Delfino v. Gulf Coast Town Center Cmbs, Llc et al

MOTION to dismiss for failure to state a claim , MOTION for More Definite Statement

M.D. Fla.March 21, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CASE NO. 2:17-cv-00115-SPC-MRM DARLENE DELFINO, Plaintiff, v. GULF COAST TOWN CENTER CMBS, LLC, and ERMC PROPERTY MANAGEMENT OF ILLINOIS, LLC, Defendants. DEFENDANT'S MOTION TO DISMISS THE COMPLAINT AND FOR JURY TRIAL OR, ALTERNATIVELY, MOTION FOR A MORE DEFINITE STATEMENT AND INCORPORATED MEMORANDUM OF LAW COMES NOW Defendant, GULF COAST TOWN CENTER CMBS, LLC 1 , a foreign limited liability company (hereinafter “GULF COAST” or "Defendant"), by and through undersigned counsel and in accordance with the applicable Federal Rules of Civil Procedure, hereby moves to dismiss Plaintiff's Complaint or alternatively for a more definite statement on the basis that it fails to state a proper cause of action and/or is improper under applicable law including the Federal Rules of Civil Procedure and Florida substantive law, and in further support thereof, Defendant states: I. INTRODUCTION AND FACTUAL BACKGROUND Plaintiff, DARLENE DELFINO (hereinafter "Plaintiff"), filed a Complaint claiming, in pertinent part, that on or about August 14, 2015, she somehow tripped and fell at the premises located at 9903 Gulf Coast Main Street, Fort Myers, Florida. Outside of the aforesaid limited factual allegation regarding a "raised concrete slab" and that Plaintiff somehow tripped at an unidentified 1 Improperly named in the Complaint. Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 1 of 12 PageID 155 and unspecified region of the alleged premises which is over 1,200,000 square feet in area , there are no other facts or specifics of any kind provided in the Complaint, although the Complaint does allege numerous legal conclusions and that Defendant somehow knew or should have known of the purported condition, without any supporting factual allegations. Moreover, Plaintiff failed to allege any facts supporting a claim for failure to warn or failure to maintain, and further failed to allege that the condition was hidden or concealed in order to trigger Defendant's duty to warn, among other things. II. MEMORANDUM OF LAW Federal Rule of Civil Procedure 12(b)(6) requires that a complaint be dismissed for “failure to state a claim upon which relief can be granted if it does not plead enough facts to state a claim to relief that is plausible on its face.” Hesterly v. Royal Caribbean Cruises, 515 F. Supp. 2d 1278, 1281(S.D. Fla. 2007). Although a plaintiff need not state in detail the facts upon which he bases his claim, Federal Rule of Civil Procedure 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Id. In other words, a plaintiff’s pleading obligation requires more than mere labels and conclusions. Id. The previous standard that there be “no set of facts” before a motion to dismiss is granted has thus been abrogated in favor of one that requires a pleading to be “plausible on its face.” In order to survive a motion to dismiss, the plaintiff must have nudged his or her claims across the line from conceivable to plausible. Id.; See Pafumi v. Davidson, 2007 U.S. Dist. LEXIS 43138 (S.D. Fla. 2007)(to survive a motion to dismiss, a complaint must now contain factual allegations which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.”). Courts have an obligation in matters before them to view the complaint as a whole and to base a ruling not on the presence of mere words but, rather, upon the presence of a factual situation which is or is not justiciable, drawing on the Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 2 of 12 PageID 156 allegations of the complaint, but in a realistic, rather than a slavish manner. City of Pittsburgh v. West Penn Power Company, 147 F.3d 256, 263 (3d Cir. 1998); See Olivares v. Doctor’s Osteopathic Med. Ctr., Inc., 2008 U.S. Dist. LEXIS 62690 (M.D. Fla. 2008) citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007)(A complaint needs to provide the grounds of entitlement to relief which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do; factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. Plaintiff must plead enough facts to state a plausible basis for the claim); Global Patent Holdings, LLC v. Panthers BRHC LLC, 2008 U.S. Dist. LEXIS 61697 (S.D. Fla. 2008)(same); Valerio v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 60242 (S.D. Fla. 2008)(same). Recently, the U.S. Supreme Court held as follows: "The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 2009 U.S. LEXIS 3472 (2009). The Court illustrated this point by also holding: "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss courts must take all of the factual Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 3 of 12 PageID 157 allegations in the complaint as true, they are not bound to accept as true a legal conclusion couched as a factual allegation. Fed. R. Civ. P. 