Can The Manager of a Florida LLC Represent the Corporation in Litigation?

If she or he is not a lawyer, no.

David Boggs, LLC and Mac Mar, LLC sued Matthew Soltis and his company My Affordable Roof, LLC for trademark infringement concerning the mark "MY AFFORDABLE ROOF."  Soltis appears to have opted to defend himself.  He has submitted a number of filings to the Court captioned as requests for extension of time, motions to dismiss for lack of subject matter jurisdiction, and answers.  He has submitted these filings both on behalf of himself, and on behalf of his corporation.

On plaintiffs' motion, the Court struck the first such filing on behalf of the corporation:

Soltis is not an attorney so cannot represent this entity under Local Rule 2.03(e). (Doc. 16, pp. 1–3.) See Local Rule 2.03(e) (“A corporation may appear and be heard only through counsel admitted to practice in this Court pursuant to Rule 2.01 or Rule 2.02.”); see also Energy Lighting Mgmt., LLC v. Kinder, 363 F. Supp. 2d 1331, 1332 (M.D. Fla. 2005) (applying Local Rule 2.03(e) to limited liability companies).

Undeterred, Soltis tried again, moving for an extension of time on behalf of himself and his corporation to respond to the complaint.  The Court again reminded Soltis that a corporation must be represented by counsel:

Defendant Soltis has again filed a Motion on behalf of My Affordable Roof, LLC in violation of the local rules. The Motion filed on behalf of Defendant, My Affordable Roof, LLC is unauthorized. 

Soltis then filed a motion to dismiss the complaint as to him, and tried filing an answer on behalf of the Corporation.  The Court struck the corporation's answer, and denied Soltis' motion:

On review, the Court finds the Motion is due to be denied. First, the Motion is untimely. Indeed, Soltis’ approach to this case reveals a pattern of disregarding court orders, despite repeated extensions and opportunities for compliance. This latest Motion appears to be another delay tactic, as the Court flatly denied Soltis leave to file it. (See Doc. 22.) Moreover, Soltis’ argument that the Court lacks subject matter jurisdiction here is meritless. Plaintiffs’ Complaint alleges violations of the Lanham Act based, in part, on Defendants’ engagement in interstate commerce. (E.g., Doc. 1, ¶ 20.) Accepting these allegations as true, subject matter jurisdiction exists here. See Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys. Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008) (announcing standard of review for facial subject matter jurisdiction attacks where the defendant does not use material extrinsic to the pleadings). 

Motion to dismiss, granted.  Motion to strike corporation's answer, granted.  Amended motion for default as to corporation, granted as well.

[Practice pointer -- a corporation may not represent itself in the Middle District of Florida; it must engage counsel.]

David Boggs, LLC v. Soltis, Case No. 6:18-CV-687-ORL-37GJK (M.D. Fla. Oct. 1, 2018) (J. Dalton, Jr.)

Request for 2 Day Extension To Oppose Summary Judgment Motion?

Denied.  Ouch.

Commodores Entertainment Corporation has sued Thomas McClary, a former Commodores band member, for various trademark claims.  Commodores sought summary judgment.  Procedurally, McClary's attorney requested a first extension of 8 days for McClary to respond to the dispositive summary judgment motion.  The Commodores did not oppose the request and the Court granted it.

During that 8-day period, McClary's counsel attended a hearing in California state court in San Diego.  During that hearing, the California state court set a case for jury trial where McClary's counsel is lead trial.  That jury trial was set to begin on July 6 - the day after McClary's summary judgment response was due.

On the day of the summary judgment response deadline (July 5), McClary's counsel sought a 2-day extension of time to respond to the summary judgment motion.   Again, the Commodores did not oppose the request.    The next day (after the deadline has passed), the Court denied the motion with the following docket entry:

ENDORSED ORDER denying 415 Motion. Counsel has not demonstrated good cause for the requested second extension. Defendants have other counsel of record who could have assisted. Signed by Judge Roy B. Dalton, Jr. on 7/6/2018. (ZRR) (Entered: 07/06/2018)

Ouch.  Later that day, McClary submitted its summary judgment response brief.  And a few days later, McClary filed an unopposed motion requesting the brief be accepted as timely.  The Court has not yet ruled on that request.

