Delfino v. Gulf Coast Town Center CMBS, LLC et al
Filing
31
ORDER granting 10 22 Defendants ERMC Property Management Company of Illinois, LLC's and Gulf Coast Town Center CMBS, LLC's Motions to Dismiss or, in the alternative, Motions for a More Definite Statement. Defendants ERMC Property Ma nagement Company of Illinois, LLC's and Gulf Coast Town Center CMBS, LLC's Motions to Strike 10 22 are GRANTED. Plaintiff Darlene Delfino's claims for prejudgment interest on her damages for personal injuries are STRICKEN 2 . Plaintiff Darlene Delfino may file an amended complaint consistent with this order on or before June 30, 2017. Signed by Judge Sheri Polster Chappell on 6/15/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DARLENE DELFINO,
Plaintiff,
v.
Case No: 2:17-cv-00115-SPC-MRM
GULF COAST TOWN CENTER CMBS,
LLC, and ERMC PROPERTY
MANAGEMENT OF ILLINOIS, LLC,
Defendant.
___________________________________/
OPINION AND ORDER1
This matter comes before the Court on Defendants ERMC Property Management
of Illinois, LLC’s (“ERMC”) and Gulf Coast Town Center CMBS, LLC’s (“Gulf Coast”)
(collectively, “Defendants”) Motions to Dismiss, or, in the alternative, Motions for a More
Definite Statement and Motions to Strike filed on February 27, 2017 (Doc. 10) and March
21, 2017 (Doc. 22).2 Plaintiff Darlene Delfino (“Delfino”) filed Responses (Doc. 28; Doc.
29) to both Motions on May 8, 2017. This matter is ripe for review.
1
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not affect the opinion of the Court.
2 Because Defendants’ Motions articulate the same arguments (Docs. 10; 22), the Court
will address both in this Order.
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BACKGROUND
This is a premises liability action arising from a trip and fall. Gulf Coast owns an
outdoor shopping mall (“Gulf Coast Town Center”) where ERMC is responsible for
“janitorial duties.” (Doc. 2 at ¶¶ 5-6). On August 14, 2015, Delfino was a guest at the
Gulf Coast Town Center and allegedly tripped and fell on a “raised concrete slab.” (Doc.
2 at ¶¶ 10, 12, 14). Because of her alleged injuries from the fall, she sued Defendants in
the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. (Doc. 1
at ¶ 1). Defendants removed the action to this Court, pursuant to 28 U.S.C. § 1332. (Doc.
1).
Defendants now move for dismissal arguing that Delfino improperly commingled
her claims, failed to plead the existence of a “hidden danger,” and failed to plead
constructive notice. (Doc. 10 at 5-7; Doc. 22 at 5-7). They also contend that the
Complaint is legally insufficient because there is no liability for injuries sustained from
uneven surfaces under Florida law. (Doc. 10 at 8-9; Doc. 22 at 7-8). Defendants also
move to strike Delfino’s prayer for prejudgment interest because that is not recoverable
in a personal injury action under Florida law. (Doc. 10 at 9-10; Doc. 22 at 9). Delfino
opposes Defendants’ Motions. (Doc. 28; Doc. 29).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
When
considering a motion to dismiss under Rule 12(b)(6), the court accepts all factual
allegations as true and views them in a light most favorable to the plaintiff. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). This preferential standard of review, however, does
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not permit all pleadings adorned with facts to survive to the next stage of litigation. The
Supreme Court has been clear on this point – a district court should dismiss a claim where
a party fails to plead facts that make the claim facially plausible. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the court can draw
a reasonable inference, based on the facts pled, that the opposing party is liable for the
alleged misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550
U.S. at 557 (internal quotation marks omitted)). Moreover, it requires more than an
“unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
DISCUSSION
A. Motions to Dismiss
Defendants make five arguments to dismiss Delfino’s complaint. They assert that
she has failed to plead sufficient facts, improperly commingled her claims, failed to plead
the existence of a “hidden danger,” and failed to plead constructive notice. (Doc. 10 at 57; Doc. 22 at 5-7). They further argue that they are not liable for the alleged injuries that
Delfino sustained on the “raised concrete slab.” (Doc. 10 at 5-6: Doc. 22 at 5-6). The
Court does not need to address every argument because Delfino failed to allege sufficient
facts to state a claim.
Defendants argue that the Complaint is filled with vague, conclusory allegations
that do not state a plausible claim. (Doc. 10 at 5; Doc. 22 at 5). According to them, Delfino
failed to allege the location of the fall, what the alleged dangerous condition was, where
the dangerous condition originated, how the slab was dangerous, and the circumstances
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of the fall. (Doc. 10 at 5; Doc 22 at 4-5). Delfino responds that she plead her Complaint
with the required specificity. (Doc. 28 at 4-5; Doc. 29 at 4-5).
