Flickinger v. Love's Travel Stops & Country Stores, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DEBORAH FLICKINGER,

Plaintiff,

v. Case No. 8:20-cv-2212-T-33CPT

LOVE’S TRAVEL STOPS & COUNTRY

STORES, INC.,

Defendant.

/

ORDER

This matter comes before the Court upon consideration of

Defendant Love’s Travel Stops & Country Stores, Inc.’s Motion

to Dismiss Amended Complaint and Motion to Strike (Doc. #

31), filed on December 2, 2020. Plaintiff Deborah Flickinger

responded on December 15, 2020. (Doc. # 32). For the reasons

set forth below, the Motion to Dismiss is granted in part and

denied in part. The Motion to Strike is granted.

I. Background

This case arose out of a slip-and-fall at a Love’s truck

stop in Richmond Hill, Georgia. (Doc. # 30). On August 19,

2019, Flickinger visited the truck stop to refuel her vehicle

and repair a blown-out tire. (Id. at ¶ 24-25). While

Flickinger was in her parked vehicle awaiting a mechanic, it

began raining. (Id. at ¶ 27-29). At some point, a Love’s

employee told Flickinger that a mechanic was available and

instructed her “to pull into the middle bay at the Love’s

repair center.” (Id. at ¶ 30-31). Flickinger was further

instructed to park “her tractor truck and trailer such that

[the] majority of her tractor truck was parked beyond the

back exit of the middle bay, and therefore not under the roof

of the middle bay of the Love’s repair center and exposed to

the rain[,] and her trailer was parked within the covered

part of the middle bay.” (Id. at ¶ 37). Flickinger did so,

and the mechanic proceeded to repair her tire. (Id. at ¶ 39).

About an hour later, the mechanic completed the repair,

the entire time of which Flickinger remained in her vehicle.

(Id. at ¶¶ 40, 42). The Love’s mechanic then “invited

[Flickinger] to back her tractor truck and trailer up into

the middle bay . . . so that she could exit her tractor truck

under the roof of the middle bay to avoid exiting her tractor

truck in the rain to take care of the bill associated with

the services provided.” (Id. at ¶ 57). Flickinger did so, and

when she stepped out of her vehicle, she faced “the interior

of her tractor truck so that she could hold on to the handles

of her tractor truck with both hands so that she may safely

step down the steps of her tractor truck.” (Id. at ¶ 64).

This “exiting procedure,” which Flickinger found to be the

“safest way for her to exit her tractor for her own personal

safety,” prevented her “from seeing the accumulation of water

on the shiny concrete floor that was underneath and beside

the driver’s side of her tractor truck as she was exiting her

tractor truck.” (Id. at ¶¶ 65, 68). Flickinger “immediately

slipped and fell when she placed her foot onto the watery wet

shiny concrete floor.” (Id. at ¶ 69). Flickinger avers that

she was not warned of this accumulation of water. (Id. at ¶

92-94). Neither were there any signs warning customers that

the “shiny concrete floors were slippery when wet.” (Id. at

¶ 96).

Flickinger alleges that her backing the vehicle into the

middle bay, as invited by the Love’s employee, caused

additional water to accumulate “onto the shiny concrete floor

of the middle bay.” (Id. at ¶ 62). And, Flickinger alleges

that “the Love’s mechanic was present and saw, or should have

seen, the water accumulated on the shiny concrete floor

underneath and beside the driver’s side of [Flickinger’s]

tractor truck before [she] exited her tractor truck.” (Id. at

¶ 63). As a result of this slip and fall, Flickinger has

“sustained serious and permanent injuries to her left upper

leg, left knee, a fracture to her left femur that required

surgery, hips, [lower] back[,] and/or aggravated a pre-

existing condition in those areas.” (Id. at ¶ 114).

Flickinger initially filed this action in state court on

August 11, 2020. (Doc. # 1-1). On September 18, 2020, Love’s

removed the case to this Court on the basis of diversity

jurisdiction. (Doc. # 1). On November 4, 2020, the Court

dismissed the complaint without prejudice for failure to

state a claim, granting leave to amend. (Doc. # 25).

Flickinger filed an amended complaint on November 18, 2020.

