Seybold et al v. Clapis et al
Filing
33
ORDER granting in part and denying in part 25 motion to dismiss; denying without prejudice 26 Motion to Strike. Signed by Judge Roy B. Dalton, Jr. on 8/20/2013. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MANDY SEYBOLD and JOHN
SEYBOLD, individually and as next
friends of MINOR SEYBOLD 1 and
MINOR SEYBOLD 2,
Plaintiffs,
v.
Case No. 6:12-cv-1630-Orl-37GJK
VICTOR HUGO SOSO CLAPIS and
WALT DISNEY PARKS AND RESORTS
U.S., INC.,
Defendants.
ORDER
This cause is before the Court on the following:
1.
Defendant’s, Walt Disney Parks and Resorts U.S., Inc., Supplemented
Motion to Dismiss Counts VII and VIII of Plaintiffs’ Complaint (Doc. 25),
filed June 26, 2013;
2.
Plaintiffs’ Response in Opposition to Defendant Walt Disney Parks and
Resorts U.S., Inc.’s Motion to Dismiss Counts VII and VIII of Plaintiffs’
Complaint (Doc. 27), filed July 10, 2013;
3.
Plaintiffs’ Motion to Strike Affirmative Defenses of Victor Hugo Soso Clapis
to Plaintiffs’ Complaint (Doc. 26), filed July 3, 2013; and
4.
Defendant Victor Hugo Soso Clapis’ Response to Plaintiffs’ Motion to
Strike Affirmative Defenses (Doc. 28), filed July 13, 2013.
Upon consideration, the Court hereby grants in part and denies in part the motion to
dismiss and denies the motion to strike.
BACKGROUND
On July 14, 2010, Plaintiffs Mandy Seybold, John Seybold, and their two children
were preparing to leave the Disney All-Star Movie Resort. (Doc. 1, ¶¶ 6–8.) John
Seybold was in the hotel checking out. (Id. ¶ 9.) The Seybold children were in Plaintiffs’
car. (Id. ¶ 11.) Mandy Seybold was standing behind the car and was reaching through
its back window when Defendant Clapis struck her with his car. (Id. ¶¶ 9–10.) The
Seybold children “were shaken by the impact.”1 (Id. ¶ 11.) John Seybold heard his wife
scream and went outside. (Id. at ¶¶ 19, 21.) Mandy Seybold’s leg was pinned between
the cars. (Id. ¶ 13.) Defendant Clapis put his car into park, leaving her pinned. (Id. ¶ 14.)
A bystander went over and moved Plaintiffs’ car forward, freeing Mandy Seybold’s leg.
(Id. ¶ 18.) John Seybold then caught his wife before she could fall to the ground. (Id.
¶ 22.) The incident took place on the property of Defendant Walt Disney Parks and
Resorts U.S., Inc. (“Disney”), and no Disney employees intervened to help Mandy
Seybold. (Id. ¶¶ 12, 17, 24–25.) Mandy Seybold suffered injuries and continues to
experience pain in her leg. (Id. ¶¶ 31–34, 37–38.)
Plaintiffs brought suit against Defendants Clapis and Disney. (Doc. 1.) Clapis
answered and pled a number of affirmative defenses. (Doc. 20.) Disney moved to
dismiss Counts VII and VIII of the Complaint, in which the children and John Seybold
bring claims for negligent infliction of emotional distress (“NIED”). (Doc. 25.) Plaintiffs
moved to strike Clapis’s affirmative defenses and opposed Disney’s motion to dismiss.
(Docs. 26, 27.) Clapis responded to the motion to strike. (Doc. 28.) This cause is now
ripe for the Court’s adjudication.
1
Construing the facts in the light most favorable to Plaintiffs, the Court
understands the children to have been physically shaken.
