Johnson v. EZX, LLC et al

Filing 22

ORDER denying 5 the defendants' motion to dismiss and directing them to answer the amended complaint by May 5, 2017. Signed by Magistrate Judge Patricia D. Barksdale on 4/18/2017. (LG)

United States District Court
Middle District of Florida
Jacksonville Division
PATRICIA ANN JOHNSON, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF

KELLY BLACK AND ON BEHALF OF
SURVIVORS PATRICIA ANN JOHNSON
AND GROVER BOSTICK, INDIVIDUALLY,
Plaintiff,
v.

NO. 3:16-cv-1249-J-PDB

EZX, LLC, AND MATTHEW M. RAU,
Defendants.

Order
In this action under the Florida Wrongful Death Act, Fla. Stat. §§ 768.16–
768.26, the defendants, EZX, LLC, and Matthew Rau, move to dismiss the amended
complaint under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a
more definite statement under Rule 12(e) and to strike under Rule 12(f). Doc. 5. The
Court has subject-matter jurisdiction. Doc. 9.
I.

Amended Complaint
In the amended complaint, the plaintiff, Patricia Ann Johnson, alleges the

following.
Rau worked as a class-A licensed semi-truck driver for EZX, an interstate
motor carrier authorized to transport goods under permits from the Interstate
Commerce Commission, the United States Department of Transportation (“DOT”), or
both. Doc. 2 ¶¶ 11, 16, 17. At all relevant times, he drove a truck with the VIN number

1XP5D49X7D825712

and

pulled

a

trailer

with

the

VIN

number

1GRAA06225W705614. Doc. 2 ¶ 16.
EZX had to submit a form certifying it has access to and is familiar with all
DOT regulations on the safe operation of commercial motor vehicles, it will comply
with Federal Motor Carrier Safety Regulations, and it will meet other
safety-certification requirements. Doc. 2 ¶¶ 13, 14. EZX’s representatives swore
under penalty of perjury to comply with the safety certifications. Doc. 2 ¶ 15.
On the morning of October 23, 2015, Rau “exchang[ed] words and gestures”
with Kelly Black immediately before he “took off” and ran her over, dragging her
under the wheels of the semi for 400 feet and killing her. Doc. 2 ¶¶ 3, 20, 21. He left
her body in an intersection and did not stop. Doc. 2 ¶ 22. Her parents are her only
survivors. Doc. 1 ¶ 3. Johnson is Black’s mother; Grover Bostick, her father. Doc. 1
¶¶ 4, 5.
Johnson alleges that, at all relevant times, Rau was operating the semi “in the
course and scope of his employment or agency with … EZX” and “subject to … EZX’s
control or right to control, such that … EZX should be considered his actual and
statutory employer and therefore vicariously liable for [his] negligence.” Doc. 2 ¶¶ 17,
18. She alleges Rau and EZX “acted in a manner that … directly and proximately
caused the incident” and Black’s death. Doc. 2 ¶ 19.
Johnson seeks damages for loss of the value of Black’s prospective net
accumulations, funeral expenses, loss of companionship, mental pain and suffering,
and loss of support and services. Doc. 2 ¶ 23.1

1Johnson

originally sought damages for loss of protection and medical expenses.
Doc. 2 ¶ 23(b), (c). Upon her notice, Doc. 11, the Court dismissed those damages claims
without prejudice. Doc. 12.

