MOREAU

v.

FELD ENTERTAINMENT, INC.

FELD ENTERTAINMENT, INC.’S AND FELD MOTOR SPORTS, INC.’S “MOTION TO DISMISS AMENDED COMPLAINT”

This matter is before the Court upon Defendants Feld Entertainment, Inc.’s and Feld Motor Sports, Inc.’s “Motion to Dismiss Amended Complaint,” filed by counsel on August 10, 2022. (Doc. 54). On September 9, 2022, Plaintiff Brian Moreau filed a response in opposition. (Doc. 75). After reviewing the motion, response, court file, and record, the Court finds as follows:

Background Plaintiff Brian Moreau, then 18 years old, was a former professional motocross rider. In 2019, he moved to the United States to join the Troy Lee Designs Red Bull KTM Racing Team to compete in the 250SX Class of the Supercross Championship. The first race of the 2020 Supercross Championship Series was held at Raymond James Stadium in Tampa, Florida, on February 15, 2020. Prior to the race, riders were permitted to participate in a “free practice” session on the racetrack. During his first lap around the track, Plaintiff crashed and fell from his motorcycle headfirst onto the middle of the racetrack. A flagger stationed nearby began waving a yellow flag to caution oncoming riders, but no one made any effort to “red flag” or stop the practice session. Shortly after the crash, two members of the Alpinestars Mobile Medical Unit (believed to be Defendants Amy Metiva and John Doe) arrived on the scene to attend to Plaintiff. Plaintiff immediately and repeatedly informed the crewmembers that he was injured and experiencing unusual sensations, including having difficulty feeling his legs. No one attempted to attempt to stabilize or immobilize Plaintiff’s spine, place a cervical collar on him, or ensure that his helmet was properly and carefully removed. Instead, the two crewmembers roughly lifted Plaintiff up by grabbing his arms and carried him off the racetrack. The crewmembers proceeded to carry Plaintiff over to the side of the racetrack and toward a medical mule by lifting his legs. Around that time, a third crewmember – Dr. Kennedye – arrived to help place Plaintiff on the medical mule and remove his helmet. Plaintiff was driven to an onsite ambulance where paramedics with Tampa Fire Rescue recognized the serious nature of Plaintiff’s reported injuries and placed a cervical collar and rigid body split on him before taking him to Tampa General Hospital. Plaintiff sustained catastrophic permanent injuries and has been rendered a paraplegic. On June 4, 2022, Plaintiff filed the instant lawsuit, asserting negligence claims against several defendants including the organizers and promoters of the Supercross event and various medical professionals involved in the incident. Defendants have moved to dismiss the amended complaint.1 Legal Standard Federal 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). While Rule 8(a) does not demand “detailed factual allegations,” it does require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual allegations must be sufficient “to state a claim to relief that is plausible on its face.” Id. at 570. When 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]laintiff’s well pleaded facts as true, and construe the [c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 41 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-

cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).

(2) complaints that do not commit the mortal sin of re-alleging all preceding counts but are guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;

(3) complaints that commit the sin of not separating into a different count each cause of action or claim for relief; and

(4) complaints that assert multiple claims against multiple defendants without specifying which of the defendants are responsible for which actions or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F. 3d 1313, 1321-23 (11th Cir. 2015). A district court must generally permit a plaintiff at least one opportunity to amend a shotgun complaint’s deficiencies before dismissing the complaint with prejudice. Vibe Micro, Inc. v. Shabanets, 878 F. 3d 1291, 1295 (11th Cir. 2018). In Count I, Plaintiff appears to improperly mix several different causes of action and/or claims for relief, including direct negligence and vicarious liability. This improper mixing of claims by Plaintiff makes it difficult for Defendants to respond accordingly and present defenses, and for the Court to appropriately adjudicate this case. See, e.g., Sexton v. Carnival Corp., No. 18-20629-CIV-MORENO, 2018 WL 3405246, at *2 (S.D. Fla. July 12, 2018) (“Commingling direct and vicarious liability is an improper pleading practice.”) (citing Wohlford v. Carnival Corp., No. 17-20703-CIV, 2017 WL 7731225, at *3 (S.D. Fla. May 11, 2017)). As such, Count I is subject to dismissal. As to the mixing of Defendants, the Court finds that this is not quite the issue made out by Defendants. Plaintiff alleges that both entities were responsible for overseeing and managing the Supercross event, including the selection of flaggers and medical workers who were acting on behalf of Defendants as agents and/or employees. These factual allegations appear to be sufficiently clear to put Defendants on notice as to nature of the claims against them. The Court does not address factual questions or address the merits of the case at this stage of the proceedings. The amended complaint is still subject to dismissal, however, due to the mixing of legal theories.

Accordingly, it is ORDERED, ADJUDGED, and DECREED: 1. Defendants Feld Entertainment, Inc.’s and Feld Motor Sports, Inc.’s “Motion to Dismiss Amended Complaint” (Doc. 54) is GRANTED IN PART and

DENIED IN PART.

2. The motion is GRANTED to the extent the amended complaint (Doc. 45) is DISMISSED WITHOUT PREJUDICE, with leave to amend.

3. The motion is otherwise DENIED.

4. Plaintiff is directed to file a second amended complaint on or before March 13, 2023. Failure to file an amended complaint as directed will result in this Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F. 3d 707, 719-20 (11th Cir. 2020). DONE and ORDERED in Chambers, in Tampa, Florida, this 27th day of February, 2023.

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TOM BARBER

UNITED STATES DISTRICT JUDGE