POONAM v. Pembroke Lakes Mall, LLC et al
Order on Motions to Dismiss denying 20 Motion to Dismiss for Failure to State a Claim( Amended Pleadings due by 11/6/2017.); denying 20 Motion for More Definite Statement; granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim( Amended Pleadings due by 11/6/2017.); granting in part and denying in part 21 Motion for More Definite Statement. Signed by Judge Robert N. Scola, Jr on 10/25/2017. (lan)
United States District Court
Southern District of Florida
Poonam Kohli, Plaintiff,
) Civil Action No. 17-60967-Civ-Scola
Pembroke Lakes Mall, LLC, and )
ERMC of America, LLC, Defendants. )
Order on Motions to Dismiss
This is a slip-and-fall case in which the Plaintiff Poonam Kohli claims
that the Defendants Pembroke Lakes Mall, LLC (“PLM”) and ERMC of America,
LLC (“ERMC”) were negligent due to a hazardous condition on the floor of the
premises at 11401 Pines Boulevard in Pembroke Pines. Specifically, Kohli
alleges that on or about August 9, 2015, she was walking in Pembroke Lakes
Mall in the area near the Lady Foot Locker and Perfumania stores, when she
slipped on a wet, or otherwise slippery, area of floor and fell. (Am. Compl. ¶ 9;
ECF No. 19.) As a result of the fall, she sustained a number of injuries. (Id. ¶¶
15, 20.) The Defendants each have filed a motion to dismiss or for a more
definite statement (ECF Nos. 20, 21), arguing that the Plaintiff fails to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons explained below, PLM’s motion (ECF No. 20) is denied, and ERMC’s
motion (ECF No. 21) is granted in part and denied in part. In addition, the
Court strikes the allegations relating to mode of operation in each count of the
Initially filed in the 17th Judicial Circuit in and for Broward County,
Florida, this case was removed pursuant to the Court’s diversity jurisdiction
under 28 U.S.C. § 1332(a). (ECF Nos. 1, 6.) Kohli asserts that the Defendants
had a duty to use reasonable care in maintaining the property, and that they
breached this duty by failing to maintain the premises and creating a latent
and/or dangerous condition in numerous ways. (Am. Compl. ¶¶ 13-15, 18-19.)
Kohli further alleges that the Defendants knew, or should have known, about
the dangerous condition on the day that she fell. (Id. ¶¶ 12, 17.) The amended
complaint contains no further elaboration of the facts involved in the incident
resulting in her fall.
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as
true, construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must articulate “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). Yet, where the allegations “possess enough heft” to
suggest a plausible entitlement to relief, the case may proceed. See id., at 557.
“[T]he standard ‘simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence’ of the required element.” Rivell v. Private
Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citation omitted).
“And, of course, a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and ‘that a recovery is very
remote and unlikely.’” Twombly, 550 U.S. at 556 (citation omitted).
The Defendants first argue, in nearly identical motions, that the
amended complaint should be dismissed because the Plaintiff fails to allege
anything about the size or characteristics of the slippery wet foreign substance,
where she believes it came from, what she was doing at the time of the
incident, why she walked on it, if anything caused the alleged area not to be
visible, or that the dangerous condition was hidden or concealed. (See Mots.,
ECF No. 20 at 5, ECF No. 21 at 5-6.) As a result, the Defendants are unable to
tell why or for what they are being sued, and they contend that they therefore
cannot formulate a response to the amended pleading.
The argument is contrary to this Court’s holdings in prior similar cases
and belied by the allegations in the amended complaint. Kohli alleges that she
slipped on a wet and/or slippery substance in the area of the mall near the
Lady Foot Locker and Perfumania stores. In addition, Kohli explicitly alleges
that the Defendants negligently maintained the premises, which created a
latent and/or dangerous condition. The word “latent,” by definition means
“concealed.” Latent, Black’s Law Dictionary (10th ed. 2014). The Defendants
essentially argue that the Plaintiff’s negligence claims should conform to the
heightened pleading standard contained in Rule 9(b). However, this Court has
already rejected the same argument in similar cases. See Deltoro v. Fresh
Market, Inc., No. 14-61210-Civ-Scola, 2014 WL 11776942, at *1 (S.D. Fla. Nov.