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. And "A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations...". Id. at 1950. As it now stands, the Complaint’s allegations do not rise beyond the speculative level, leaving Defendant guessing as to what it has been sued for or why, and consequently more facts must be pled to state a plausible claim. In short, the Complaint simply alleges that Plaintiff was at Defendant's premises and was injured due to a purported "concrete slab." There are no ultimate facts as to how or why the alleged "slab" constitutes a dangerous condition or even what Plaintiff is actually referring to when she mentions the "raised concrete slab." Numerous legal conclusions are asserted in the Complaint, but really no actual facts are provided. Those facts that are alleged are vague and ambiguous. As a matter of law, more is needed to state a viable premises liability claim. Key Deficiencies in the Complaint The Complaint fails to include allegations critical to a premises liability case such as that alleged by this Plaintiff. Other than an address and a few inconsistent words about an undescribed concrete slab and subsequent fall, nothing else is alleged about the dangerous condition, i.e. such as about the approximate location of the incident in the very large outdoor shopping mall, what actually constituted the alleged dangerous condition, from where the alleged dangerous condition is believed to have originated, how the purported "slab"/dangerous condition was dangerous, or the circumstances of the purported incident, including what actually occurred. Such facts are critical to a Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 4 of 12 PageID 158 premises case such as this, not only to determine the existence of a duty and the standard of care owed by Defendant to Plaintiff, but also because and among other things what alleged negligent condition is claimed which in turn creates issues as to whom was responsible for the specific area or purported slab. At a minimum, such allegations are necessary to allow Defendant to determine, among other things, precisely what did or did not take place, when, how and why, and in order to respond meaningfully to the Complaint. Additionally, merely alleging that you are at a premises and that there was an unidentified and undescribed raised concrete slab without any other facts, does not and cannot state a viable premises liability claim Florida Law Also Mandates Dismissal A. Commingling of Claims Although Federal Rules of Procedure apply to procedural considerations in this case, Florida state law governs substantively. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Because Florida premises liability law determines the standard of care in this case, the deficiencies in Plaintiff’s Complaint make it impossible for Defendant to respond in any meaningful way. For example, because under Florida law the duty of care of a landowner for injury caused by the landowner’s active conduct or affirmative negligence is different from that applicable to injury alleged to be caused by a condition on the premises, Plaintiff’s allegations, which commingle claims relating to conditions on the premises and those relating to the Defendant’s conduct render any meaningful response impossible. Hix v. Billen, 284 So. 2d 209, 210 (Fla. 1973); Maldonado v. Jack M. Berry Grove Corp., 351 So. 2d 967, 968 (Fla. 1977). The Complaint comingles various claims relative to active and passive negligence together within one single legal Count and Defendant cannot discern the duty, if any, owed by Defendant. For instance, the Complaint makes allegations about negligent maintenance, active negligence, failure to inspect, failure to warn, inadequate inspection, and failure to correct dangerous conditions under the Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 5 of 12 PageID 159 same legal count. These must be separated. Florida law mandates that counts of this nature be separated. GULF COAST does not know what it has been sued for and thus cannot discern Defendant's duty or how it was breached. Here, Plaintiff