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.July 10, 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 AMENDED COMPLAINT AND FOR JURY TRIAL OR, ALTERNATIVELY, MOTION FOR A MORE DEFINITE STATEMENT AND INCORPORATED MEMORANDUM OF LAW COMES NOW Defendant, ERMC PROPERTY MANAGEMENT OF ILLINOIS, LLC 1 , a foreign limited liability company (hereinafter “ERMC” or "Defendant"), by and through undersigned counsel and in accordance with the applicable Federal Rules of Civil Procedure, hereby moves to dismiss Plaintiff's Amended 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 an Amended 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. The original Complaint in this 1 Improperly named in the Complaint. Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 1 of 13 PageID 307 action was dismissed. The Court's order of dismissal [D.E. 31] stated in pertinent part that" The Court does not need to address every argument [raised by Defendant in its Motion to Dismiss] because Delfino failed to allege sufficient facts to state a claim." The Court further stated in its Order that without additional facts concerning the location and nature of the "raised concrete slab" - at a minimum- Delfino's negligence claim fails to state a plausible cause of action. Plaintiff's Amended Complaint now contains the following new allegations: (1) that the damages exceed $15,000.00 but are less than $75,000.00 2 ; (2) that the "raised concrete slab" was at a "sidewalk transition joint" 3 ; and (3) the fall allegedly took place outside of the JC Penney located in the subject mall. Although the Amended Complaint does allege numerous legal conclusions and that Defendant somehow knew or should have known of the purported condition, without any supporting factual allegations, the same remains deficient and fails to state a plausible cause of action. 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. Additionally, this Court previously granted Defendant's Motion to Strike Plaintiff's claim to the extent Plaintiff is seeking prejudgment interest as the same is not supported by applicable law. Plaintiff's Amended Complaint again appears to seek unspecified interest which presumably includes prejudgment interest. The claim for prejudgment interest was stricken in the original Complaint, and thus should be stricken accordingly from the Amended Complaint. 2 Defendant notes that post-removal amendment does not necessarily deprive the Court of jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938); see also Berning v. Crop Prod. Servs., Inc., No. 11- 2359-EFM, 2011 WL 3704710, at *2 (D. Kan. Aug. 23, 2011). Alternatively, should the Court hold that the amendment concerning the amount in controversy does deprive the Court of jurisdiction, the Amended Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). 3 See Am. Comp. ¶ 10. Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 2 of 13 PageID 308 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 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 Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 3 of 13 PageID 309 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 (emphasis added). 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 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 Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 4 of 13 PageID 310 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 Amended 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 Amended 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 why Defendant had any duty to warn of a condition which was apparent to the Plaintiff. Numerous legal conclusions are asserted in the Amended Complaint, but really no actual facts are provided. A simple difference in floor levels is not grounds for asserting a claim sounding in negligence. As a matter of law, more is needed to state a viable premises liability claim. Florida Law 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). Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 5 of 13 PageID 311 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 same legal count. These must be separated. Florida law mandates that counts of this nature be separated. ERMC 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 Amended Complaint must be amended once again 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 Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 6 of 13 PageID 312 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 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). Plaintiff at one point alleges that the purported condition existed for a "sufficient length of time that Defendant should have known of same had Defendant exercised reasonable care." 4 Plaintiff makes no factual allegations supporting her conclusory allegations regarding the length of time the alleged condition was present. Whether a condition existed for a long enough time so as to impute constructive notice on the Defendant is a legal conclusion. As stated above, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal 4 See Am. Comp. ¶ 10(d). Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 7 of 13 PageID 313 conclusions. Plaintiff fails to allege any facts to support her conclusory allegations. Furthermore, Plaintiff does not describe how the alleged condition was actually dangerous. It is common knowledge that there may be differences in floor levels. A mere difference in floor levels is not sufficient to categorize a condition as "dangerous." Plaintiff’s claim of constructive notice therefore does not support a cause of action for negligence. D. No Liability for Elevation Change in Florida Even assuming there was a difference in floor levels at the "sidewalk transition joint," 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 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 its 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, Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 8 of 13 PageID 314 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. The policy implications of allowing a claim to proceed supported only by threadbare allegations that the floor was uneven or that some part of the floor was "raised" are not negligible. If merely claiming that there was unevenness at a "sidewalk transition joint" is sufficient to bring a cause of action sounding in negligence, than any fall which allegedly takes place on a paved sidewalk or walkway would give rise to a potential cause of action. A property owner or occupier is not an insurer of the safety of an invitee. Emmons v. Baptist Hosp., 478 So. 2d 440,442 (Fla. lst DCA 1985)(citing 38 Fla Jur 2nd, Negligence, 20; Cassel v. Price, 396 So. 2d 258 at 265). An owner of real property is not an insurer of the safety of persons on the property, nor is the owner strictly liable, or liable per se without fault, for injuries resulting from conditions on owned property. Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla. 5th DCA 1988). An invitee is not protected against all hazards nor relieved of all duty to care for her own safety. There are no allegations in the Amended Complaint which describe how the alleged condition is actually dangerous or how the Defendant should have known the same. The Amended Complaint merely makes the conclusory allegation that the alleged condition was dangerous, without any further factual support. The Amended Complaint therefore does not state a plausible cause of action. Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 9 of 13 PageID 315 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 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" at a "sidewalk transition joint." Assuming in arguendo that the alleged condition did exist, Plaintiff fails to describe how the purported condition is actually dangerous, why there is liability for such conditions, how Defendant would be aware of the alleged dangerous character of the condition, why Plaintiff did not discover the condition, how Plaintiff did not see the sidewalk joint, and why or how a change in floor levels creates a duty to warn. Accordingly, in the alternative, the Plaintiff’s Amended 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). As stated above this claim was stricken by the Court in its previous Order of Dismissal. It is well established that tort claims are generally excepted from the rule allowing prejudgment interest Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 10 of 13 PageID 316 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 Amended 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 granted, an Order should be entered Dismissing the Amended Complaint or, in the alternative, requiring a proper Second Amended Complaint. Wherefore, Defendant, ERMC PROPERTY MANAGEMENT OF ILLINOIS, 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 34 Filed 07/10/17 Page 11 of 13 PageID 317 CERTIFICATE OF SERVICE I hereby certify that on July 10, 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 34 Filed 07/10/17 Page 12 of 13 PageID 318 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. 4849-8820-2315, v. 1 Case 2:17-cv-00115-SPC-MRM Document 34 Filed 07/10/17 Page 13 of 13 PageID 319