25, 2014) (Scola, J.); Muzaffar v. Ross Dress for Less, Inc., No. 12-61996-Civ,
2013 WL 1890274, at *2 (S.D. Fla. May 7, 2013) (Scola, J.). Once again, Rule
9(b) does not apply to a simple negligence case such as this. See Zarrella v. Pac.
Life Ins. Co., 755 F. Supp. 2d 1218, 1223 (S.D. Fla. 2010) (Cohn, J.) (“Rule 9(b)
only applies to claims based on fraud or mistake.”). Accordingly, the Plaintiff’s
allegations are sufficient, and the Defendants’ argument is not well-taken. If
they wish to learn such details about the Plaintiff’s incident, the Defendants
are free to engage in discovery.
The Defendants next argue, relying upon Woodman v. Bravo Brio
Restaurant Group, Inc., No. 6:14-cv-2025-Orl-40TBS, 2015 WL 1836941, at *2
(M.D. Fla. Apr. 21, 2015), that the Plaintiff’s claim premised upon negligent
mode of operation should be dismissed because Florida Statutes section
768.0755 eliminated mode of operation as a basis for recovery in a slip-and-fall
case. The Plaintiff does not respond to this argument, which is a sufficient
basis upon which to grant the Defendants’ motion. See Decosta v. ARG
Resources, LLC, Case No. 12-23482-CV-ALTONAGA/Simonton, 2012 WL
12865835, at *3 (S.D. Fla. Dec. 7, 2012) (Altonaga, J.) (“Failure to respond to
arguments regarding particular claims in a motion to dismiss is a sufficient
basis to dismiss such claims as abandoned or by default.”). However, the
defendants in Woodman did not argue for dismissal as the Defendants do here;
rather, the court in Woodman determined, upon a motion to strike, that
because the amended statute requires proof of actual or constructive
knowledge, such allegations were properly stricken. Woodman, 2015 WL
1836941, at *3. Thus, the proper remedy is to strike the allegations regarding
mode of operation, not dismissal of Kohli’s negligence claim. Accordingly, the
Court strikes the allegations of negligent mode of operation in the amended
Finally, ERMC argues that Count 2 of the amended complaint should be
dismissed as impermissible shotgun pleading because it reincorporates all
preceding allegations, rendering the amended complaint confusing. Once again,
the Plaintiff fails to respond in substance to this argument. “The most common
type [of shotgun pleading]—by a long shot—is a complaint containing multiple
counts where each count adopts the allegations of all preceding counts,
causing each successive count to carry all that came before and the last count
to be a combination of the entire complaint.” Weiland v. Palm Beach Cty.
Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir. 2015). “The unifying
characteristic of all types of shotgun pleadings is that they fail to one degree or
another, and in one way or another, to give the defendants adequate notice of
the claims against them and the grounds upon which each claim rests.” Id. at
1323 (footnotes omitted). While the Court recognizes that Count 2 of the
amended complaint does reincorporate all of the allegations preceding it, the
Court does not find that such a technical violation alone renders the amended
complaint so confusing as to justify dismissal in this case.
However, ERMC’s argument that the amended complaint is confusing
because it is improper to plead a direct negligence claim together with a claim
premised upon vicarious liability is well-taken. The Court acknowledges here,
as it did in Muzaffar, that Florida requires vicarious liability claims to be
separately pled. See 2013 WL 1890274, at *1 (citing Prager v. FMS Bonds, Inc.,
2010 WL 2950065, at *9 (S.D. Fla. July 26, 2010) (Marra, J.)). Upon review of
Count 2 in this case, it is unclear whether Kohli is asserting both direct and
vicarious liability based upon the allegations that ERMC was both directly and
indirectly responsible for maintaining the premises as Pembroke Lakes Mall,
(Am. Compl. ¶¶ 7, 18), and the subsequent incorporation of all preceding
allegations into Count 2. As such, to the extent that Kohli is attempting to
assert claims premised upon both direct and vicarious liability against ERMC,
she should set them forth accordingly in separate counts. Based upon the
foregoing, the Court does not consider the Defendants’ alternative request for a
more definite statement.
For the reasons set forth, the PLM’s motion to dismiss (ECF No. 20) is
denied. ERMC’s motion to dismiss (ECF No. 21) is granted in part with
respect to Count 2, and otherwise, denied. The Plaintiff shall have the
opportunity to amend her negligence claim against ERMC, and shall file her
amended pleading on or before November 6, 2017.
Done and ordered at Miami, Florida on October 25, 2017.
Robert N. Scola, Jr.
United States District Judge
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