(Doc. # 30). The amended complaint includes one count for

premises liability. (Id.).

On December 2, 2020, Love’s moved to dismiss the amended

complaint for failure to state a claim. (Doc. # 31). Love’s

also moves the Court to strike three exhibits from the amended

complaint. (Id.). Flickinger has responded (Doc. # 32), and

the Motions are now ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), this Court accepts as true all the

allegations in the complaint and construes them in the light

most favorable to the plaintiff. Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,

the Court favors the plaintiff with all reasonable inferences

from the allegations in the complaint. Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations and citations omitted). Courts are not “bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The

Court must limit its consideration to “well-pleaded factual

allegations, documents central to or referenced in the

complaint, and matters judicially noticed.” La Grasta v.

First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

Under Federal Rule of Civil Procedure 12(f), a court

“may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f). However, motions to strike are

considered drastic remedies, and are thus disfavored by

courts. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.

Supp. 2d 1345, 1348 (M.D. Fla. 2002). Indeed, they are

generally denied “unless the allegations have no possible

relation to the controversy and may cause prejudice to one of

the parties.” Agan v. Katzman & Korr, P.A., 328 F. Supp. 2d

1363, 1367 (S.D. Fla. 2004) (citations omitted).

III. Analysis

Love’s moves to dismiss the amended complaint in its

entirety and strike certain “unauthenticated images with

handwritten notes and claims” therefrom. (Doc. # 31). The

Court will address each Motion in turn.

A. Motion to Dismiss

Love’s argues that the amended complaint should be

dismissed for the following reasons: (1) Flickinger has not

alleged that there was unusual accumulation of water on the

floor; (2) Love’s does not owe Flickinger all of the duties

alleged in the amended complaint; (3) Flickinger has not

sufficiently alleged a claim for failure to warn; (4)

Flickinger has not described the “other elements” she alleges

may have contributed to her fall; and (5) the amended

complaint does not “make all statements . . . in consecutively

numbered paragraphs, and fails to limit statements to a single

set of circumstances.” (Doc. # 31 at 6-9).

1. Claim for Premises Liability

First, Love’s argues that the amended complaint should

be dismissed for failure to state a claim under Georgia law

because Flickinger has not provided “any factual allegations

relative to the amount of water that was allegedly present or

otherwise supporting that there was an unusual accumulation

of water on the floor” where Flickinger fell. (Doc. # 31 at

6-7). Flickinger responds that she has sufficiently pled that

there was an unusual accumulation of water. (Doc. # 32 at 8).

“Under Georgia law, a premises owner owes a duty of

reasonable care to its invitees, and can be held liable for

its failure to exercise ordinary care to keep the premises

safe.”1 Rivera v. Capmark Fin., Inc., No. 1:12-CV-1097-CAP,

2013 WL 12248217, at *2 (N.D. Ga. Feb. 28, 2013). When a

premises liability action is based on a slip and fall, the

plaintiff must plead that: “(1) the defendant had actual or

constructive knowledge of the hazard; and (2) the plaintiff,

despite exercising ordinary care for his or her own personal

safety, lacked knowledge of the hazard due to the defendant’s

actions or to conditions under the defendant’s control.” Am.

Multi-Cinema, Inc. v. Brown, 679 S.E.2d 25, 28 (Ga. 2009).

“If the fall is caused by a natural occurrence, the risk of

which the invitee should appreciate, the [owner] may be held

1. The Court addressed the choice-of-law issue in this case

in its previous order granting Love’s motion to dismiss,

holding that Georgia law applies. (Doc. # 25 at 4-6).

liable only if the risk has become unreasonable.” Roberts v.

Outback Steakhouse of Fla., Inc., 641 S.E.2d 253, 254 (Ct.

App. Ga. 2007). However, “[i]f . . . the risk is abnormal,

such as an unusual accumulation of water, the [owner] may be

liable for failing to alleviate the condition.” Id. at 255.

