UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CIV-61411-RAR 

VERONICA APPLEBY, et al., 

Plaintiffs, 

v. 

KNAUF GIPS KG, et al., 

Defendants. 

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ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS

THIS CAUSE comes before the Court upon Defendants Knauf Gips KG and Knauf New 

Building System (Tianjin) Co. Ltd.’s (the “Knauf Defendants”) Motion to Dismiss Amended 

Complaint for Failure to State Claim or, in the alternative, Motion to Strike Immaterial and 

Impertinent Allegations (“Motion”), [ECF No. 64], filed on April 24, 2023.1 Having considered 

the Knauf Defendants’ Motion, the record, and being otherwise fully advised, it is hereby 

ORDERED AND ADJUDGED that the Motion, [ECF No. 64], is GRANTED IN PART

AND DENIED IN PART for the reasons stated herein.

BACKGROUND

 The Court assumes the parties’ familiarity with the facts and incorporates the factual 

background provided in its Order Granting in Part Defendants’ Motion to Dismiss 

(“Order”), [ECF No. 46]. After the Court issued its Order, Plaintiffs filed an Amended Complaint, 

[ECF No. 56], and the Knauf Defendants filed the instant Motion.

1

 The Motion is fully briefed and ripe for adjudication. See Pls.’ Opp’n to Knauf Gips KG and Knauf New 

Building System (Tianjin) Co. Ltd.’s Mot. to Dismiss for Failure to State a Claim (“Response”), [ECF 

No. 66]; Defs.’ Reply in Supp. (“Reply”), [ECF No. 67]. 

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LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 

determining if a complaint states a plausible claim, the court draws all inferences in the plaintiff’s 

favor. Smith v. United States, 873 F.3d 1348, 1351 (11th Cir. 2017). Courts “are not bound to 

accept as true a legal conclusion couched as a factual allegation,” Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555), or allegations that are “more conclusory than factual.” Chaparro v. 

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). 

ANALYSIS

I. Discovery Rule 

The Court previously ordered Plaintiffs to amend the “Discovery Rule” section of their 

initial complaint after they failed to respond to the Knauf Defendants’ argument that they must 

allege further detail about their diligence and discovery of their claims. See Order at 9–10. On 

Plaintiffs’ default of this argument, the Court held that “if Plaintiffs intend to rely on a discovery 

rule, they must include factual allegations relating to when they discovered their claims and their 

diligence,” id., because “a plaintiff must plead sufficient facts to show the time of . . . discovery 

and to support [the plaintiff’s] diligence.” See Varner v. Domestic Corp., No. 16-22482, 2017 WL 

3730618, at *9 (S.D. Fla. Feb. 7, 2017). But the Amended Complaint contains the same 

“Discovery Rule” section as the initial complaint. Compare Compl., [ECF No. 1] ¶¶ 45–47, with

Am. Compl. ¶¶ 45–47. The Knauf Defendants now seek to preclude Plaintiffs from relying on a 

discovery rule due to Plaintiffs’ failure to comply with the Order. Mot. at 4. 

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Because Plaintiffs did not cure this deficiency, the Court will once again require repleading. 

Amendment does not appear futile, however, because Plaintiffs claim they will “provide specific 

information in their Plaintiff Profile Forms . . . in the near future.” Resp. at 2–3. Therefore, a 

dismissal with prejudice to Plaintiffs’ ability to rely on a discovery rule is unwarranted. And in 

granting leave, the Court notes that Plaintiffs must only plead “sufficient facts to show the time 

of . . . discovery.” Varner, 2017 WL 3730618, at *9. But Plaintiffs must comply with the Order 

and amend this section.

II. Duplicative Claims

Defendants move to dismiss Plaintiffs’ claim for Negligence Per Se (Count II) as

duplicative of their Strict Liability claim (Count III) and Plaintiffs’ Negligent Discharge of a 

Corrosive Substance claim (Count V) as duplicative of their Negligence claim (Count I). See Mot. 

at 4–5. The Court agrees as to Count V but finds dismissal of Count II premature.

“To promote judicial economy, a court should dismiss claims that are duplicative of other 

claims.” Manning v. Carnival Corp., No. 12-22258, 2012 WL 3962997, at *2 (S.D. Fla. 

Sept. 11, 2012) (internal quotation marks and citation omitted). Whether duplicative claims 

should be challenged via a Rule 12(b)(6) or Rule 12(f) motion is of some debate. See Nat’l Ins. 

Consulting Grp. v. Kandel, No. 19-22373, 2020 WL 13389742, at *2 (S.D. Fla. Jan. 15, 2020). 

But “courts in this district routinely consider the redundancy or duplicative nature of claims on a 

motion brought pursuant to Rule 12(b)(6).” Id. (citing cases). Claims are duplicative when they 

rely on identical allegations, are decided under the same legal standard, and provide identical relief. 

Id.

The Court has identified, and Plaintiffs have provided, no authority suggesting “negligent 

discharge of a corrosive substance” is a standalone tort under Florida law. Therefore, this claim

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would be analyzed under the same standard as Plaintiffs’ negligence claim, and comparing their

respective sections within the Amended Complaint it is clear Count V and Count I are premised 

on the same factual allegations. See also Karpel v. Knauf Gips KG, No. 21-24168, 2022 WL 

4366946, at *3 (S.D. Fla. Sept. 21, 2022) (holding claim for negligent discharge of a corrosive 

substance “fail[ed] as duplicative” of negligence claim). Accordingly, Count V must be dismissed 

as duplicative.

