Sterbenz et al v. Anderson

Filing 90

ORDER denying 76 Plaintiff's Motion to Strike Defendant's Late-Filed Answer to the First Amended Complaint, denying 64 Plaintiff's Motion for Summary Judgment, and denying as moot 72 Defendant's Request for Oral Argument on Plaintiff's Motion for Summary Judgment. Signed by Judge Virginia M. Hernandez Covington on 10/11/2012. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER A. STERBENZ,
Plaintiff,
v.

Case No.

8:11-cv-1159-T-33TBM

LOIS N. ANDERSON,
Defendant.
__________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Christopher A. Sterbenz’s Motion for Summary Judgment (Doc. #
64), filed on August 14, 2012.

Defendant Lois N. Anderson

filed a response in opposition to the motion (Doc. # 67) on
August 28, 2012, and Plaintiff filed a reply brief with leave
of the Court (Doc. # 80) on September 7, 2012.
the

Court

is

Defendant’s

Request

for

Oral

Also before
Argument

on

Plaintiffs’ Motion for Summary Judgment (Doc. # 72), filed on
August 29, 2012, and Plaintiff’s response in opposition (Doc.
# 77), filed on August 31, 2012.

Also before the Court is

Plaintiff’s Motion to Strike Defendant’s Late-Filed Answer to
the First Amended Complaint (Doc. # 76), filed on August 30,
2012, and Defendant’s response in opposition to the motion
(Doc. # 84), filed on September 12, 2012.

For the reasons

that follow, the Court denies Plaintiff’s motion for summary

judgment,

denies

as

moot

Defendant’s

request

for

oral

argument, and denies Plaintiff’s motion to strike Defendant’s
late-filed answer.
I.

Background
Plaintiff Christopher Sterbenz, a Virginia resident, is

the

owner

of

a

downstairs

Clearwater, Florida.

condominium

unit

located

in

Plaintiff’s condominium shares a common

sewer line with, and only with, the condominium unit located
above it, which Defendant Lois Anderson has owned and occupied
for approximately 18 years.

Since July 31, 2011, Plaintiff’s

condominium unit remained vacant and unoccupied, although
Plaintiff

visited the

condominium

occasionally

for

short

periods of time to check on it. Upon visiting his condominium
on May 1, 2011, Plaintiff discovered that the unit had been
flooded with raw sewage and was contaminated by black mold.
On May 2, 2011, a plumbing company hired by Plaintiff was able
to clear the sewer line by retrieving a clothing garment that
had been blocking the shared sewer line causing the flooding
to Plaintiff’s apartment.
Plaintiff initiated this action on May 25, 2011, by
filing a one-count complaint against Defendant, alleging that
Defendant negligently flushed clothing down her toilet which
caused their shared sewer line to become blocked, resulting in
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damage to Plaintiff’s condominium. (Doc. # 1).

Defendant

filed her answer and affirmative defenses on June 20, 2011.
(Doc. # 7). On November 21, 2011, the Court granted Defendant
leave to file a third party complaint against Westchester Lake
Condominium Association, Inc. and Ameri-Tech Realty, Inc. and
Defendant filed her third-party complaint on November 28,
2011. (Doc. # 19).

With leave of the Court, Plaintiff

subsequently filed an amended complaint on January 3, 2012,
which added counts against Westchester Lake and Ameri-Tech.1
(Doc. # 23).
Plaintiff filed a motion for summary judgment on August
14, 2012, which in part, relies on the fact that Defendant
failed to timely file a response to the amended complaint.
(Doc. # 64).

Upon realizing that an answer to the amended

complaint was never filed, Defendant filed her answer and
affirmative defenses to the amended complaint on August 15,
2012. (Doc. # 65). Plaintiff then filed a motion to strike
Defendant’s late-filed answer to the amended complaint on
August 30, 2012. (Doc. # 76).

Plaintiff’s motions are now

before the Court.

1

Both Plaintiff and Defendant have since resolved
their claims against Westchester Lake and Ameri-Tech and those
defendants have been dismissed from this action. (Doc. # 74).
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II.

Motion to Strike
A.