At this stage, Flickinger has pled sufficient facts to

state a premises liability claim under Georgia law. As to the

first prong, the amended complaint alleges that the Love’s

mechanic invited Flickinger to park precisely where she

stepped out and fell on the accumulated water, that the

mechanic was aware that it was raining, and that it continued

to rain while he worked on her vehicle for an hour. (Doc. #

30 at ¶ 74-77). And, this is not a typical slip-and-fall where

water accumulated from rain outside or at the entrance of a

building such that a puddle could not plausibly constitute an

unreasonable hazard. See, e.g., Roberts, 641 S.E.2d at 254-

55 (“And we have held that the normal accumulation of water

at the entrance of a business during a rainy day is not an

unreasonable hazard.” (emphasis in original)). Indeed, unlike

Love’s citations, the fall occurred in a covered portion of

the middle bay, and although it was raining outside, such an

accumulation of water might be considered unreasonable. (Doc.

# 30 at ¶¶ 58, 61, 69).

Further, at the motion-to-dismiss stage, Flickinger need

not painstakingly detail how much water was on the floor of

the middle bay. See Fitzgibbons v. Saxon Mortg. Servs., Inc.,

No. 1:11-CV-3722-RLV-JFK, 2012 WL 13012808, at *4 (N.D. Ga.

June 5, 2012) (explaining that the factual allegations in a

complaint need only “possess enough heft to set forth a

plausible entitlement to relief” (citation omitted)). Neither

need Flickinger detail what other potential elements may have

made the accumulation of water more dangerous. See Kroger Co.

v. Schoenhoff, 751 S.E.2d 438, 441-42 (Ct. App. Ga. 2013)

(affirming the denial of the proprietor’s motion for directed

verdict where the issue of the proprietor’s knowledge of a

puddle of water was given to the jury and no other elements

but water were alleged to have caused the fall). Flickinger’s

allegations that it was raining outside, that water was coming

into the covered middle bay, and that water was falling from

Flickinger’s vehicle, creating an accumulation that caused

her to fall, are enough. (Doc. # 30 at ¶¶ 41-45, 50-70).

All of the aforementioned facts, taken as true, support

a plausible inference that Love’s had actual or constructive

notice of a dangerous hazard in the form of an unreasonable

accumulation of water near or under Flickinger’s vehicle. See

Drew v. Istar Fin., Inc., 661 S.E.2d 686, 690 (Ct. App. Ga.

2008) (“A proprietor’s constructive knowledge of such a

hazard can be shown either by evidence that an employee of

the proprietor was in the immediate area of the hazard and

could have seen and removed it, or by evidence that the

proprietor failed to exercise reasonable care in inspecting

the premises.”). Therefore, the first prong is satisfied.

As to the second prong, Flickinger alleges that she did

not see the puddle due to the height of her vehicle, and the

manner in which she exited the vehicle – facing the interior

of the truck – which she found to be the safest way to do so.

(Doc. # 30 at ¶ 64). These allegations, combined with the

fact that Flickinger was in her vehicle for about an hour

while waiting on the repairs, that she exited while under a

roofed portion of the middle bay, and that there is no

indication that Flickinger had previously exited her vehicle

to view the accumulation of water, also support a plausible

inference that, despite exercising ordinary care, Flickinger

was unaware of the puddle of water that had collected inside

the middle bay near or below her vehicle. (Id. at ¶ 68); see

Smith v. Toys “R” Us, Inc., 504 S.E.2d 31, 35 (Ct. App. Ga.

1998) (“Given the evidence, it is a jury question whether

Smith failed to exercise ordinary care for her own safety.”).

Having satisfied both prongs, Flickinger has pled a

claim upon which relief can be granted for premises liability

under Georgia law. Accordingly, the Motion to Dismiss is

denied as to this requested relief.

2. Heightened Duties Under Georgia Law

Next, Love’s argues that the amended complaint should be

dismissed because it includes certain heightened duties that

are not owed by a premises owner under Georgia law. (Doc. #

31 at 7). The amended complaint alleges that Love’s owed the

following duties to Flickinger: (1) “the duty of exercising

ordinary care in keeping, owning, operating, and/or

maintaining the above truck stop garage and the approaches in

safe condition”; (2) “the duty of keeping its business

premises free of hazards that it had actual or constructive

knowledge were present,”; (3) “the duty of warning its

invitees of dangerous conditions on its premises that it knew,

or with the exercise of reasonable care should have known or

had constructive knowledge, about”; (4) “the duty to inspect

its business premises for any hazards to its invitees”; and

(5) “the duty to clean its business premises to remove or

resolve any hazards to its invitees.” (Doc. # 30 at ¶ 8-12).

