(AD 5 is not subject to a motion to strike, see above)
From the Second Amended Answer, Affirmative Defenses:
6. Plaintiffs’ claims are barred, in whole or in part, as a result of Plaintiffs’ unlawful actions, including their conduct in violation of the Florida Deceptive and Unfair Trade Practices Act. This is reflected in the allegations in support of the claims pled against Plaintiffs infra, including the allegations in support of the FDUTPA claim pled infra. See id. ¶¶ 140-148 infra.
This is worth copying the cited material:
COUNT IV: FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT
(Industrial Heat and IPH against all Counter-Defendants and Third-Party Defendants)
140. Counter-Plaintiffs reallege the allegations in Paragraphs 1 through 135 as if fully set forth herein.
141. As described in greater detail above, Rossi, Leonardo, Johnson, JMP, Penon, Fabiani, USQL, and Bass (the “FDUTPA Defendants”) were all engaged in a common scheme
142. The first part of the scheme was to manipulate Counter-Plaintiffs into allowing the Plant to be sent from the Industrial Heat facility in North Carolina – where any work on, operation of, or testing of the Plant could be supervised and overseen by Counter-Plaintiffs – to Florida, where Leonardo, Rossi, USQL, Fabiani, and Penon could operate the Plant and purportedly conduct measurements of the Plant’s operations away from the oversight and control of Counter-Plaintiffs.
143. The second part of the scheme was to manipulate the operation of the Plant and the measurements of the Plant’s operations to create the false and deceptive appearance and impression that the Plant was performing at astronomical levels, with COP measurements not only well in excess of anything achieved by any third party testing of the E-Cat technology, but in fact many multiples higher than anything achieved by any third party testing. For example, notwithstanding flaws in their testing methodology that would have caused them to overstate their conclusions of the COP they were measuring from an E-Cat reactor, the Lugano scientists concluded that the E-Cat reactors they measured were producing a COP of 2.6, 2.9, 3.2, 3.6 or 5.6. According to the manipulated and fabricated testing and measurements of the FDUTPA Defendants, they – through Leonardo, Rossi, and Penon – claimed that they were achieving COPs more than 10 times greater than the Lugano scientists, and in fact as high as 40+ times greater than the Lugano scientists.
144. The final part of the scheme, of course, was for Leonardo and Rossi, based on the false and deceptive operations of the Plant in Florida, to claim to Counter-Plaintiffs that they were required to pay Leonardo and Rossi $89 million and, when Counter-Plaintiffs rightfully refused, to institute litigation against Counter-Plaintiffs.
145. Another goal of the scheme was to obtain various payments from CounterPlaintiffs for work that one or more of the FDUTPA Defendants was performing not to benefit Counter-Plaintiffs, but in fact with the goal of harming Counter-Plaintiffs. Among these
payments were service payments to USQL, Fabiani, and Penon; expense reimbursements to Leonardo, Rossi, USQL, Fabiani, and Penon (including for travel, apartment rentals, visa-related costs, repair work to the Plant, patent attorneys, and patent application fees); and payments for equipment (or the transportation of equipment) to be used – or purportedly to be used – by the FDUTPA Defendants.
146. In furtherance of this scheme, the FDUTPA Defendants engaged in the unconscionable, unfair, and deceptive acts and practices described above, including:
a. Deceiving Counter-Plaintiffs about JMP, the operations of JMP, the supposed role of Bass, and the reasons for JMP wanting to use the steam power that could be generated by the Plant.
b. Deceiving Counter-Plaintiffs as to the reasons for wanting to move the Plant from North Carolina to Florida.
c. Manipulating the operation of the Plant and the measurements of the Plant’s operations to create the false impression and appearance that it was producing a COP far in excess of the COP it was in fact achieving.
d. Providing false information to Counter-Plaintiffs as to the operation of the Plant and the measurements of the Plant’s operations.
e. Refusing to provide other information properly requested by CounterPlaintiffs, and to which Counter-Plaintiffs were entitled pursuant to the License Agreement, the Term Sheet, the USQL Agreement, and/or the nature of the purportedly (but in fact, not) independent work being done by Penon.
f. Preventing or blocking Counter-Plaintiffs from obtaining truthful information about the Plant’s operations, the measurements of those operations, the role of JMP, the use by JMP of steam provided by the Plant, the role of Penon, or the bases for expenses or costs charged to Counter-Plaintiffs.
g. Charging Counter-Plaintiffs for services, expenses, and equipment that were purportedly being used either for the benefit of, and to further the goals of, Counter-Plaintiffs when in fact no such services, expenses, or equipment were being used for Counter-Plaintiffs’ benefit.147. The acts and practices alleged above, including in the prior paragraph, were unconscionable, unfair, and deceptive. As such, they have been declared unlawful pursuant to Section 501.204 of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).
148. As a result of the foregoing acts and practices declared unlawful under FDUTPA, Counter-Plaintiffs have suffered and continue to suffer actual damages, as described above.
Annesser again alleges the lack of specificity. I look at the defense, and know that there are specific allegations covering what is listed in the Count.
I looked at some cases cited by Annesser.
To state a defense under the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”), Defendants must allege: “(1) a deceptive act or unfair practice; (2) causation, and; (3) actual damages.” Randolph v. J.M. Smucker Co., No. 13 80581-CIV, 2014 WL 1018007 at *4 (S.D. Fla. Mar. 14, 2014) (citing Mantz v. TRS Recovery Servs., Inc., 11–80580–CIV, 2011 WL 5515303 at *2 (S.D. Fla. Nov.8, 2011)); see also KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1073 (Fla. 5th DCA 2008). Defendants fail to set forth the elements of this defense with the requisite specificity required by Rule 9, Fed. R. Civ. P. In fact, in an effort to conceal such pleading deficiency, as a factual basis for such defense, Defendants merely claim that the alleged “unlawful actions” are reflected in the entirety of Defendants Second Amended Counterclaim and Third-Party Claims. Defendants incorporation of the entirety of its Second Amended Counterclaim and Third Party Claims is not only improper, but it fails to provide the requisite notice to Plaintiffs of the specific allegations upon which Defendants rely to support their sixth affirmative defense. According, this defense must be stricken. Moreover, at no point in Defendants’ pleadings do Defendants allege any actual damages. Defendants’ FDUPTA defense is insufficient as a matter of law and must be stricken.
https://casetext.com/case/randolph-v-jm-smucker-co is a later ruling. "On March 14, 2014, the Honorable Kenneth A. Marra, United States District Judge, dismissed Count IV of the Complaint, and, while leave to amend was provided, Plaintiff opted not to do so. See Order, ECF No. ." Looking at this case from the later ruling, it was much likelier to be vague."
https://casetext.com/case/mantz-v-trs-recovery-services-2 interesting case with a pro se plaintiff. My opinion is that this order supports rejecting the motion to strike, and, again, the most severe response would be an order to clarify. I don't think the judge will consider that necessary.
KC Leisure, Inc. v. Haber ... again seems to support rejecting the motion to strike.
Judges do not require pleadings to be perfect. Given the Second Amended Answer and the Counterclaims, Rossi would certainly know what is being pled.
The motion to strike appears dilatory, a way to avoid addressing the core issues of the Answer and Countercomplaint. I predict that the judge will not grant the motion to strike. It is possible that she will require more specificity (perhaps a dollar amount for damages?), but at this point it seems the specificity is adequate.