Wichael v. Wal-Mart Stores East, LP

Filing 18

ORDER denying 4 Defendant's Motion to Dismiss Count II of Plaintiff's Complaint. Defendant shall answer Count II of Plaintiff's Complaint within fourteen (14) days of this Order. Signed by Judge Paul G. Byron on 10/30/2014. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

SHIRLEY WICHAEL,
Plaintiff,
v.

Case No: 6:14-cv-579-Orl-40DAB

WAL-MART STORES EAST, LP,
Defendant.
ORDER
This cause comes before the Court on Defendant’s Motion to Dismiss Count II of
Plaintiff’s Complaint (Doc. 4), filed in state court on January 30, 2014 and docketed with
this Court on April 10, 2014. On April 24, 2014, Plaintiff filed its Response to Defendant’s
Motion to Dismiss Count II of Plaintiff’s Complaint, with Incorporated Memorandum of Law
(Doc. 8). Upon due consideration, the Court denies Defendant’s motion to dismiss
Count II. 1
I.

BACKGROUND 2
This dispute arises out of Plaintiff’s alleged slip and fall on Defendant’s property.

1. On April 25, 2014, Defendant filed its Memorandum of Law in Support of Defendant’s
Motion to Dismiss Count II of Plaintiff’s Complaint (Doc. 12) without seeking leave of
Court. Because this Court’s Local Rules provide that “[n]o party shall file any reply or
further memorandum directed to the motion or response . . . unless the Court grants
leave,” the Court does not consider Defendant’s supplemental memorandum of law in
addressing the instant motion. M.D. Fla. R. 3.01(c).
2. This account of the facts is taken from Plaintiff’s Complaint (Doc. 2), the allegations of
which the Court must accept as true in considering Defendant’s motion to dismiss.
See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de
Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th
Cir. 1983).

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On November 1, 2012, Plaintiff visited a Wal-Mart location owned by Defendant. (Doc. 2,
¶ 4). While walking down an aisle inside Defendant’s store, Plaintiff slipped and fell on a
liquid substance that was on the floor. (Id.). As a result of her fall, Plaintiff suffered injuries
and damages. (Id. ¶ 5).
Plaintiff initiated this lawsuit against Defendant on November 26, 2013 by filing the
Complaint in the Seventh Judicial Circuit in and for Volusia County, Florida.

(Id.).

Plaintiff’s Complaint states two claims for relief. Count I states a claim for “Simple
Negligence—Slip and Fall.” (Id. ¶¶ 6–10). Count II states a claim for “Negligent Mode of
Operation.” (Id. ¶¶ 11–15). On January 30, 2014, Defendant answered Count I of
Plaintiff’s Complaint (Doc. 3) and moved to dismiss Count II (Doc. 4). On April 10, 2014,
Defendant timely removed the action to this Court as permitted by 28 U.S.C. § 1446(b)(3).
(Doc. 1). 3
II.

STANDARD OF REVIEW
In order to survive a motion to dismiss made under Federal Rule of Civil Procedure

12(b)(6), the complaint must “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007). District courts must accept all well-pleaded
allegations within the complaint as true. Id. at 555. An allegation is well-pleaded when
the plaintiff alleges sufficient factual allegations to “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

3. Defendant states that Plaintiff’s Complaint was not initially removable, as the amount
in controversy failed to meet the jurisdictional threshold of 28 U.S.C. § 1332(a).
(Doc. 1, ¶ 19). However, after engaging in discovery, Defendant learned that Plaintiff’s
alleged damages exceeded the amount in controversy requirement. (Id. ¶ 21).
Accordingly, Defendant removed the action to this Court within thirty days of
ascertaining these new facts and this Court’s jurisdiction over the matter is proper.
28 U.S.C. § 1446(b)(3).

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Iqbal, 556 U.S. 662, 678 (2009). Mere legal conclusions or recitation of the elements of
a claim are not enough. Twombly, 550 U.S. at 555. Courts must view the complaint in
the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency
of the complaint in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483
(11th Cir. 1994).
III.

