Filing # 35905239 E-Filed 12/24/2015 01:15:18 PM

IN THE CIRCUIT COURT OF THE SIXTH

JUDICIAL CIRCUIT, IN AND FOR PINELLAS
COUNTY, FLORIDA
CASE NO.: 15-007645-CI

MARK FLOOD,
Plaintiff,
v.
BLAKE TAYLOR, a/k/a BLAKE TAYLOR
FLOOD,
Defendant.
________________________________________/
DEFENDANT BLAKE TAYLORs
MOTION TO DISMISS THE COMPLAINT WITH PREJUDICE and
MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES
Defendant Blake Taylor (Taylor or Defendant), by and through undersigned counsel,
and pursuant to Florida Rule of Civil Procedure 1.140 (b) and (f), moves to dismiss the
Complaint with prejudice and alternatively moves to strike punitive damages claims:
Plaintiff and Defendant are already parties to a divorce being heard by Judge Keith
Meyer. This side-show defamation suit is Plaintiffs improper attempt to muzzle his soon-to-be
ex-wife over eight (8) posts on Twitter. Defendants statements are protected speech candidly,
fairly tame comments involving divorcing spouses!
Fortunately, this Court need not burden itself too long with this dispute: the statements
are (1) not defamatory and (2) protected comments and opinion.
Plaintiffs claim for intentional infliction of emotional distress (IIED) is predicated
upon the same operative facts as his defamation claim and thus fails since Florida law requires an

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Case No. 15-007645-CI
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independent basis to support such a claim. More obvious, the IIED claim cannot stand because
these benign Tweets do not amount to outrageous behavior. Finally, Plaintiff has improperly
mixed his causes of action and prematurely asserts claims of punitive damages.
FACTS ALLEGED IN THE COMPLAINT
Plaintiff is a doctor who has filed for divorce against Defendant in a matter pending
before Judge Keith Meyer.1 Complaint, 5-6. Plaintiff apparently takes umbrage at eight (8)
Tweets which Defendant posted on Twitter.2 The statements (or Tweets) at issue are:
1.
2.
3.
4.
5.
6.
7.
8.

Statements
Would U want a surgeon 2 operate on U who began a
whistle blower suit on surgeons 4 bad deeds and then
went 2 work for them 4 big $$$. Ethical doc?
How would U fee if U found out the spine surgeon
that permanently injured U in surgery was on a lot of
weight loss drugs?
How would U feel if U learned that surgery was done
on ur spine at the wrong level and U were not told?
Facility knew and didnt report it?
Lawsuit against #DrMarkFlood & #LaserSpine
Institute that I subpoenaed to give testimony. I have
career ending info . . .
. . . I agree that surgeons behavior outside the O.R. is
important in showing his morals and integrity.
. . . I agree surgeons behavior outside the O.R. is
important in showing his morals & integrity. Stayed
quiet for 2 years. Thanks 4 all the tweets.
I agree surgeons behavior outside the OR important
2 show his morals & integrity. If hed harm his own
family what would he do2 others?
I have career ending information that Im subpoenaed
to testify about. This is Laser Spine Institute.

Complaint, 11.
Based solely upon these eight (8) Tweets, Plaintiff rushes before this Court to
breathlessly allege defamation per se, wantonness, and intentional infliction of emotional
1
2

Mark A. Flood v. Blake Taylor, Pinellas County Case No. 522013DR011816XXFDFD.

A brief primer on 140-character Tweets and Twitter is here: http://bit.ly/PrimerOnTwitter

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WHEREFORE, BLAKE TAYLOR respectfully requests this Court to dismiss the

Complaint in its entirety with prejudice, to strike the claims for punitive damages, and to grant
any other relief deemed appropriate and just.
Dated this 24th day of December, 2015.
Respectfully submitted,
McDonald Hopkins LLC
Attorneys for Blake Taylor
505 South Flagler Drive, Suite 300
Telephone: (561) 472-2121
Facsimile: (561) 472-2122
By:

/s/ Christopher B. Hopkins

Christopher B. Hopkins
Florida Bar Number: 116122
Email: chopkins@mcdonaldhopkins.com
Jeremy M. Colvin
Florida Bar Number 0152226
Email: jcolvin@mcdonaldhopkins.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of December, 2015, a true and correct copy
of the foregoing was electronically filed with the Clerk of the Court using ECF. I also certify
that the foregoing document is being served on this day via E-Mail to the following: David A.
Maney, Esq., (denise.mdjk@gmail.com; Davidm9356@aol.com; eserviceMDJK2@gmail.com),
Maney, Damsker, Jones & Kuhlman, P.A., P.O. Box 172009, Tampa, FL 33672-2009.
/s/ Christopher B. Hopkins
Christopher B. Hopkins

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Case No. 15-007645-CI
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to hatred, distrust, ridicule, contempt, or disgrace; or (4) tends to injure one in his
trade or profession.
Richard v. Gray, 62 So.2d 597, 598 (Fla. 1953).
When determining whether a particular publication is libelous, it must be examined from
the perspective of a reasonable, ordinary person, not the subjective feelings of the plaintiff.
McIver v. Tallahassee Democrat, Inc., 489 So. 2d 793, 794 (Fla. 1st DCA 1986) (The language
in an allegedly libelous publication should be construed as the common mind would naturally
understand it.).
In his Complaint, Plaintiff appears to be attempting to state a claim under the fourth form
of defamation per se, to wit: the postings on Twitter caused injury to his trade or profession as a
surgeon. On its face, a reasonable, ordinary person would not see these Tweets as so obviously
defamatory [to give rise to] an absolute presumption both of malice and damage. Stated
more simply, the subject Tweets are not defamation per se.
As explained below, Plaintiff is unable to state a valid cause of action because (1) the
Constitution of the United States and the state of Florida grant Defendant a First Amendment
right to express pure opinions; (2) the statements are not defamatory; (3) only one of eight
Tweets mentions Plaintiff (other Tweets refer to an entity); and (4) the rhetorical questions posed
in the Tweets are not actionable.
A.

Defendant Maintains a First Amendment Right to Free Speech and to

Express Pure Opinions.

Plaintiff cannot state a valid cause of action for defamation because statements of pure
opinion are not actionable. White v. Fletcher, 90 So.2d 129, 131 (Fla. 1956) (noting that opinion
or inference from facts assumed to be true are immune from liability for defamation); Demby v.
English, 667 So.2d 350, 355 (Fla. 1st DCA 1996) (finding that an expression of pure opinion is

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Case No. 15-007645-CI
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not actionable defamation).4 Pure opinions are protected as free speech under the United States
Constitution. See e.g. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974) (Under the
First Amendment there is no such thing as a false idea. However pernicious an opinion may
seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas.).
Similarly, the Constitution of the State of Florida affords its citizens the right to free
speech, which includes the right to express personal opinions:
Every person may speak, write and publish sentiments on all subjects but shall be
responsible for the abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press. In all criminal prosecutions and civil
actions for defamation the truth may be given in evidence. If the matter charged
as defamatory is true and was published with good motives, the party shall be
acquitted or exonerated.
Fla. Const. Art. 1 4. The foregoing constitutionally protected right to discuss, comment upon,
criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to
the organized media but to all persons. Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1985),
superseded by Fla. Stat. 768.095 on other grounds.
In two of the Tweets that serve as the basis for the defamation per se claim, Taylor
allegedly stated that she possesses career ending information. Such statement is nothing more
than an innocuous, nebulous, constitutionally-protected opinion of Taylor.
Similarly, in three of her Tweets, Taylor expressed her opinion that a surgeons behavior
outside the operating room is important to show his morals and integrity.5 In strict legal terms:

The issue of whether a statement is purely opinion, and thus not actionable, is an issue
for the Court to decide as a matter of law. From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57
(Fla.1st DCA 1981).
5

Notably, the American Board of Physician Specialties agrees with the Plaintiff that a doctor must, at all times,
maintain the highest standard of personal conduct (http://www.abpsus.org/code-of-ethics); even the Hippocratic

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Case No. 15-007645-CI
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so what? Again, these are nothing more than personal opinions, which are constitutionallyprotected and are not actionable. These statements are incapable of being proven true or untrue
because it is an expression of an idea and not a fact. Plaintiff is not even identified in those three
Tweets and those statements do not contain any derogatory, disparaging, or defaming comments
about the Plaintiff.
B.