Love’s does not dispute the existence of the first duty. (Doc.

# 31 at 8). Accordingly, the Court will address only the four

remaining duties.

Regarding the second alleged duty, the amended complaint

states that Love’s owes Flickinger “the duty of keeping its

business premises free of hazards that it had actual or

constructive knowledge were present.” (Doc. # 30 at ¶ 9).

However, Georgia law provides that the duty of ordinary care

imposed between a premises owner and invitee “is not a duty

to absolutely prevent injury as a proprietor is not an ensurer

of the safety of its customers.” Thomas v. Home Depot, U.S.A.,

Inc., 644 S.E.2d 538, 540 (Ct. App. Ga. 2007). Rather, Georgia

law imposes a balancing reasonableness standard – a

determination of which party was in the best position to

discover the alleged hazard – something that is markedly

missing from this averred duty. See Hayward v. Kroger Co.,

733 S.E.2d 7, 11 (Ct. App. Ga. 2012) (“Moreover, as our

Supreme Court has recently reiterated, there can be no

recovery in a premises liability case without evidence

tending to show that the owner/occupier has superior

knowledge of the perilous instrumentality[.]” (emphasis

omitted and citation omitted)); (Doc. # 30 at ¶ 9). Therefore,

to the extent that Flickinger attempts to create a heightened

duty that does not depend on whether the plaintiff herself

acted reasonably, this is a misstatement of Georgia law.

The third and fourth proffered duties – the duty to warn

and the duty to inspect – fail for the same reason. Neither

duty, as alleged in Flickinger’s amended complaint, provide

that they depend on which party has the superior knowledge.

(Doc. # 30 at ¶ 11-12). Although a duty to inspect premises

exists under Georgia law, this duty exists only if the owner

has superior knowledge of the hazard over the invitee. See

Sipple v. Newman, 722 S.E.2d 348, 350 (Ct. App. Ga. 2012)

(“An owner’s obligation to keep the premises safe includes a

duty to inspect the premises to discover possible dangerous

conditions of which the owner does not know and to take

reasonable precautions to protect the invitee from dangers

which are foreseeable from the arrangement and use of the

premises. Still, the owner’s duty to exercise ordinary care

is not a duty to absolutely prevent injury as an owner is not

an ensurer of the safety of its invitees. The true ground of

liability is the owner’s superior knowledge of the perilous

instrumentality and the danger therefrom to persons going

upon the property.” (citation omitted)). The same standard

applies to the duty to warn. See Gray v. Oliver, 530 S.E.2d

241, 243 (Ct. App. Ga. 2000) (“However, even if it were

hazardous as plaintiff asserts, the condition was open and

obvious, and thus, in the exercise of ordinary care, plaintiff

could have avoided it. There is no duty to warn of the

obvious. Moreover, where, as here, the plaintiff had as much

knowledge of the hazard as did the owner, plaintiff assumes

the risk as to the known condition by voluntarily acting in

the face of such knowledge.” (citations omitted)).

Lastly, the Court finds that a premises owner does not

owe an absolute duty to clean to an invitee under Georgia

law. And, Flickinger has provided no citation to such a duty

in her response to the instant Motion. (Doc. # 32). Even

assuming that this duty exists, again, “the true ground of

liability is the proprietor’s superior knowledge of the

perilous condition and the danger therefrom to persons going

upon the property.” Spann v. Calhoun Cnty. Hosp. Auth., 430

S.E.2d 828, 828 (Ct. App. Ga. 1993).

Accordingly, Count I is dismissed only to the extent

that it attempts to create heightened duties not owed to

invitees under Georgia law. See Lockhart v. Steiner Mgmt.

Servs., LLC, No. 10-24665-CIV, 2011 WL 1743766, at *2 (S.D.