DISCUSSION
Defendant moves to dismiss Count II of Plaintiff’s Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be
granted. (Doc. 4). Specifically, Defendant asserts that negligent mode of operation is not
a cause of action recognized in Florida, but rather a theory of proving negligence. (Id.
¶¶ 2, 4). As such, Defendant contends that Count II of the Complaint is duplicative of
Count I and should be dismissed. (Id.). Plaintiff disagrees, maintaining that negligent
mode of operation is indeed a cause of action recognized in Florida. (Doc. 8, ¶ 14).
Defendant is correct that negligent mode of operation is not a proper cause of
action in Florida. In Markowitz v. Helen Homes of Kendall Corp., the Florida Supreme
Court discussed that negligent mode of operation is one method by which a plaintiff can
establish the breach element of a negligence claim. 826 So. 2d 256, 259–60 (Fla. 2002).
Similar to proving that a business owner had actual or constructive knowledge of an
unsafe condition, negligent mode of operation establishes the breach of a duty of care
where a business owner creates an unsafe condition through the manner in which he
conducts his business. Id. at 260 (“[T]he mode-of-operation rule looks to a business’s
choice of a particular mode of operation and not events surrounding the plaintiff’s
accident.”) (internal quotation marks omitted)); see also, e.g., Wells v. Palm Beach Kennel

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Club, 35 So. 2d 720, 721 (Fla. 1948) (finding that the failure of a business to provide trash
receptacles to its patrons may suffice as a negligent mode of operation where a plaintiff
tripped over empty bottles littered throughout the property). To that end, Count II of
Plaintiff’s Complaint states a claim for negligence based on the same facts and
circumstances as Count I, thus rendering Count II duplicative of Count I.
However, motions to dismiss made under Rule 12(b)(6) only test the validity of a
claim, not its redundancy; a redundant claim should not be dismissed as long as it is valid.
Bangkok Crafts Corp. v. Capitolo Di San Pietro in Vaticano, No. 03 Civ. 15(RWS), 2007
WL 1687044, at *10 (S.D.N.Y. June 11, 2007). The Federal Rules of Civil Procedure do
allow for the striking of redundant material. Fed. R. Civ. P. 12(f). Although the Court may
strike material on its own initiative, doing so is a “drastic remedy to be resorted to only
when required for the purposes of justice.” Jackson v. Grupo Indus. Hotelero, S.A., No.
07-22046-CIV, 2008 WL 4648999, at *14 (S.D. Fla. Oct. 20, 2008) (internal quotation
marks omitted). As such, striking material is generally disfavored and should only be
employed as a remedy for material that “ha[s] no possible relation to the controversy and
may cause prejudice to one of the parties.” Id.
Defendant has not filed a motion to strike. Further, Defendant’s motion to dismiss
does not contend that justice requires the striking of Count II, that Count II is wholly
unrelated to this lawsuit, or that Defendant will be prejudiced by the maintenance of
Count II as a claim for relief. Nor can the Court find any support for such conclusions in
the instant record. Moreover, the Court finds that Count II states a valid claim for
negligence arising under Florida law; Count II alleges duty, breach, causation, and
damages. (See Doc. 2, ¶¶ 12–15). Finally, the Court finds that Count II is supported by

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sufficient factual allegations within the Complaint to allow the Court to infer that Defendant
is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Accordingly, the Court will
not dismiss Count II or strike Count II on its own initiative. 4
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that

Defendant’s Motion to Dismiss Count II of Plaintiff’s Complaint (Doc. 4) is DENIED.
Defendant shall answer Count II of Plaintiff’s Complaint within fourteen (14) days of this
Order.
DONE AND ORDERED in Orlando, Florida on October 30, 2014.

Copies furnished to:
Counsel of Record

4. To the extent Defendant disputes that negligent mode of operation remains a viable
theory of liability in Florida (see Doc. 4, ¶¶ 5–6), Defendant may renew its argument,
if appropriate, on summary judgment.

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