Defendant Did Not Make Defamatory Statements About the

Plaintiff.

Three of the Tweets at issue are nothing more than rhetoric questions about no one in
particular. In fact, the last one refers to a Facility and not an individual.
Would U want a surgeon 2 operate on U who began a whistle blower suit on
surgeons 4 bad deeds and then went 2 work for them 4 big $$$. Ethical doc?
How would U feel if U found out that the spine surgeon that permanently injured
U in surgery was on a lot of weight loss drugs?
How would U feel if U learned that surgery was done on ur spine at the wrong
level and U were not told? Facility knew and didnt report it?
See Complaint, 11.a. 11.c. In the foregoing Tweets, Taylor simply posed questions not
statements about how someone would feel under certain conditions.6

Plaintiff was not

identified in those three Tweets. Finally, the last Tweet refers to a facility and not a person
(much less the Plaintiff). Questions like these do not give rise to defamation per se. See e.g.
Adams v. News-Journal Corp., 84 So.2d 549, 552 (Fla. 1955) (rhetorical questions in a
newspaper article about an attorneys knowledge of certain facts did not negatively reflect upon
the attorneys integrity or professional conduct; therefore, they were not actionable).
Oath puts a higher standard on doctors, even outside of the medical setting: I will remember that I remain a
member
of
society,
with
special
obligations
to
all
my
fellow
human
beings
(https://en.wikipedia.org/wiki/Hippocratic_Oath).
6
Turning this around, if Defendant had framed this as a statement, and not a question, it still would not sound in
defamation. Consider the first Tweet above, turned into a statement: I would feel [blank] if the spine surgeon that
permanently injured U in surgery was on a lot of weight loss drugs. This is opinion predicated on a condition.

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C.

In the Alternative, Plaintiff Has Failed to Plead Special Damages.

The Tweets are not defamation per se. Plaintiff may resort to arguing that the Tweets
make certain implications about him.

But, where a defamation claim is predicated upon

implication, the cause of action is actually defamation per quod, not per se. Piver v. Haberman,
220 So. 2d 408, 409 (Fla. 3d DCA 1969) (holding because the alleged libel was based upon
innuendo the statements, if libelous at all, were libelous per quod, not libelous per se); O'Neal v.
Tribune Co., 176 So. 2d 535, 541 (Fla. 2d DCA 1965) (noting that a publication is considered
libelous per se when it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace, or
tends to injure one in his trade or profession on its face without resorting to innuendo); Cooper v.
Miami Herald Pub. Co., 31 So. 2d 382, 384 (Fla. 1947) (Innuendoes in the pleadings are
ineffective for the purpose of fixing the character of an alleged libelous publication as being
libelous per se.). In that case, Plaintiffs cause of action against Taylor, if any, would be
defamation per quod, which requires Plaintiff to allege and prove special damages.
Plaintiff has not alleged any special damages as a result of the allegedly defamatory
tweets, and the Complaint should be dismissed. Piver at 409 (motion to dismiss granted because
[a]n allegation of special damages is an indispensable element of a complaint if the cause of
action alleged is libel per quod.).
Special damages are the natural result of harm caused by another that require specific
proof because they are not presumed by the law. Precision Tune Auto Care, Inc. v. Radcliffe,
804 So. 2d 1287, 1292 (Fla. 4th DCA 2002) (Special damages are considered to be the natural
but not the necessary result of an alleged wrong or breach of contract. In other words, they are
such damages as do not follow by implication of law merely upon proof of the breach.), quoting
Augustine v. S. Bell Tel. & Tel. Co., 91 So. 2d 320, 323 (Fla. 1956).

