United States District Court, M.D. Florida, Tampa Division
ORDER GRANTING DEFENDANT'S MOTION TO
BARBER UNITED STATES DISTRICT JUDGE.
matter is before the Court on "Defendant Dollar
Tree's Motion to Dismiss Count II of the Complaint,"
filed by counsel on November 2, 2019. (Doc.# 3). Plaintiff
filed a response in opposition on November 11, 2019. (Doc.#
7). The Court held a hearing on the motion on December 4,
2019. (Doc. # 14). After reviewing the motion, response,
legal arguments, court file, and the record, the Court finds
alleges that while walking in the Dollar Tree, she slipped on
a wet and slippery floor and sustained injuries. She brings
negligence claims against Dollar Tree and against Jane Doe,
an unknown employee who allegedly was working in the store on
the day of Plaintiffs accident.
filed her complaint in state court on October 3, 2019. (Doc.
#1-1). On October 26, 2019, Dollar Tree removed the case
because complete diversity of citizenship existed between the
parties and the amount in controversy exceeded $75, 000.
(Doc. # 1). On November 2, 2019, Dollar Tree filed a motion
to dismiss Count II - the negligence claim against Jane Doe.
(Doc. # 3). Plaintiff filed a response on November 11, 2019.
(Doc. # 7). The Court held a hearing on the motion on
December 4, 2019. (Doc. # 14).
Rule of Civil Procedure 8(a) requires that a complaint
contain "a short and plain statement of the claim
showing the [plaintiff] is entitled to relief."
Fed.R.Civ.P. 8(a). "Although Rule 8(a) does not require
'detailed factual allegations,' it does require
'more than labels and conclusions'; a 'formulaic
recitation of the cause of action will not do.'"
Young v. Lexington Ins. Co., No. 18-62468, 2018 WL
7572240, at *1 (S.D. Fla. Dec. 6, 2018), report and
recommendation adopted, No. 18-62468-CIV, 2019
WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)). In order to
survive a motion to dismiss, factual allegations must be
sufficient "to state a claim for relief that is
plausible on its face." Twombly, 550 U.S. at
555. A claim is facially plausible when the pleaded facts
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
deciding a Rule 12(b)(6) motion, review is generally limited
to the four corners of the complaint. Rickman v.
Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla.
1995). Furthermore, when reviewing a complaint for facial
sufficiency, a court "must accept [a] [p]laintiffs well
pleaded facts as true, and construe the [c]omplaint in the
light most favorable to the [p]laintiff." Id.
(citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). The Court is not required to accept legal
conclusions stated as factual allegations as true.
Iqbal, 556 U.S. at 678.
motion, Dollar Tree argues that Plaintiff failed to plead
Jane Doe was actively negligent and personally participated
in the tortious conduct, and therefore she cannot be held
individually liable to Plaintiff. The Court agrees.
well established that an agent of a corporation maybe
individually liable if they commit or participate in a tort,
even if the acts are within the course and scope of
employment. White v. Wal-Mart Stores, Inc., 918
So.2d 357, 358 (Fla. 1st DCA 2005). However, to establish
liability, the plaintiff must allege the agent owed a duty to
her and that the duty was breached through personal- as
opposed to technical or vicarious - fault. Id. The
agent is not personally liable "simply because of his
general administrative responsibility for performance of some
function" of his employment. Id. (citation
omitted). Rather, plaintiff must plead that the agent is
actively negligent. Id. (finding complaint alleging
that the defendant, the manager of a Wal-Mart store, was
directly responsible for carrying out certain
responsibilities but negligently failed to do so alleged more
than mere vicarious fault). Further, it is well-established
that a plaintiff must provide facts to support allegations
that the agent of a corporation played a role in plaintiffs
injuries. See, e.g., Boyd v. Petco Animal Supplies
Stores, Inc., No. 3:18-CV-639-J-32PDB, 2018 WL 4360621,
at *3 (M.D. Fla. Sept. 13, 2018) (plaintiff failed to provide
facts demonstrating that the defendant, a Petco store
manager, played any role in her injuries, and therefore the
court could find no reasonable basis for the plaintiffs claim
against the manger); Pritchard v. Wal-Mart Stores,
Inc., No. 809-CV-46-T-24TGW, 2009 WL 580425, at *3 (M.D.
Fla. Mar. 5, 2009) (dismissing negligence claim filed against
Wal-Mart manager who had control of the store that sold the
plaintiff contaminated peanut butter and finding "it is
questionable as to whether Plaintiffs have even sufficiently
alleged their negligence claims against Gunderjahn [the
manager], since those claims are merely based on vague,
conclusory allegations") (alteration in original);
Gomez v. Wal-Mart Stores East, LP, No. 16-CV-21356,
2016 WL 4468317, at *2 (S.D. Fla. Aug. 24, 2016) (dismissing
negligence claim when complaint merely alleged that the
defendant served as the manager of a Wal-Mart store on the
date of the incident and failed to allege that the manager
breached a duty through her personal conduct); Petigny v.
Wal Mart Stores East, L.P., No. 18-23762-CIV, 2018 WL
5983506, at *3 (S.D. Fla. Nov. 14, 2018) (dismissing
complaint against assistant manager of a Wal-Mart store and
noting that the plaintiffs complaint did not allege facts to
show that the manager caused grapes to be on the floor, was
told the grapes were on the floor, was in the area of
plaintiffs incident prior to the event in order to correct
it, or that she was otherwise actively negligent).
alleges, in part, that Jane Doe, a Dollar Store employee, was
"involved in the incident," she owed a duty to
plaintiff to perform her job in a safe and reasonable manner
to prevent customers from slipping and falling on substances
on the floor, and that she "negligently failed to
cleanup a spill in the store when directed to do so,
improperly cleaned up a spill when directed to do so, and/or,
negligently failed to put out caution cones or warning signs
in the store." Plaintiff cites to White to
support her argument, however, White involved a
store manager who was alleged to have been directly
responsible for carrying out certain responsibilities. Here,
Plaintiff merely states Jane Doe was involved in the
incident, failing to provide any facts, beyond conclusory
allegations, that demonstrate her role in Plaintiffs injury.
See Boyd, 2018 WL 4360621, at *3. In order to state
a facially sufficient claim against Jane Doe, Plaintiff must
plead active negligence or personal fault.
the Court dismisses Count II, without prejudice. Plaintiff
must amend her complaint to sufficiently plead that Jane Doe
was actively negligent or ...