Sanchez v. Ermc of America, Llc et al

MOTION to Dismiss Amended Complaint , MOTION to dismiss for failure to state a claim and Incorporated Memorandum of Law

M.D. Fla.December 2, 2016

FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CASE NO. 2:16-cv-00851-UA-CM ROSA SANCHEZ Plaintiff, v. COASTLAND CENTER, LLC, and ERMC OF AMERICA, LLC, and GLEN HARRELL, Defendants. DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT OR ALTERNATIVELY MOTION FOR A MORE DEFINITE STATEMENT AND INCORPORATED MEMORANDUM OF LAW COMES NOW Defendant, COASTLAND CENTER, LLC (hereinafter “Coastland” or "Defendant") and GLEN HARRELL, by and through undersigned counsel and in accordance with the applicable Federal Rules of Civil Procedure, hereby moves to dismiss the Amended Complaint or alternatively for a more definite statement on the basis that the current Amended Complaint does not allege a proper claim against COASTLAND and GLEN HARRELL (fraudulently joined; hereinafter "HARRELL") or requires a more definite statement or violates certain components of the Federal Rules of Civil Procedure. 1 In furtherance thereof, Defendant states: I. ALLEGATIONS IN THE COMPLAINT Plaintiff, ROSA SANCHEZ ("Plaintiff"), filed an Amended Complaint claiming, in pertinent part, that on or about May 7, 2015, 2 she somehow slipped and fell in an unidentified "slippery substance" while at the premises located at 1900 Tamiami Trail North, Naples, Florida. Outside of 1 The undersigned counsel is appearing on behalf of HARRELL and contends HARRELL is fraudulently joined to defeat diversity jurisdiction and should not be named in this action, as supported by the Affidavit of Glen Harrell filed with the Notice of Removal. 2 The date alleged in the Amended Complaint is different from the date identified in Plaintiff's pre-suit correspondence and the medical records provided pre-suit. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 1 of 17 PageID 105 - 2 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 the aforesaid allegations, there are no other facts or specifics of any kind provided in the Amended Complaint, although the Amended Complaint does allege numerous unsupported legal conclusions, including, but not limited to, the conclusory allegations that Defendant failed to maintain its premises by allowing an unidentified "hazardous condition" to exist, failed to inspect its premises, created an unidentified condition, allowed an unidentified condition to exist for an "unreasonable length of time" and somehow knew or should have known of the unidentified condition. The aforesaid conclusory allegations are completely unsupported by ultimate facts as required by the Federal Rules of Civil Procedure. To be clear, the Amended Complaint fails to alleged what the purported "slippery substance" was, how the alleged incident occurred, how Defendant purportedly knew of or created the purported "slippery substance", whether the purported condition was hidden or concealed, how the purported "slippery substance" is related to Plaintiff's alleged fall or how it actually and proximately caused any alleged injuries, and it further violates Florida substantive law regarding pleading failure to maintain claims, failure to warn claims, active negligence claims, and claims regarding hidden or concealed conditions under premises liability law. As it now stands, the Amended Complaint fails allege sufficient facts to inform Defendant as how it is at all liable. Moreover, the Amended Complaint violates the Federal Rules of Civil Procedure by commingling multiple claims under a single legal count. Consequently, Defendant cannot answer the Amended Complaint in its current form and a viable Second Amended Complaint must be provided or alternatively, a more definite statement as to what this case is really about, including real supporting facts, should be provided by Plaintiff. As is stands, Defendants does not know what it has been sued for or why. II. MEMORANDUM OF LAW No Factual Allegations Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 2 of 17 PageID 106 - 3 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 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.” Id. 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 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. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 3 of 17 PageID 107 - 4 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 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 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. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 4 of 17 PageID 108 - 5 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 As mentioned above, the Amended Complaint is devoid of essential facts while violating both the procedural rules and applicable Florida law. 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. Numerous legal conclusions are asserted in the Amended Complaint, but no actual facts are provided. As a matter of law, more is needed to state a viable cause of action against Defendant. Here, the Amended Complaint fails to provide sufficient facts and many of the assertions made are conclusory. The Amended Complaint alleges Plaintiff slipped and fell in a "slippery substance", but fails to identify what the purported substance was or how it caused or otherwise contributed to Plaintiff's alleged fall. E.g. ¶ 6. Other sentences assert that Defendant had knowledge of certain facts, but do not state how Defendant knew of the same. E.g. ¶¶ 10. Additional sentences claim Defendant failed to maintain the premises, failed to inspect the premises and allowed an unidentified substance to remain for an unreasonable length of time, but do not state how Defendant failed to maintain the premises, what condition existed that required inspection or removal, how long the purported condition existed (or any facts supporting the length of time the purported condition existed) or how it required removal and why. E.g. ¶¶ 9. Moreover, the Amended Complaint alleges that Defendant somehow created the purported condition, but does not allege what the condition was, how it was created by Defendant or any other facts supporting Plaintiff's vacuous claims. E.g. ¶ 7. Finally, the Amended Complaint never alleges the purported condition was hidden or concealed or that Defendant's knowledge of the same was superior to that of Plaintiff. Facts need to be given to tell a story. 3 The Amended Complaint does not provide the Court with sufficient facts 3 See Order Granting Defendant’s Motion to Dismiss entered by Judge Lawrence King of the United States District Court for the Southern District of Florida entered on November 14, 2013 attached hereto as Exhibit “A.” Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 5 of 17 PageID 109 - 6 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 to meet the pleading requirements. For example, the Amended Complaint alleges Defendant's negligence caused injury to Plaintiff and that Plaintiff’s alleged injuries are “permanent,” 4 but does not state how Defendant was negligent, how Defendant caused Plaintiff to become injured, or what injuries occurred and what makes them permanent, etc. The remainder of the Amended Complaint contains similar threadbare allegations. To be clear, other than including an address and a few inconsistent words about a possible slip and fall and an undescribed "slippery substance" somewhere at the premises, nothing else is alleged about the purported condition, its location, the alleged incident, or how Defendant was at all negligent. Notably, the Amended Complaint fails to even identify how Plaintiff fell or whether she fell inside a retail store or in a common area of the large mall premises. Such facts are critical to a 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 and where, which in turn creates issues as to whom was responsible for the specific floor area. 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 Amended Complaint. Additionally, merely alleging that you are at a premises and that there was an undescribed substance at an unspecified area of the premises, without any other facts, does not and cannot state a viable premises liability claim. For instance, the alleged dangerous condition could have been created seconds before the alleged fall, or may have been open and obvious. The Amended Complaint fails to specify when or how Plaintiff claims she fell or to include any facts supporting a claim of negligence against Defendant or a right to relief by Plaintiff. At a minimum, such 4 Amended Complaint, ¶ 11. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 6 of 17 PageID 110 - 7 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 allegations are necessary to allow Defendant to determine, among other things, precisely what did or did not take place, when, how and why, in order to respond meaningfully to the Amended Complaint. See Prokopenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. LEXIS 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff "was caused to fall on water on the deck of the ship at or near the swimming pool, causing her serious injury" was "sufficient to draw a reasonable inference of negligence"); Gayou v. Celebrity Cruises, Inc., 2012 U.S. Dist. LEXIS 77536, 13-14 (S.D. Fla. 2012) (“The Complaint lists endless purported failings by Celebrity, but none are supported by any relevant facts […] merely pleading the existence of [cruise line's] duties without providing a factual basis for their imposition is insufficient to state a cause of action); Caldwell v. Carnival Corp., 2013 U.S. Dist. LEXIS 63599, 9-12 (S.D. Fla. 2013) (“Plaintiff has alleged the specific facts of where the slip and fall occurred and her claim is "narrow and particular to the dangerous condition that caused her injury.”). Florida Law Also Mandates Dismissal 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 Amended Complaint make it impossible for Defendant to respond thereto 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 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 7 of 17 PageID 111 - 8 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 The Amended Complaint commingles various claims together within a single legal count and Defendant cannot discern the duty, if any, owed by Defendant. The Amended Complaint makes allegations about negligent maintenance, active negligence, failure to warn, and failure to remediate, all without identifying what the alleged condition was. Florida law mandates that counts of this nature be separated. Defendant does not know what it has been sued for and thus cannot discern Defendant's duty. Consequently, the Amended Complaint must be amended. The Plaintiff should be instructed to clarify each allegation separately and allege sufficient facts to support the same. Comingling of Claims The other fundamental problem with the Amended Complaint is how it improperly comingles what purports to be claims for premises liability, failure to warn, failure to maintain and active negligence into a single legal count. This again makes it impossible for Defendant to craft an answer. Under Florida law, the duty of care of a landowner for injury caused by the landowner’s active conduct or affirmative negligence, i.e. negligent operation, is different from that applicable to injury alleged to be caused by a condition on the premises.. Hix v. Billen, 284 So. 2d 209, 210 (Fla. 1973); Maldonado v. Jack M. Berry Grove Corp., 351 So. 2d 967, 968 (Fla. 1977). When a complaint alleges more than one cause of action in one count, an order compelling separate statements is the proper course of action. See Sikes v. Seaboard Coast Line Railroad Co., 429 So. 2d 1216, 1218 (Fla. 1st DCA 1983); Plowden & Roberts, Inc. v. Conway, 192 So. 2d 528, 531 (Fla. 4th DCA 1966) (construing predecessor to Fla. R. Civ. P. 1.110(f) with similar language); Arcade Steam Laundry v. Bass, 159 So. 2d 915, 917 (Fla. 2d DCA 1964) (same). For instance, Plaintiff lumps together numerous allegations and references about alleged failures to maintain the premises or alleged failures to warn, active negligence, etc., making it appear that Defendant is being sued for something more than negligence such as for failure to warn or active negligence. These allegations must either be clarified or omitted from the Amended Complaint. In Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 8 of 17 PageID 112 - 9 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 this regard, Florida law requires that Plaintiff's Amended Complaint with all the many allegations, provide specific facts to support conclusory allegations which are essentially all legal conclusions couched as alleged facts. Consequently, the Amended Complaint should be dismissed. No Allegations that Dangerous Condition was Hidden or Concealed The Amended Complaint does not allege the purported "slippery substance" 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 Amended 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). Improper Pleading of Constructive Notice The Amended Complaint pleads Defendant had actual or constructive notice of the alleged dangerous condition. In order to properly plead constructive notice, Plaintiff must set forth some supporting allegations as to how Defendant would have obtained constructive notice of such a condition. 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 Amended Complaint fails to properly plead constructive notice. See generally Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989). Moreover, there are no allegations as to what the purported condition was or how it arrived at said location or when. Therefore, Plaintiff’s claim of constructive notice does not support a cause of action for negligence. Fla. Stat. Section 768.0755 Abolishes the Cause of Action for Negligent Mode of Operation Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 9 of 17 PageID 113 - 10 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 Plaintiff's Amended Complaint's claim of negligent mode of operation should be dismissed, as the same has been abrogated by Florida Statute. The cause of action for negligent mode of operation was created under the predecessor premises liability statute, Fla. Stat. Section 768.0710 (2002), which has since been superseded by Fla. Stat. Section 768.0755 (2010). The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older statute expressly stated actual or constructive notice was not "a required element of proof to this claim," but the new statute expressly states the plaintiff "must prove that the business establishment had actual or constructive knowledge of the dangerous condition." Additionally, the new statute does not contain any language regarding the owner's negligent maintenance, inspection, repair, warning, or mode of operation. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014). Under the old statute, a plaintiff could succeed in a slip and fall case by showing "the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises," without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the new statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim. Id. In Woodman v. Bravo Brio Rest. Grp., Inc., 2015 U.S. Dist. LEXIS 52375 (M.D. Fla. Apr. 21, 2015), the District Court held that Section 768.0755 has clearly eliminated the mode of operation theory as a basis for recovery in slip-and-fall cases and a plaintiff may not pursue a claim on this basis; the Court held that a plaintiff's claim based upon the negligent mode of operation theory is "immaterial, impertinent, or scandalous" and subject to being stricken. Id. In the current lawsuit, Plaintiff has asserted negligent mode of operation theories and such a cause of action should be dismissed with prejudice. Glen Harrell is Fraudulently Joined Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 10 of 17 PageID 114 - 11 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 As an employee of COASTLAND, HARRELL cannot be held personally liable simply because of his general employee duties or administrative responsibility for performance of some function of his employment. The Amended Complaint does not allege personal (as opposed to technical or vicarious) or active fault by him and he was clearly joined to try to avoid removal. Thus, HARRELL has no real place/practical connection to this matter other than being named in an attempt to avoid removal of this matter to this Court and Plaintiff has no legitimate cause of action against her and she should be dismissed from suit. See Pritchard v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 18593 (M.D. Fla. 2009)(no evidence supporting negligence claims against employee; Court finds that there is no evidence to support a claim against employee as actively negligent, and as such, Court finds that employee Gunderjahn is fraudulently joined); See Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006)(when plaintiff names a non-diverse defendant solely in order to defeat federal diversity jurisdiction, the district court must ignore the presence of the non- diverse defendant and deny any motion to remand the matter back to state court; plaintiff is said to have effectuated a fraudulent joinder); See Margaret Droessler v. Wyeth-Ayerst Laboratories, 64 F.Supp.2d 1265 (S.D. Fla. 1999)(defendant's right of removal cannot be defeated by a fraudulent joinder of a resident having no real connection to the controversy); See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 2001); See Diaz v. Kaplan Univ., 567 F. Supp. 2d 1394, 1407 (S.D. Fla. 2008)(Court may sever any claim against a party, including parties joined for the purpose of preventing removal to federal court; misjoinder will have the same effect as fraudulent joinder; plaintiff added slander claim against defendant Wilcox for the purpose of defeating federal jurisdiction. The slander claim against Defendant Wilcox is separate from the claims against corporate defendants and is not one for which Plaintiff seeks a joint judgment against the defendants); See Valerio v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 60242 (S.D. Fla. 2008)(denial of motion to remand); See Masterson v. Apotex Corp., 21 Fla. L. Weekly Fed. D 545 Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 11 of 17 PageID 115 - 12 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 (S.D. Fla. 2008)(The plain language of 28 U.S.C.S. § 1441(b) requires the resident defendant to be "properly joined and served" to defeat removal). A defendant is fraudulently joined when either “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently plead jurisdictional facts to bring the resident defendant into state court.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329,1332 (11th Cir. 2011) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). With respect to establishing causes of action against employees, “an officer or agent of a business may be held personally liable for a plaintiff’s injuries only if he is actively negligent, not simply because of his general administrative responsibility for performance of some function of his employment.” Thomas v. Big Lots Stores, Inc., No. 8:11-cv-673-T-33AEP, 2011 WL 3035269, at *2 (M.D. Fla. Jul. 25, 2011); see also White v. Wal-Mart Stores, Inc., 918 So.2d 357, 358 (Fla. 1st DCA 2005) (an officer or agent may not be held personally liable simply because of his general administrative responsibility for performance of some function of his or her employment - he or she must be actively negligent). Here, there is no possibility that Plaintiff can establish a cause of action against HARRELL because he was not actively negligent based on the facts alleged in the Amended Complaint. In fact, the Amended Complaint alleges HARRELL "was in the course and scope of his employment as manager of COASTLAND" at the time of the alleged incident, which precludes HARRELL from being held personally liable for the claims alleged by Plaintiff. 