2

In count I, titled, “Negligence Against Defendant Rau,” Johnson realleges
allegations concerning jurisdiction over Rau, an allegation about regulations and
other standards that govern the transportation of goods in interstate commerce, an
allegation about the truck and trailer Rau drove, allegations describing the incident,
and the damages request. Doc. 2 ¶ 24 (realleging ¶¶ 1–5, 9–10, 16, 20–23). She alleges
particular duties Rau owed and that he breached them. Doc. 2 ¶¶ 25–30. She alleges
Black suffered injuries and died as a direct and proximate result of Rau’s
carelessness, recklessness, and negligence. Doc. 2 ¶ 30.
Count II, titled, “Active Negligence of Defendant EZX,” was dismissed without
prejudice upon Johnson’s notice. See Doc. 2 ¶¶ 31–35, Doc. 11, Doc. 12.
In count III, titled, “Passive Negligence Against Defendant EZX,” Johnson
realleges allegations concerning jurisdiction over EZX, allegations about EZX’s role
in interstate commerce and Rau’s relation to EZX, allegations describing the incident,
the damages request, and duties Rau owed. Doc. 2 ¶ 36 (realleging ¶¶ 1–8, 10–23,
25−30). She alleges Rau was EZX’s agent, employee, servant, or independent
contractor; he acted within the course and scope of his agency or employment; he
acted under the direct control and for the benefit of EZX; and EZX is vicariously liable
for his negligence. Doc. 2 ¶¶ 37–38.
In count IV, titled “Strict Vicarious Liability [A]gainst Defendant EZX,”
Johnson realleges the same paragraphs as count III. Doc. 2 ¶ 39. She alleges the semitruck is a dangerous instrumentality, Rau operated it with EZX’s permission, and
EZX owned or leased it, had control over who could operate it, entrusted it to Rau,
and is strictly vicariously liable for Rau’s negligence. Doc. 2 ¶¶ 40–42.
II.

Standards
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint provide “a

short and plain statement of the claim showing that the pleader is entitled to relief.”
Federal Rule of Civil Procedure 10(b) provides, “If doing so would promote clarity,
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each claim founded on a separate transaction or occurrence … must be stated in a
separate count.”
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint for failure to state a claim upon which relief can be granted. To survive
dismissal under Rule 12(b)(6), a complaint must allege facts, accepted as true, that
state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
That standard asks for less than a probability but “more than a sheer possibility that
a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id. A court may
consider only the factual allegations in the complaint, anything attached to the
complaint, anything extrinsic to the complaint that is central to the claim and without
challenge to its authenticity, and any judicially noticeable facts. United States ex rel.
Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015). The court must accept
as true factual allegations and construe them in the light most favorable to the nonmovant. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012).
Under Federal Rule of Civil Procedure 12(e), a party may move for a more
definite statement of a pleading that “is so vague or ambiguous that [a] party cannot
reasonably prepare a response.” The motion “must point out the defects complained
of and the details desired.” Id.
Under Federal Rule of Civil Procedure 12(f), a court may strike from a pleading
any “insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” A court usually will not strike something from a pleading unless it has no
possible connection to the controversy and might prejudice a party if it remains.
Williams v. Delray Auto Mall, Inc., 289 F.R.D. 697, 700 (S.D. Fla. 2013).

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III.

Motion

A.

Shotgun Pleading
The defendants argue the amended complaint should be dismissed because it

is an impermissible shotgun pleading. Doc. 5 at 6–8. They observe count I “contains
[37] paragraphs and subparagraphs including allegation and incorporation of parts
of the earlier averred narrative on interstate commerce” and contend it is a
“prohibited catch-all or shot-gun pleading,” is not “short and plain,” and is not
“limited as far as practicable to a single set of circumstances.” Doc. 5 at 6. They
contend counts III and IV “reallege and incorporate all statements and legal
conclusions about interstate commerce without regard to whether they are proper
allegations or element[s] of each claim” and each count improperly incorporates the
preceding allegations. Doc. 5 at 6. They contend they are “unable to frame a response”
because it is “impossible to discern the claims” against them and ask the Court to
dismiss the amended complaint, require a more definite statement, or strike certain
paragraphs. Doc. 5 at 7.
Johnson responds the amended complaint is not a shotgun pleading because
no count adopts a preceding count; it does not assert claims against multiple
defendants without specifying to whom the claim applies; it is not “replete with
conclusory, vague, and immaterial facts”; and it does not allege separate causes of
action in the same count. Doc. 10 at 2. She contends the amended complaint “clearly
separates each count by cause of action and by defendant and specifically attributes
the facts pertaining to the respective elements of each cause of action.” Doc. 10 at 7.
She contends it is necessary to incorporate the allegations on interstate commerce
into multiple counts because they affect Rau’s and EZX’s duties and the standard of
care. Doc. 10 at 2–4.2 She does not address the reallegation of paragraphs from count
I in counts III and IV. See generally Doc. 10.

