Great American Insurance Company of New York et al v. StormGeo Corp., Inc.
Filing
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ORDER granting 44 StormGeo's Motion to Dismiss Second Amended Complaint to the extent stated in this Order; dismissing without prejudice 41 the Second Amended Complaint; directing Plaintiffs to file a Third Amended Complaint by 8/15/18. By 8/15/18, the parties shall file a joint notice informing the Court of their respective positions on whether addressing the issues on summary judgment is the proper manner in which to proceed, and shall also provide proposed deadlines for a summary judgment briefing schedule. StormGeo need not file a response to the Third Amended Complaint until further Order of the Court. Signed by Judge Timothy J. Corrigan on 7/16/2018. (SEJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK, et al.,
Plaintiffs,
v.
Case No. 3:17-cv-554-J-32MCR
STORMGEO CORP., INC.,
Defendant.
ORDER
Following a hearing on December 19, 2017, (Doc. 36), the Court dismissed
Plaintiffs’ Amended Complaint without prejudice (Doc. 37). On January 12, 2018,
Plaintiffs filed the Second Amended Complaint (“SAC”). (Doc. 41). Now, this case is
before the Court on Defendant StormGeo Corp., Inc.’s Motion to Dismiss Second
Amended Complaint, (Doc. 44), to which Plaintiffs responded, (Doc. 49), and StormGeo
replied, (Doc. 52).
The SAC is twice as long as the Amended Complaint, and is not a model of
clarity. While the SAC is not a true shotgun pleading, it incorporates nearly all of the
general factual allegations into each cause of action. (Compare, e.g., Doc. 41 ¶¶ 19-36,
52-63 with ¶¶ 64-90 and ¶¶ 95-121). While the same facts can support different counts,
the manner in which Plaintiffs have stated their claims makes it difficult to discern
which facts support which elements of the claims and whether Plaintiffs have even
pled all of the elements of each count. For instance, “[t]o prove a claim for strict
liability for defective design, a plaintiff must show that the defendant manufactured
or distributed the product in question, that the product has a defect that renders it
unreasonably dangerous and that the unreasonably dangerous condition is the
proximate cause of the plaintiff’s injury.” Marzullo v. Crosman Corp., 289 F. Supp. 2d
1337, 1346 (M.D. Fla. 2003) (citing Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th
Cir. 1999) and West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)). Plaintiffs
bury the allegation of the design defect in paragraph ninety-three, which is really an
allegation of breach of duty and more properly belongs in a negligent products liability
claim as opposed to a strict products liability claim.1
Further, as the Court has just alluded, Plaintiffs’ three strict liability counts
include allegations of duty and breach, (Doc. 41 ¶¶ 92, 93, 123, 124, 154, 155), which
are relevant only to Plaintiffs’ negligence and negligent duty to warn claims. See, e.g.,
Marzullo v. Crosman Corp., 289 F. Supp. 2d 1337, 1347 (M.D. Fla. 2003) (internal
quotation marks omitted) (“The difference between negligent failure to warn and
failure to warn under a strict liability theory is that a prima facie case of strict liability
failure to warn does not require a showing of negligence.”); Cassisi v. Maytag Co., 396
So. 2d 1140, 1143 (Fla. Dist. Ct. App. 1981) (“appellants are not required to prove in a
strict liability action that the manufacturer or retailer was negligent in the
Regardless of whether this is the exact paragraph in which Plaintiffs have
pled the design defect, it should not be this difficult to identify the facts supporting
each element of the six causes of action. Federal Rule of Civil Procedure 8(a) requires
“a short plain statement of the claim showing that the pleader is entitled to relief.”
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preparation or distribution of a product”). Pleading elements of negligence in the strict
liability claims is unnecessary and confusing. Although the motion to dismiss does not
attack the SAC’s Rule 8 sufficiency, given these procedural and structural deficiencies,
the Court will nonetheless dismiss the SAC and allow Plaintiffs one last chance to
amend. In doing so, Plaintiffs shall clearly state the elements of each claim and only
incorporate the underlying factual allegations in each count necessary for support.
Turning to the substance of the motion to dismiss, as the parties acknowledged
at the hearing, (Doc. 39 at 17, 43), this is a case of first impression, and the major
issues raised in the motion to dismiss—whether the BVS 7 is a product or a service
and whether Defendant owed a duty to Plaintiffs—are likely issues of law.
Nevertheless, they are informed by the facts. Under these circumstances, once
Plaintiffs file the Third Amended Complaint, the Court is inclined to address the
merits via summary judgment practice rather than on a motion to dismiss. Under the
Case Management and Scheduling Order, dispositive motions are not due until
February 1, 2019. (Doc. 38). However, the Court wishes to have the parties’ input on
the Court’s preference to bypass another round of motion to dismiss practice and
instead address all issues on summary judgment, perhaps earlier than the February
2019 deadline.
Accordingly, it is hereby
ORDERED:
1.
Defendant StormGeo Corp., Inc.’s Motion to Dismiss Second Amended
Complaint, (Doc. 44), is GRANTED to the extent stated in this Order.
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2.
Plaintiffs’ Second Amended Complaint, (Doc. 41), is DISMISSED
without prejudice.
3.
Plaintiffs shall file a Third Amended Complaint by August 15, 2018.
4.
By August 15, 2018, the parties shall file a joint notice informing the
Court of their respective positions on whether addressing the issues on summary
judgment is the proper manner in which to proceed, and shall also provide proposed
deadlines for a summary judgment briefing schedule.
5.
StormGeo need not file a response to the Third Amended Complaint until
further Order of the Court.
DONE AND ORDERED in Jacksonville, Florida the 16th day of July, 2018.
TIMOTHY J. CORRIGAN
United States District Judge
sj
Copies:
Counsel of record
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