5 Furthermore, as outlined in HARRELL's Affidavit [D.E. 1-3], HARRELL was not on duty or at the mall premises on the date of the alleged incident and thus could not have contributed to Plaintiff's alleged fall, even in an administrative capacity. See Accordino v. Wal-Mart Stores E., LP, 2005 U.S, Dist. LEXIS 34328 (M.D. Fla. 2005); Stephens v. PetSmart, Inc., 2009 U.S. Dist. LEXIS 107234 (M.D. Fla. 2009) 5 Amended Complaint, ¶ 5. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 12 of 17 PageID 116 - 13 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 (Denying a motion for permissive joinder where Plaintiff sought to join a store manager who was not present in the store at the time of the alleged incident and employee who was present but had no prior knowledge of the hazardous condition inside the store, as the joinder would be fraudulent because there was no possibility that a cause of action could be asserted against the manager and employee in their individual capacity). The plaintiff cannot establish a cause of action against HARRELL because he was not present or on duty, and was not actively negligent based on the facts alleged in the Amended Complaint. In Stephens v. Petsmart, Inc., No. 8:09-cv-815-T-26TBM, 2009 WL 3674680 (M.D. Fla. Nov. 3, 2009), the court indicated: “In Florida, there is no recognized cause of action for an in absentia claim of negligent failure to maintain the store because Florida law requires that a corporate officer or agent may be personally liable for negligence only if he or she participates in the tortious conduct.” Here, HARRELL did not participate in the incident, did not know of the existence of any alleged condition, was not responsible for mopping or cleaning the floor, and certainly did not cause any purported substance to arrive on the floor. Plaintiff cannot establish active negligence or a connection on the part of HARRELL to the subject incident. In fact, Plaintiff's Amended Complaint does not include a single factual allegation supporting active negligence on the part of HARRELL and simply includes the same conclusory allegations that were alleged against COASTLAND and ERMC. That is, while the Amended Complaint alleges HARRELL was in the course and scope of his employment as manager of COASTLAND, it goes on to simply allege HARRELL had the general duty attributed to COASTLAND and fails to allege any factual allegations identifying any improper or tortious conduct on the part of HARRELL. Accordingly, based on the fraudulent joinder of HARRELL and the allegations raised in the Amended Complaint, Plaintiff's claims against HARRELL should be dismissed. Federal Rule 12(e) Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 13 of 17 PageID 117 - 14 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 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. Accordingly, in the alternative, the Plaintiff’s Amended Complaint should be dismissed and the Plaintiff should be required to provide a more definite statement. III. CONCLUSION For all the foregoing reasons and based on the above cited authorities, and because the Amended Complaint fails to state a claim upon which relief can be granted, fails to comply with the applicable Federal Rules of Civil Procedure and substantive Florida law, or fails to state a definite statement, and fraudulently joins HARRELL, an Order should be entered Dismissing the Amended Complaint or, in the alternative, requiring a proper Second Amended Complaint. Wherefore, Defendant, COASTLAND CENTER, LLC, respectfully requests this Honorable Court enter an Order dismissing Plaintiff’s Amended Complaint, or alternatively, providing a more definite statement; dismissing Plaintiff's claim for negligent mode of operation with prejudice; and any other relief deemed just and necessary. Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 14 of 17 PageID 118 - 15 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 Respectfully submitted, /s/Michael Alexander Garcia Michael Alexander Garcia Fla. Bar No. 0161055 Email: mgarcia@fowler-white.com William A. Potucek Fla. Bar No. 0100577 Email: wpotucek@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 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 15 of 17 PageID 119 - 16 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CERTIFICATE OF SERVICE I hereby certify that on December 2, 2016, 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 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 16 of 17 PageID 120 - 17 - FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 SERVICE LIST CASE NO.: 2:16-cv-00851-UA-CM Brian M. Davis, Esq. Fla. Bar. No. 0106535 Email: tyler@trialpro.com The Trial Professionals, P.A. 1019 Crosspointe Drive, Suite 1 Naples, FL 34110 (239) 300-0000 (239) 514-0555 fax Counsel for Plaintiff 4816-1492-1277, v. 1 Case 2:16-cv-00851-UA-CM Document 10 Filed 12/02/16 Page 17 of 17 PageID 121