2Johnson

asserts, “[A]lthough paragraphs 10 through 16 state facts pertaining to
a single defendant, they must be incorporated into the negligence counts against both

5

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often
disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach Cty.
Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015). Shotgun pleadings are generally
categorized into four types: (1) “a complaint containing multiple counts where each
count adopts the allegations of all preceding counts, causing each successive count to
carry all that came before and the last count to be a combination of the entire
complaint”; (2) “a complaint … replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action”; (3) a complaint that does
not “separat[e] into a different count each cause of action or claim for relief”; and (4)
a complaint that “assert[s] multiple claims against multiple defendants without
specifying which of the defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against.” Id. at 1321–23.
A shotgun complaint makes it “virtually impossible to know which allegations
of fact are intended to support which claims for relief.” Paylor v. Hartford Fire Ins.
Co., 748 F.3d 1117, 1126 (11th Cir. 2014). The Eleventh Circuit has “roundly,
repeatedly, and consistently” condemned shotgun pleadings. Id. at 1125. When
served with one, a party should move to dismiss it under Rule 12(b)(6) or for a more
definite statement under Rule 12(e). Id. at 1126−27.
Here, the defendants contend the amended complaint is a type-one and typetwo shotgun pleading. It is neither.
The amended complaint is not a type-one shotgun pleading because no count
adopts the allegations of all preceding counts. See Doc. 2; Weiland, 792 F.3d at 1321.
Though the counts incorporate some of the same factual allegations, doing so does not
make the amended complaint a shotgun pleading. See Weiland, 792 F.3d at 1324

defendants because they affect the standard of care for both.” Doc. 10 at 4. The amended
complaint does not incorporate paragraphs 11 through 15 in the negligence claim against
Rau. See generally Doc. 2 ¶ 24. The defendants do not contend it should have. See
generally Doc. 5.

6

(complaint realleging paragraphs 1 through 49 at the beginning of each count not a
shotgun pleading because “allegations of each count [were] not rolled into every
successive count on down the line”). Though counts III and IV reallege some
paragraphs from count I, doing so does not make the amended complaint a shotgun
pleading because the allegations on Rau’s negligence relate to EZX’s vicarious
liability, which requires negligence by another. See Valeo v. E. Coast Furniture Co.,
95 So. 3d 921, 925 (Fla. Dist. Ct. App. 2012) (on claim for vicarious liability, plaintiff
must show “employee committed [a] negligent act: (1) within the scope of
employment, or (2) during the course of employment and to further a purpose or
interest of the employer”); Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000) (vicarious
liability under a theory of dangerous instrumentality applies to “the owner of a motor
vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent
operation causes damage to another”). Counts III and IV do not reallege count I’s
reallegation paragraph, causing no obvious confusion as to which allegations support
which count. See Doc. 2 ¶¶ 36, 39.
The amended complaint is not a type-two shotgun complaint because it is not
“replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action.” See Doc. 2; Weiland, 792 F.3d at 1322 (quoted). Though
the defendants contend the section titled, “Facts Regarding the Defendants’ Roles in
Interstate Commerce,” consists of “legal conclusions couched as factual allegations on
interstate commerce” and contains “immaterial and impertinent conclusory factual
allegations and legal conclusions,” Doc. 5 at 6, 14, Johnson explains that section
contains verifiable facts relevant to establishing vicarious liability, duties, and the
standard of care. Doc. 10 at 2–6.
Some of the allegations in the “Facts Regarding the Defendants’ Roles in
Interstate Commerce” section are legal conclusions, see, e.g. Doc. 2 ¶¶ 10
(transportation of goods in interstate commerce is an ultra-hazardous activity subject
to many regulations, laws, and standards); 11 (EZX was subject to various laws,
7

regulations, and standards), but others are verifiable facts, see, e.g. Doc. 2 ¶¶ 15 (EZX
representatives swore under penalty of perjury to comply with certain safety
certifications); 16 (Rau was a class-A-licensed motor-vehicle operator driving a
specific truck and pulling a specific trailer). Johnson has specified which facts apply
to each claim and, at a minimum, the allegations regarding Rau’s employment
relationship with EZX relate to vicarious liability, the allegations identifying the
truck and trailer relate to identifying the vehicle driven, and the allegations on
interstate commerce arguably relate to the defendants’ duties. See Lewis v. City of St.
Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001) (under Florida law, negligence claim
requires showing that “the defendant owed the plaintiff a duty of care, that the
defendant breached that duty, and that the breach caused the plaintiff to suffer
damages”); Clay Elec. Co-op., Inc., v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (duty
may arise from “legislative enactments or administration regulations”).3
Striking the paragraphs containing legal conclusions is unwarranted. They are
not redundant, immaterial, impertinent, scandalous, or prejudicial. As legal
conclusions, the Court will not consider them in considering the Rule 12(b)(6) motion
to dismiss.
The defendants compare the amended complaint to the pleading in Beckwith
v. Bellsouth Telecomms., Inc., 146 F. App’x 368, 371 (11th Cir. 2005). Doc. 5 at 7. That
case is not analogous. There, the Eleventh Circuit classified a pro se plaintiff’s
complaints as shotgun pleadings because “[o]nly a few of her claims were specific as
to any defendant,” “the relevant facts were not segregated to each of their respective