Fla. May 6, 2011) (dismissing with prejudice a negligence

claim that alleged heightened duties not owed by the

defendant). This, however, does not prevent Flickinger from

later using facts or theories related to these duties in

arguing that Love’s breached its duty of ordinary care.

3. Failure to Warn Theory

Love’s next argues that Flickinger’s failure to warn

claim fails under Georgia law because she “does not allege

any facts supporting that [Love’s] knowledge of the alleged

condition was superior [to] that of [Flickinger].” (Doc. # 31

at 9). This “failure to warn claim” appears to be a theory of

liability within Flickinger’s premises liability claim,

considering that it is not represented in a separate cause of

action. (Doc. # 30 at ¶ 113); see also Tomsic v. Marriott

Int’l, Inc., 739 S.E.2d 521, 532 (Ct. App. Ga. 2013) (“But

the failure to warn that Tomsic alleged in her complaint was

not a separate basis for liability but rather a means by which

Marriott might have breached a duty of care it owed under a

theory of premises liability.”).

Under Georgia law, “an owner or occupier of land is

liable to invitees for injuries they sustain as a result of

his [or her] failure to warn them of dangers which he [or

she] was aware of, or in the exercise of reasonable care

should have known.” Benson-Jones v. Sysco Food Servs. of Atl.,

LLC, 651 S.E.2d 839, 844 (Ct. App. Ga. 2007) (citation

omitted). The owner must have “either actual or constructive

knowledge of defects or dangers on the premises.” Murphy v.

Blue Bird Body Co., 429 S.E.2d 530, 534 (Ct. App. Ga. 1993).

Here, Flickinger has sufficiently alleged her failure to

warn theory of liability as to her premises liability claim.

As previously noted, Flickinger has provided enough facts

showing that the Love’s mechanic was aware of the accumulation

of water on the ground and that Flickinger was not. See Berson

v. Am. Golf Corp., 595 S.E.2d 622, 625 (Ct. App. Ga. 2004)

(reversing a grant of summary judgment where it was unclear

who had superior knowledge of a slippery floor and the

premises owner failed to warn the plaintiff of said floor).

Therefore, the Motion is denied as to this requested relief.

4. Rule 10(b)

Finally, Love’s moves to dismiss the amended complaint

on the basis that it does not “make all statements . . . in

consecutively numbered paragraphs, and fails to limit

statements to a single set of circumstances.” (Doc. # 31 at

6-9). Rule 10(b) of the Federal Rules of Civil Procedure

provides that “[a] party must state its claims or defenses in

numbered paragraphs, each limited as far as practicable to a

single set of circumstances.” Fed. R. Civ. P. 10(b). “The

failure to identify claims with sufficient clarity to enable

the defendants to frame a response pleading constitutes a

‘shotgun pleading.’” Morris v. First Fin. Corp., No. 1:07-

CV-0614-CAP, 2007 WL 9710507, at *2 (N.D. Ga. Oct. 10, 2007).

Here, Love’s points only to Paragraph 85 of the amended

complaint as a violation of Rule 10(b), which states:

85. That the Love’s mechanic was in a superior

position to see and know of the dangerous condition

identified in paragraph 72 because the Love’s

mechanic was present inside the middle bay of the

above Love’s repair for at least an hour working on

Plaintiff’s trailer and had [a] clear, unobstructed

view of the condition of the accumulated water on

[the] shiny concrete floor of the middle bay of the

Love’s repair center, and was in a position to see

the water on the floor underneath and beside the

driver’s side of Plaintiff’s tractor truck when

Plaintiff backed up her tractor truck into the

middle bay to pay for the services the Defendant

provided her. Whereas, Plaintiff, due to occupying

her tractor truck could not see the accumulation of

water on the shiny concrete floor when she pulled

into the middle bay, and could not see the

accumulation of water on the shiny concrete floor

of the middle bay while her trailer was being

service[d], and could not see the accumulation of

water on the shiny concrete floor as she backed her

tractor truck up into the middle bay at the Love’s

mechanic’s invitation. Also, Plaintiff could not

see the accumulation of water on the shiny concrete

floor underneath and beside the driver’s side of

her tractor truck due to the way she has to exit

her tractor truck. In other words, the Love’s

mechanic’s vantage point of the dangerous

condition, i.e. the accumulated water on the shiny

concrete floor of the middle bay of the Love’s

repair center, was superior than that of the

Plaintiff’s.

