Foche v. NAPA Home & Garden, Inc. et al
Filing
24
ORDER ATTACHED granting in part and denying in part 11 Motion to Dismiss filed by Fresh Market. Second Amended Complaint to be filed within ten (10) days, and Fresh Market to file a response within fourteen (14) days of service. Signed by Judge Richard A. Lazzara on 3/16/2015. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN FOCHE,
Plaintiff,
v.
CASE NO: 8:14-cv-2871-T-26TGW
NAPA HOME & GARDEN, INC.;
FUEL BARONS, INC.; PLASTIC
BOTTLE CORPORATION; and
THE FRESH MARKET, INC.,
Defendants.
/
ORDER
Before the Court is Defendant, The Fresh Market, Inc.’s, Motion to Dismiss,
Motion for More Definite Statement, and Motion to Strike (Dkt. 11) and Plaintiff’s
Response. (Dkt. 17). After careful consideration of the allegations of the Amended
Complaint (Dkt. 5), the argument of the parties, and the applicable law, the Court
concludes that the motion should be granted in part and denied in part.
PERTINENT ALLEGATIONS
In this products liability case, the amended complaint seeks relief against The
Fresh Market, Inc., (Fresh Market) in three of its four counts: (1) negligence (Count I);
(2) negligent failure to warn (Count III); and (3) strict liability in tort (Count IV). This
action stems from an accident on November 17, 2010, that occurred after Plaintiff John
Foche refilled a Napa Home and Garden “Firelites” firepot with additional Napa Home
and Garden citronella “pourable eco-gel fuel.”1 The fuel had been recently purchased that
same month from Fresh Market in Clearwater, Florida.2 Plaintiff suffered severe burns
when a fireball emanated from the firepot, and spread around the nearby area where
Plaintiff was standing.3 Plaintiff was engulfed in flames.4
STANDARD OF REVIEW
A motion to strike under Federal Rule of Civil Procedure 12(f) is used to rid a
complaint of “any redundant, immaterial, impertinent, or scandalous matter.” Motions to
strike may be granted only if “the matter sought to be omitted has no possible relationship
to the controversy, may confuse the issues, or otherwise prejudice a party.” United States
v. MLU Servs., Inc., 544 F.Supp.2d 1326, 1330 (M.D. Fla. 2008) (quoting Reyher v.
Trans World Airlines, Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995)). Motions to strike
are “generally disfavored by the Court and are often considered time wasters.” MLU
Servs., Inc., 544 F.Supp.2d at 1330 (quoting Somerset Pharm., Inc. v. Kimball, 168
F.R.D. 69, 71 (M.D. Fla. 1996)).
1
See docket 5, para. 21.
2
See docket 5, paras. 15 & 21.
3
See docket 5, para. 22.
4
See docket 5, para. 23.
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A motion for more definite statement under Federal Rule of Civil Procedure 12(e)
is properly directed toward a pleading that “is so vague or ambiguous” that the
responding party cannot form a response. See Anderson v. Dist. Bd. of Trs. of Cent. Fla.
Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir. 1996). The notice pleading requirements of
Rule 8(a) are considered when evaluating a motion for more definite statement. See
Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959) (instructing that Rule
12(e) should not be used to frustrate notice pleading policy).5 Generally, Rule 12(e) is
directed toward pleadings that lack “sufficient specificity to provide adequate notice.”
Barthelus v. G4S Gov’t Solutions, Inc., 752 F.3d 1309, 1313 n.6 (11th Cir. 2014) (quoting
Justice Stevens’ dissent in Twombly, 550 U.S. at 590 n.9).
A complaint sought to be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6), will survive the motion if it contains sufficient facts, which must be accepted as
true,6 to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rule 8 does not
require detailed factual allegations, but the complaint must offer more than mere “labels
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all former Fifth Circuit decisions
issued prior to October 1, 1981.
6
“At the motion to dismiss stage, all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999).
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and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
COUNTS I, III and IV
Defendant uses the three vehicles set forth above to urge this Court to require the
filing of a second amended complaint. With respect to the three counts against Fresh
Market, it contends that the amended complaint is so vague, confusing, and misleading
that a more definite statement is required. Specifically, Fresh Market asserts that the
three counts are co-mingled against all four Defendants, thereby making it confusing.
Furthermore, Paragraph 54 erroneously alleges that Fresh Market, as one of the four
Defendants, was negligent for designing, packaging, manufacturing, testing and
inspecting the fuel gel. Additionally, Paragraph 33 also alleges that Fresh Market
designed and manufactured the fuel gel. As to the fuel gel, Fresh Market argues that the
allegations are unclear because they do not specify which variation of fuel gel was
purchased, either the second or the third generation.
Having reviewed the amended complaint as a whole, however, the Court finds the
amended complaint is not so confusing or misleading so as to require a more definite
statement. The allegations make it clear that Fresh Market is a retail seller that sold the
fuel to Plaintiff. The particular variation of fuel sold is a matter best left for
determination from a factual development of the case through the discovery process.