3No

party addresses the applicability of any specific regulation or other law to
either defendant. The defendants assert the allegations on interstate commerce are
“immaterial and impertinent,” Doc. 5 at 14, and Johnson asserts that “specific duties …
arise when a commercial motor carrier and a commercial truck driver transport goods in
interstate commerce,” Doc. 10 at 3. She suggests she does not elaborate further because
she does not want to “do[] the defense’s homework.” Doc. 10 at 3. Absent argument from
either party, the Court expresses no opinion on whether any regulation or other law
applies to either defendant.

8

claims,” and it was “virtually impossible to ascertain what factual allegations
correspond with each claim and which claim is directed at which defendant.”
Beckwith, 146 F. App’x at 372. The court found the district court did not abuse its
discretion when it ordered the plaintiff to file a more definite statement. Id. Here,
Johnson has specified which claims apply to each defendant and which facts apply to
each claim. See generally Doc. 2.
The amended complaint is not a shotgun pleading. Johnson has separated the
counts by defendant and by cause of action, has specified which facts apply to each
claim, and has not realleged in each count the allegations in all preceding counts. The
defendants contend they cannot frame a responsive pleading but have identified no
desired detail or specific defect other than the purported shotgun nature of the
amended complaint and conclusory nature of some allegations. Dismissing the
amended complaint, requiring a more definite statement, or striking some
paragraphs is unwarranted.
B.

Redundancy
The defendants argue the Court should dismiss count III (passive negligence

against EZX) because distinguishing between active and passive negligence is
inappropriate given Florida’s adoption of the comparative fault doctrine for simple
torts. Doc. 5 at 11. They contend the claim is “redundant and misplaced” given the
claim for vicarious liability in count IV, contend the “extra claim” adds nothing to the
determination of fault or relief, and ask the Court to dismiss it or require Johnson to
provide a more definite statement of the claim. Doc. 5 at 11–12. They contend that, if
count III remains, count IV should be dismissed as redundant. Doc. 5 at 13.
Johnson responds count III is for vicarious liability based on a theory of
respondeat superior and “is titled ‘passive negligence’ because the defendant is
vicariously liable due to no action of its own other than the agency relationship with
the tortfeasor.” Doc. 10 at 8. She contends this claim is distinct from the claim for
vicarious liability under a theory of dangerous instrumentality. Doc. 10 at 6.
9

“Vicarious liability is a form of indirect liability in which a party, who may
have not been negligent, can be held liable for the acts of another party.” Pembroke
Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 431 (Fla. Dist. Ct. App. 2014). Vicarious
liability under a theory of respondeat superior “imposes liability upon a principal for
the negligent acts of his agent undertaken within the scope of the agent’s
employment.” Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 123 (Fla.
Dist. Ct. App. 1997). Vicarious liability under a theory of dangerous instrumentality
imposes strict liability and is not based on respondeat superior or agency. Saullo v.
Douglas, 957 So. 2d 80, 86 (Fla. Dist. Ct. App. 2007).
“Active negligence” means “the tort-feasor actually does something to harm the
injured party,” while “passive negligence” means “the tort-feasor’s failure to do
something … resulted in harm to the injured party.” Nicholson v. Stonybrook
Apartments, LLC, 154 So. 3d 490, 494 (Fla. Dist. Ct. App. 2015). If the active
negligence of one and the passive negligence of another combine to proximately cause
an injury, “the passively negligent tort-feasor, who is compelled to pay damages to
the injured person on account of the injury, is entitled to indemnity from the actively
negligent tort-feasor.” Winn-Dixie Stores, Inc. v. Fellows, 153 So. 2d 45, 49 (Fla. Dist.
Ct. App. 1963). The distinction between active and passive negligence goes to fault.
Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493 (Fla. 1979).
Through count III, regardless of its title, Johnson is seeking to hold EZX
vicariously liable for Rau’s negligence because Rau was its employee or agent and
acted within the scope of his employment. See Doc. 2 ¶¶ 37, 38. It is distinct from the
strict vicarious liability claim raised in count IV and does not appear redundant or
misplaced. Dismissing either count III or count IV or requiring a more definite
statement of either is unwarranted.