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The vague references in the Complaint to severe injury to his professional reputation,
extreme personal stress, mental anguish, embarrassment, and irreparable damage to his
professional reputation are insufficient to demonstrate special damages. Fla. R. Civ. P. l.120(g)
(When items of special damages are claimed, they shall be specifically stated.) (Emphasis
added).
In light of Plaintiffs failure to properly plead any special damages caused by the tweets,
the Complaint must be dismissed as a matter of law.
II.

Plaintiff Has Not Alleged an Independent Basis for a Claim for Intentional
Infliction of Emotional Distress.

Plaintiffs claim for intentional infliction of emotional distress (IIED) found in Count
III is based entirely upon the allegedly defamatory statements made by Taylor. Under Florida
law, a party seeking to recover for IIED and defamation must set forth independent bases for
those claims. Here, the Plaintiffs claim for IIED is nothing more than a rehashing of his
defamation claim.
The independent basis rule was addressed by the Fifth District Court of Appeal in Boyles
v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th 1983):
But the problem with Count II [for IIED], as we view it in the factual context
alleged in this case, is that it does not set forth an independent tort for the
recovery of damages for emotional distress. That factor has been an intrinsic,
historic aspect of the tort. The outrageous conduct alleged here is defamation,
which gives rise to various elements of damage, including personal humiliation,
mental anguish and suffering. In other words, the allegations of this count
describe the tort of libel while characterizing it as outrageous conduct. As such,
it is merely an imperfect repetition of Count I [for libel]. Therefore, Count II was
properly dismissed, albeit for the wrong reason.
Id. (Internal citations omitted); see also, Ford v. Rowland, 562 So.2d 731, 735 (Fla. 5th DCA
1990) (affirming dismissal of the count which attempts to allege intentional infliction of
emotional distress because the allegations therein do not set forth an independent tort.);
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Klayman v. Judicial Watch, Inc., 22 F.Supp.3d 1240, 1256 (S.D. Fla. 2014) (When claims are
based on analogous underlying facts and the causes of action are intended to compensate for the
same alleged harm, a plaintiff may not proceed on multiple counts for what is essentially the
same defamatory publication or event.) (applying Florida law).
In other words, Plaintiff cannot transform his defamation claim against Taylor into a
claim for intentional infliction of emotional distress simply by characterizing the alleged
defamatory statements as outrageous. Fridovich v. Fridovich, 598 So.2d 65, 70 (Fla. 1992).
Without citing and independent basis for his claim, Count III should be dismissed as a matter of
law.
III.

Plaintiff Has Not Properly Alleged a Claim for IIED.

Plaintiffs attempt to state a cause of action for intentional infliction of emotion distress is
also unavailing because the purported statements do not rise to level of outrageousness set by
Florida law for such claims.
The Supreme Court of Florida first recognized the independent tort of IIED in the case of
Metropolitan Life Insurance Company v. McCarson, 467 So. 2d 277 (Fla. 1985).7 The Supreme
Court adopted the standard set forth in Restatement (Second) of Torts 46 (1965), which
provides in pertinent part:
One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.
7

In order to curb the floodgates of specious lawsuits arising out of mental injuries, Florida courts
devised what is commonly referred to as the impact rule. Under the impact rule a plaintiff
cannot recover for emotional distress caused by the negligence of another person unless the
emotional distress flows from physical injuries sustained by the plaintiff in an impact.
Woodward v. Jupiter Christian School, Inc., 913 So. 2d 1188, 1190 (Fla. 4th DCA 2005). The
Supreme Court of Florida has carved out very limited, narrowly tailored exceptions to the impact
rule, one of which is the tort of intentional infliction of emotional distress. Id.

