetheless move to strike a defense raised in a reply within 20 days of the reply.35 F ailure to timely move to strike improperly pleaded defenses might leave a party to the more narrow bounds of a motion to strike under Rule 1.140(f), for redundant, immaterial, impertinent, or scandalous matter — but that standard is different and limited.36 After the 20-day response period expires, a party may only move to strike legally insufficient defenses by a motion for judgment on the pleadings or at trial.37 I f opting for a motion, the proper motion is for judgment on the pleadings.38

This motion to strike defenses applies where a responsive pleading fails to state a legally cognizable defense. A motion to strike a defense is akin to a motion to dismiss a cause of action for failure to state a claim. This form of motion to strike regards the sufficiency of pleading, as opposed to the merits of the case.39 Florida is a fact-pleading jurisdiction, and it is well settled that the defending party must articulate ultimate facts supporting the defenses. In other words, the motion has to do with the pleading party’s ability to state the elements or not. 40 The motion does not and should not incorporate evidence.41

Movants should endeavor to state arguments to strike defenses with specificity and particularity. This motion to strike arises from Rule 1.140(b). In that subprovision (b), the rule regards the defenses and objections of subparts (b)(1)-(7), and mandates: “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 responsive pleading or motion.”42 On its face, this clause limits the specificity and particularity requirement to the (b)(1)-(7) defenses and objections, to the exclusion of a motion to strike defenses, which Rule 1.140(b) articulates further in the text. Arguably, therefore, this heightened standard does not apply to a motion to strike defenses. Given the equivalency between a motion to dismiss for failure to state a claim and a motion to strike for “failure to state a legal defense,” however, it seems prudent for the movant (and, in fairness, logical for the trial court) to strive for the same handling of the argument.

Rounding out the bases, the Florida Rules of Civil Procedure provide several other forms of motions to strike.

Motion to Strike Pleading: Failure to Comply with Discovery Order
Fla. R. Civ. P. 1.380(b)(2) permits a motion to strike a claim or a pleading as a sanction when the nonmovant party or its representative “fails to obey an order to provide or permit discovery,” among other forms of relief.43 An order striking pleadings is “the most severe of all possible sanctions and therefore should be employed only in extreme circumstances.”44 Consequently, the bar for such relief is high — or low, depending on your perspective. The movant must demonstrate the subject’s “deliberate and contumacious disregard of the court’s authority.”45

The circumstances for the Rule 1.380(b)(2) motion to strike, therefore, are relegated to discovery misconduct or the like. Because this motion is founded upon disregard of the court’s authority, it is often coupled with a motion for relief under Rule 1.420(b).

Motion to Strike Filing That Violates a Court Order or the Florida Rules of Civil Procedure
A motion made under Rule 1.420(b) is not a “motion to strike” but rather is a motion for involuntary dismissal.46 The term “strike” does not appear in the rule. Nonetheless, in practice counsel often make such motions and designate them as motions to strike for reasons including the relief sought, i.e. , an order “striking” a pleading. As such, this article briefly regards the motion for involuntary dismissal.

As noted above, Rule 1.420(b) provides a mechanism for moving for an involuntary dismissal for a party’s failure to comply with 1) the Florida Rules of Civil Procedure or 2) any order of court. A “motion to strike” that regards such a failure should be treated as a motion for involuntary dismissal under Rule 1.420(b).47 For example, when a party is a business entity that must be represented by legal counsel, and the court has entered an order permitting legal counsel to withdraw but for the business entity to retain new legal counsel by a date certain, the other party can move for an order to show cause why the entity did not comply with the order and seek relief, including the striking of pleadings.

In practice, provided the rule applies, a Rule 1.420(b) motion could provide greater relief than a mere motion to strike. An involuntary dismissal is often what movants are actually seeking. way of contrast, a motion to strike might not carry the same prejudice and could permit rehabilitation of pleadings or filings, e.g., the Rule 1.140(b) motion to strike defenses.

Motion to Strike a Third-Party Pleading
Fla. R. Civ. P. 1.180 provides for a motion to strike an improper third-party claim. Specifically, the rule provides: “Any party may move to strike the third-party claim or for the severance or separate trial.”48 A third-party claim brought under Rule 1.180 must include a claim for indemnification, subrogation, or contribution and other, applicable claims may be added thereto.49 If a third-party claim fails to state the underlying claim for indemnification, subrogation, or contribution, all third-party claims could be subject to strike.50 The policy behind the rule is to avoid multiple actions.”51

Again, this form of motion to strike is of limited and special application, but should be in the tool kit of every litigator whenever a lawsuit is other than bilateral.