As a practice pointer, it is difficult for the Courts to rule on requested extensions on the day of a particular deadline, and I have not studied the history of this case to see how well it has progressed.  But I presume the merits of the case will get resolved.

*** Update 7/10/2018 ***
The Court resolved McClary's request to accept the summary judgment

ENDORSED ORDER granting in part and denying in part 418 Motion Relief From Order, And To Accept Opposition To Motion For Summary Judgment As Timely Filed. The Response in Opposition will be considered as timely filed. In all other respects the motion is denied. Signed by Judge Roy B. Dalton, Jr. on 7/10/2018. (Dalton, Jr., Roy) (Entered: 07/10/2018)

Commodores Entertainment Corporation v McClary, Case No. 6:14-cv-01335-RBD-GJK (M.D. Fla. July 6, 2018) (J. Dalton, Jr.)

Is Making a Song Available Via the Internet An Act of Copyright Infringement?

No, not really.  But it can survive the pleadings.

A number of Record Companies asserted their rights against a number of Accused Infringers.  The rights at issue relate to a number of sound recordings, 25 of which were recorded before 1972, and 600 or so recorded afterwards.  In late 2012 the Record Companies notified the Accused Infringers that "there were hundreds of links to Internet videos posted" by the Accused Infringers which allegedly contained material protected by the Record Companies' copyrights.

The attempts to resolve the disputes prior to litigation did not work, so the Accused Infringers sued the Record Companies.  The Record Companies asserted counterclaims for copyright infringement.  The Accused Infringers sought dismissal on a number of grounds:

Public Performance
The Accused Infringers argued that there could not be any violation of a right to "public performance" because the "public performance" limitation only applied to musical works, not the audiovisual works that were at issue.  The Court was not persuaded:

Initially, the Court is not persuaded that the definition of “digital audio transmission” definition set forth in § 114(j) (5) is applicable to an infringement analysis under § 106(6) because the Act cautions that the terms the § 114(j) definitions are only for use in § 114.  See 17 U.S.C. § 114(j) ("As used in this section, the following terms have the following meanings....”); see also, Creative Non-Violence v. Reid, 490 U.S. 730, 748 n. 14 (1989) (noting that courts must strictly adhere to the language and structure of the Copyright Act); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984) (requiring circumspection when construing the Copyright Act and adherence to the Act's concern for the general public good).

Further, applying the § 114(j)(5) definition in the manner urged by Amway is contrary to the admonition in § 103(a) that “copyright protection in preexisting material is not affected by use of such material in a “work that is based upon one or more preexisting work” such as a sound recording. See id. § 101 (defining “derivative works”). Indeed, copyrights in a preexisting work are “completely independent of” an audiovisual work that incorporates the preexisting work.” See Traicoff v. Digital Media, Inc., 439 F. Supp. 2d 872, 883 (S.D. Ind. 2006) (noting that “the copyright of an independent and preexisting sound recording” cannot be invalidated by “incorporating” the sound recording “into an audiovisual work”). 

Here, the Registered Recordings are “preexisting material” that must be distinguished from any audiovisual works in which they are incorporated—including the Accused Videos.  Stewart, 495 U.S. at 216–17 (rejecting argument that Court should “read into the Copyright Act a limitation on the statutorily created rights of the owner of an underlying work”). Accordingly, the Court rejects Amways' argument that—based on § 114(j)(5)—the Record Companies' “public performance” claim under § 106(6) fails as a matter of law.

Making the Work Available
Is "making the work available" a violation under the Copyright Act?  Technically, no.  But the Court did not need to dismiss this portion of the claim on pleading grounds, as there is still liability under the vicarious liability theories:

Although the Court agrees that the Act does not confer a “making available” copyright under § 106, the Court does not agree that relief is warranted under Rule 12(b)(6). Notably, the act of making a copyrighted work available for the use of a direct infringer is relevant to the Record Companies' indirect infringement claims against Amway. See Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976, 983 (D. Az. 2008); Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1225 (D. Minn. 2008) (stating that although dissemination needs to be proven to meet the distribution standard in the act, the proof need not be direct and can come from circumstantial evidence). Thus, the Motion is due to be denied with respect to Amway's “making available” argument. See Warner Bros. Records, Inc. v. Payne, 2006 WL 2844415, *2 (W.D. Tx. 2006) (declining, at the pleading stage, to reject “making available” theory a possible ground for imposing liability).