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Thus, in order to establish a cause of action for the IIED, four elements must be pled and proven:
(1) a deliberate or reckless infliction of mental suffering, (2) by outrageous conduct, (3) which
conduct must have caused the suffering, and (4) the suffering must have been severe.
Metropolitan Life at 278.
The Metropolitan Life Court defined the requisite level of extreme and outrageous
conduct by referencing Comment d. to 46 of the Restatement (Second) of Torts, which
provides in pertinent part:
Extreme and outrageous conduct . . . . . It has not been enough that the defendant
has acted with an intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has been characterized by
malice, or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort . Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, Outrageous!
Metropolitan Life at 278-279 (citation omitted) (emp. added); see also State Farm Mut. Auto Ins.
Co. v. Novotny, 657 So. 2d 1210, 1213 (Fla. 5th DCA 1995) (citations omitted) (It is not enough
that the intent is tortious or criminal; it is not enough that the defendant intended to inflict
emotional distress; and it is not enough if the conduct was characterized by malice or
aggravation which would entitle the plaintiff to punitive damages for another tort.).
Importantly, in applying the above standard, the subjective response of the person who
is the target of the actors conduct is not to control . . . [r]ather, an evaluation of the claimed
misconduct must be undertaken to determine as objectively as is possible, whether it is atrocious
and utterly intolerable in a civilized community. Ponton v. Scarfone, 468 So.2d 1009, 1011
(Fla. 2d DCA 1985).

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Thus, [t]he standard for outrageous conduct is particularly high in Florida. Golden
Complete Holdings, Inc., 818 F. Supp. 1495, 1499 (M.D. Fla. 1993).
Additionally, a determination of outrageous conduct is a question for the trial court to
determine as a matter of law. Baker v. Florida Nat'l Bank, 559 So. 2d 284, 287 (Fla. 4th DCA
1990) (issue of whether or not the activities of the defendant rise to the level of being extreme
and outrageous so as to permit a claim for IIED is a legal question in the first instance for the
court to decide as a matter of law.); Ponton v. Scarfone, 468 So.2d 1009, 1011 (Fla. 2d DCA
1985).
By subjecting the Complaint to the litmus test described in the Metropolitan Life case, it
is clear that the alleged defamatory statements described by the Plaintiff are woefully inadequate
to support a cause of action for IIED as a matter of law. The allegations of defamation taken
individually or collectively do not come close to satisfying the rigorous standard for stating a
claim for IIED under Florida law.
Claims for IIED have been rejected by Florida courts in a multitude of cases
involving significantly more egregious conduct than that described in the Complaint.

Byrd v. BT Foods, Inc., 948 So. 2d 921, 928 (Fla. 4th DCA 2007) (teasing of HIVinfected employee by co-workers did not rise to the level of outrageous conduct required
to sustain action against employer for IIED);

Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d1573 (11th Cir. 1993) (holding that,
under Florida law, the employer was not liable for IIED, despite various acts of racial
harassment, including hanging a rope noose over plaintiffs work station);

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Diamond v. Rosenfeld, 511 So. 2d 1031 (Fla. 4th DCA 1987) (defendants conduct
throughout duration of seven-year squabble with their plaintiff neighbors was not so
extreme and outrageous as to go beyond all bounds of decency);

Scheller v. American Medical International, Inc., 502 So. 2d 1268 (Fla. 4th DCA 1987)
(hospitals conduct, which included denying pathologist basic support services,
excluding pathologist from social affairs, falsely accusing pathologist of theft, prohibiting
laboratory personnel from conversing with pathologist, and publishing false information
concerning pathologists income, was not sufficient to meet the test of conduct required
for the tort);

Matsumoto v. American Burial and Cremation Services, Inc., 949 So. 2d 1054, 10561057 (Fla. 2d DCA 2006) (conduct of funeral home, decedent's brother, and decedents
companion resulting in cremation of decedent was not so outrageous in character and so
extreme in degree as to go beyond possible bounds of decency);

Marshall v. Amerisys, Inc., 943 So. 2d 276, 280 (Fla. 3d DCA 2006) (nurse case
managers conduct in relaying statements made by claimant who had told nurse, when
discussing his problems obtaining benefits and information, that he was potentially
destructive and knew how to make bombs and silencers was not sufficient);