Motion to Strike Pleadings for Failure to Attend a Case Management Conference
Also of more limited and particular applicability, Fla. R. Civ. P. 1.200 authorizes a trial court to strike pleadings for a party’s failure to attend a case management conference.52 Generally, the case management conference is set by court order, so in addition to a Rule 1.200 motion to strike pleadings, the movant might also consider the Rule 1.420(b) motion for involuntary dismissal for failure to comply with court orders.

Motion to Strike for Failure to Comply with Order Granting Motion for More Definite Statement
Finally, the trial court is empowered to strike a pleading if the nonmovant fails to comply with a court order requiring amendment with a more definite statement.

Fla. R. Civ. P. 1.140(e) governs motions for more definite statements and provides: “If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.”53 Of course, this uncommon scenario arises from a successful motion for more definite statement. Like several other examples, this scenario contemplates an order of the trial court establishing a deadline for amendment ( i.e. , more definite statement), and so relief might also include a motion for involuntary dismissal under Rule 1.420(b).

The various motions to strike — like different pitches in baseball — require thoughtful timing and sequence. It is critical to both understand and distinguish the various types of motions to strike and to recognize when — and if — to “pitch” each motion. Conflation of the various motions to strike, their doctrines, and burdens, can undermine efforts and thereby needlessly complicate litigation and expend client resources to no avail.

1 A “pleading” is defined by the Fla. R. Civ. P. 1.100(a); a definition that excludes the likes of motions, affidavits, or discovery responses. Cf. Fla. R. Civ. P. 1.100(b).

2 F la. R. Civ. P. 1.140 Committee Notes, 1972 Amendment.

3 Id.

4 Chris Craft Indus., Inc. v. Van Valkenberg, 267 So. 2d 642, 645 (Fla. 1972).

5 See Dover v. Dover, 241 So. 2d 740, 741 (Fla. 4th DCA 1970).

6 Immaterial, Black’s Law Dictionary 816 (9th ed. 2009).

7 Id. at 822.

8 See McClurkin v. Parrish Volvo, Inc., 317 So. 2d 85 (Fla. 1st DCA 1975).

9 See Scott v. City of Venice, 167 So. 654 (Fla. 1936).

10 Id. The exhibit included a certified copy of the minutes of several meetings of the city council.

11 Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1133-34 (Fla. 4th DCA 2003).

12 See Rosenberg v. Miller, 453 So. 2d 885 (Fla. 3d DCA 1984).

13 See Rice-Lamar, 853 So. 2d at 1133-34 (Fla. 4th DCA 2003); McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 216 (Fla. 2d DCA 1998) (quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972)).

14 See Rice-Lamar, 853 So. 2d at 1133-34.

15 Compare Fla. R. Civ. P. 1.150 with Fla. R. Civ. P. 1.140(f).

16 See Vijay Prashad, Community History, 79 Radical History Rev. at 116-119 (Winter 2001) (describing Karl Marx’s coining of the phrase “sham scandal” to describe the fabrications of the English East India Company “to justify their own barbarity….”); Krishna Dutta, Calcutta: A Cultural History 19 (2008).

17 Upland Dev. of Cent. Florida, Inc. v. Bridge, 910 So. 2d 942, 945 (Fla. 5th DCA 2005) (citation omitted) (holding that Rule 1.140(f) does not permit striking an entire pleading; rather “[R]ule 1.150 is the only rule that authorizes the striking of an entire pleading”).

18 Fla. R. Civ. P. 1.150(a).

19 Id.

20 Id.

21 Dover v. Dover, 241 So. 2d 740, 741 (Fla. 4th DCA 1970) (“Plaintiff’s motion was not verified as is required by Rule 1.150(a), F.R.C.P., 30 F.S.A., and therefore will be construed as a motion made under Rule 1.140(f), F.R.C.P.”).

22 Fla. R. Civ. P. 1.150(a); Reyes v. Roush, 99 So. 3d 586, 590-91 (Fla. 2d DCA 2012); Furst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA. 1999).

23 Reyes, 99 So. 3d at 590-91.

24 Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991) (“[A]n evidentiary hearing involves taking evidence. Neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing.”).

