United States District Court, M.D. Florida, Jacksonville Division
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al., Plaintiffs,
STORMGEO CORP., INC., Defendant.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
a hearing on December 19, 2017, (Doc. 36), the Court
dismissed Plaintiffs' Amended Complaint without prejudice
(Doc. 37). On January 12, 2018, Plaintiffs filed the Second
Amended Complaint (“SAC”). (Doc. 41). Now, this
case is before the Court on Defendant StormGeo Corp.,
Inc.'s Motion to Dismiss Second Amended Complaint, (Doc.
44), to which Plaintiffs responded, (Doc. 49), and StormGeo
replied, (Doc. 52).
is twice as long as the Amended Complaint, and is not a model
of clarity. While the SAC is not a true shotgun pleading, it
incorporates nearly all of the general factual allegations
into each cause of action. (Compare, e.g., Doc. 41
¶¶ 19-36, 52-63 with ¶¶ 64-90
and ¶¶ 95-121). While the same facts can
support different counts, the manner in which Plaintiffs have
stated their claims makes it difficult to discern which facts
support which elements of the claims and whether Plaintiffs
have even pled all of the elements of each count. For
instance, “[t]o prove a claim for strict liability for
defective design, a plaintiff must show that the defendant
manufactured or distributed the product in question, that the
product has a defect that renders it unreasonably dangerous
and that the unreasonably dangerous condition is the
proximate cause of the plaintiff's injury.”
Marzullo v. Crosman Corp., 289 F.Supp.2d 1337, 1346
(M.D. Fla. 2003) (citing Jennings v. BIC Corp., 181
F.3d 1250, 1255 (11th Cir. 1999) and West v. Caterpillar
Tractor Co., 336 So.2d 80 (Fla. 1976)). Plaintiffs bury
the allegation of the design defect in paragraph
ninety-three, which is really an allegation of breach of duty
and more properly belongs in a negligent products liability
claim as opposed to a strict products liability
as the Court has just alluded, Plaintiffs' three strict
liability counts include allegations of duty and breach,
(Doc. 41 ¶¶ 92, 93, 123, 124, 154, 155), which are
relevant only to Plaintiffs' negligence and negligent
duty to warn claims. See, e.g., Marzullo v.
Crosman Corp., 289 F.Supp.2d 1337, 1347 (M.D. Fla. 2003)
(internal quotation marks omitted) (“The difference
between negligent failure to warn and failure to warn under a
strict liability theory is that a prima facie case of strict
liability failure to warn does not require a showing of
negligence.”); Cassisi v. Maytag Co., 396
So.2d 1140, 1143 (Fla. Dist. Ct. App. 1981)
(“appellants are not required to prove in a strict
liability action that the manufacturer or retailer was
negligent in the preparation or distribution of a
product”). Pleading elements of negligence in the
strict liability claims is unnecessary and confusing.
Although the motion to dismiss does not attack the SAC's
Rule 8 sufficiency, given these procedural and structural
deficiencies, the Court will nonetheless dismiss the SAC and
allow Plaintiffs one last chance to amend. In doing so,
Plaintiffs shall clearly state the elements of each claim and
only incorporate the underlying factual allegations in each
count necessary for support.
to the substance of the motion to dismiss, as the parties
acknowledged at the hearing, (Doc. 39 at 17, 43), this is a
case of first impression, and the major issues raised in the
motion to dismiss-whether the BVS 7 is a product or a service
and whether Defendant owed a duty to Plaintiffs-are likely
issues of law. Nevertheless, they are informed by the facts.
Under these circumstances, once Plaintiffs file the Third
Amended Complaint, the Court is inclined to address the
merits via summary judgment practice rather than on a motion
to dismiss. Under the Case Management and Scheduling Order,
dispositive motions are not due until February 1, 2019. (Doc.
38). However, the Court wishes to have the parties' input
on the Court's preference to bypass another round of
motion to dismiss practice and instead address all issues on
summary judgment, perhaps earlier than the February 2019
it is hereby
Defendant StormGeo Corp., Inc.'s Motion to Dismiss Second
Amended Complaint, (Doc. 44), is GRANTED to
the extent stated in this Order.
Plaintiffs' Second Amended Complaint, (Doc. 41), is
DISMISSED without prejudice.
Plaintiffs shall file a Third Amended Complaint by
August 15, 2018.
August 15, 2018, the parties shall file a
joint notice informing the Court of their respective
positions on whether addressing the issues on summary
judgment is the proper manner in which to proceed, and shall
also provide proposed deadlines for a summary judgment
StormGeo need not file a response to the Third Amended
Complaint until further Order of the Court.
AND ORDERED in Jacksonville, Florida the 16th ...