Public Performance Under Florida Common Law
Like the "making available" issue above, the Court noted that Florida common law did not recognize a cause of action for public performance right with respect to a sound recording, but determined it was not necessary to dismiss such claim on the pleadings.

Unidentified Parties - Does 1-20
The Accused Infringers last sought dismissal of the 20 parties identified only as Does 1-20.  The Court did not find this necessary:

In a footnote, the Amway Interests argue that the Court should dismiss Does 1 through 20 because fictitious party pleading is disallowed in federal courts. (See Doc. 113, p. 1 n.1.) Federal Rule of Civil Procedure 10(a) requires that the title of a complaint include the names of “all the parties,” and the U.S. Court of Appeals for the Eleventh Circuit discourages fictitious party pleading as a practice that is contrary to the public's right in open judicial proceedings. See Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001). Nonetheless, reference to a fictitious party may be permitted if it is mere “surplusage” (see Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)), or the fictitious party will be identified through discovery (see Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354 (S.D. Fla. 2009)). 

Here, the Does 1 through 20 are effectively identified for pleading purposes based on the Record Companies' identification in Tables 1 through 4 of specific creators and uploaders of the Accused Videos. Identification of the Doe Defendants is further discerned based on the IBOs named as Defendants in the 2045, 1511, and 776 Actions. Thus, under the unique circumstances presented here, the Court does not find it necessary to strike Does 1 through 20 under Rule 12(f) or to dismiss any claims based on Rule 10(a). See Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1318, n.4 (11th Cir. 2015) (noting that the court had simply ignored the improperly named fictitious parties).

Motion to dismiss counterclaims, denied.
Alticor, Inc. v. UMG Recordings, Inc., Case No. 6:14-CV-542 (M.D. Fla. Dec. 11, 2015) (J. Dalton)

Super Sacking -- Does a Covenant Not To Sue Eliminate Subject Matter Jurisdiction on a Subsequent Infringement Claim?

Apparently not.  Foliar Nutrients sued Plaint Food Systems (PFS) in 2004 for infringing a number of its patents.  After PFS sought reexamination of some of those patents, the parties settled.  That settlement called for Foliar to pay PFS $50,000 over five years, and included a mutual covenant not to sue where Foliar agreed not to assert its previously asserted patents and PFS agreed not to challenge their validity.

The settlement didn't work.  After the first year's payment, the parties were unable to continue operating under the agreement.  PFS sued Foliar a couple of times, trying to collect the money that Foliar didn't pay, but those cases didn't last.  Eventually, PFS gave up on filing lawsuits against Foliar.  Foliar, however, filed suit for patent infringement, asserting a number of its patents against PFS.

PFS sought dismissal, arguing that there was no subject matter jurisdiction because of the covenant not to sue.  Specifically, PFS relied on Super Sack and its progeny.  See Super Sack Manufacturing Corp. v. Chase Packaging Corp., 57 F.3d 1054 (Fed. Cir. 1995).  I have previously written about Super Sack a few times.

Super Sack

The typical circumstances are a patent owner asserts its patent and the defendant challenges validity of the patent.  For whatever reason, the patent owner decides it doesn't wish to pursue the patent infringement case, but it must also dispose of the counterclaim dealing with non-infringement and invalidity.  One solution to this issue is for the patent owner to covenant not to sue the defendant for infringement of the patent.  By doing this, the defendant's counterclaims for invalidity and non-infringement are no longer justiciable.  There is no longer a threat that the defendant can be sued for infringing the patent, so it can't ask the Court for a declaration that it does not infringe the patent and it has no basis to pursue a declaration that the patent is invalid.  Makes sense.

But what about when the patent owner changes its mind and wants to sue on the patent.  Does the covenant not to sue deprive the Court of subject matter jurisdiction to resolve that dispute?