Legal Standard

Rule 12(f) of the Federal Rules of Civil Procedure
provides that upon motion by a party or upon the court’s
initiative, “the court may order stricken from any pleading
any

insufficient

defense

or

any

redundant,

immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
However, a motion to strike is a drastic remedy disfavored by
the courts. Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.
Supp. 2d 1345, 1348 (M.D. Fla. 2002).

Generally, “a court

will not exercise its discretion under the rule to strike a
pleading

unless

the

matter

sought

to

be

omitted

has

no

possible relationship to the controversy, may confuse the
issues, or otherwise prejudice a party.” Reyher v. Trans World
Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).
B.

Analysis

Plaintiff moves to strike Defendant’s answer to the first
amended complaint, which Defendant filed on August 15, 2012,
over eight months after Plaintiff filed his amended complaint
on January 3, 2012.

Plaintiff contends that Defendant’s

answer raises affirmative defenses which the Court has already
rejected and raises other defenses that Defendant “refused to
articulate in discovery,” that Defendant was required to
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obtain leave of the Court prior to filing her answer, and that
the answer was not filed in good faith.

(Doc. # 76).

In her response, Defendant attributes her failure to
timely

file

an

answer

to

the

amended

complaint

to

an

“oversight” on her (or her counsel’s) part. (Doc. # 84 at 12).

Defendant argues that her oversight in filing an answer

constitutes

excusable

neglect

and

was

not

done

for

any

improper purpose.
The determination of whether to accept a late filing
based on excusable neglect is “at bottom an equitable one,
taking account of all relevant circumstances surrounding the
party’s omission.” Pioneer Inv. Servs. V. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 388 (1993).

The factors to be

considered are “the danger of prejudice to the [opposing
party], the length of the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith.”
Defendant

Id.

points out that the amended complaint did not

change any legal theories or claims against Defendant and
added

“only

[Defendant].”

one

‘new’

Id. at 3.

material

allegation

against

Further, Defendant asserts that her

answer to the amended complaint contains the same seven
affirmative defenses that were contained in her answer to the
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original complaint, which she timely filed on June 20, 2011.
(Doc. # 7).

Defendant also maintains that she did not change

any of her responses to the allegations that were previously
asserted in the original complaint.

Thus, Defendant argues

that Plaintiff has not been surprised by any responses or
affirmative defenses contained in her answer to the amended
complaint,

and

as

such,

Plaintiff

has

not

suffered

any

prejudice by Defendant’s late-filed answer to the amended
complaint.
As noted by Defendant, the Court recognizes a strong
policy favoring adjudication on the merits. In re Worldwide
Web

Sys., Inc., 328 F.3d 1291, 1291 (11th Cir. 2003).

Striking Defendant’s answer to the amended complaint would
effectively render the allegations in the amended complaint
admitted by Defendant, which would essentially mandate an
automatic

judgment

in

Plaintiff’s

favor.

However,

as

discussed below, the Court finds that genuine issues as to
material facts remain in dispute, such that Plaintiff is not
entitled to summary judgment on his claims.

Thus, granting

the motion to strike would contravene the established policies
favoring the resolution of cases on their merits, and the
Court declines to do so accordingly.

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III. Motion for Summary Judgment
A.

Legal Standard

Summary judgment is appropriate if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The moving party bears the initial burden of showing the
court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
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answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

nothing

However, if the non-movant’s response
“more

allegations,”

proper, but required.

than

summary

a

repetition

judgment

is

of
not

his
only

Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
The Court will not weigh the evidence or make findings of
fact.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
Rather, the Court’s role is limited to deciding
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whether there is sufficient evidence upon which a reasonable
juror could find for the non-moving party.
B.

Id.

Analysis

This dispute consists of a relatively simple negligence
claim

regarding

whether

Defendant

negligently

flushed

an

article of clothing down her toilet which became lodged in a
sewer

pipe

shared

with

Plaintiff’s

condominium,

causing

flooding of raw sewage and significant damage to Plaintiff’s
condominium.
Under Florida law, which the Court applies in this
diversity action, “to prove a cause of action for negligence,
a plaintiff must prove that the defendant had a legal duty,
the defendant breached that duty, the breach proximately
caused the plaintiff’s injury, and the plaintiff incurred
damages as a result.”

