United States District Court, S.D. Florida
ORDER GRANTING CMI'S MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
Diane McBride, proceeding pro se, has filed suit seeking
damages for injuries resulting from a shopping cart accident
at a Wal-Mart store. This suit is brought against Defendants
CMI Arkansas Claims Management, Inc. (“CMI”) and
Wal-Mart Stores East, L.P. Defendant CMI now moves to dismiss
McBride's amended complaint. (Def.'s Mot., ECF No.
19.) After careful analysis, the Court agrees with CMI and
finds McBride's case against CMI should be dismissed. The
Court therefore grants CMI's motion.
(ECF No. 19.)
early evening of September 19, 2014, McBride was a customer
of Wal-Mart Store #3397. (Compl. at ¶ 1, ECF No. 16.)
According to McBride, as she was exiting an aisle, returning
to her shopping cart, she was hit by a shopping cart being
pushed by a Wal-Mart employee. (Id. at ¶ 2.)
McBride submits that the employee was not handling the
shopping cart with due care and there is nothing she could
have done to avoid the incident. (Id.) As a result,
McBride sustained a multitude of injuries. (Id. at
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), 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).
Pleadings by pro se plaintiffs are held to less stringent
standards than those drafted by attorneys; all pleadings are
construed to do substantial justice. Wright v.
Newsome, 795 F.2d 964, 967 (11th Cir. 1986). Although a
pleading need only contain a short and plain statement of the
claim showing that the pleader is entitled to relief, a
plaintiff must nevertheless 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). A court must dismiss a plaintiff's claims if she
fails to nudge her “claims across the line from
conceivable to plausible.” Id.
the court's review in considering a 12(b)(6) motion is
ordinarily “limited to the four corners of the
complaint, ” Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 959 (11th Cir. 2009), a court may nonetheless
consider documents that the complaint incorporates by
reference as well as matters that may be judicially noticed,
Tellabs, Inc. V. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007). A court may take judicial notice of
“facts that are not subject to reasonable dispute
because they are capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned.” Sherleigh Assocs., LLC v.
Windmere-Durable Holdings, Inc., 178 F.Supp.2d 1255,
1268 (S.D. Fla. 2000) (Lenard, J.).
amended complaint fails to set fourth allegations that, even
if taken as true, support a negligence claim against CMI. To
properly state a negligence claim, a plaintiff must allege:
(1) a duty of the defendant to protect others against an
unreasonable risk; (2) the defendant's breach of that
duty; (3) the defendant's breach legally caused the
plaintiff's injuries; and (4) the plaintiff sustained
damages. Williams v. Davis, 974 So.2d 1052, 1056
(Fla. 2007). To survive a motion to dismiss, a plaintiff must
sufficiently plead facts that would support each element of
negligence. Harris v. Lewis State Bank, 482 So.2d
1378, 1384 (Fla. 1st DCA 1986). A complaint survives a motion
to dismiss if “facts are alleged showing the relation
between the parties, the act or omission causing the injury,
and that the act was negligently done or omitted.”
has not alleged facts that support a negligence claim against
CMI. While McBride avers information regarding her injuries,
she fails to provide any information connecting CMI to the
incident. (ECF No. 16 at 3-5.) CMI is not the owner or
operator of the Wal-Mart store nor was CMI involved in the
accident. McBride makes no allegations regarding the duty CMI
owed to McBride or how CMI failed to carry out that duty.
(ECF No. 19 at 3.) In fact, the only information McBride
provides about CMI is the history of a claim she submitted to
CMI in September 2018. (ECF No. 27 at 3.) However, that
information does not provide additional insight as to why CMI
owed a duty of care to McBride for the allegedly negligent
handling of a shopping cart by a Wal-Mart employee.
the Court grants CMI's motion to dismiss
(ECF No. 19). Because this Court already
dismissed McBride's complaint and granted leave to amend
(ECF No. 15), making this McBride's Second Amended
Complaint, the Court dismisses McBride's claims against
CMI with prejudice.