Valdes v. GAB Robins North America, Inc., 924 So. 2d 862 (Fla. 3d DCA 2006) (falsely
reporting that worker's compensation claimant committed fraud did not constitute
conduct so outrageous and extreme to give rise to a claim for IIED), rev. denied, 949 So.
2d 200 (Fla. 2007);

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LeGrande v. Emmanuel, 889 So. 2d 991 (Fla. 3d DCA 2004) (accusing minister of
purchasing car with money he stole from church did not rise to requisite level of
outrageous and extreme conduct);

De La Campa v. Grifols America, Inc., 819 So. 2d 940 (Fla. 3d DCA 2002) (supervisors
alleged derogatory comments and other conduct relating to plaintiffs homosexuality,
threats of terminating plaintiffs employment, intentionally excluding her from corporatesponsored social functions because of her sexual orientation were insufficient to state a
claim for IIED);

Kent v. Harrison, 467 So. 2d 1114 (Fla. 2d DCA 1985) (defendants conduct in making
telephone calls to plaintiff which were offensive and impaired his tranquility and the
peacefulness of his home, although intentionally designed and undertaken to distress and
annoy the plaintiff, was not sufficient to sustain an action for IIED).
Two more cases are particularly instructive because they aptly illustrate the high

degree of conduct required to maintain a claim for IIED. First, in Williams v. Worldwide
Flight Services, 877 So. 2d 869 (Fla. 3d DCA 2004), the plaintiff was a former employee of the
defendant who alleged that he was the victim of intentional racial discrimination, which caused
him emotional distress. The plaintiffs supervisor called him a n_gger and a monkey and
would not allow the plaintiff to work with other African-Americans because n_ggers will steal
if they are left to work together. The supervisor also told the plaintiff that he did not want his
black ass there. The supervisor also instructed another supervisor to create a false disciplinary
record in order to fire the plaintiff, falsely accused plaintiff of stealing, threatened plaintiff with
job termination for no apparent reason, and forced plaintiff to work in dangerous conditions.
The Third District Court of Appeal affirmed the trial courts dismissal of the complaint with

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prejudice and held that while the conduct alleged was reprehensible, objectionable, and
offensive, the allegations are alone insufficient under Florida law to support a cause of action
for IIED. Id. at 870.
Second, in the case of Lay v. Roux Laboratories, Inc., 3 79 So. 2d 451 (Fla. 1st DCA
1980), an employee sued her former employer for IIED caused by conduct of its employee. The
plaintiff alleged that another employee threatened her with the loss of her job, used humiliating
language, engaged in vicious verbal attacks, used racial epithets, and called her a n_gger. The
First District Court of Appeal affirmed dismissal of the claim for IIED and held that while the
conduct was extremely reprehensible it did not rise to the [requisite] level of outrageousness
and atrociousness. Id. at 452. In reaching this holding, the Court noted that inflammatory
exchanges between people will occur in society, but the words used during these exchanges do
not automatically give rise to a cause of action:
Unfortunately, in our society, vulgarities and abusive language are commonplace
when tempers flare and in this instance, the allegations are insufficient to serve as
a predicate for the independent tort of IIED.
Id.
Without question, the conduct described in the Williams and Lay cases are significantly
more egregious than the allegedly defamatory statements made by Defendant in the present case.
Using the reasonable person, objective standard of outrageousness and atrociousness, the
allegations of defamation fall well-short of stating a claim for IIED under Florida law and should
be dismissed with prejudice as a matter of law.
IV.

Plaintiff Has Improperly Mixed His Causes of Action.