"There is no authority for the proposition that a covenant not to sue stands as a jurisdictional bar to bringing a subsequent infringement claim."  Samsung Elecs. Co. v. Rambus, Inc., 440 F. Supp. 2d 495, 504 (E.D. Va. 2006).  PFS' argument to the contrary overextends the U.S. Court of Appeals for the Federal Circuit's precedent regarding invalidity claims, which are brought pursuant to the Declaratory Judgment Act and require the continuous presence of a real and immediate controversy between the litigants in order to remain justiciable.  See MedImmune v. Genentech, Inc., 549 U.S. 118, 127 (2007).  Under Super Sack and its progeny, where the case or controversy underlying a patent-invalidity action is the threat that the patentee will press an allegedly invalid patent against the invalidity claimant, the patentee can unilaterally divest the court of subject matter jurisdiction over the invalidity claim by extinguishing the immediacy and reality of that threat.  See Super Sack, 57 F.3d at 1058-60; Revolution Eyewear v. Aspex Eyewear, Inc., 556 F.3d 1294 (Fed. Cir. 2009).  One way to do so is by issuing a sufficiently broad covenant not to assert the patents-in-suit against the invalidity claimant.  Super Sack, 57 F.3d 1058.  Additionally, if the patentee has any infringement claims pending against the invalidity claimant at the time of the covenant's execution, the patentee must move to dismiss those claims under Federal Rule of Civil Procedure 41.  See Highway Equip. Co. v. FECO, Ltd., 469 F.3d 1027, 1033 (Fed. Cir. 2006); cf. Already, LLC v. Nike, Inc., 133 S.Ct. 721, 726-28 (2013) (addressing this procedure in the trademark context).  If the combination of the covenant not to sue and the Rule 41 dismissal sufficiently diminishes the controversy underlying an invalidity claim, the invalidity claim is rendered nonjusticiable and the Court is divested of subject matter jurisdiction over it.

But that logic does not extent to a plaintiff's claim of patent infringement:

Significantly though, the holdings in the Super Sack line of cases do not extend to patent-infringement claims, which are not brought pursuant to the Declaratory Judgment Act and are therefore not subject to its unique justiciability requirements.  See 35 U.S.C. 271 (Providing an independent statutory basis for patent infringement claims).  To the contrary, the Federal Circuit has clarified that a patentee's covenant not to sue does not divest a district court of subject matter jurisdiction over infringement claims -- even those that remain pending at the time of the covenant's execution.  Highway Equip., 469 F.3d at 1033 n.1 (observing that, in situations where a patentee unilaterally secures a Super Sack dismissal, the patentee's "covenant does not deprive the district court of jurisdiction to determine the disposition of the patent infringement claims raised in the Complaint under Rule 41"); Cooper Notification, Inc. v. Twitter, Inc., 545 F. App'x 959, 966-67 (Fed. Cir. 2013) (same).

Thus, PFS's motion to dismiss Foliar's patent infringement claim, for lack of subject matter jurisdiction, was denied.
Foliar Nutrients, Inc. v. Plant Food Systems, Inc., Case No. 6:13-CV-748 (M.D. Fla. July 14, 2014) (J. Dalton)

[NOTE: GrayRobinson, PA is involved in the above-captioned matter]

Can You Get Self-Help Relief Through A Default Judgment?

Not if you don't plead it in your complaint.   Sony sued Discount Cameras & Computers Inc. and Mauricio Martinez for trademark infringement and a handful of other causes related to Discount Camera's unauthorized usage of the SONY trademarks.  Defendants did not respond, so Sony sought and received a default.  After the Clerk entered Default, Sony moved for a Default Judgment, seeking an injunction.  So far, so good.  But the proposed judgment included the following language:

ORDERED and ADJUDGED that the Defendants ... shall, within fifteen (15) days of the date of entry of this Default Final Judgment and Permanent Injunction, remove [from their premises] all signage bearing one or more of the SONY Trademarks ...

ORDERED and ADJUDGED that, in the event that the Defendants ... fail to remove from the business premises ... all signage ... then the Court hereby authorizes the Plaintiffs and their representatives ... to enter the property ... and remove all signage...

(emphasis added).  The Court did not approve of this language, relying on Fed. R. Civ. P. 54(c) ("A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings."):

Plaintiffs are therefore entitled to default judgment on all of their claims, as well as a permanent injunction enjoining Defendants from further infringement and unlawful conduct -- but only as to the injunctive relief demanded in the Complaint (Doc. 1).  Plaintiffs are not entitled to self-help should Defendants continue to infringe Plaintiff's marks.  The Court declines to retain jurisdiction over this matter.