25 S ean R. Santini, Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There A Difference?, 77 Fla. B.J. 52 (Oct. 2003) (footnotes omitted). See also Cromer v. Mullally, 861 So. 2d 523, 525 (Fla. 3d DCA 2004); Sargent, Repka, Covert, Steen & Zimmet, P.A. v. HAMC Indus., Inc., 597 So. 2d 427, 429 (Fla. 2d DCA 1992) (citing Rhea v. Hackney, 157 So. 190, 193 (1934)).

26 Kay v. Hashemi, 518 So. 2d 950 (Fla. 4th DCA 1988) (“Having never succeeded, during [22] years of legal practice in Broward County, in obtaining a trial court order granting a Florida Rule of Civil Procedure 1.150(a) motion to strike, I had figuratively relegated that rule to the dusty library shelf alongside the Harvard Classics, as it seemed equally unread and unused. Accordingly, during oral argument, I complimented appellee’s counsel for having apparently obtained such an order in the instant case.”) (J. Glickstein, concurring specially); Reyes, 99 So. 3d at 592 (“This rule is rarely used and seems to bait experienced trial judges into premature decisions.”) (J. Altenbernd, concurring).

27 Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090, 1090 (Fla. 3d DCA 1984) (citations omitted); Weiss, 704 So. 2d at 216 (citing Ivey v. So. States Power Co., 128 Fla. 345, 174 So. 834 (1937)).

28 Cromer, 861 So. 2d at 525 (citing Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955)).

29 Weiss, 704 So. 2d at 216; Scarfone v. Silverman, 408 So. 2d 778 (Fla. 2d DCA 1982).

30 See, e.g., Reyes, 99 So. 3d at 592 (Altenbernd, J., concurring) (citing Santini, Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There A Difference?, 77 Fla. B. J. at 53-54 (Oct. 2003)) (“This rule is a relic of the past.”).

31 Id.

32 Fla. R. Civ. P. 1.140(b).

33 Id.

34 Id.

35 Id.

36 Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).

37 Notably, Rule 1.140(h) does not create an exception to later make these arguments through a motion for summary judgment.

38 Fla. R. Civ. P. 1.140 Committee, Notes 1972 Amendment (emphasis added) (“The intent of the rule is to permit the defenses to be raised one time, either by motion or by the responsive pleading, and thereafter only by motion for judgment on the pleadings or at trial.”).

39 Burns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978) (“A motion to strike a defense tests only the legal sufficiency of the defense.”).

40 Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (“Where…a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.”).

41 Gonzalez v. NAFH Nat. Bank, 93 So. 3d 1054, 1057 (Fla. 3d DCA 2012) (quoting Bay Colony Office Bldg. Joint Venture, 342 So. 2d at 1006) (“An affirmative defense may not be stricken ‘merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.’”).

42 Fla. R. Civ. P. 1.140(b) (2016).

43 Fla. R. Civ. P. 1.380(b)(2) (2016). See also Ferrante v. Waters, 383 So. 2d 749, 750 (Fla. 4th DCA 1980).

44 Ferrante, 383 So. 2d at 750 (citing Hart v. Weaver, 364 So. 2d 524 (Fla. 2d DCA 1978)).

45 Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (citations omitted).

46 Rule 1.420(b) provides: “Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.”

47 Rosenberg v. Miller, 453 So. 2d 885, 886 (Fla. 3d DCA 1984).

48 Fla. R. Civ. P. 1.180(a) (West 2016).

49 Tsafatinos v. Family Dollar Stores of Florida, Inc., 116 So. 3d 576, 582 (Fla. 2d DCA 2013) (citing, inter alia, Leggiere v. Merrill Lynch Realty/Fla., Inc., 544 So. 2d 240, 241-42 (Fla. 2d DCA 1989)).

50 See id.

51 Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So. 2d 484, 486 (Fla. 4th DCA 2000).

52 Decker v. Cnty. of Volusia, 698 So. 2d 650, 651, n.1 (Fla. 5th DCA 1997) (noting Rule 1.200’s power to strike pleadings).

53 Fla. R. Civ. P. 1.140(e) (2016).

Joshua Byrne Spector is a partner with the law firm Perlman, Bajandas, Yevoli & Albright, P.L., a Florida Bar board certified business litigation lawyer, and co-author of Florida Affirmative Defenses and Procedural Objections (ALM 2017 ed.).