Plaintiff has improperly blended his causes of action for wantonness (Count II) and IIED
(Count III). In attempting to state a cause of action for IIED (Count III), Plaintiff incorporates

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the allegations contained in Paragraphs 1 through 17 and the allegations contained in Paragraphs
24-27. Complaint, 28.
In other words, Plaintiffs claim for IIED absorbed his entire claim for wantonness
(Count II) found in paragraphs 24-27, rendering the Complaint confusing and difficult for the
Defendant to plead a response and assert defenses. See Fla. R. Civ. P. 1.110 (f) (requiring
[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate
count . . . when a separation facilitates the clear presentation of the matter set forth.).
The rules of civil procedure require the complaint to consist of separate paragraphs and
counts in order to apprise the judge and the parties about the nature of the claims:
The contents of a pleading should not just meet the minimum requirements for
that type of pleading. They should clearly and adequately inform the judge, the
opposing party and the jury (in cases where the pleadings may be read to the jury)
of the position of the pleader. The arrangement should be designed to make an
orderly and effective presentation. To guide the pleader along these lines the
rules require presentation in separately numbered paragraphs and in counts
(1.110(f)).
Fla. R. Civ. P. 1.110, Authors Comment-1967 (Emphasis added); K.R. Exchange Services, Inc.
v. Fuerst, Humphrey, Ittleman, PL, 48 So.3d 889, 892 (Fla. 3d DCA 2010) (A party should
plead each distinct claim in a separate count, rather than plead the various claims against all of
the defendants together.) (Emphasis added). Accordingly, the Complaint should be dismissed
because Plaintiff has improperly mixed his causes of action.
MOTION TO STRIKE
Count II of the Complaint should be stricken because the term wantonness simply
refers to a level of conduct or culpability. As pled, Count II is nothing more than a recitation of
Plaintiffs defamation claim and an improper attempt to claim punitive damages. As such, the
claim is superfluous, improper, and should be stricken.

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In that regard, Plaintiffs claim for punitive damages in the ad damnum clauses in Counts
I (defamation per se), Count II (wantonness), and Count III (IIED) must be stricken as a matter
of law because Plaintiff has not met the statutory prerequisites to maintain a claim for punitive
damages as set forth in Florida Statute 768.72.8
Among other things, a party seeking punitive damages must file a motion for leave of
court to amend the pleading to add punitive damages. Additionally, the party seeking punitive
damages must present an evidentiary proffer in support of a punitive damages claim. Because
Plaintiff has failed to meet any of the statutory prerequisites, the punitive damages claims must
be stricken. See e.g. Leavins v. Crystal, 3 So.3d 1270 (Fla. 1st DCA 2009) (Because the circuit
court did not comply with the procedural requirements of section 768.72, allowing Respondent
to skip a step and allege a claim for punitive damages without first properly seeking and
receiving the courts permission to do so the punitive damages claim was required to be stricken
from the complaint.); Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla. 1996) (any punitive
damages claim alleged prior to a party asking for and receiving leave of the court must be
dismissed or stricken.).

Additionally, Defendant notes that there is no evidence to support compensatory damages, let alone punitive
damages in favor of Plaintiff in this case.

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WHEREFORE, BLAKE TAYLOR respectfully requests this Court to dismiss the

Complaint in its entirety with prejudice, to strike the claims for punitive damages, and to grant
any other relief deemed appropriate and just.
Dated this 24th day of December, 2015.
Respectfully submitted,
McDonald Hopkins LLC
Attorneys for Blake Taylor
505 South Flagler Drive, Suite 300
Telephone: (561) 472-2121
Facsimile: (561) 472-2122
By:

/s/ Christopher B. Hopkins

Christopher B. Hopkins
Florida Bar Number: 116122
Email: chopkins@mcdonaldhopkins.com
Jeremy M. Colvin
Florida Bar Number 0152226
Email: jcolvin@mcdonaldhopkins.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of December, 2015, a true and correct copy
of the foregoing was electronically filed with the Clerk of the Court using ECF. I also certify
that the foregoing document is being served on this day via E-Mail to the following: David A.
Maney, Esq., (denise.mdjk@gmail.com; Davidm9356@aol.com; eserviceMDJK2@gmail.com),
Maney, Damsker, Jones & Kuhlman, P.A., P.O. Box 172009, Tampa, FL 33672-2009.
/s/ Christopher B. Hopkins
Christopher B. Hopkins

{5854408:5}