United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
MOTION: DEFENDANT'S MOTION TO STRIKE AND
INCORPORATED MEMORANDUM OF LAW (Doc. No. 6)
FILED: August 9, 2017
THEREON it is RECOMMENDED
that the motion be DENIED.
13, 2017, Plaintiff filed a complaint against Defendant in
the Circuit Court of the Ninth Judicial Circuit in and for
Osceola County, Florida, for a slip and fall on a foreign
transitory substance in Defendant's store. Doc. No. 2. On
August 2, 2017, Defendant removed the action to this Court.
Doc. No. 1. On August 9, 2017, Defendant filed an Answer and
a motion to strike paragraphs 7, 9, and 10 from the Complaint
(the “Motion”). Doc. Nos. 5, 6. On August 29,
2017, Plaintiff filed her response to the Motion (the
“Response”). Doc. No. 13.
argues that paragraphs 7, 9, and 10 should be stricken as
immaterial and impertinent because they “conflate the
legal standard and assert claims related to Defendant's
‘mode of operations, ' which are immaterial and
impertinent under the existing law of Florida as the
negligent mode of operation theory has been abrogated by the
enactment of Florida Statute § 768.0755.” Doc. No.
6 at 3. Plaintiff responds that the “paragraphs are
not, solely, based on a negligent mode of operation.”
Doc. No. 13 at 1. Plaintiff also argues that Defendant failed
to demonstrate prejudice from the paragraphs' inclusion.
Id. at 3.
MOTION TO STRIKE STANDARD
Rule of Civil Procedure 12(f) allows the Court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). A motion to strike is
subject to the Court's discretion. See Anchor Hocking
Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000
(M.D. Fla. 1976). Motions to strike are generally disfavored
due to their drastic nature. Thompson v. Kindred Nursing
Ctrs., E., LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla.
2002) (quoting Augustus v. Bd. of Pub. Instruction of
Escambia Cnty., 306 F.2d 862, 868 (5th Cir.
alleges that she slipped and fell on a foreign transitory
substance at Defendant's store. Doc. No. 2. Before 2010,
Florida permitted slip and fall claims without plaintiff
having to prove the defendant's actual or constructive
notice of the foreign transitory substance based on a
negligent mode of operation theory. Fla. Stat. §
768.0710(2)(b) (2008). In 2010, the Florida Legislature
enacted § 768.0755, which specified that “the
injured person must prove that the business establishment had
actual or constructive knowledge of the dangerous condition
and should have taken action to remedy it.” Fla. Stat.
§ 768.0755(1) (2010). Defendant argues that paragraphs
7, 9, and 10 should be stricken because “plaintiffs are
no longer able to assert a cause of action based on negligent
mode of operation.” Doc. No. 6 at 5. Plaintiff agrees
that there is no longer a negligent mode of operation theory
for a slip and fall on a transitory substance in Florida, but
argues that the paragraphs are not alleged as claims for
negligent mode of operation. Doc. No. 13 at 2.
relies on Woodman v. Bravo Brio Restaurant Group,
Inc., No. 6:14-cv-2025-Orl-40TBS, 2015 WL 1836941 (M.D.
Fla. Apr. 21, 2015). Doc. No. 6 at 3, 5-7. In
Woodman, this Court granted the defendant's
motion to strike the mode of operation theory from the
plaintiff's slip and fall complaint based on §
768.0755(1) eliminating the cause of action. No.
6:14-cv-2025-Orl-40TBS, 2015 WL 1836941, at *3. The paragraph
stricken from the complaint in Woodman specifically
stated that the defendant breached a duty owed to the
plaintiff by “negligently engaging in a mode of
operations when Defendant knew, or should have known, that
said mode of operations would result in dangerous conditions
to the general public, including the Plaintiff herein.”
No. 6:14-cv-2025-Orl-40TBS, Doc. No. 2 at ¶ 9(j). Here,
however, there is no specific allegation of a negligent mode
of operation in paragraphs 7, 9, and 10.
the allegations in paragraphs 7, 9, and 10 pertain to the
condition of the floor and constructive knowledge of it. In
paragraph 7, the allegation is that Defendant “[a]t
said time and place, . . . carelessly and negligently
maintained said premises when Plaintiff . . . was walking in
the lobby area [and] slipped and fell on a transitory foreign
substance, pink colored soap, which was allowed to remain on
the floor causing her to fall.” Doc. No. 2 at ¶ 7.
Paragraph 9 alleges that Defendant owed Plaintiff “a
duty to exercise reasonable care to reduce, minimize, or
eliminate foreseeable risks before they manifest themselves
as dangerous conditions on its premises and at a minimum to
warn Plaintiff of any such conditions.” Doc. No. 2 at
¶ 9. Paragraph 10, subparagraphs a, b, and c, allege
that Defendant breached its duty of care owed to Plaintiff by
failing to warn her (a) of the transitory substance's
dangerous condition, (b) “that due to their
employees['] improper maintenance of the floor, it would
create a hazardous condition associated with a transitory
substance;” and (c) “of the hidden or concealed
transitory substance in the area where the accident ...