Motion for Default Judgment, Granted in Part, Denied in Part.
Sony Corp. v. Discount Cameras & Computers, Inc., Case No. 6:12-cv-1892 (M.D. Fla. Sept. 5, 2013) (J. Dalton) (adopting Report and Recommendation of Mag. Baker).

Litigants -- pick your battles wisely; Rube Goldberg's Self-Operating Napkin more interesting than sanctions motion

PPS Data sued Athenahealth for patent infringement.  Athenahealth thought PPS didn't do a thorough enough pre-suit investigation, and filed a Rule 11 motion seeking sanctions.  PPS responded that it investigated the accused product and reasonably believed it read on the claims.  In responding to Athenahealth's sanction motion, PPS made a   request for "counter-sanctions" against Athenahealth and its counsel for filing a "frivolous" Rule 11 motion.  Athenahealth, of course, responded.  PPS next filed a motion to strike a paragraph from that response, to which Athenahealth filed another response.  You can imagine how pleased the Court was to receive this barrage.

First, the Court dispensed with the law.  An adequate pre-suit investigation in a patent case requires a plaintiff to: (1) investigate the legal basis of the patent infringement claims (i.e. interpret the claims to be at issue); and (2) conduct a comparison of the accused product and the asserted claim(2).  

Here, neither party presented the Court with Plaintiff's pre-suit claim interpretation -- thus the Court could only conclude that such construction was reasonable.  As to the comparison of the accused product, PPS relied on Athenahealth's public statements about its products.  Athenahealth challenged this with the affidavit testimony of its managing director.  This was not persuasive.  As my trial advocacy professor often stated, "that goes to the weight, not admissibility."  The Court saw things the same way: 

To the extent that affidavit can be seen as a repudiation of Defendant's public statements about its product, the affidavit may call into question the accuracy of those statements or, perhaps, the credibility of the managing director.  It does not, however, cast doubt on the reasonableness of Plaintiff's reliance on Defendant's public statements.

Having now denied Athenahealth's sanctions motion, the Court addressed the various briefings.  I see no reason to try to improve on the Court's language, so I quote it below:

Putting to one side the original motion for sanctions, the Court must now turn to several papers that related to Defendant's motion in a Rube Goldberg-like manner. [FN - The Official Rube Goldberg Website]
* * *
All-in-all, the Court finds Rube Goldberg's cartoon of a Self-Operating Napkin more entertaining than the Rube Goldberg-like web of papers submitted in this case.  Although both parties have likely spent a great deal of time and money preparing these submissions, neither party has benefitted.  The Court has spent too much time addressing them.  For future submissions, counsel should note that this Court, like the U.S. Court of Appeals for the Seventh Circuit, "is not inclined to award sanctions in favor of a party that cannot be bothered to follow the rules itself."  Heinen v. Northrop Grumman Corp., 2012 WL 372988, at *2 (7th Cir. Feb. 7, 2012).
Furthermore, as this case remains in its early stages, counsel are advised that the effect of launching a litigation nuclear arsenal directed at peripheral issues not genuinely intended to advance the case toward resolution in an efficient, meaningful way will greatly diminish the credit given by the Court to future filings.  Choose your battles wisely lest the early salvos cost you the war.

Motion for sanctions denied.

PPS Data, LLC v. Athenahealth, Inc., Case No. 3:11-cv-746 (M.D. Fla. Feb. 23, 2012) (J. Dalton, Jr.)

Simple knowledge of a prior art reference not disclosed to the PTO is not sufficient to plead inequitable conduct

Graphic Packaging International sued C.W. Zumbiel Co. for patent infringement related to a number of cardboard carton packages.  As part of its defense,  CW argued that one of the patents, U.S. Pat. No. 7,134,551, was not enforceable due to GPI's inequitable conduct in prosecuting the '551 Patent with the Patent and Trademark Office.  Specifically, GPI's counsel was aware of certain prior art references, but did not tell the PTO about them.

CW's counterclaim included relatively detailed allegations, including a claim chart, listing how 2 of the 3 the withheld references impacted the patentability of the '551 Patent.  GPI responded by asking the Court to dismiss the counterclaim (and strike certain allegations).