To establish a negligence claim under Florida law, a plaintiff must allege “a duty of
care by the defendant to the plaintiff, breach of that duty of care, causation and resulting
damages.” Barandas v. Ross Dress for Less, Inc., No. 11-62611-CV, 2012 WL 160060,
at *1 (S.D. Fla. Jan. 18, 2012) (citations omitted). Deflino has failed to plead sufficient
factual allegations to support these minimum requirements. In particular, the allegations
related to the “raised concrete slab” that Delfino allegedly tripped over are insufficient.
And it is unclear, under Florida law, whether a “raised concrete slab” constitutes a
condition that is not inherently dangerous, and, if so, whether the condition falls within an
exception.3 See, e.g., Casby v. Flint, 520 So. 2d 281, 282 (Fla. 1988); Schoen v. Gilbert,
436 So. 2d 75, 76 (Fla. 1983); Milby v. Pace Pontiac, Inc., 176 So. 2d 554, 556 (Fla. 2nd
DCA 1965); Hilliard v. Speedway Superamerica LLC, 766 So. 2d 1153, 1155 (Fla. 4th
DCA 2000); Slaats v. Sandy Lane Residential, LLC, 59 So. 3d 320, 321 (Fla. 3d DCA
2011). 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 claim of action.
3
As an aside, Florida courts disagree on whether uneven flooring discharges both a
landowner’s duty to warn and duty to maintain the property in a reasonably safe condition.
See e.g. Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012)
(“[S]ome conditions are so obvious and not inherently dangerous that they can be said,
as a matter of law, not to constitute a dangerous condition, and will not give rise to liability
due to the failure to maintain the premises in a reasonably safe condition”); Kersul v. Boca
Raton Cmty. Hosp., Inc., 711 So. 2d 234, 234 (Fla. 4th DCA 1998) (“[A]lthough the open
and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not
discharge the duty to maintain the property in a reasonably safe condition.”); see also
Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017) (discussing the
dual nature of a landowner’s duty to an invitee).
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B. Motions to Strike
Next, Defendants move to strike Delfino’s general prayer for prejudgment interest.
(Doc. 10 at 9-10; Doc. 22 at 9). Delfino does not contest Defendants’ position. (Doc. 28;
Doc. 29). A court “may strike from a pleading . . . any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). “A court may act . . . upon the motion of a
party ‘either before responding to the pleading or, if a response is not allowed, within 21
days after being served with the pleading.’” Leahy-Fernandez v. Bayview Loan Servicing,
LLC, Case No. 8:15-cv-2380-T-33TGW, 2016 WL 410010, at *1 (M.D. Fla. Feb. 3, 2016)
(citing Fed. R. Civ. P. 12(f)).
In diversity cases, “[w]hether a successful claimant is entitled to prejudgment
interest is a question of state law.” Venn v. St. Paul Fire and Marine Ins. Co., 99 F.3d
1058, 1066 (11th Cir. 1996) (citation omitted). Thus, the issue whether prejudgment
interest is recoverable in this action turns on Florida law. “Under Florida law, plaintiffs in
personal injury cases have historically not been entitled to prejudgment interest, as
damages are too speculative to liquidate before final judgment.” Rivera v. Aaron Rents,
Inc., No. 8:07-cv-2190-T-30TGW, 2008 WL 638353, at *4 (M.D. Fla. March 5, 2008)
(citing Amerace Corp. v. Stallings, 823 So.2d 110, 112-113 (Fla. 2002)). Because Delfino
has not opposed Defendants’ position nor identified an exception to the general rule, the
Court strikes Delfino’s claims for prejudgment interest. (Doc. 2 at 4, 6).
Accordingly, it is now
ORDERED:
1. Defendants ERMC Property Management Company of Illinois, LLC’s and
Gulf Coast Town Center CMBS, LLC’s Motions to Dismiss or, in the
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alternative, Motions for a More Definite Statement (Doc. 10) (Doc. 22) are
GRANTED.
2. Defendants ERMC Property Management Company of Illinois, LLC’s and
Gulf Coast Town Center CMBS, LLC’s Motions to Strike (Doc. 10) (Doc. 22)
are GRANTED. Plaintiff Darlene Delfino’s claims for prejudgment interest
on her damages for personal injuries are STRICKEN (Doc. 2).
3. Plaintiff Darlene Delfino may file an amended complaint consistent with this
order on or before June 30, 2017.
DONE and ORDERED in Fort Myers, Florida this 15th day of June, 2017.
Copies: All Parties of Record
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