totally fails to allege a specific practice or operation of Defendant or identify whether Defendant is being sued for general negligence, a construction defect, or some other cause of action. Consequently, the Complaint must be amended or a more definite statement provided. The Plaintiff should be instructed to clarify each allegation separately and allege sufficient facts to support the same. B. No Allegations that the Unidentified Dangerous Condition was Hidden or Concealed The Complaint does not allege the unidentified "raised concrete slab" was a “hidden danger” or “concealed” hazardous condition. The duty to warn is only triggered where the “dangerous condition” is concealed and: (1) was or should have been known to the landowner; (2) was unknown to the invitee; and (3) could not be discovered by him or her through the exercise of due care. The Complaint does not allege any such concealed or hidden danger to trigger Defendant’s duty to warn. See St. Joseph's Hosp. v. Cowart, 891 So. 2d 1039 (Fla. 2d DCA 2004). Plaintiff's Complaint makes reference to Defendant's alleged failure to warn of a "dangerous condition." However, Plaintiff has not pled that the alleged "dangerous condition" was hidden or concealed in any way. Plaintiff therefore has not stated a claim against the Defendant for failure to warn because the Defendant had no such duty to the Plaintiff under the facts as currently pled. As stated above, Florida law recognizes that the first element to a negligence claim is "a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct." See Clay Electric Cooperative, Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003). Here, Plaintiff fails to allege a duty recognized by law requiring the Defendant to warn the Plaintiff. As a result, Plaintiff fails to state a necessary element of her claim against the Defendant. The absence of Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 6 of 12 PageID 160 a necessary element warrants dismissal of the claim. Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA 2001). C. Improper Pleading of Constructive Notice Plaintiff also failed to allege any facts supporting notice of any dangerous condition by Defendant. In order to properly plead constructive notice, Plaintiff must set forth some supporting allegations as to what the purported dangerous condition was, how Defendant would have obtained constructive notice of such a condition, and whether the condition even existed on a premises owned, controlled or possessed by the Defendant. For example, where there are no allegations regarding the length of time the dangerous condition existed prior to the injury or some other allegations sufficient to establish constructive notice on the part of Defendant, the Complaint fails to properly plead constructive notice. See generally Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989). Therefore, Plaintiff’s claim of constructive notice does not support a cause of action for negligence. D. No Liability for Elevation Change in Florida Even if an uneven surface existed such as a raised concrete slab, Plaintiff’s claim against Defendant for purported injuries caused thereby cannot stand in Florida. The Supreme Court of Florida has consistently held that accidents caused by differences in floor levels do not subject a property owner or possessor to liability for injuries sustained. See Matson v. Tip Top Grocery Company, 151 Fla. 247, 9 So.2d 366,368 (Fla. 1942); Bowles v. Elkes Pontiac Company, 63 So.2d 769,772 (Fla. 1952); Hoag v. Moeller, 82 So.2d 138,139 (Fla. 1955). In Matson, the Supreme Court of Florida affirmed a judgment for the defendant. The plaintiff, an invitee of the defendant business owner, fell and injured herself as a result of an uneven floor level. The Supreme Court recognized a “common knowledge” of uneven floor levels in many public places and justified that the uneven floor levels existed because of necessity, convenience, artistic arrangement or to facilitate better Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 7 of 12 PageID 161 merchandising. Id. at 368. As such, the uneven floor level construction, when within reason, is not a breach of duty to invitees. On the contrary, the invitee owes a duty to herself to observe the obvious and apparent conditions of the premises, which in itself, is not dangerous. Id. In Bowles, the Supreme Court of Florida again upheld the trial court’s ruling to dismiss a complaint alleging injuries due to a fall caused by differences in floor levels. The allegation within