2
STANDARDS
1. Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” The
pleader must allege “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[D]etailed factual allegations” are
not required, but mere “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action” are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations and internal quotation marks omitted). On a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), a court “accept[s] the allegations in the complaint as
true and constru[es] them in the light most favorable to the plaintiff.” Hill v. White, 321
F.3d 1334, 1335 (11th Cir. 2003).
2. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides that a court may strike “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A
motion to strike an affirmative defense will “usually be denied unless the allegations
have no possible relation to the controversy and may cause prejudice to one of the
parties.” Story v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1027, 1030 (M.D. Fla.
2000). A court will only strike a defense as insufficient if: (1) it is patently frivolous on its
face; or (2) it is clearly invalid as a matter of law. See Guididas v. Cmty. Nat’l Bank
Corp., No. 8:11-cv-2545-T-30TBM, 2013 WL 230243, at *1 (M.D. Fla. Jan. 22, 2013)
(citation omitted).
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DISCUSSION
1. Motion to Dismiss
The parties disagree over the application of the Florida Supreme Court’s most
recent articulation of the availability of damages for negligently inflicted emotional
distress where the plaintiff sustained an impact but suffered no discernible physical
injury flowing from that impact. Disney argues that for Plaintiffs to recover, their
emotional distress must either flow from a physical injury that they suffered as a result
of an impact or manifest as a physical injury. (Doc. 25.) Plaintiffs argue that as long as
they sustained some kind of impact, they are entitled to recover for any subsequent
emotional distress regardless of whether they suffered any physical injury. (Doc. 27.)
The Court notes that the evolution of Florida Supreme Court case law on this
issue is muddled at best. In Willis v. Gami Golden Glades, LLC, the Florida Supreme
Court appears to have departed from prior precedent in setting out a dichotomy for
recovery:
In Florida, the prerequisites for recovery for negligent infliction of
emotional distress differ depending on whether the plaintiff has or has not
suffered a physical impact from an external force. If the plaintiff has
suffered an impact, Florida courts permit recovery for emotional distress
stemming from the incident during which the impact occurred, and not
merely the impact itself. If, however, the plaintiff has not suffered an
impact, the complained-of mental distress must be “manifested by
physical injury,” the plaintiff must be “involved” in the incident by seeing,
hearing, or arriving on the scene as the traumatizing event occurs, and the
plaintiff must suffer the complained-of mental distress and accompanying
physical impairment “within a short time” of the incident.2
967 So. 2d 846, 850 (Fla. 2007) (quoting Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d
2
Justice Cantero’s dissent in Willis traces the evolution of this area of the law,
showing how up until the majority’s opinion in Willis, physical injury was always
required; a plaintiff either needed to show: (1) emotional distress flowing from a physical
injury caused by an impact; or (2) emotional distress that manifests as physical injury.
967 So. 2d 846, 873–75 (Fla. 2007) (Cantero, J., dissenting).
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517, 526 (Fla. 3d DCA 1985) (internal quotation marks omitted). There are thus two
paths to recovery:3 (1) one experiences a physical impact during the incident and
suffers emotional distress stemming from that incident; or (2) one does not experience a
physical impact but is involved in the incident and experiences emotional distress so
severe that it manifests as physical injury. See id. The latter category represents
Florida’s (now-oxymoronically named) “impact rule,”4 which requires psychological
trauma to manifest as physical injury in the absence of impact. See id. Here, Plaintiffs
concede that John Seybold and the Seybold children did not “suffer[] a physical injury
as a result of emotional trauma.” (Doc. 27, p. 8.) Thus, the former category—
experiencing an impact from the incident and suffering emotional distress stemming
from that incident—applies in this case.
The threshold for what constitutes an impact is low, as any “outside force or
substance, no matter how large or small, visible or invisible, and no matter that the
effects are not immediately deleterious, [that] touch[es] or enter[s] into the plaintiff’s
body” qualifies. Willis, 967 So. 2d at 850. Here, Plaintiffs allege that the Seybold
children “were shaken” inside Plaintiff’s car when Defendant Clapis allegedly ran into
Mandy Seybold. While the children were not physically touched, under the standard set
3
There are also a few recognized exceptions where the impact rule does not
preclude recovery. See, e.g., Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234, 1237
(Fla. 2001) (recognizing exceptions for torts such as defamation and invasion of
privacy); Tanner v. Hartog, 696 So. 2d 705, 707–09 (Fla. 1997) (negligent stillbirth);
Kush v. Lloyd, 616 So. 2d 415, 422–23 (Fla. 1990) (wrongful birth).
4
The Court notes that what has been called the “impact rule” has changed over
time. Compare Willis, 967 So. 2d at 850 (“The impact rule is the rule of law followed in
Florida applicable to cases in which the plaintiff claims mental or emotional damages
but has not sustained any physical impact or contact . . . .”), with Hagan, 804 So. 2d at
1237 (“[T]he impact rule requires that before a plaintiff may recover damages for
emotional distress, she must demonstrate that the emotional stress suffered flowed
from injuries sustained in an impact.” (citation omitted)).
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out in Willis, they were impacted by an invisible force such that they sufficiently state a
claim for NIED. Whether Plaintiffs will be able to marshal sufficient facts showing a
causal connection between the accident and the children’s alleged emotional distress
remains to be tested at the summary judgment stage.
As for John Seybold, even construing the facts in the light most favorable to him,
the fact that he caught Mandy Seybold as she fell when a bystander moved Plaintiffs’
car to release her is not an “impact” that happened during the incident. John Seybold
was not present when Defendant Clapis allegedly hit Mandy Seybold with his car, and
the later-occurring events of a third party moving Plaintiffs’ car and causing Mandy
Seybold to fall, thus leading John Seybold to catch her, do not qualify. While John
Seybold made physical contact with Mandy Seybold, this touching was the direct result
of a separate incident—the bystander moving the car—not the alleged accident. The
chain of events is too attenuated for the Court to say that Defendant Clapis impacted
John Seybold. Accordingly, the motion to dismiss is due to be denied as to the Seybold
children’s claim and granted as to John Seybold’s claim. The NIED claim against Disney
as to John Seybold (Count VIII) is dismissed with prejudice, as amendment would be
futile. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
2. Motion to Strike
Defendant Clapis asserts twelve affirmative defenses. (Doc. 20, pp. 12–14.)
Plaintiffs move to strike all of them. (Doc. 26.) The motion to strike is hereby denied
without prejudice at this time pending narrowing of the issues for the pretrial conference.
However, some of Clapis’s affirmative defenses are clearly inapplicable to the facts of
this case and likely will not survive the pretrial conference or a motion for summary
judgment. Thus, on or before September 4, 2013, Defendant Clapis is hereby directed
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to review his affirmative defenses and voluntarily withdraw those boilerplate defenses
that have no application to the facts at hand.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Defendant’s, Walt Disney Parks and Resorts U.S., Inc., Supplemented
Motion to Dismiss Counts VII and VIII of Plaintiffs’ Complaint (Doc. 25) is
GRANTED IN PART AND DENIED IN PART. The motion is denied as to
the Seybold children’s claim and granted as to John Seybold’s claim.
2.
The negligent infliction of emotional distress claim against Disney as to
John Seybold (Count VIII) is DISMISSED WITH PREJUDICE.
3.
Plaintiffs’ Motion to Strike Affirmative Defenses of Victor Hugo Soso Clapis
to Plaintiffs’ Complaint (Doc. 26) is DENIED WITHOUT PREJUDICE.
4.
On or before September 4, 2013, Defendant Clapis is DIRECTED to
review his affirmative defenses and voluntarily withdraw those boilerplate
defenses that have no application to the facts at hand.
DONE AND ORDERED in Chambers in Orlando, Florida, on August 20, 2013.
Copies:
Counsel of Record
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