Judge Moore: Your Affirmative Defenses Are Actually Two Other, Separate Lawsuits.

Continuing our review of recent SD FL opinions on motions to strike affirmative defenses, in walks Judge Moore who strikes two defenses in an FLSA action because the defenses are actually two other pending lawsuits against the plaintiff in disguise:
Here, Defendant's Third and Seventh Affirmative Defenses do not allege an overpayment of wages to Plaintiff, but instead request set-offs due to Plaintiff s alleged theft and destruction of business records. The requested set-offs would force the Court to address the factual circumstances of numerous other claims unrelated whether Plaintiff was adequately compensated according to minimum wage and overtime standards and would "clutter these proceedings with the minutiae of other employer-employee relationships.'' Brerman, 491 F.2d at 4.

Moreover, any set-off applied to a recovery by Plaintiff would result in Plaintiff failing to receive his "cash in hand.'' Id. Plaintiff alleges he is owed $15,445.31 in unpaid overtime plus $2,305.27 for a two week time period in which he claims he was not paid at all. Pl's Statement of Claim (ECF No. 7). Defendant has already filed a lawsuit against Plaintiff in Florida state court for misappropriation of trade secrets, breach of a confidential relationship, constructive fraud, slander, and libel. See Applied Concepts Unlemshed. Inc. v. Matthews, No. 1 1-674-CA (Fla. Cir. Ct. 2012).  Defendant has also filed a lawsuit against Plaintiff in this Court for copyright infringement, computer fraud and abuse, breach of emploment agreement and civil theft. See Axmlied Concepts Unleuhed. Inc. v. Matthews, No. 12-CV-14035-DLG (S.D. Fla. 2012).  In each of these lawsuits Defendant seeks damages in excess of the amount of damages Plaintiff alleges he is owed in the instant action. Therefore, were Defendant to prevail on its Third and Seventh Affirmative Defenses, Plaintiffs judgment might be reduced below the minimum wage level. Accordingly, Defendant's Third and Seventh Affirmative Defenses are inappropriate in this action.
Guess that's what the other lawsuits are for?


  1. this is just further evidence of the ridiculousness of FLSA litigation -- it is broken and needs to be fixed....though I guess that would put a lot of lawyers in this community out of work

  2. Who are the defense lawyers?

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