Opinion
Case No.: 05-20835-CIV-COHN/SNOW.
August 25, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff's Motion for Reconsideration of Order Dismissing With Prejudice, Count IV [DE #45] . The Court has carefully reviewed Plaintiff's Motion, Defendant Dell Inc.'s (formerly known as Dell Computer Corporation) ("Dell") Response [DE #46], Plaintiff's Reply [DE #50], and is otherwise fully advised in the premises.
On July 11, 2005, the Court issued its Order Granting Defendant Dell's Motion to Dismiss Count IV of Plaintiff's Verified Complaint. (DE #44). Plaintiff's instant motion followed.
The factual background of this matter is fully set forth in the Court's July 11, 2005 Order.
At the outset, the Court notes that Plaintiff incorrectly identified two parties as defendants in this matter in the caption of her Motion for Reconsideration. Neither "Metropolitan Dade County, a Political Subdivision of the State of Florida," nor "United Parcel Service, Inc.," were defendants in this case.
Count IV of Plaintiff's Verified Complaint pleads a negligence cause of action against Dell. (DE #1). "To state a claim for negligence under Florida law, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to suffer damages." Stone v. U.S., 373 F.3d 1129, 1130 (11th Cir. 2004) ( quoting Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001)).
Plaintiff states in her Verified Complaint that Dell "had a duty to fulfill its contractual obligations" to the Plaintiff, that Dell "had a duty" to cause delivery of the subject computer to the Plaintiff, and that Dell "breached its duty" to the Plaintiff by failing to deliver the computer that she ordered in a timely manner and by failing to take adequate corrective actions following its delivery error. (DE #1, ¶¶ 77, 78, 84).
The contract governing Plaintiff's purchase of the subject computer is entitled the " TERMS AND CONDITIONS AGREEMENT" ("Agreement"). The only source of Dell's duty to Plaintiff was the Agreement. Indeed, as noted supra, Plaintiff's Verified Complaint states that Dell "had a duty to fulfill its contractual obligations to its customer." (¶ 77) (emphasis added). Plaintiff's Verified Complaint did not allege an independent recognized legal duty that Dell owed to Plaintiff outside of the terms of the Agreement. See Gibbs v. Hernandez, 810 So.2d 1034, 1036 (Fla. 4th DCA 2002) ("a plaintiff must prove that a defendant had a legal duty.") Plaintiff's Verified Complaint did not identify any independent breach of duty that Dell had to Plaintiff outside the terms of the Agreement which caused damages to Plaintiff. As the Court correctly stated in its July 11, 2005 Order, "Plaintiff has not plead a tort distinguishable from or independent of Dell's alleged breach of the Agreement. Because the source of the duties Dell allegedly breached is, under Plaintiff's allegations, its Agreement with Plaintiff, Plaintiff's claim against Dell sounds in contract, not tort. Accordingly, Count IV of Plaintiff's Verified Complaint must be dismissed." (DE #44).
With regard to Plaintiff's claim that the Court erred in dismissing Count IV of Plaintiff's Verified Complaint with prejudice, the Court notes that all of the cases cited by Plaintiff in her Motion for Reconsideration are inapposite. See Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958) (discussing a dismissal with prejudice for failure to comply with a pretrial production order); Jones v. Graham, 709 F.2d 1457 (11th Cir. 1983) (discussing sanctions for failure to comply with court orders and delay demonstrating lack of prosecution); Pickel v. U.S., 746 F.2d 176 (3rd Cir. 1984) (discussing dismissal as a sanction); In re Metas, 183 B.R. 290 (M.D. Fla. 1995) (discussing a dismissal with prejudice as a discovery sanction). Here, the dismissal with prejudice was not a discovery sanction, a sanction for failure to comply with court orders, or any other type of sanction. Instead, the Court dismissed Count IV of Plaintiff's Verified Complaint because Plaintiff's negligence claim against Dell sounds in contract, not tort.
In the Eleventh Circuit, "[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court." Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541, 542 (11th Cir. 2002). Wagner overruled Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), which held that "Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." The new rule announced in Wagner "is more efficient and in line with the critically important concept of finality in our judicial system." Wagner, 314 F.3d at 542.
Here, this Court was not required to sua sponte grant Plaintiff leave to amend after it dismissed Count IV of her Verified Complaint because Plaintiff is represented by counsel and Plaintiff did not submit a motion or request to amend before the Court issued its July 11, 2005 Order. Moreover, although the instant motion argues in large part that the Court should reconsider its July 11, 2005 Order because Plaintiff's claim sounds in tort law, Plaintiff also states that the Court should "change the dismissal to one without prejudice, and allow the Plaintiff to amend her complaint accordingly." (DE #45). To the extent that Plaintiff's statement constitutes a request to amend, Plaintiff has not presented a persuasive argument to justify granting a motion to amend a complaint after that complaint has been dismissed with prejudice, nor has Plaintiff presented a persuasive argument that justice so requires allowing her to amend. Accordingly, Plaintiff has not met her burden of setting forth facts or law of a "strongly convincing nature" to induce the court to reverse its prior decision. See Williams v. Cruise Ships Catering and Serv. Intl, N.V., 320 F.Supp.2d 1347, 1358 (S.D. Fla. 2004).
Plaintiff has not submitted a separate motion to amend or a proposed amended complaint.
Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Reconsideration of Order Dismissing With Prejudice, Count IV [DE #45] is hereby DENIED.