Gibbs v. Hernandez, 810 So. 2d 1034,

1036 (Fla. 4th DCA 2002).
In his amended complaint, Plaintiff contends that “as the
owner of the condominium which shares a sewer line with
Plaintiff’s condominium, [Defendant] owes a duty to Plaintiff
to refrain from taking any action that may cause damage or
injury to Plaintiff’s property, which includes, but is not
limited to, the obvious duty not to flush clothing or other
inappropriate items down the sewer line her condominium shares
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with Plaintiff’s condominium.” (Doc. # 23 at ¶ 18). Plaintiff
further

alleges

that

“by

flushing

clothing

and

other

inappropriate items down her toilet, causing a blockage of the
main sewer line, [Defendant] breached this duty owed to
Plaintiff and Plaintiff has been substantially damaged.” Id.
at ¶ 19.
Plaintiff has supplied evidence, which Defendant has not
rebutted, demonstrating that the portion of the sewer line
containing the clothing blockage is shared only by Plaintiff’s
and Defendant’s condominiums, that Plaintiff’s condominium
unit was vacant and unoccupied for 10 months prior to the
discovery of the sewer backup on May 1, 2011, and that
Plaintiff’s condominium unit was in normal condition when it
was last checked on or about February 13, 2011. (Pl. Dec. Doc.
# 64-1 at ¶¶ 6, 18). Plaintiff attests that he did not, nor
did anyone else, use the toilet in Plaintiff’s condominium at
any point between July 31, 2010, and the discovery of the
backup on May 1, 2011. Id. at ¶ 6.

Additionally, Plaintiff

has provided expert testimony and reports which estimate that
the sewer blockage began approximately 30 to 60 days prior to
discovery on May 1, 2011. (Shallo Dec. Doc. # 64-3 at ¶ 6;
Koning Dep. Doc. # 78-1 at 76).

Thus, Plaintiff’s expert

concluded that “it is not possible that the blockage occurred
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because of objects flushed by tenants who vacated prior to
August 2010, because the blockage would have been apparent
close to the time of the flushing of the items, not many
months or years later.”

(Teebagy Dec. Doc. # 64-9 at 16).

Thus, because the evidence appears to foreclose the
possibility
condominium,

that

the

blockage

Plaintiff

originated

asserts

in

Plaintiff’s

that Defendant’s

necessarily the source of the blockage.

unit was

Further, based on

Defendant’s testimony that she is the only person who used the
toilet in her condominium during the relevant time period,
Plaintiff argues that Defendant herself was responsible for
causing the blockage by flushing clothing down the toilet.
(Doc. # 64 at ¶ 20).

On this basis, Plaintiff now moves for

summary judgment, arguing that “as established by her own
admissions

and

the

unrebutted

evidence

in

this

case,

[Defendant] is the only person with either the means or
opportunity to have flushed the offending items which blocked
the sewer line.”

Id. at 1-2.

Plaintiff asserts that there

are no genuine issues of material fact that should be decided
at trial, and that he is entitled to summary judgment as a
matter of law.
However, the Court finds that certain material facts are
in dispute such that summary judgment is inappropriate at this
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time.

First, Defendant has expressly denied under oath that

she flushed anything inappropriate, including the clothing
found in the sewer pipe, down her toilet. (Anderson Dep. Doc.
# 64-2 at 29-30, 32).

Defendant argues that “for the Court to

find that the garment that was found blocking the sewage pipe
originated from [Defendant’s] unit as requested by Plaintiff,
the Court would have to find that [Plaintiff] was truthful
when he testified that he did not flush the toilet in his
condominium unit and that [Plaintiff] was untruthful when she
testified that she did not flush the garment.” (Doc. # 67 at
11). As pointed out by Defendant, “credibility determinations,
the weighing of evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Strickland v. Norfolk S. Ry. Co., No. 11-15589, 2012
WL 3640999, at * 1 (11th Cir. Aug. 27, 2012)(quoting Anderson,
477 U.S. at 255). Thus, “[w]here a fact-finder is required to
weigh a deponent’s credibility, summary judgment is simply
improper.”

