Fountain v. City of Lakeland et al
Filing
29
ORDER denying 7 Motion to dismiss. Signed by Judge Elizabeth A. Kovachevich on 11/1/2011. (SN)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID ROBERT FOUNTAIN, JR.,
Plaintiff,
vs.
Case No. 8:11-CV-52-T-17TBM
CITY OF LAKELAND,
OFFICER DAVID WATERMAN,
OFFICER .JOHN DOE, and
TASER INTERNATIONAL, INC.,
Defendants.
/
ORDER ON DEFENDANT'S MOTION TO DISMISS
This matter comes before the Court on Defendant. TASER International. Inc.'s
('•TASER"), Motion to Dismiss Counts I & II (Doc. 7) and the Plaintiff, David Robert
Fountain. Jr.'s, response thereto (Doc 24). For the reasons set forth below, TASER's
Motion to Dismiss is DENTED. The following facts from the Plaintiffs Complaint (Doc.
1) are taken as true for purposes of this motion.
BACKGROUND
On January 7. 2011. Plaintifffiled this action in connection with a January 9.
2007 incident, in which he was allegedly "tasered" seven separate times by Co-Defendant
Officer David Waterman. The taser was allegedly designed, manufactured, and marketed
by TASER. (Doc. 1, \ 9). TASER's Motion to Dismiss is specifically for Counts I & II oi'
the four-part complaint. In Count I. Plaintiff alleges violations of 42 U.S.C § 1983 with
regard to the Fourth. Fifth. Eighth, and Fourteenth Amendments and Count II sets out a
"Monell claim" alleging violations of 42 U.S.C. §§ 1983. 1985. and 1986. (Doc. 1).
STANDARD OF REVIEW
Federal Rule of Civil Procedure Rule 8(a)(2) requires that a plaintiffs complaint
lay out "a short plain statement of the claim showing that the pleader is entitled to relief."
That said. ••[w|hilc a complaint attacked by a Rule 12(b)(6) motion to dismiss docs not
need detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitlement to relief requires more than label and conclusions, and a formulaic recitation
of the elements of a cause of action will not do." Bell All. Corp. v. Twombly, 550 U.S.
544. 555 (2007) (internal quotation marks and citations omitted).
Therefore, "to survive a motion to dismiss, a complaint must now contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."/!/;;. Dental Ass'n v. Cigna Corp., 605 F.3d 1283. 1289 (11th Cir. 2010) (quoting
Twombly. 550 U.S. at 570). In considering a motion to dismiss, courts must follow a
simple, two-pronged approach: "1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded factual allegations,
"assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief." Id. at 1290 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009)). In sum. the "pleading standard Rule 8 announces does not require 'detailed
factual allegations." but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
DISCUSSION
Plaintiff, in his Response in Opposition to Defendant's Motion to Dismiss (Doc.
24), states that his Complaint does not allege two causes of action against TASER in
Counts I & II. Rather, these counts are alleged against the co-defendants. Although.
Counts I & II do not specify in the count captions which defendants the allegations are
against, it is reasonably inferred that such allegations are not against TASER as TASER
is not mentioned anywhere under Counts I & II. Additionally. Counts III & V. which are
solely against TASER. reference it in the count captions. Although this Court encourages
Plaintiff to be more precise in the future, this ambiguity does not justify awarding
attorneys* fees to I'ASI'R. Accordingly, it is:
ORDERED that Defendant TASER International, Inc.'s Motion to Dismiss (Doc.
7) be DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida this /S^-clay of
November. 201 1.
Copies to: All parlies and counse+rH^
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