The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LAURIE KILLINGER-SMITH
Plaintiff,
v. Case No: 6:25-cv-1982-CEM-DCI
OSCEOLA COUNTY BOARD
OF COUNTY COMMISSIONERS
Defendant.
REPORT AND RECOMMENDATION
This matter comes before the Court on Defendant’s “Unopposed Motion to Strike and/or
Dismiss Count II of Plaintiff’s Complaint.” Doc. 12 (the Motion). The undersigned recommends
that the Motion be granted in part.
In the Complaint, Plaintiff alleges two claims. Count I is titled, “Disability Discrimination
(ADA – Failure to Accommodate / Disparate Treatment / Retaliation).” Doc. 5-1 at 4. Count II
is titled, “Reservation / (Optional) COUNT II - Florida Civil Rights Act (if ripe now).” Id. at 5.
Defendant simultaneously filed both an Answer (Doc. 11) and the Motion. Indeed, in the
Answer, as to the allegation in Count II, Defendant stated, “Defendant is simultaneously moving
to strike Count II of the underlying Complaint, in its totality including paragraphs 24 – 26. Said
motion is hereby adopted and incorporated by reference. To be sure, any purported allegation in
Count II is denied.” Doc. 11 at 3.
In the Motion, Defendant seeks to strike or dismiss Count II, arguing that Count II is an
improper attempt to reserve a right to amend and add a future claim. Doc. 12. In the conferral
statement of the Motion, Defendant represents that Plaintiff “does not object to the relief herein
requested.” Id. at 2. Further, Plaintiff did not respond to the Motion. See Local Rule 3.01(d) (“If
a party fails to timely respond, the motion is subject to treatment as unopposed.”). So, the Court
deems the Motion unopposed.
The undersigned agrees that Plaintiff’s attempt to allege as a count a reservation to file
future claims is improper. Amendment to allege new claims must comply with the orders and
rules governing of the Court. See, e.g., Fed. R. Civ. P. 15. As such, the reservation of rights has
no legal effect and is due to be stricken. See Rodriguez v. Allstate Ins. Co., No. 11-21042-CIV,
2011 WL 13223708, at *3 (S.D. Fla. May 23, 2011), report and recommendation adopted in part,
No. 11-21042-CIV, 2011 WL 13223734 (S.D. Fla. June 17, 2011) (“Because the reservation of
rights is not a viable defense, and has no legal effect, I recommend the Court strike the reservation
of rights.”).
The undersigned does not recommend dismissal of Count II per se, nor dismissal of the
claims purportedly reserved therein, because those claims are not properly before the Court and
have not actually been alleged in this case.
Based on the foregoing the undersigned RECOMMENDS that the Court GRANT in part
the Motion (Doc. 12) and strike paragraphs 24, 25, and 26 of the Complaint (Doc. 5-1).
The Report and Recommendation dated November 14, 2025 (Doc. 20) is hereby
VACATED and this Report is substituted in its place to correct a typographical error concerning
the paragraphs to be stricken and to reflect that the Motion is granted in part as stated herein.
NOTICE TO PARTIES
The party has fourteen days from the date the party is served a copy of this report to file
written objections to this report’s proposed findings and recommendations or to seek an extension
of the fourteen-day deadline to file written objections. 28 U.S.C. § 636(b)(1)(C). A party’s failure
to serve and file written objections waives that party’s right to challenge on appeal any unobjected-
to factual finding or legal conclusion the district judge adopts from the Report and
Recommendation. See 11th Cir. R. 3-1; 28 U.S.C. § 636(b)(1).
RECOMMENDED in Orlando, Florida on February 24, 2026.
DANIEL C_ IRICK
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Party