Id. at *8.

Accordingly, the Court finds that

summary judgment is inappropriate here where such a ruling
would require the Court to improperly weigh the credibility of
Defendant’s testimony and reject it as untruthful.
determination is appropriately reserved for the jury.

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Such a

The Court is mindful, however, that besides his own
testimony,

Plaintiff

has

provided

expert

reports

which

conclude that from a scientific and engineering perspective,
the materials causing the blockage could not have originated
in Plaintiff’s condominium and that Defendant’s unit must have
been the source of the clothing. (Teebagy Rpt. Doc. # 64-9 at
16; Koning Rpt. Doc. # 63-6 at 12).

However, Defendant has

provided a report from her own expert, Randolph Blaine, in
which Mr. Blaine concludes that the sewer blockage could have
been caused by flushing of items from Plaintiff’s condominium,
from

Defendant’s

condominium,

from

both

Plaintiff’s

and

Defendant’s condominiums, or from “backflow at the sanitary
sewer main due to flows in the sewer main that exceed the
discharge capacity of the system.” (Blaine Rpt. Doc. # 68 at
8). Thus, according to Defendant’s expert, the clothing could
have

entered

the

sewer

line

shared

by

Plaintiff’s

and

Defendant’s condominiums, not by being flushed down the toilet
of one of those condominiums, but rather, by being washed
backwards through the main sewer line.

Id.

Regarding this contention, Plaintiff argues that the
Court should disregard Mr. Blaine’s report because it “does
not constitute admissible evidence.” (Doc. # 64 at 15).
Specifically,

Plaintiff

asserts
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that

Mr.

Blaine’s

expert

report has “important missing evidentiary foundations, [and]
it is apparent from the language of the report itself that the
author failed to conduct a site inspection of the condominium,
failed to identify any methodology or scientific process that
was employed, and is . . . unable to do anything more than to
speculate as to how the sewer blockage could have resulted.”
Id. (internal quotations omitted).

Thus, Plaintiff is in

essence asking the Court to find Mr. Blaine’s expert report
inadmissible under Federal Rule of Evidence 7022 and Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).3

2

However,

Rule 702, Fed.R.Evid., states:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge,
skill,
experience,
training,
or
education, may testify thereto in the form of an
opinion or otherwise if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and
(3) the witness has applied the principles and
methods reliably to the facts of the case.
3

In Daubert, the Supreme Court identified the
following non-exclusive list of factors a court should
consider when determining the admissibility and reliability of
expert testimony: 1) whether the expert’s methods or
techniques can be or have been tested; 2) whether the
technique, method, or theory has been subject to peer review
and publications; 3) whether the known or potential rate of
error of the technique or theory when applied is acceptable;
and 4) whether the technique, method, or theory has been
(continued...)
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Plaintiff has not yet filed a motion to strike Defendant’s
expert or otherwise moved for a Daubert analysis or hearing
regarding Mr. Blaine’s report and testimony.

Additionally,

Defendant does not address the issue in her response.

Thus,

the issue of the admissibility of Mr. Blaine’s report has not
been adequately briefed for the Court and consequently, it
would be inappropriate for the Court to rule Mr. Blaine’s
report inadmissible at this juncture.

Accordingly, based on

the expert report supplied by Defendant which creates a
genuine issue as to the cause of the sewer blockage, the Court
finds that Defendant has sufficiently demonstrated specific
material facts that remain in dispute and which require
determination

at

trial.

Plaintiff’s

motion

for

summary

judgment is therefore denied.
Accordingly, it is hereby
ORDERED, ADJUDGED and DECREED:
(1)

Plaintiff’s

Motion

to

Strike

Defendant’s

Late-Filed

Answer to the First Amended Complaint (Doc. # 76) is
DENIED.
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 64) is
DENIED.

3

(...continued)
generally accepted in the scientific community.
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(3)

Defendant’s Request for Oral Argument on Plaintiff’s
Motion for Summary Judgment (Doc. # 72) is DENIED AS
MOOT.
DONE and ORDERED in Chambers, in Tampa, Florida, this

11th day of October, 2012.

Copies to: All Counsel of Record

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