(Doc. # 30 at ¶ 85). Flickinger argues that despite the length

of this paragraph, it is constrained to a single set of

circumstances because the statements relate to whether Love’s

or Flickinger was in a superior position to see the dangerous

condition in question, and it reiterates facts already

alleged elsewhere in the complaint. (Doc. # 32 at 16-17).

The Court agrees with Love’s that Paragraph 85 could

have been divided into additional paragraphs so as to make it

clearer, but the Court also finds that this paragraph is not

so convoluted so as to necessitate dismissal. Although the

paragraph is lengthy, it explains which party was in a

superior position to see the accumulation of water below or

near Flickinger’s vehicle. (Doc. # 30 at ¶ 85). Love’s will

be able to affirm or deny each of these facts – both in

response to other parts of the complaint, and Paragraph 85

itself. See S. Coal Corp. v. Drummond Coal Sales, Inc., No.

1:17-CV-1104-AT, 2017 WL 7550765, at *10 (N.D. Ga. Nov. 15,

2017) (“Rule 10(b) is satisfied when a defendant will be able

to discern what the plaintiff is claiming and to frame a

responsive pleading.” (citation omitted)).

The rest of the amended complaint includes succinct,

numbered paragraphs, and the only cause of action is alleged

in Count I. (Doc. # 30). This is not the sort of incoherent,

unorganized complaint that generally fails under Rule 10(b).

See, e.g., Darby v. United Auto. Ins. Co., No. 20-22777-CIV-

MORENO, 2020 WL 3977176, at *3 (S.D. Fla. July 14, 2020)

(dismissing a complaint that did not include any numbered

paragraphs or enumerated causes of action); Eddins v. U.S.

Air Force, No. 15-0350-WS-M, 2016 WL 660927, at *3 (S.D. Ala.

Feb. 18, 2016) (“The first [three and a half] pages of the

amended complaint contain no numbered paragraphs, and both

they and the subsequent numbered paragraphs are unmanageably

long (up to a full page).”). Accordingly, the Court finds

that the amended complaint does not violate Rule 10(b), and

the Motion is denied as to this requested relief.

B. Motion to Strike

Love’s also moves to strike “multiple unauthenticated

photograph[s]” from Flickinger’s amended complaint. (Doc. #

31 at 12). Love’s argues that “[t]he attachment of the

photographs is improper as [Flickinger] is attempting to use

the photograph[s] as a replacement for a plain statement of

[her] claim and of the facts entitling [her] to relief.”

(Id.). Love’s further explains that it is unable to either

admit or deny these attached photographs, especially because

they contain written annotations. (Id.). Flickinger responds

that the attached images were meant to provide Love’s with

more notice as to where Flickinger fell. (Doc. # 30 at 17).

Under Rule 12(f) of the Federal Rules of Civil Procedure,

the Court “may strike from a pleading an insufficient defense

or any redundant, immaterial, impertinent, or scandalous

matter.” Fed. R. Civ. P. 12(f). However, motions to strike

are generally disfavored in the Eleventh Circuit. See

Williams v. Delray Auto Mall, Inc., 289 F.R.D. 697, 699 (S.D.

Fla. 2013) (“[A] motion to strike is a drastic remedy, which

is disfavored by the courts.” (citation omitted)).

Here, the amended complaint includes three attachments.

The first attachment, labeled “Exhibit A,” is a photograph of

an aerial view of the Love’s truck stop where the incident

occurred. (Doc. # 30-1). The image contains three labels,

pointing to the “gas station/convenience store/McDonalds,”

the “tractor truck gas station,” and the “Love’s repair

center” located on or near the site. (Id.). The second

attachment, labeled “Exhibit B,” is a photograph of the “front

of Love’s repair center.” (Doc. # 30-2). The third attachment,

labeled “Exhibit C,” is a photograph of the “rear of Love’s

repair center.” (Doc. # 30-3). All of the photographs were

apparently taken from Google Images. (Doc. # 31 at 18).

