United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's Motion to
Strike (Doc. #8) filed on March 26, 2019. No. response has
been filed and the time to do so has expired. (Doc. #11.)
Defendant moves to strike any references to “negligent
mode of operation” in the Amended Complaint (Doc. #12).
For the reasons set forth below, the Motion is granted.
Debra LaPosa has brought this premises liability action
against the owner and operator of a Wal-Mart store for
negligence arising out of a slip and fall incident that
occurred on or about August 2, 2016. (Doc. #12.) Plaintiff
alleges that she slipped and fell on a “oily substance,
” sustaining serious injury. (Id.)
case was removed based upon diversity jurisdiction, and is
currently proceeding on an Amended Complaint. Defendant moves
to strike paragraph 7 of the Amended Complaint, arguing that
negligent mode of operation is no longer a viable claim in
Florida. The offending paragraph reads:
7. On the date of the incident, Wal-Mart Stores East, L.P.,
by and through its employees, servants, and/or agents could
reasonably anticipate that its mode of operation for ensuring
that the floor of the store was not left in a slippery and
dangerous condition was not reasonable.
(Doc. #12, ¶ 7.)
to Rule 12(f) of the Federal Rules of Civil Procedure, a
party may move to strike “any insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter” within the pleadings. The court enjoys broad
discretion in determining whether to grant or deny these
motions to strike. Anchor Hocking Corp. v. Jacksonville
Elec. Auth., 419 F.Supp. 992, 1000 (M.D. Fla. 1976).
“The purpose of a motion to strike is to clean up the
pleadings, streamline litigation, and avoid unnecessary
forays into immaterial matters.” Hutchings v. Fed.
Ins. Co., 2008 WL 4186994, *2 (M.D. Fla. Sept. 8, 2008).
It is not intended to “procure the dismissal of all or
part of a complaint.” Id. Likewise, a motion
to strike is a drastic remedy and is disfavored by the
courts. Reyher v. Trans World Airlines, 881 F.Supp.
574, 576 (M.D. Fla. 1995). Therefore, a motion to strike
should be granted only if “the matter sought to be
omitted has no possible relationship to the controversy, may
confuse the issues, or otherwise prejudice a party.”
evaluating a motion to strike, the Court generally applies
the same test used to determine a 12(b)(6) motion, including
the general rule that matters outside the pleadings are not
to be considered. See Antoniou v. Thiokol Corp. Group
Long Term Disability Plan, 849 F.Supp. 1531, 1533 (M.D.
Fla. 1994) (“[M]atters outside the pleadings, such as
affidavits or depositions must be disregarded in an analysis
under a Rule 12(f) motion to strike.”).
mode of operation theory allows a slip-and-fall plaintiff to
recover by showing that a defendant failed to exercise
reasonable care in selecting a mode of operation, without
showing that the defendant had actual or constructive
knowledge of the dangerous condition. See Markowitz v.
Helen Homes of Kendall Corp., 826 So.2d 256, 259-60
(Fla. 2002) (“[T]he mode-of-operation rule looks to a
business's choice of a particular mode of operation and
not events surrounding the plaintiff's accident.”).
In Markowitz, the court recognized that the duty of
premises owners to maintain their premises in a safe
condition was not limited to simply detecting the dangerous
conditions as they occur, but businesses were under a duty to
take actions to “reduce, minimize, or eliminate
foreseeable risks before they manifest themselves. . .
.” Id. at 259. At the time Markowitz
was decided, the slip and fall statute in effect explicitly
mentioned mode of operation, providing that:
(1) The person or entity in possession or
control of business premises owes a duty of reasonable care
to maintain the premises in a reasonably safe condition for
the safety of business invitees on the premises, which
includes reasonable efforts to keep the premises free from
transitory foreign objects or substances that might for
eseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence
involving loss, injury, or damage to a business invitee as a
result of a transitory foreign object or substance on
business premises, the claimant shall ...