Coello v. Segars et al

Filing 19

ORDER: Defendants' Motion to Dismiss, Strike, of For a More Definite Statement as to Plaintiff's Second Amended Complaint (Dkt. #15) is GRANTED IN PART to the extent the Court grants Defendants' request for a more definite statement. Plaintiff shall re-file his Third Amended Complaint within five (5) days of the date of this Order as a separate pleading.Signed by Judge James S. Moody, Jr on 1/20/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JACK COELLO,
Plaintiff,
v.

Case No: 8:14-cv-2825-T-30AEP

MARVIN K. SEGARS and FEDEX
SUPPLYCHAIN SYSTEMS, INC.,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendants’ Motion to Dismiss,
Strike, of For a More Definite Statement as to Plaintiff’s Second Amended Complaint (as
incorporated into Defendants’ Answer, Affirmative Defenses and Counterclaims) (Dkt.
#15) and Plaintiff's Memorandum of Law in Opposition to the Motion (Dkt. #18). Upon
review and consideration, it is the Court’s conclusion that the Motion should be granted in
part.
Plaintiff collided with Defendant Marvin K. Segars, doing business as Marvin
Segars Trucking (“Segars”), at an intersection in Polk County resulting in serious physical
injuries. Segars was operating the vehicle while conducting business on behalf of
Defendant FedEx Supply Chain Systems, Inc. (“FedEx”). As a result, Plaintiff sues Segars

for damages based on his “negligent operation of the tractor trailer” and sues FedEx under
the theories of respondeat superior, apparent agency and actual agency.
Defendants previously moved to dismiss both counts of Plaintiff’s Amended
Complaint and alternatively for a more definite statement. Plaintiff responded that he
would file a Second Amended Complaint clarifying his allegations. Therefore, the Court
granted Defendants’ Motion in part since Plaintiff essentially consented to providing a
more definite statement.
In this motion, Defendants move to dismiss Count II of the Second Amended
Complaint for failure to state a claim. Plaintiff alleges FedEx’s liability based on an
“apparent agency” theory, which Defendants state are inapplicable based on the operative
facts. Further, Count II contains an apparent typographical error, and demands judgment
from Segars instead of FedEx. Plaintiff argues that the Second Amended Complaint
contains sufficient factual details to meet the pleading requirements based on Florida state
law. Nonetheless, he attached a Third Amended Complaint to the Memorandum in
Opposition to the Motion to clarify the allegations, particularly to remove any reference to
apparent agency and correct the typographical error.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’ Motion to Dismiss, Strike, of For a More Definite Statement as

to Plaintiff’s Second Amended Complaint (Dkt. #15) is GRANTED IN PART to the extent
the Court grants Defendants’ request for a more definite statement.
2.

Plaintiff shall re-file his Third Amended Complaint within five (5) days of

the date of this Order as a separate pleading.

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DONE and ORDERED in Tampa, Florida, this 20th day of January, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2825 mtd 15.docx

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