United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendants ERMC
Property Management of Illinois, LLC's
(“ERMC”) and Gulf Coast Town Center CMBS,
LLC's (“Gulf Coast”) (collectively,
“Defendants”) Motions to Dismiss, or, in the
alternative, Motions for a More Definite Statement and
Motions to Strike filed on February 27, 2017 (Doc. 10) and
March 21, 2017 (Doc. 22). Plaintiff Darlene Delfino
(“Delfino”) filed Responses (Doc. 28; Doc. 29) to
both Motions on May 8, 2017. This matter is ripe for review.
a premises liability action arising from a trip and fall.
Gulf Coast owns an outdoor shopping mall (“Gulf Coast
Town Center”) where ERMC is responsible for
“janitorial duties.” (Doc. 2 at ¶¶
5-6). On August 14, 2015, Delfino was a guest at the Gulf
Coast Town Center and allegedly tripped and fell on a
“raised concrete slab.” (Doc. 2 at ¶¶
10, 12, 14). Because of her alleged injuries from the fall,
she sued Defendants in the Circuit Court of the Twentieth
Judicial Circuit in and for Lee County, Florida. (Doc. 1 at
¶ 1). Defendants removed the action to this Court,
pursuant to 28 U.S.C. § 1332. (Doc. 1).
now move for dismissal arguing that Delfino improperly
commingled her claims, failed to plead the existence of a
“hidden danger, ” and failed to plead
constructive notice. (Doc. 10 at 5-7; Doc. 22 at 5-7). They
also contend that the Complaint is legally insufficient
because there is no liability for injuries sustained from
uneven surfaces under Florida law. (Doc. 10 at 8-9; Doc. 22
at 7-8). Defendants also move to strike Delfino's prayer
for prejudgment interest because that is not recoverable in a
personal injury action under Florida law. (Doc. 10 at 9-10;
Doc. 22 at 9). Delfino opposes Defendants' Motions. (Doc.
28; Doc. 29).
Federal Rule of Civil Procedure 8(a), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” When
considering a motion to dismiss under Rule 12(b)(6), the
court accepts all factual allegations as true and views them
in a light most favorable to the plaintiff. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of
litigation. The Supreme Court has been clear on this point -
a district court should dismiss a claim where a party fails
to plead facts that make the claim facially plausible.
See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible when the court
can draw a reasonable inference, based on the facts pled,
that the opposing party is liable for the alleged misconduct.
See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.(citing Twombly, 550 U.S. at 557
(internal quotation marks omitted)). Moreover, it requires
more than an “unadorned,
Motions to Dismiss
make five arguments to dismiss Delfino's complaint. They
assert that she has failed to plead sufficient facts,
improperly commingled her claims, failed to plead the
existence of a “hidden danger, ” and failed to
plead constructive notice. (Doc. 10 at 5-7; Doc. 22 at 5-7).
They further argue that they are not liable for the alleged
injuries that Delfino sustained on the “raised concrete
slab.” (Doc. 10 at 5-6: Doc. 22 at 5-6). The Court does
not need to address every argument because Delfino failed to
allege sufficient facts to state a claim.
argue that the Complaint is filled with vague, conclusory
allegations that do not state a plausible claim. (Doc. 10 at
5; Doc. 22 at 5). According to them, Delfino failed to allege
the location of the fall, what the alleged dangerous
condition was, where the dangerous condition originated, how
the slab was dangerous, and the circumstances of the fall.
(Doc. 10 at 5; Doc 22 at 4-5). Delfino responds that she
plead her Complaint with the required specificity. (Doc. 28
at 4-5; Doc. 29 at 4-5).
establish a negligence claim under Florida law, a plaintiff
must allege “a duty of care by the defendant to the
plaintiff, breach of that duty of care, causation and
resulting damages.” Barandas v. Ross Dress for
Less, Inc., No. 11-62611-CV, 2012 WL 160060, at *1 (S.D.
Fla. Jan. 18, 2012) (citations omitted). Deflino has failed
to plead sufficient factual allegations to support these
minimum requirements. In particular, the allegations related
to the “raised concrete slab” that Delfino
allegedly tripped over are insufficient. And it is unclear,
under Florida law, whether a “raised concrete
slab” constitutes a condition that is not inherently
dangerous, and, if so, whether the condition falls within an
exception. See, e.g., Casby v.
Flint, 520 So.2d 281, 282 (Fla. 1988); Schoen v.
Gilbert, 436 So.2d 75, 76 (Fla. 1983); Milby v. Pace
Pontiac, Inc., 176 So.2d 554, 556 (Fla. 2nd DCA 1965);
Hilliard v. Speedway Superamerica LLC, 766 So.2d
1153, 1155 (Fla. 4th DCA 2000); Slaats v. Sandy Lane
Residential, LLC, 59 So.3d 320, 321 (Fla. 3d DCA 2011).
Without additional facts concerning the location and nature
of the “raised concrete slab” - at a minimum -
Delfino's negligence claim fails to state a plausible
claim of action.
Motions to Strike
Defendants move to strike Delfino's general prayer for
prejudgment interest. (Doc. 10 at 9-10; Doc. 22 at 9).
Delfino does not contest Defendants' position. (Doc. 28;
Doc. 29). A court “may strike from a pleading . . . any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). “A court may act . .
. upon the motion of a party ‘either before responding
to the pleading or, if a response is not allowed, within 21
days after being served with the pleading.'”