Consequently, the motion for a more definite statement is denied.
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COUNT I
Fresh Market argues that Count I fails to allege that the fuel gel was defective, and
fails to allege that Fresh Market knew about any alleged defects at the time of sale. As
Plaintiff points out, paragraphs 78, 87 and 88, which are contained in Count IV of the
amended complaint, sufficiently allege a defect in the fuel. Those paragraphs are not a
part of Count I, however.
As to whether Fresh Market knew about any alleged defects, Fresh Market
contends that a retailer can be liable for negligence in a products liability case only if
charged with actual or implied knowledge of a product defect present at the time of sale.
Fresh Market relies on Carter v. Hector Supply Co., 128 So. 2d 390, 392 (Fla. 1961);
Ryan v. Atlantic Fertilizer, 515 So.2d 324, 326 (Fla.Dist.Ct.App. 1987); Skinner v.
Volkswagen of Amer., Inc., 350 So.2d 1122, 1123 (Fla.Dist.Ct.App. 1977); and Williams
v. Joseph L. Rozier Mach. Co., 135 So.2d 763 (Fla.Dist.Ct.App. 1961). Carter held that
under a theory of implied warranty, a retailer who is not in privity with the customer must
actually or impliedly know of a latent defect at the time of sale.7 The Carter court further
held that a plaintiff “relegated to an action for negligence” must allege and prove “fault as
distinguished from the absolute liability of an implied warranty.” 128 So.2d at 393. Both
7
The Carter court stated, “The sum of our holding here simply is that one who is
not in privity with a retailer has no action against him for breach of an implied warranty,
except in situations involving foodstuffs or perhaps dangerous instrumentalities, a
problem not presently here.” 128 So.2d at 393.
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Ryan and Skinner rely on Carter. The Ryan court cites Carter as well-settled Florida law
that “a retailer can be liable in negligence in a products liability action only if the retailer
can be charged with actual or implied knowledge of the defect.” 515 So.2d at 326. There
are no allegations in Count I of the amended complaint that Fresh Market knew or should
have known of a defect in the fuel gel.
Fresh Market also takes issue with the allegations that it owed a duty of
reasonable care for testing and inspecting the fuel gel and cites K-Mart Corp. v. Chairs,
Inc., 506 So.2d 7, 10 (Fla.Dist.Ct. App. 1987); Odum v. Gulf Tire & Supply Co., 196
F.Supp. 35, 36 (N.D. Fla. 1961); and Craig v. Baker & Holmes, 96 So. 93 (Fla. 1923).
Florida law is clear that a retailer does not have a duty to inspect for latent defects. KMart, 506 So.2d at 9 n.3 (citing Carter). Fresh Market’s position is well-taken that Count
I fails to allege that the fuel gel was defective, or that Fresh Market had notice of the
defect or any set of facts giving rise to a duty to inspect. Consequently, Count I is
dismissed as to Fresh Market with leave for Plaintiff to amend should such facts exist.
COUNT III
Fresh Market seeks to dismiss Count III for negligent failure to warn because there
are no allegations that the fuel gel was defective at the time it was sold or that Fresh
Market knew it was defective. For the same reasons set forth for the dismissal of Count I,
the Court finds that Count III should be dismissed as to Fresh Market with leave to
amend.
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PUNITIVE DAMAGES
Fresh Market requests that the prayer for punitive damages be stricken as violative
of section 768.72, Florida Statutes. It simultaneously discloses the existence of Cohen v.
Office Depot, Inc., 184 F.3d 1292 (1999), vacated in part on other grounds on rehearing
by, 204 F.3d 1069 (11th Cir. 2000), and the very recent case of Pavic v. Laser Spine
Institute, LLC, No. 8:13-cv-2578-T-17EAJ. After Cohen, a plaintiff in a diversity case is
not required at the pleading stage to proffer facts warranting an award of punitive
damages. The district court in Pavic found that the plaintiff’s complaint there complied
with Federal Rule of Civil Procedure 8 by stating the grounds for jurisdiction, alleging
wrongful conduct on the part of the defendants, and claiming such conduct entitles
Plaintiff to the relief requested. The district court denied the motion to strike and
correctly ruled that “[q]uestions regarding Plaintiff’s entitlement to punitive damages
under Florida substantive law are improper during the pleading stage” and best left for
summary judgment. The motion to strike punitive damages is therefore denied.
It is therefore ORDERED AND ADJUDGED that Defendant, The Fresh Market,
Inc.’s, Motion to Dismiss, Motion for More Definite Statement, and Motion to Strike
(Dkt. 11) is GRANTED in part and DENIED in part. Counts I and III are dismissed as
to Fresh Market. Should sufficient facts exist to replead Count I for negligence and
Count III for negligent failure to warn against Fresh Market, Plaintiff may file a second
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amended complaint within ten (10) days, with Fresh Market filing a response within
fourteen (14) days of service of the second amended complaint.
DONE AND ORDERED at Tampa, Florida, on March 16, 2015.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
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