Inequitable conduct pleading requirements

While a claim for relief must only contain a "short and plain statement of the claim showing that the pleader is entitled to relief," inequitable conduct claims must satisfy Rule 9(b)'s heightened pleading requirement.  The Court explained the law:

In [Exergen v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009)], the U.S. Court of Appeals for the Federal Circuit directed  that,  “in  pleading  inequitable conduct  in  patent cases, [Federal  Rule  of Civil Procedure] 9(b) requires identification of the specific who, what, when, where, and how of the material misrepresentation or omission committed before the PTO.”  575 F.3d at 1327. In addition, the Exergen Court identified the pleading requirements for the “conditions of mind” relevant to an inequitable conduct claim, i.e., “(1) knowledge of the withheld material information  or  of the falsity  of the material misrepresentation, and (2)  specific intent to deceive the PTO.”  Id. While knowledge and intent may be averred generally, according to the Federal Circuit, pleadings must allege sufficient underlying facts from which a court may reasonably infer that a party acted with the requisite state of mind.  Id

CW's allegations of inequitable conduct related to 3 prior art references not disclosed to the PTO during prosecution.  CW's claim chart only discussed 2 of those references.  As to the third, the Court found that CW had not sufficiently plead which claim limitations the withheld reference concerned, where in the withheld reference the material information was located, and why the withheld reference was material. 

As to the other 2 references, which included a relatively detailed claim chart, the Court still found the allegations fell short because they did not give rise to a reasonable inference of scienter.

The Federal Circuit makes clear in Exergen that a reasonable inference of scienter arises only when there are factual allegations which particularly point out an individual who owed a duty of disclosure to the PTO, who knew the specific information in the reference that is alleged to be material, and who did not disclose the specific information to the PTO. 575 F.3d at 1330.  Defendant’s allegations do point to three individuals who listed the ’671 Publication and the ’991 Patent on various IDSs submitted to the PTO. (Doc. No. 55, ¶¶ 64-66, 68, 72, 74-75, 76.)  These allegations suggest that these three individuals were aware of the ’671 Publication  and the  ’991 Patent.  That is  not enough,  however.  It  is  not knowledge of a reference but rather knowledge of the material information in the reference that must be averred.  Because a “reference many be many pages long, and its various teachings may be relevant to different applications for different reasons,” the Court “cannot assume that an individual, who generally knew that a reference existed, also knew of the specific material information contained in that reference.” 575 F.3d at 1330 (emphasis in original).  Further, the “mere fact that an applicant disclosed a reference during prosecution of one application, but did not disclose it  during  prosecution of a  related  application, is insufficient to meet the threshold level of deceptive intent required to support an allegation of inequitable conduct.”  Id. at 1331.

(underlined emphasis supplied by the Court, bold emphasis supplied by me).  The closest CW came was the allegation that one of the prosecuting patent attorneys discussed one of the withheld references in response to an office action.  But this still didn't cut it:

One can draw more inferences from this allegation than from a bare recitation of omission from an  IDS,  but not many  more.  Specific  allegations  identifying  the material  information contained in a reference is needed, and none are averred here. Defendant does not identify the specific information from the ’991 Patent that was  “discussed.”  Thus, Defendant’s allegations are missing a key pleading requirement for deceptive intent.

Counterclaim dismissed.

Striking allegations from the counterclaim

GPI also asked the court to strike: (1) all allegations related to one of the withheld references because it was not actually prior art; and (2) certain affirmative defenses for failing to satisfy heightened pleading.  The Court dispensed with these quickly.

As to the first argument, the Court punted, stating that determining the reference date for an international application (the withheld reference) was "a tricky thing" and needn't be handled now.  As to the second, the Eleventh Circuit has not determined whether or not heightened pleading applied to affirmative defenses and there was split in this circuit.  Regardless, the allegations throughout the counterclaim made up for whatever shortcoming GPI complained of.  

Motion to strike denied.
Thanks Docket Navigator for bringing this case to my attention.

Graphic Packaging International, Inc. v. C.W. Zumbiel Co., slip op., Case No. 3:10-cv-891 (M.D. Fla. Sept. 12, 2011)(J. Dalton, Jr.)