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Filing # 96191218 E-Filed 09/24/2019 11:50:59 AM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
JESUS CABRERA, as Personal CASE NO. CACE-18-001878 (21)
Representative of the Estate of
RAMON CABRERA, Deceased,
Plaintiff,
Vv.
JACK MICHEL, M.D., REHABILITATION
CENTER AT HOLLYWOOD HILLS, LLC, a
Florida Limited Liability Co., HOLLYWOOD
PROPERTY INVESTMENTS, LLC, a Florida
Limited Liability Co., LARKIN COMMUNITY
HOSPITAL, INC. d/b/a LARKIN COMMUNITY
HOSPITAL,
Defendants.
/
DEFENDANT'S, JACK MICHEL M.D.. MOTION
TO DISMISS AND MOTION TO STRIKE
Defendant, JACK MICHEL, M.D.(hereinafter “MICHEL”), by and through his
undersigned attorneys, and pursuant to Rule 1.140(b) and 1.140 (f), Fla.R.Civ.P., moves to
dismiss Count I of Plaintiff's Complaint for Damages and Demand for Jury Trial and
Motion to Strike, and as grounds therefore would state as follows:
INTRODUCTION
1. Plaintiff has filed a four count Complaint for Damages and Demand for Jury
Trial (hereinafter “Complaint”) against JACK MICHEL M.D., REHABILITATION
CENTER AT HOLLYWOOD HILLS, LLC., (hereinafter “RCHH”)!, HOLLYWOOD
PROPERTY INVESTMENTS, LLC., (hereinafter “HPI”), and LARKIN COMMUNITY
HOSPITAL d/b/a LARKIN COMMUNITY HOSPITAL (hereinafter “LARKIN”). Each
'RCHH is no longer in business, as it was closed following Hurricane IRMA.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/24/2019 11:50:59 AM.****CASE NO. CACE-18-001878 (21)
separate count against each Defendant seeks to impose liability under Chapter § 400, Fla.
Stat., also known as the Florida Nursing Home Statute.
2. At all times material hereto, RCHH was the licensee of the nursing home in
Hollywood, Florida, situated on property owned by HPI. LARKIN was the sole member of
the limited liability company (LLC) known as the REHABILITATION CENTER AT
HOLLYWOOD HILLS, LLC.
3. Plaintiffs Complaint, specifically Count I, purports to assert a cause of
action pursuant to § 400.022, Fla. Stat., against Defendant, MICHEL, individually.
4. At this juncture, Count I of Plaintiff's Complaint must be dismissed in favor
of MICHEL until such time, if ever, Plaintiff can meet the statutory conditions precedent
for filing suit against MICHEL.
5. Specifically, Plaintiff has failed to comply with the statutory conditions
precedent to filing suit against MICHEL, as set forth in the Florida Nursing Home Statute.
6. Moreover, Count I of Plaintiff's Complaint is baseless and frivolous, as
Plaintiff erroneously postures that a “Manager” elected by the sole member of the limited
liability company that owns RCHH is the equivalent of a management company as that
term is defined in § 400.023(2)(b), Fla. Stat. Not true. Moreover, Plaintiff has failed to
allege that MICHEL as the “manager” contracts with or receives a fee from the licensee
(RCHH) and as such, has not stated a cause of action against MICHEL, individually, as a
“management or consulting company”. And to be clear, to the extent that Plaintiff pleaded
such allegations, they would be mere legal conclusions unsupported by any factual basis.
Put simply, the allegations against MICHEL are unsupported by material facts necessary to
establish a claim against MICHEL and the law does not support any such claim until such
2CASE NO. CACE-18-001878 (21)
time, if ever, that Plaintiff can meet the evidentiary burden of establishing such a claim
under § 400.023 (3), Fla. Stat.
A. Assuming arguendo that the Nursing Home Statute does not provide the
exclusive remedy for Plaintiff's claims, pursuant to § 605.04093, Fla. Stat., MICHEL cannot
be personally liable for monetary damages simply by virtue of being a manager of the LLC
that owns RCHH who allegedly committed ordinary negligence. Therefore, Plaintiff's
negligence claims against MICHEL are barred as a matter oflaw.
8. Lastly, Exhibits 1 and 2 attached to the Complaint which Plaintiff relies
upon are not admissible evidence and are taken out of context by Plaintiff. These exhibits
do not truthfully support the allegations of the Complaint, are impertinent and immaterial
to Count I of the Complaint and, therefore, should be stricken.
LEGAL ARGUMENT
A.
COUNT I OF PLAINTIFF’S COMPLAINT SHOULD BE
DISMISSED BECAUSE PLAINTIFF HAS FAILED TO
COMPLY WITH THE STATUTORY CONDITIONS
PRECEDENT TO FILING A CLAIM AGAINST
MICHEL.
Count I of the Plaintiff's Complaint must be dismissed due to Plaintiff’s failure to
comply with conditions precedent to filing suit against MICHEL, pursuant to Chapter § 400,
Fla. Stat.
The claim against MICHEL violates the exclusive remedy provisions of §
400.023(1), Fla. Stat. which expressly provides as follows:
An exclusive cause of action for negligence or a violation of
residents’ rights as specified under this part which alleges direct
or vicarious liability for the personal injury or death of a nursing
home resident arising from such negligence or violation of rights
3CASE NO. CACE-18-001878 (21)
and which seeks damages for such injury or death may be
brought only against the licensee, the licensee’s management
or consulting company, the licensee’s managing employees,
and any direct caregivers, whether employees or
contractors. A passive investor is not liable under this section.
An action against any other individual or entity may be
brought only pursuant to subsection (3).
§ 400.023(3), Fla. Stat. unequivocally imposes the following condition precedent
on Plaintiff prior to filing suit against MICHEL:
(3) A cause of action may not be asserted against an individual
or entity other than the licensee, the licensee's management or
consulting company, the licensee's managing employees, and
any direct caregivers, whether employees or contractors, unless,
after a motion for leave to amend hearing, the court or an
arbitration panel determines that there is sufficient evidence in
the record or proffered by the claimant to establish a reasonable
showing that:
(a) The individual or entity owed a duty of reasonable care
to the resident and that the individual or entity breached
that duty; and
(b) The breach of that duty is a legal cause of loss, injury,
death, or damage to the resident.
For purposes of this subsection, if, in a proposed amended
pleading, it is asserted that such cause of action arose out of the
conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading, the proposed amendment
telates back to the original pleading.
Clearly, the statute has a condition precedent mandating that before a claim under §
400.023, Fla. Stat. can proceed against someone such as MICHEL who does not fall
within the purview of § 400.023(1), Fla. Stat., the Plaintiff must either prove that there is
sufficient evidence in the record to support such claim or proffer such evidence so as to
establish a reasonable showing that an amended pleading should be permitted against
MICHEL.
Put another way, Plaintiff’s claims against MICHEL are premature. Plaintiff has
4CASE NO. CACE-18-001878 (21)
not made the required evidentiary showing to this Court to support the proposition that
MICHEL owed a duty of reasonable care to the Plaintiff and that MICHEL breached that
duty such that he can be named as a defendant. This evidentiary burden, which is a condition
precedent to filing suit against any individual who is not identified in § 400.023(1), Fla. Stat.
has not been met by the Plaintiff.
Further, Plaintiff is required to proffer to this Court admissible evidence at the
motion for leave to amend hearing that the breach of that duty by MICHEL was the legal
cause of loss, injury, death, or damage to the Plaintiff. That evidentiary burden has not been
met by the Plaintiff, either.
Based on the foregoing, the Plaintiff submits that the Court should grant this
Motion to Dismiss and enter an Order dismissing MICHEL until such time as Plaintiff
can, if ever, present evidence that a viable claim exists against him under § 400.023, Fla.
Stat. against MICHEL.
B.
PLAINTIFFS COMPLAINT FAILS TO STATE A
CAUSE OF ACTION AGAINST JACK MICHEL M.D.
UNDER FLORIDA’S NURSING HOME STATUTE AS A
MANAGEMENT COMPANY
Count I of the Complaint attempts to assert that MICHEL is liable under §
400.023(1), Fla. Stat. because Michel is a “Manager” capable of being sued under the
nursing home statute. Pursuant to Rule 1.140, Fla.R.Civ.P., the Plaintiff has failed to
adequately plead the factual allegations necessary to state a viable cause of action against the
MICHEL as a managing employee or “Management Company” under the nursing home
statute.
Count I of the Complaint purports to state a cause of action against MICHEL. It
5CASE NO. CACE-18-001878 (21)
does not. As set forth above, Chapter § 400, Fla. Stat. clearly provides for an exclusive
cause of action for negligence or violation of residents' rights as against specific individuals
or entities. Said individuals or entities include the following: "The licensee, the licensee's
management or consulting company, the licensee's managing employees and any direct
caregivers... " §400.023(1), Fla. Stat.
Plaintiff asserts that MICHEL was the “President, Owner, and Manager of the
licensee." [Complaint §8]. This assertion is a mischaracterization, recklessly and
scandalously made, and apparently based on a Sunbiz.org website screen. [Exhibit 1 to the
Complaint]?. MICHEL was neither a President, Owner, Management Company, nor
Managing Employee of RCHH. Plaintiff's reference and reliance on said Sunbiz.org screen
for the asserted proposition that MICHEL is somehow RCHH’s management company is
disingenuous and improper. A Sunbiz.org report is inadmissible hearsay and may not be
relied upon in and of itself, to bring MICHEL within the purview of an identified individual
who can be sued under the nursing home statute.
Rather, in order to allege that MICHEL was a “Management Company,” as defined
by the nursing home statute and, therefore, subject to potential liability, Plaintiff would need
to truthfully plead that MICHEL contracted with or received a fee from the licensee, RCHH.
The Complaint is completely devoid of these allegations. Pursuant to § 400.023(2)(b), Fla.
Stat.:
(b) “Management or consulting company” means an
individual or entity who contracts with, or receives a fee
Jrom, a licensee to provide any of the following services for a
nursing home facility:
1. Hiring or firing of the administrator or director of
nursing;
? Any allegations relying on Sunbiz.org should be stricken. See infra.
6CASE NO. CACE-18-001878 (21)
2. Controlling or having control over the staffing levels at
the facility;
3. Having control over the budget of the facility; or
4. Implementing and enforcing the policies and
procedures of the facility.
It is insufficient that Plaintiff pleads that MICHEL was charged with “Hiring or
firing of the administrator or director of nursing” and; “Having control over the budget of
the facility” and; “Controlling or having control over the staffing levels at the facility” and;
“Implementing and enforcing the policies and procedures of the facility” without factual
support for these bare legal conclusions. [Complaint 710, §11]. Moreover, Plaintiff does
not, and cannot in good faith, allege that MICHEL contracted with the licensee, RCHH,
to provide management services to the facility or received a fee from RCHH to do so, a
prerequisite to maintaining a cause of action against MICHEL. Failure to plead these
specific allegations subjects Count I of the Complaint to dismissal.
Cc.
ASSUMING ARGUENDO THAT THE NURSING
HOME STATUTE IS NOT THE EXCLUSIVE
REMEDY FOR THE ISSUES AT HAND, PLAINTIFF
FAILS TO STATE A CAUSE OF ACTION UNDER
THE FLORIDA REVISED LIMITED LIABILITY
COMPANY ACT AGAINST MICHEL
RCHH recognizes, respects, and has always operated in a manner to provide its
residents with best efforts to provide all good care to its residents. In fact, Plaintiff sues
licensee, RCHH, as a separate and distinct Defendant in this lawsuit pursuant to duties
imposed by Chapter § 400, Fla. Stat. on said licensee. Count I of Plaintiff's Complaint,
however, seeks to hold MICHEL liable for negligence based solely on his appointment
as a manager in a limited liability company.
Limited liability companies are entities which are responsible as entities, as
7CASE NO. CACE-18-001878 (21)
required by law and the duties imposed by law on said entities. The law is clear:
Members or managers of said limited liability companies are not personally liable,
directly or indirectly, to third persons, for asserted liability of the company solely by
reason of being or acting as member or manager of said limited liability company.
Specifically, under the relevant parts of Fla. Stat. § 605.04093, known as the Florida
Revised Limited Liability Company Act:
(1) A manager in a manager-managed limited liability
company or a member in a member-managed limited liability
company is not personally liable for monetary damages to the
limited liability company, its members, or any other person for
any statement, vote, decision, or failure to act regarding
management or policy decisions by a manager in a manager-
managed limited liability company or a member in a member-
managed limited liability company unless:
(a) The manager or member breached or failed to perform
the duties as a manager in a manager-managed limited liability
company or a member in a member-managed limited liability
company; and.
(b) The manager’s or member's breach of, or failure to
perform, those duties constitute any of the following:
5. Ina proceeding by or in the right of someone other than the
limited liability company or a member, recklessness or an act
or omission that was committed in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.
(2) As used in this section, the term “recklessness” means
acting or failing to act in conscious disregard of a risk known,
or a risk so obvious that it should have been known, to the
manager in a manager-managed limited liability company or
the member in a member-managed limited liability company,
and known to the manager or member, or so obvious that it
should have been known, to be so great as to make it highly
probable that harm would follow from such action or failure
to act.CASE NO. CACE-18-001878 (21)
To the extent that Florida’s Nursing Home Statute does not provide the exclusive
remedy for Plaintiffs claims, there are no factual allegations alleged in the Count I of the
Complaint against MICHEL to state a viable cause of action against him under the Florida
Limited Liability Act. Specifically, Plaintiffs claims sound in ordinary negligence which is
insufficient as a matter of law to state a cause of action against a manager of a limited liability
company. Plaintiff's Complaint is devoid of the required elements to impose liability on
MICHEL, individually, for the actions of RCHH, pursuant to § 605.04093, Fla. Stat.
Accordingly, as plead, Plaintiff's negligence claims against MICHEL are barred by the Florida
Revised Limited Liability Company Act.
The Plaintiff relies on Estate of Canavan v. National Healthcare Corp., 899
So.2d DCA 2004), for the proposition that “Defendant, JACK MICHEL M.D.’s
negligence constitutes tortious conduct which is not shielded from liability”. [Complaint
412]. Plaintiff’s reliance on Canavan is misplaced. Canavan was decided in 2004,
teversed a directed verdict in favor of the individual Defendant who was employed by
the licensee’s management company, was based on evidence presented at trial, and has
not been cited by any Florida appellate court since the enactment of the Florida Revised
Limited Liability Company Act on January 1, 2014. The Canavan opinion is clearly limited
to its facts which were derived from evidence presented at trial and has no bearing on the
subject Complaint and this Motion. The Canavan opinion does not relieve the Plaintiff of
the obligation to plead allegations supported by facts to satisfy the elements necessary to
state a cause of action against MICHEL, individually, pursuant to § 605.04093, Fla. Stat.
Simply stated, the Plaintiff has also sued the licensee as a Defendant in this
matter. While the allegations as to said Defendant licensee, RCHH, are specifically
denied by said Defendant, the Plaintiff will proceed accordingly to litigate this matter as
9CASE NO. CACE-18-001878 (21)
to the appropriately named Defendant licensee. Plaintiff should not, however, be
permitted to assert frivolous and baseless claims which are contrary to factual accuracy
and Florida law and protections afforded pursuant to Florida law. Taking the allegations
of Plaintiff's Complaint as true, albeit false and misguided, the Complaint must be
dismissed for failure to state a cause of action as against Defendant, MICHEL, based upon
him being appointed as a designated manager by the sole member of the limited liability
company which owns the licensee and who at no time, acted with recklessness as that
term is statutorily defined.
D.
CERTAIN ALLEGATIONS IN THE COMPLAINT
ARE IMMATERIAL, IMPERTINENT, AND
SCANDALOUS, AND ALONG WITH EXHIBIT 1
AND EXHIBIT 2, SHOULD BE STRICKEN.
In paragraph 11 of the Complaint, the Plaintiff alleges that MICHEL had a duty to
ensure that RCHH’s policies and procedures were implemented and followed; and “that
the facility’s physical plant, (i.e. air conditioners and generators) was /sic/ adequate to
provide a safe and decent living environment; and to protect the nursing home residents
during Hurricane Irma.” In paragraph 12 of the Complaint, the Plaintiff alleges that
MICHEL “failed to protect the Nursing Home residents during Hurricane Irma”.
These allegations are immaterial, impertinent, and scandalous. Plaintiff knows that
Ramon Cabrera was not a resident of RCHH at the time of Hurricane Irma.’ Plaintiff has
absolutely no good faith basis to include such allegations in the Complaint and the same
should be stricken for that reason. Rule 1.140(f)., Fla.R.Civ.P. provides that:
3 If this case was a Hurricane Irma it would not have been transferred to this division at Plaintiff’s request and
would be pending before the Honorable Patti Englander Henning.
10CASE NO. CACE-18-001878 (21)
(f) Motion to Strike. A party may move to strike or the
court may strike redundant, immaterial, impertinent, or
scandalous matter from any pleading at any time.
Based on the foregoing, the immaterial, impertinent, or scandalous allegations in
paragraphs 11 and 12 as set forth above should be stricken.
Additionally, Exhibits 1 and 2 to the Complaint should also be stricken. The
exhibits do not support the facts as alleged in the Complaint because a Sunbiz filing which
utilizes the term Manager in the context of an LLC, as a matter of law, does not equate to
the chapter 400 nursing home definition of a management company. Nor does a common
ownership disclosure required by Medicare, impose liability on the limited liability
company that owns the licensee of the nursing home absent the evidentiary showing
required to bring an “owner” within the purview of those subject to suit. Also, the exhibits
are impertinent, irrelevant, unreliable and are inadmissible hearsay. Impertinent matters
have been defined as material in a pleading that is not relevant to the action or defense.
Such matters include superfluous exhibits or other material comprised of hearsay to bolster
a party’s allegations. Scott v. City of Venice, 167 So. 654 (Fla. 1936); see also Buckner v.
Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981) (the court struck a
prolix, fourth pleading, in part under Rule 1.140(f), as it had with conflated causes of
action, excessive allegations and exhibits, and contained scandalous and impertinent
material). Therefore, Exhibits 1 and 2 should be stricken.
WHEREFORE, the Defendant, MICHEL, moves this Court to enter an Order
dismissing Count I for failing to comply with conditions precedent to filing suit and failing
to state a cause of action against MICHEL, and/or enter an Order striking Exhibits 1 and
11CASE NO. CACE-18-001878 (21)
2, striking the allegations of paragraphs 11 and 12 relating to Hurricane Irma, and any other
relief deemed just and right.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to WILLIAM A. DEAN, B.C.S., ESQUIRE, Ford, Dean & Rotundo, P.A.,
bill@forddean.com; zee@forddean.com; service@forddean.com; 3323 N.E. 163%” Street,
Suite 605, North Miami Beach, FL 33160, on September 24, 2019.
12
Respectfully submitted,
s/ Julie W. Allison
Julie W. Allison, Esquire
Florida Bar No.: 678872
JULIE W. ALLISON, P.A.
4601 Sheridan Street, Suite 213
Hollywood, FL 33021
P: 305 428-3093
Fax: 305-397-2211
julie@allisonlaw net;
para@allisonlaw.net
Attorneys for Defendants
/s/ Kirsten K. Ullman.
Kirsten K. Ullman
Florida Bar 857210
ULLMAN BURSA LAW
3812 Coconut Palm Drive, Suite 200
Tampa, Florida 33619
813/970-0500
kullman@ublawoffices.com;
ssamhoury@ublawoffices.com;
Co-Counsel for Defendants
Preview
Filing # 96191218 E-Filed 09/24/2019 11:50:59 AM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JESUS CABRERA, as Personal CASE NO. CACE-18-001878 (21) Representative of the Estate of RAMON CABRERA, Deceased, Plaintiff, Vv. JACK MICHEL, M.D., REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, a Florida Limited Liability Co., HOLLYWOOD PROPERTY INVESTMENTS, LLC, a Florida Limited Liability Co., LARKIN COMMUNITY HOSPITAL, INC. d/b/a LARKIN COMMUNITY HOSPITAL, Defendants. / DEFENDANT'S, JACK MICHEL M.D.. MOTION TO DISMISS AND MOTION TO STRIKE Defendant, JACK MICHEL, M.D.(hereinafter “MICHEL”), by and through his undersigned attorneys, and pursuant to Rule 1.140(b) and 1.140 (f), Fla.R.Civ.P., moves to dismiss Count I of Plaintiff's Complaint for Damages and Demand for Jury Trial and Motion to Strike, and as grounds therefore would state as follows: INTRODUCTION 1. Plaintiff has filed a four count Complaint for Damages and Demand for Jury Trial (hereinafter “Complaint”) against JACK MICHEL M.D., REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC., (hereinafter “RCHH”)!, HOLLYWOOD PROPERTY INVESTMENTS, LLC., (hereinafter “HPI”), and LARKIN COMMUNITY HOSPITAL d/b/a LARKIN COMMUNITY HOSPITAL (hereinafter “LARKIN”). Each 'RCHH is no longer in business, as it was closed following Hurricane IRMA. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/24/2019 11:50:59 AM.****CASE NO. CACE-18-001878 (21) separate count against each Defendant seeks to impose liability under Chapter § 400, Fla. Stat., also known as the Florida Nursing Home Statute. 2. At all times material hereto, RCHH was the licensee of the nursing home in Hollywood, Florida, situated on property owned by HPI. LARKIN was the sole member of the limited liability company (LLC) known as the REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC. 3. Plaintiffs Complaint, specifically Count I, purports to assert a cause of action pursuant to § 400.022, Fla. Stat., against Defendant, MICHEL, individually. 4. At this juncture, Count I of Plaintiff's Complaint must be dismissed in favor of MICHEL until such time, if ever, Plaintiff can meet the statutory conditions precedent for filing suit against MICHEL. 5. Specifically, Plaintiff has failed to comply with the statutory conditions precedent to filing suit against MICHEL, as set forth in the Florida Nursing Home Statute. 6. Moreover, Count I of Plaintiff's Complaint is baseless and frivolous, as Plaintiff erroneously postures that a “Manager” elected by the sole member of the limited liability company that owns RCHH is the equivalent of a management company as that term is defined in § 400.023(2)(b), Fla. Stat. Not true. Moreover, Plaintiff has failed to allege that MICHEL as the “manager” contracts with or receives a fee from the licensee (RCHH) and as such, has not stated a cause of action against MICHEL, individually, as a “management or consulting company”. And to be clear, to the extent that Plaintiff pleaded such allegations, they would be mere legal conclusions unsupported by any factual basis. Put simply, the allegations against MICHEL are unsupported by material facts necessary to establish a claim against MICHEL and the law does not support any such claim until such 2CASE NO. CACE-18-001878 (21) time, if ever, that Plaintiff can meet the evidentiary burden of establishing such a claim under § 400.023 (3), Fla. Stat. A. Assuming arguendo that the Nursing Home Statute does not provide the exclusive remedy for Plaintiff's claims, pursuant to § 605.04093, Fla. Stat., MICHEL cannot be personally liable for monetary damages simply by virtue of being a manager of the LLC that owns RCHH who allegedly committed ordinary negligence. Therefore, Plaintiff's negligence claims against MICHEL are barred as a matter oflaw. 8. Lastly, Exhibits 1 and 2 attached to the Complaint which Plaintiff relies upon are not admissible evidence and are taken out of context by Plaintiff. These exhibits do not truthfully support the allegations of the Complaint, are impertinent and immaterial to Count I of the Complaint and, therefore, should be stricken. LEGAL ARGUMENT A. COUNT I OF PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO COMPLY WITH THE STATUTORY CONDITIONS PRECEDENT TO FILING A CLAIM AGAINST MICHEL. Count I of the Plaintiff's Complaint must be dismissed due to Plaintiff’s failure to comply with conditions precedent to filing suit against MICHEL, pursuant to Chapter § 400, Fla. Stat. The claim against MICHEL violates the exclusive remedy provisions of § 400.023(1), Fla. Stat. which expressly provides as follows: An exclusive cause of action for negligence or a violation of residents’ rights as specified under this part which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or violation of rights 3CASE NO. CACE-18-001878 (21) and which seeks damages for such injury or death may be brought only against the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (3). § 400.023(3), Fla. Stat. unequivocally imposes the following condition precedent on Plaintiff prior to filing suit against MICHEL: (3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee's management or consulting company, the licensee's managing employees, and any direct caregivers, whether employees or contractors, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that: (a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and (b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident. For purposes of this subsection, if, in a proposed amended pleading, it is asserted that such cause of action arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the proposed amendment telates back to the original pleading. Clearly, the statute has a condition precedent mandating that before a claim under § 400.023, Fla. Stat. can proceed against someone such as MICHEL who does not fall within the purview of § 400.023(1), Fla. Stat., the Plaintiff must either prove that there is sufficient evidence in the record to support such claim or proffer such evidence so as to establish a reasonable showing that an amended pleading should be permitted against MICHEL. Put another way, Plaintiff’s claims against MICHEL are premature. Plaintiff has 4CASE NO. CACE-18-001878 (21) not made the required evidentiary showing to this Court to support the proposition that MICHEL owed a duty of reasonable care to the Plaintiff and that MICHEL breached that duty such that he can be named as a defendant. This evidentiary burden, which is a condition precedent to filing suit against any individual who is not identified in § 400.023(1), Fla. Stat. has not been met by the Plaintiff. Further, Plaintiff is required to proffer to this Court admissible evidence at the motion for leave to amend hearing that the breach of that duty by MICHEL was the legal cause of loss, injury, death, or damage to the Plaintiff. That evidentiary burden has not been met by the Plaintiff, either. Based on the foregoing, the Plaintiff submits that the Court should grant this Motion to Dismiss and enter an Order dismissing MICHEL until such time as Plaintiff can, if ever, present evidence that a viable claim exists against him under § 400.023, Fla. Stat. against MICHEL. B. PLAINTIFFS COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST JACK MICHEL M.D. UNDER FLORIDA’S NURSING HOME STATUTE AS A MANAGEMENT COMPANY Count I of the Complaint attempts to assert that MICHEL is liable under § 400.023(1), Fla. Stat. because Michel is a “Manager” capable of being sued under the nursing home statute. Pursuant to Rule 1.140, Fla.R.Civ.P., the Plaintiff has failed to adequately plead the factual allegations necessary to state a viable cause of action against the MICHEL as a managing employee or “Management Company” under the nursing home statute. Count I of the Complaint purports to state a cause of action against MICHEL. It 5CASE NO. CACE-18-001878 (21) does not. As set forth above, Chapter § 400, Fla. Stat. clearly provides for an exclusive cause of action for negligence or violation of residents' rights as against specific individuals or entities. Said individuals or entities include the following: "The licensee, the licensee's management or consulting company, the licensee's managing employees and any direct caregivers... " §400.023(1), Fla. Stat. Plaintiff asserts that MICHEL was the “President, Owner, and Manager of the licensee." [Complaint §8]. This assertion is a mischaracterization, recklessly and scandalously made, and apparently based on a Sunbiz.org website screen. [Exhibit 1 to the Complaint]?. MICHEL was neither a President, Owner, Management Company, nor Managing Employee of RCHH. Plaintiff's reference and reliance on said Sunbiz.org screen for the asserted proposition that MICHEL is somehow RCHH’s management company is disingenuous and improper. A Sunbiz.org report is inadmissible hearsay and may not be relied upon in and of itself, to bring MICHEL within the purview of an identified individual who can be sued under the nursing home statute. Rather, in order to allege that MICHEL was a “Management Company,” as defined by the nursing home statute and, therefore, subject to potential liability, Plaintiff would need to truthfully plead that MICHEL contracted with or received a fee from the licensee, RCHH. The Complaint is completely devoid of these allegations. Pursuant to § 400.023(2)(b), Fla. Stat.: (b) “Management or consulting company” means an individual or entity who contracts with, or receives a fee Jrom, a licensee to provide any of the following services for a nursing home facility: 1. Hiring or firing of the administrator or director of nursing; ? Any allegations relying on Sunbiz.org should be stricken. See infra. 6CASE NO. CACE-18-001878 (21) 2. Controlling or having control over the staffing levels at the facility; 3. Having control over the budget of the facility; or 4. Implementing and enforcing the policies and procedures of the facility. It is insufficient that Plaintiff pleads that MICHEL was charged with “Hiring or firing of the administrator or director of nursing” and; “Having control over the budget of the facility” and; “Controlling or having control over the staffing levels at the facility” and; “Implementing and enforcing the policies and procedures of the facility” without factual support for these bare legal conclusions. [Complaint 710, §11]. Moreover, Plaintiff does not, and cannot in good faith, allege that MICHEL contracted with the licensee, RCHH, to provide management services to the facility or received a fee from RCHH to do so, a prerequisite to maintaining a cause of action against MICHEL. Failure to plead these specific allegations subjects Count I of the Complaint to dismissal. Cc. ASSUMING ARGUENDO THAT THE NURSING HOME STATUTE IS NOT THE EXCLUSIVE REMEDY FOR THE ISSUES AT HAND, PLAINTIFF FAILS TO STATE A CAUSE OF ACTION UNDER THE FLORIDA REVISED LIMITED LIABILITY COMPANY ACT AGAINST MICHEL RCHH recognizes, respects, and has always operated in a manner to provide its residents with best efforts to provide all good care to its residents. In fact, Plaintiff sues licensee, RCHH, as a separate and distinct Defendant in this lawsuit pursuant to duties imposed by Chapter § 400, Fla. Stat. on said licensee. Count I of Plaintiff's Complaint, however, seeks to hold MICHEL liable for negligence based solely on his appointment as a manager in a limited liability company. Limited liability companies are entities which are responsible as entities, as 7CASE NO. CACE-18-001878 (21) required by law and the duties imposed by law on said entities. The law is clear: Members or managers of said limited liability companies are not personally liable, directly or indirectly, to third persons, for asserted liability of the company solely by reason of being or acting as member or manager of said limited liability company. Specifically, under the relevant parts of Fla. Stat. § 605.04093, known as the Florida Revised Limited Liability Company Act: (1) A manager in a manager-managed limited liability company or a member in a member-managed limited liability company is not personally liable for monetary damages to the limited liability company, its members, or any other person for any statement, vote, decision, or failure to act regarding management or policy decisions by a manager in a manager- managed limited liability company or a member in a member- managed limited liability company unless: (a) The manager or member breached or failed to perform the duties as a manager in a manager-managed limited liability company or a member in a member-managed limited liability company; and. (b) The manager’s or member's breach of, or failure to perform, those duties constitute any of the following: 5. Ina proceeding by or in the right of someone other than the limited liability company or a member, recklessness or an act or omission that was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. (2) As used in this section, the term “recklessness” means acting or failing to act in conscious disregard of a risk known, or a risk so obvious that it should have been known, to the manager in a manager-managed limited liability company or the member in a member-managed limited liability company, and known to the manager or member, or so obvious that it should have been known, to be so great as to make it highly probable that harm would follow from such action or failure to act.CASE NO. CACE-18-001878 (21) To the extent that Florida’s Nursing Home Statute does not provide the exclusive remedy for Plaintiffs claims, there are no factual allegations alleged in the Count I of the Complaint against MICHEL to state a viable cause of action against him under the Florida Limited Liability Act. Specifically, Plaintiffs claims sound in ordinary negligence which is insufficient as a matter of law to state a cause of action against a manager of a limited liability company. Plaintiff's Complaint is devoid of the required elements to impose liability on MICHEL, individually, for the actions of RCHH, pursuant to § 605.04093, Fla. Stat. Accordingly, as plead, Plaintiff's negligence claims against MICHEL are barred by the Florida Revised Limited Liability Company Act. The Plaintiff relies on Estate of Canavan v. National Healthcare Corp., 899 So.2d DCA 2004), for the proposition that “Defendant, JACK MICHEL M.D.’s negligence constitutes tortious conduct which is not shielded from liability”. [Complaint 412]. Plaintiff’s reliance on Canavan is misplaced. Canavan was decided in 2004, teversed a directed verdict in favor of the individual Defendant who was employed by the licensee’s management company, was based on evidence presented at trial, and has not been cited by any Florida appellate court since the enactment of the Florida Revised Limited Liability Company Act on January 1, 2014. The Canavan opinion is clearly limited to its facts which were derived from evidence presented at trial and has no bearing on the subject Complaint and this Motion. The Canavan opinion does not relieve the Plaintiff of the obligation to plead allegations supported by facts to satisfy the elements necessary to state a cause of action against MICHEL, individually, pursuant to § 605.04093, Fla. Stat. Simply stated, the Plaintiff has also sued the licensee as a Defendant in this matter. While the allegations as to said Defendant licensee, RCHH, are specifically denied by said Defendant, the Plaintiff will proceed accordingly to litigate this matter as 9CASE NO. CACE-18-001878 (21) to the appropriately named Defendant licensee. Plaintiff should not, however, be permitted to assert frivolous and baseless claims which are contrary to factual accuracy and Florida law and protections afforded pursuant to Florida law. Taking the allegations of Plaintiff's Complaint as true, albeit false and misguided, the Complaint must be dismissed for failure to state a cause of action as against Defendant, MICHEL, based upon him being appointed as a designated manager by the sole member of the limited liability company which owns the licensee and who at no time, acted with recklessness as that term is statutorily defined. D. CERTAIN ALLEGATIONS IN THE COMPLAINT ARE IMMATERIAL, IMPERTINENT, AND SCANDALOUS, AND ALONG WITH EXHIBIT 1 AND EXHIBIT 2, SHOULD BE STRICKEN. In paragraph 11 of the Complaint, the Plaintiff alleges that MICHEL had a duty to ensure that RCHH’s policies and procedures were implemented and followed; and “that the facility’s physical plant, (i.e. air conditioners and generators) was /sic/ adequate to provide a safe and decent living environment; and to protect the nursing home residents during Hurricane Irma.” In paragraph 12 of the Complaint, the Plaintiff alleges that MICHEL “failed to protect the Nursing Home residents during Hurricane Irma”. These allegations are immaterial, impertinent, and scandalous. Plaintiff knows that Ramon Cabrera was not a resident of RCHH at the time of Hurricane Irma.’ Plaintiff has absolutely no good faith basis to include such allegations in the Complaint and the same should be stricken for that reason. Rule 1.140(f)., Fla.R.Civ.P. provides that: 3 If this case was a Hurricane Irma it would not have been transferred to this division at Plaintiff’s request and would be pending before the Honorable Patti Englander Henning. 10CASE NO. CACE-18-001878 (21) (f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time. Based on the foregoing, the immaterial, impertinent, or scandalous allegations in paragraphs 11 and 12 as set forth above should be stricken. Additionally, Exhibits 1 and 2 to the Complaint should also be stricken. The exhibits do not support the facts as alleged in the Complaint because a Sunbiz filing which utilizes the term Manager in the context of an LLC, as a matter of law, does not equate to the chapter 400 nursing home definition of a management company. Nor does a common ownership disclosure required by Medicare, impose liability on the limited liability company that owns the licensee of the nursing home absent the evidentiary showing required to bring an “owner” within the purview of those subject to suit. Also, the exhibits are impertinent, irrelevant, unreliable and are inadmissible hearsay. Impertinent matters have been defined as material in a pleading that is not relevant to the action or defense. Such matters include superfluous exhibits or other material comprised of hearsay to bolster a party’s allegations. Scott v. City of Venice, 167 So. 654 (Fla. 1936); see also Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981) (the court struck a prolix, fourth pleading, in part under Rule 1.140(f), as it had with conflated causes of action, excessive allegations and exhibits, and contained scandalous and impertinent material). Therefore, Exhibits 1 and 2 should be stricken. WHEREFORE, the Defendant, MICHEL, moves this Court to enter an Order dismissing Count I for failing to comply with conditions precedent to filing suit and failing to state a cause of action against MICHEL, and/or enter an Order striking Exhibits 1 and 11CASE NO. CACE-18-001878 (21) 2, striking the allegations of paragraphs 11 and 12 relating to Hurricane Irma, and any other relief deemed just and right. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to WILLIAM A. DEAN, B.C.S., ESQUIRE, Ford, Dean & Rotundo, P.A., bill@forddean.com; zee@forddean.com; service@forddean.com; 3323 N.E. 163%” Street, Suite 605, North Miami Beach, FL 33160, on September 24, 2019. 12 Respectfully submitted, s/ Julie W. Allison Julie W. Allison, Esquire Florida Bar No.: 678872 JULIE W. ALLISON, P.A. 4601 Sheridan Street, Suite 213 Hollywood, FL 33021 P: 305 428-3093 Fax: 305-397-2211 julie@allisonlaw net; para@allisonlaw.net Attorneys for Defendants /s/ Kirsten K. Ullman. Kirsten K. Ullman Florida Bar 857210 ULLMAN BURSA LAW 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 813/970-0500 kullman@ublawoffices.com; ssamhoury@ublawoffices.com; Co-Counsel for Defendants