10

C.

Failure to State a Claim
The defendants argue the Court should dismiss count IV (strict vicarious

liability against EZX) because it contains only a “formulaic recitation of the elements”
of vicarious liability and contains insufficient facts to establish more than a
speculative right to relief. Doc. 5 at 13. They also observe a trailer is not a dangerous
instrumentality for vicarious liability. Doc. 5 at 13.
Johnson responds count IV contains sufficient facts to state a claim for strict
vicarious liability under a dangerous-instrumentality theory. Doc. 10 at 8–9. She
contends paragraph 40 establishes ownership, paragraph 16 (realleged by paragraph
39) establishes that Rau operated the truck, and paragraph 18 (realleged by
paragraph 39) establishes Rau operated the truck in the course and scope of his
employment with EZX, the owner of the truck. Doc. 10 at 8–9. She does not address
the argument that the trailer is not a dangerous instrumentality. See generally Doc.
10.
The dangerous-instrumentality doctrine is based on “the practical fact that the
owner of an instrumentality which [has] the capability of causing death or destruction
should in justice answer for misuse of this instrumentality by anyone operating it
with his knowledge and consent.” Meister v. Fisher, 462 So. 2d 1071, 1072 (Fla. 1984)
(internal emphasis omitted). It “imposes strict vicarious liability upon the owner of a
motor vehicle who voluntarily entrusts that motor vehicle to an individual whose
negligent operation causes damage to another.” Aurbach, 753 So. 2d at 62. The person
held vicariously liable must “have an identifiable property interest in the vehicle,
such as ownership, bailment, rental, or lease.” Id.
Under Florida law, “[t]he trailer portion of a tractor-trailer rig is not a
dangerous instrumentality for the purpose of applying … vicarious liability.”
Pullman, Inc. v. Johnson, 543 So. 2d 231, 231 (Fla. Dist. Ct. App. 1987). But the
tractor or truck portion is a dangerous instrumentality, and an employer may be
subject to vicarious liability for negligent operation of it. See Saullo v. Douglas, 957
11

So. 2d 80, 87–88 (Fla. Dist. Ct. App. 2007) (company that owned trailer portion and
leased tractor portion could only be liable based on operation of tractor portion;
because it put driver in operational control of both tractor and trailer, it was subject
to vicarious liability for driver’s operation of tractor).
Here, Johnson explains she refers to the tractor and trailer portions of the
semi-truck collectively as “the Semi,” and alleges, “Rau ran over Kelly Black and
dragged her under the wheels of the Semi for over 400 feet, killing her.” Doc. 2 ¶¶ 16,
20. The motorized tractor portion of the semi is a dangerous instrumentality, and
Johnson has sufficiently alleged Rau’s negligent operation of the tractor portion
caused Black’s death. Her other allegations are more than a formulaic recitation; she
sufficiently alleges EZX had an identifiable property interest in the semi-truck, Doc.
2 ¶ 40, and it entrusted it to Rau, Doc. 2 ¶ 41. See Aurbach, 753 So. 2d at 62. Count
IV adequately states a claim for wrongful death based on a dangerousinstrumentality theory of vicarious liability against EZX. Dismissing count IV or
requiring a more definite statement is unwarranted.
IV.

Conclusion
The Court denies the motion to dismiss, Doc. 5.4 The defendants must answer

the amended complaint by May 5, 2017.
Ordered in Jacksonville, Florida, on April 18, 2017.

4The

defendants also move to dismiss count II (active negligence against EZX) and
Johnson’s claims for damages for loss of protection, medical expenses, and prejudgment
interest on medical expenses. See Doc. 5 at 8–11, 14–15. Because the Court has dismissed
those claims without prejudice, see Doc. 12, the defendants’ motion relating to them is
denied as moot.

12

c:

Counsel of Record

13