The Court finds these three exhibits immaterial. Indeed,

courts have regularly stricken photographic or other non-

written exhibits from complaints for this very reason. See,

e.g., Nkemakolam v. St. Johns Mil. Sch., 876 F. Supp. 2d 1240,

1247 (D. Kan. 2012) (citing cases); Hahn v. City of Carlsbad,

No. 15-cv-2007 DMS (BGS), 2016 WL 3211801, at *4 (S.D. Cal.

Feb. 3, 2016) (“Because the video is not a written instrument

under Rule 10(c), it is immaterial.”); Equal Emp. Opportunity

Comm’n v. Bo-Cherry, Inc., No. 3:13-cv-00210-MOC-DSC, 2013 WL

2317724, at *3-4 (W.D.N.C. May 28, 2013) (striking a photo

exhibit from a complaint without prejudice). In Nkemakolam v.

St. Johns Military School, the District of Kansas explained

why such exhibits are considered immaterial under the Federal

Rules of Civil Procedure:

The Rules consistently describe pleadings as

containing ‘statements’ and ‘allegations,’ and such

language does not contemplate photographs or other

objects. Rule 10, which is titled ‘Form of

Pleadings,’ address[es] exhibits to pleadings as

follows: ‘A copy of a written instrument that is an

exhibit to a pleading is a part of the pleading for

all purposes.’ The courts that have considered this

issue have concluded that the Rules thus do not

contemplate the attachment of exhibits, such as

photographs, that are not written instruments. For

instance, the Third Circuit has stated: ‘The case

law demonstrates, however, that the types of

exhibits incorporated within the pleadings by Rule

10(c) consist largely of documentary evidence,

specifically contracts, notes, and other writings

on which a party’s action or defense is based.’

Nkemakolam, 876 F. Supp. 2d at 1246-47 (citations omitted).

Although a small number of courts have declined to strike

photographic exhibits, the Court agrees with the majority of

courts that these exhibits are immaterial. See, e.g.,

Stacey v. Peoria Cnty., No. 13-CV-1051, 2013 WL 3279997, at

*8 (C.D. Ill. June 27, 2013) (“The photographs add information

and detail to the allegations in the text of the Complaint.

The photographs, thus, aid the parties and the Court in

understanding the allegations. The photographs also are not

scandalous or impertinent.”); cf. Bo-Cherry, 2013 WL 2317724,

at *3 (“There is little case law addressing this issue, but

the cases the court could find appear to unequivocally hold

that photographs should not be attached as exhibits to either

a complaint or answer.”).

Accordingly, Exhibits A, B, and C are stricken from the

amended complaint. See Rowan v. Sunflower Elec. Power Corp.,

No. 15-cv-9227-JWL-TJJ, 2015 WL 8024320, at *2 (D. Kan. Dec.

4, 2015) (“The photographs do not add to the substance of the

complaint, and are therefore immaterial.”). Because the Court

strikes these exhibits without prejudice, Flickinger may – if

appropriate – still seek to introduce them in a later motion,

response, or at trial. See Bo-Cherry, 2013 WL 2317724, at *4

(“The court will strike Exhibit B; however, such striking is

without prejudice as to defendant later seeking introduction

of such photograph in conjunction with an appropriate motion

or response, or at trial.”).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Love’s Travel Stops & Country Stores, Inc.’s

Motion to Dismiss Amended Complaint (Doc. # 31) is

GRANTED in part and DENIED in part.

(2) Count I is dismissed to the extent it alleges heightened

duties not owed by a premises owner to an invitee under

Georgia law, as set forth herein. However, Count I

remains insofar as it alleges premises liability under

the appropriate standard of care in Georgia.

(2) Love’s Motion to Strike (Doc. # 31) is GRANTED. Exhibits

A, B, and C to the amended complaint are hereby stricken

as immaterial. (Doc. ## 30-1; 30-2; 30-3).

(3) Love’s answer to the amended complaint is due within

fourteen days of the date of this Order.

DONE and ORDERED in Chambers, in Tampa, Florida, this

13th day of January, 2021.

tina 90. Husmerby Coe

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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