In contrast, the Court will not dismiss Plaintiffs’ negligence per se claim as duplicative of 

their strict liability claim. These are both standalone torts under Florida law with different legal 

standards. Strict products liability based on a design or manufacturing defect requires the plaintiff 

to “plead three elements: (1) a relationship between the defendant and the product; (2) a defect 

which caused the product to be unreasonably dangerous; [and] (3) causation between the defect 

and the harm suffered by the user.” Dye v. Covidien LP, 470 F. Supp. 3d 1329, 1334 (S.D. Fla. 

2020) (citation omitted). A negligence per se claim arises when there is a “violation of a statute 

which establishes a duty upon a party to take precautions to protect a particular class of persons 

from a particular injury or type of injury.” Zarrella v. Pacific Life Ins. Co., 755 F. Supp. 2d 1218, 

1228 (S.D. Fla. 2010) (quoting Hesterly v. Royal Caribbean Cruises Ltd., 515 F. Supp. 2d 1278, 

1287 n.6 (S.D. Fla. 2007)). While further factual development might ultimately reveal these claims 

are duplicative, the Court will not consolidate them at this stage.

III. Private Nuisance

The Knauf Defendants next move to dismiss Plaintiffs’ private nuisance claim because 

Plaintiffs own the at-issue drywall. Mot. at 5–6. Plaintiffs did not respond to this argument, so

the Court assumes they do not oppose this relief. See Jones v. Bank of Am., N.A., 564 F. App’x 

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432, 434 (11th Cir. 2014) (“A party’s failure to respond to any portion or claim in a motion 

indicates such portion, claim or defense is unopposed.” (alteration accepted) (citation omitted)).

Nevertheless, the Court is satisfied dismissal is warranted. Under Florida law, a nuisance 

is “[a]nything which annoys or disturbs one in the free use, possession, or enjoyment of his 

property, or which renders its ordinary use or occupation physically uncomfortable.” See Jones v. 

Trawick, 75 So. 2d 785, 787 (Fla. 1954) (quoting Knowles v. Cent. Allapattae Props., 198 So. 819, 

822 (Fla. 1940)). However, “the law of private nuisance is bottomed on the fundamental rule that 

every person should so use his own property as not to injure that of another.” Id. (emphasis added). 

Private nuisance is “not . . . an additional type of consumer protection for purchasers of realty.” 

Jerue v. Drummond Co., No. 8:17-cv-587-T-17AEP, 2017 WL 10876737, at *13 (M.D. Fla. Aug. 

17, 2017) (citation omitted). Therefore, because Plaintiffs allege they own the properties at issue, 

see Am. Compl. ¶¶ 4–19, they cannot maintain a claim for private nuisance. See Karpel, 2022 WL 

4366946, at *8 (“The Plaintiffs’ ownership and current control over the drywall conclusively 

forecloses them from arguing that the Defendants actively ‘maintain’ the ‘nuisance’ they complain 

of.”). Plaintiffs’ private nuisance claim in Count IV must be dismissed.

IV. Consumer Product Safety Act Allegations

Finally, the Knauf Defendants move to dismiss Plaintiffs’ allegations that the Knauf 

Defendants violated the Consumer Product Safety Act (“CPSA”) because the CPSA does not 

provide a private right of action. Mot. at 6. Alternatively, Defendants move to strike these 

allegations if they are not intended to establish a standalone claim. Id. As is clear from the 

Amended Complaint—and confirmed in Plaintiffs’ Response—Plaintiffs are not seeking redress 

for a private right of action arising under the CPSA, and therefore there is no claim to dismiss. 

Resp. at 6. Instead, Plaintiffs claim these allegations relate to negligence per se and punitive 

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damages. Id. While the Knauf Defendants contest the relevance of these allegations to both 

negligence per se and punitive damages, see Reply at 4–5, the Court declines to strike these 

allegations. Granting a motion to strike is a “drastic remedy” that courts disfavor. Ledesma v. 

Ross Dress for Less, Inc., No. 20-20405, 2020 WL 13388299, at *2 (S.D. Fla. Sept. 14, 2020) 

(citing Regions Bank v. TBG & CC Recreation, LLC, No. 10-80366, 2010 WL 3292909, at *1 

(S.D. Fla. Aug. 19, 2010)). A court should only grant a motion to strike “when required for the 

purposes of justice,” and “when the pleading to be stricken has no possible relation to the 

controversy.” Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th

Cir. 1962) (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th 

Cir. 1953)). Here, whether or not the alleged violations of the CPSA may properly support claims 

for negligence per se or punitive damages—an issue the Court need not decide at this time—it is 

clear these allegations relate to this matter and striking them is unwarranted. 

CONCLUSION

For the foregoing reasons, the Knauf Defendants’ Motion, [ECF No. 64], is GRANTED 

IN PART AND DENIED IN PART as follows:

1. Counts IV and V are DISMISSED WITH PREJUDICE. 

2. Plaintiffs must file a Second Amended Complaint with an amended “Discovery 

Rule” section on or before June 16, 2023. 

DONE AND ORDERED in Miami, Florida, this 5th day of June, 2023. 

 

 

_________________________________ 

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

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