the dismissed complaint was that there was a three inch drop-off in the floor between the automobile showroom and it’s entrance. The Supreme Court upheld the trial court’s ruling (upon rehearing) and stated that it is a matter of general knowledge that there are multiple steps in hotels, restaurants, storerooms and other business establishments throughout Florida. Id. at 772. It further went on to state that a person of ordinary intelligence entering a door to a building or a showroom has the duty and obligation to use ordinary care for his own safety to look and see where he is going. Id. Other more recent cases have affirmed older, Supreme Court rulings. One such case is Casby v. Flint, 520 So. 2d 281 (Fla. 1988), which held that warning of unlevel or uneven floors “goes beyond the duty of reasonable care owed to the invitee.” Id. Here, even if Plaintiff did fall as the result of a raised concrete slab, Defendant has no liability under Florida law and dismissal is appropriate. E. Federal Rule 12(e) Federal Rule of Civil Procedure 12(e) permits a party to move for a more definite statement when a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading. Morrison v. Morgan Stanley Props., 2008 U.S. Dist. LEXIS 2506 (S.D. Fla. 2008). The Rule states that: (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 8 of 12 PageID 162 filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. Here, Plaintiff alleges that she tripped on a "raised concrete slab." Plaintiff fails to describe what is meant by those terms, whether she is alleging she tripped on a step or stairs on the premises, what constituted the alleged condition, or even where within the 1,238,721 square foot premises she claims she tripped. Accordingly, in the alternative, the Plaintiff’s Complaint should be dismissed and the Plaintiff should be required to provide a more definite statement. F. Motion to Strike Plaintiff's Claim For Prejudgment Interest Plaintiff's Complaint makes a general prayer for unspecified "interest." Prejudgment interest is generally only allowed on liquidated damages. Brecker Holding Corp. v. Becker, 78 F.3d 514, 516-17 (11th Cir. 1996); Argonaut Ins. Co. v. Mary Plumbing Co., 474 So. 2d 212 (Fla. 1985). It has been established that prejudgment interest is available in contract cases from the date performance was due under the contract since that is the date the prevailing party is entitled to the damages. Lumbermens Mut. Cas. Co. v. Percefull, 653 So. 2d 389, 390 (Fla. 1995). However, the Florida Supreme Court has drawn a distinction between contract and tort cases. See id. Tort claims are generally excepted from the rule allowing prejudgment interest because damages in those cases are usually too speculative to liquidate before final judgment. See id. Therefore, because of the nature of this case, any alleged damages are too speculative and any claim Plaintiff is attempting to make for prejudgment interest should be stricken from the Complaint. III. CONCLUSION For all the foregoing reasons and based on the above cited authorities, and because the Complaint fails to comply with the applicable Federal Rules of Civil Procedure, fails to state a definite statement, fails to separate paragraphs, or fails to state a claim upon which relief can be Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 9 of 12 PageID 163 granted, an Order should be entered Dismissing the Complaint or, in the alternative, requiring a proper Amended Complaint. Wherefore, Defendant, GULF COAST TOWN CENTER CMBS, LLC, respectfully requests this Honorable Court enter an Order dismissing Plaintiff’s Complaint, or alternatively, providing a more definite statement, and any other relief deemed just and necessary. Respectfully submitted, /s/ Michael Alexander Garcia Michael Alexander Garcia Fla. Bar No. 0161055 Email: mgarcia@fowler-white.com Gerard Di Popolo Fla. Bar No. 117677 Email: gdipopolo@fowler-white.com FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 10 of 12 PageID 164 CERTIFICATE OF SERVICE I hereby certify that on March 21, 2017, the foregoing document was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Michael Alexander Garcia Michael Alexander Garcia Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 11 of 12 PageID 165 SERVICE LIST CASE NO. 2:17-cv-00115-SPC-MRM Heath E. Gelman, Esq. Morgan & Morgan, P.A. P.O. Box 9504 Fort Myers, FL 33906 HGelman@ForThePeople.com, TStewart@ForThePeople.com. 4837-5243-2965, v. 1 Case 2:17-cv-00115-SPC-MRM Document 22 Filed 03/21/17 Page 12 of 12 PageID 166