FABOZZI v. UNITED STATES (2023)

ORDER DENYING PARTIAL MOTION TO DISMISS AND STRIKE

This case is before the Court based on Defendant's partial motion to dismiss and strike (Doc. 14). Upon due consideration of the motion, Plaintiffs’ response in opposition (Doc. 15), and the amended complaint (Doc. 13), the Court finds that the motion is due to be denied.

Background

Plaintiff Wayne Fabozzi worked as a private medic at The Naval School for Explosive Ordinance Disposal Training at Eglin Air Force Base. He worked in a “practical area” where the school conducted controlled explosions, and when explosions were being conducted, he would stay behind or within the protection of the control bunker within a “Safe Zone” that was designed to be free from munitions and explosives.

Occasionally, shrapnel would fly into the Safe Zone, and Mr. Fabozzi would collect it to create awards and artwork for graduating and retiring members of the school. He was doing that on September 10, 2021, when a piece of shrapnel he picked up exploded, causing him severe injuries.

In May 2023, Mr. Fabozzi and his wife, Plaintiff Wendy Fabozzi, filed a complaint in this Court alleging that Defendant is liable for Mr. Fabozzi's injuries. Defendant responded to the complaint with a partial motion to dismiss, which the Court granted. See Doc. 12. Plaintiffs were given leave to file an amended complaint, which they did in August 2023.

The amended complaint asserts four counts, titled “negligence” (Count 1), “ultrahazardous activities” (Count 2), “negligent undertaking” (Count 3), and “premises liability” (Count 4). In Count 1, Plaintiffs allege that Defendant breached the general duty of reasonable care that it owed to Mr. Fabozzi; in Count 2, Plaintiffs allege that because Defendant handled explosives, it was subject to a “heightened duty” and that it breached that duty; in Count 3, Plaintiffs allege that Defendant undertook a duty of care to Mr. Fabozzi by creating a Safe Zone and that it breached that duty; and in Count 4, Plaintiffs allege that the Government negligently failed to maintain the Safe Zone in a reasonably safe condition.

Defendant responded to the amended complaint with a partial motion to dismiss and strike under Fed. R. Civ. P. 12(b)(6) and 12(f). The motion is fully briefed and ripe for a ruling. No hearing is needed to rule on the motion.

Analysis

Defendant argues that Count 2 should be [1] dismissed because it does not state a distinct claim for negligence or [2] stricken because it is redundant of Count 1, and that [3] Count 3 should be stricken because it is redundant of both Counts 1 and 4. Plaintiffs respond that Count 2 should not be dismissed because it is a distinct “heightened negligence action” and that Counts 2 and 3 should not be stricken because [a] they are not redundant of the other claims since they rely on independent theories of liability and [b] Defendant has failed to identify any prejudice it would suffer as a result of the allegedly redundant claims. For the most part, the Court agrees with Plaintiffs.

With respect to the first argument, although the Court agrees with Defendant that the claim in Count 2 merely restates the negligence claim in Count 1 because there is no distinct “ultrahazardous activity” claim under Florida law,¹ that does not justify dismissal of Count 2 because Defendant does not argue that Count 2 does not allege all of the required elements of a negligence claim. To the contrary, Defendant argued in the motion to dismiss that “Count 2 ․ alleges that Defendant owed Plaintiff a duty of reasonable care, Defendant breached that duty ․, and Plaintiff suffered damages as a result.” Doc. 14 at 3. Accordingly, because it is undisputed that Count 2 alleges all of the elements necessary to state a cause of action for negligence, there is no basis for the Court to dismiss that count under Rule 12(b)(6). See Wichael v. Wal-Mart Stores East, LP, 2014 WL 5502442, at *2 (M.D. Fla. Oct. 30, 2014) (“[M]otions to dismiss made under Rule 12(b)(6) only test the validity of a claim, not its redundancy.”)

With respect to the second and third arguments, “even [though] a redundant ․ claim cannot be dismissed under Rule 12(b)(6) it can be stricken under Rule 12(f).” Rook v. First Liberty Ins. Corp., 591 F. Supp. 3d 1178, 1182 n. 3 (N.D. Fla. 2022). Indeed, under Rule 12(f), “a district court may strike from a pleading ‘any redundant, immaterial, impertinent, or scandalous matter.’ ” Bethel v. Baldwin Cnty. Bd. of Educ., 371 F. App'x 57, 61 (11th Cir. 2010) (emphasis added). That said, motions to strike are “rarely granted” and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” OMS Nat. Ins. Co. v. Turbyfill, 2015 WL 11109377, at *1 (N.D. Fla. July 22, 2015) (citations omitted). That standard is not met here with respect to either Count 2 or Count 3.

With respect to Count 2, although that count is redundant of the negligence claim in Count 1, Defendant has not identified any prejudice that the redundancy causes—and the Court cannot conceive of any. Thus, the Court sees no reason to strike Count 2. See Dang v. Honda Motor Co., 2015 WL 12830489, at *3 (M.D. Fla. Mar. 25, 2015) (“Ultimately, prejudice to the moving party is the cornerstone of Rule 12(f).”).

With respect to Count 3, that count is not redundant of Count 1 because each count involves a different duty of care—Count 1 is based on Defendant's general, preexisting duty of care, whereas Count 3 is based on a duty of care that was allegedly affirmatively undertaken by Defendant. See Owen v. Carnival Corp., 2022 WL 2198101, at *2 (S.D. Fla. Mar. 9, 2022) (holding that negligent undertaking claims are not duplicative of negligence claims because “negligence claims involve a preexisting duty, and [negligent undertaking] claims involve an assumed duty”). Likewise, Count 3 is not redundant of Count 4 because those counts are governed by different legal standards. Compare Restatement (Second) of Torts § 324A (elements for negligent undertaking), with Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001) (elements for premises liability). Thus, there is no basis for the Court to strike Count 3.

Conclusion

Accordingly, for the reasons stated above, it is ORDERED that:

1. Defendant's partial motion to dismiss and strike (Doc. 14) is DENIED.

2. Defendant shall have 14 days from the date of this Order to answer the amended complaint. See Fed. R. Civ. P. 12(a)(4)(A).

DONE and ORDERED this 20th day of September, 2023.

FOOTNOTES

1.   The Court did not overlook United States v. Stevens, 994 So. 2d 1062, 1070 (Fla. 2008), but that case stands for the unremarkable proposition that the duty of reasonable care owed by a defendant who engages in hazardous activities may be “heightened” since those activities create a greater risk of injury. This is just another way of saying that the degree of care that is owed depends on the circumstances involved—which is basic hornbook negligence law. After all, negligence is “the failure to observe ․ such care, precaution and vigilance as the circumstances justly demand ․ or ․ the failure to do what a reasonable and prudent person would ordinarily have done ․ under the situation ․” Russ v. State, 140 Fla. 217, 191 So. 296, 298 (1939).

T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE