Response to Motion to Dismiss

by | Dec 8, 2021 | Samples legal papers

IN THE COUNTY COURT FOR THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

 

ROBERT AYDT     §

Plaintiff,     §

  1.     § Case No. 2018-CC-7680-O

CERTAINTEED CORPORATION     §

Defendant.     §

 

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS

This Response and Brief is filed by Plaintiff in response to Defendant’s Motion to Dismiss. For the reasons outlined below, Defendant’s Motion should be denied.

  • STANDARD OF REVIEW
  1. In reviewing a motion to dismiss, the Court must construe the allegations of the complaint “in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause.” Hitt v. North Broward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). 
  2. The court is confined to consideration of the allegations found in the four corners of the complaint. Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998). 
  3. A motion to dismiss should be denied when a complaint sufficiently states a cause of action. See Solorzano v. First Union Mortgage Corp., 896 So. 2d 847, 849 (Fla. 4th DCA 2005); see also Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565-66 (Fla. 1971) (holding error to dismiss a complaint that contains sufficient allegations to acquaint the defendant with the plaintiff’s charge of wrongdoing so that the defendant can intelligently answer the same).

  • PARTIES
  1. Plaintiff is a male adult of sound mind, and a resident of 717 Chickapee Trail, Maitland, FL 32751.
  2. Defendant is a corporation with headquarters at 20 Moores Rd., Malvern, PA 19355. that 
  3. Defendant deals with the manufacture and sale of building materials including roofing, siding, insulation, windows and patio doors, fence, decking, railing, foundations and pipe.
  • STATEMENT OF THE CASE
  1. Plaintiff bought shingles from Defendant on Insert Date. 
  2. Defendant’s sales brochure touted the shingles as resilient and durable.
  3. Defendant provided a warranty for the shingles.
  4. The shingles that Plaintiff bought from Defendant failed before the time period advertised, marketed and guaranteed by CertainTeed.
  5. The shingles bought by Plaintiff from Defendant caused a lot of damage to Plaintiff’s house, including damage to structural roof components, damage to fascia, drip edge, eves, sidewalks, pool decking and damage to walls and ceiling structural components.
  6. Plaintiff reached out to Defendant to replace the shingles, but Defendant’s employees ignored Plaintiff, prompting him to file this suit.
  • ARGUMENTS
  1. In the Motion to Dismiss, Defendant denied all claims apart from the third cause of action of breach of express warranty.
  2. As with standing, the court will assume all factual allegations are true and draw all reasonable inferences in favor of the plaintiff. Edwards v City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
  3. Plaintiff urges this Honorable Court to assume that all factual allegations contained in the third cause of action (breach of express warranty) as true and draw all reasonable inferences in favor of Plaintiff.
  4. Pursuant to Florida Rule of Civil Procedure 1.110(g), a pleader “may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative.” Banks v. Lardin, 938 So. 2d 571, 577 (Fla. 4th DCA 2006) (quoting Fla. R. Civ. P. 1.10(g)); DiChristopher v. Bd. of Cnty. Com’rs, 908 So. 2d 492, 493 (Fla. 5th DCA 2005) (“A Plaintiff may set out the facts of the occurrence or transaction and demand judgment in his favor on several bases, even mutually exclusive ones.”). Moreover, even if a plaintiff is required to elect a cause of action, “the election of a claim would not logically occur at a pleading stage.”
  5. In its Motion, Defendant cites Tiara Condo. Ass’n, Inc. v. March & McLennan Cos., Inc., 110 So. 3d 399 (Fla. 2013).
  6. In the case cited by Defendant, Tiara alleged that Marsh was either negligent or breached its fiduciary duty by failing to advise Tiara of its complete insurance needs and by failing to advise Tiara of its belief that Tiara was underinsured. In this case, Defendant provided Plaintiff with defective materials. Plaintiff reached out to Defendant so that it could rectify the damage, but Defendant, through its employees, was unresponsive. Plaintiff had no other option but to repair the damage himself. It was necessary since it is Plaintiff’s abode.
  7. Plaintiff urges this Honorable Court to look at the facts of this case on their own and make a determination that Defendant is liable for negligence.
  8. Defendant alleges that Plaintiff does not state a valid claim in counts 2, 4 and 5. Defendants contention in the Motion is misplaced. In support, he has cited numerous case law, which does not support his arguments because the facts are different. 
  9. Throughout Defendant’s Motion, it has completely ignored the fact that Plaintiff followed due procedure in reaching out to Defendant to inform it of the defect in materials and that its employees did not conduct repairs in reasonable time to enable Plaintiff to enjoy his abode. Had Defendant not been negligent and performed its duty as per the warranty, Plaintiff would not have incurred the cost of repairing the defects himself.
  • PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff requests that this Court enters an order denying CertainTeed LLC’s Motion to Dismiss Counts 1, 2, 4, 5 and 6 of Plaintiff’s (Second) Amended Complaint, Motion to Strike Immaterial Allegations, Motion to Strike Claim for Compensatory Damages Barred by the Express Terms of the Limited Warranty, and Motion to Strike Claim for Attorney’s Fees, together with such other and further relief as this Honorable Court may deem just and appropriate under the circumstances.

Dated: 

 

Respectfully Submitted,

______________________________

Robert Aydt

717 Chickapee Trail

Maitland, FL 32751

robertaydt@gmail.com

Pro Se

VERIFICATION

I, Robert Aydt, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Response to Motion to Dismiss and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this the _____ day of ____________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

(Name of Defendant’s Attorney), Attorney at Law

 

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