Florida/Georgia Personal Injury & Workers Compensation

...ntended to redress mere legal error." Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842 (Fla. 2001). This Court has cautioned that "certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section 768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co....

...Orders denying a motion to dismiss, such as in the instant case, are not enumerated in rule 9.130. It is generally inappropriate to review a trial court's denial of a motion to dismiss. See Martin-Johnson, 509 So.2d at 1099, superseded by statute on other grounds, § 768.72, Fla....

...Mary's motion to dismiss. Id. St. Mary's petitioned the Fourth District for a writ of certiorari. The Fourth District dismissed the petition, explaining that "certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000)." St....

...—did not rise to the level of material harm that would permit certiorari review. Id. at 519-20. There, we concluded that appellate courts have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72....

...We approve the decision of the district court in this case. The district courts are in conflict as to whether it is appropriate for an appellate court to grant certiorari to review an order of a trial court permitting a plaintiff to amend a complaint to include punitive damages under section 768.72, Florida Statutes (1993). We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72....

...nt which would provide a reasonable basis for recovery of such damages. In the case at bar, Matthew King moved that the trial court allow him to amend his complaint to include punitive damages. The trial court held an evidentiary hearing pursuant to section 768.72, finding that King proffered sufficient evidence to establish a reasonable basis for a punitive damages claim and issuing an order granting his motion to amend. The defendant, Globe Newspaper, petitioned the district court for certiorari review of the order. Globe argued that section 768.72 provided a substantive right to be free from punitive damages litigation based upon insufficient evidence and that right could only be preserved by the district court reviewing the sufficiency of King's evidence through an interlocutory appeal....

...criteria for this extraordinary review, even considering the financial disclosure which followed determinations that punitive damages had been sufficiently plead. Id. at 1098-99. Subsequent to the facts giving rise to the decision in Martin-Johnson, section 768.72, Florida Statutes (1987), became effective. That section is applicable to the instant action. Section 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...imant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. We read section 768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages....

...4th DCA 1991) (financial worth discovery), and Sports Products, Inc. v. Estate of Inalien, 20 Fla. L. Weekly D13 *520 (Fla. 4th DCA Dec. 21, 1994), review dismissed, No. 84,988 (Fla. June 7, 1995), the district court ruled that the procedure mandated by section 768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section 768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed....

...r is a recognition of the express requirements mandated by the statute. Globe invites this Court to take a further step, however, and hold that certiorari may also be granted to review the sufficiency of the evidence considered by a trial judge in a section 768.72 determination....

...Rockhead, 639 So.2d 660 (Fla. 3d DCA 1994). We specifically agree with the reasoning of the Fourth District in its decision in Sports Products, Inc. that certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section 768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry....

...ods to the extent that those decisions conform with our decision in this case. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN and HARDING, JJ., concur. ANSTEAD, J., dissents with an opinion. ANSTEAD, Justice, dissenting. The majority reads section 768.72 "to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Majority op. at 519. Based upon that construction, with which I agree, the majority also holds that "appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed." Id. at 520. However, the Court goes on to grant the petitioner a hollow victory when it limits any review to the procedure followed in the trial court and refuses to enforce the substantive rights granted by section 768.72. *521 The heart of section 768.72 is its requirement of "a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Without that showing, no "discovery of financial worth shall proceed." The opinion in Commercial Carrier Corp....

...w is appropriate in such cases. NOTES [1] Globe asserts in its brief that the irreparable harm suffered results from having to defend a claim for punitive damages and produce financial worth discovery in violation of the substantive right created by section 768.72....

...relief and was in express and direct conflict with the decisions of this Court in Allstate Insurance Company v. Boecher, 733 So.2d 993 (Fla.1999) and Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), superceded by statute on other grounds, § 768.72, Fla....

...rm such that the appellate court should have granted certio-rari relief. See 509 So.2d at 1098 . Although courts have since retreated from the specific holding of Martin-Johnson, Inc. with regard to punitive damage claims in light of the adoption of section 768.72, Florida Statutes (1989), the foundation of the case — that common law certiorari may be invoked only when a party will suffer irreparable harm that cannot be remedied on direct appeal — remains sound law....

...of discretion in the grant of such an award in this case.”). Florida law allows punitive damages only “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2)....

...“‘Intentional misconduct’ means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Id. § 768.72(2)(a). “‘Gross negligence’ means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. § 768.72(2)(b). The district court denied punitive damages because “[t]he grocery exclusives sought to be enforced against the Defendants are rife with ambiguities and the scope of their restrictions are uncertain at best,” and, “[m]o...

...ed the district court's order of dismissal for lack of subject matter jurisdiction. In that case, after the district court had stricken the Florida plaintiffs' punitive damage claim because it had not been properly pled in accordance with Fla. Stat. 768.72, the court concluded that the plaintiff's class action suit did not satisfy the amount in controversy requirement. See id. at 1294 . On appeal, the Court held in Cohen I that Fla. Stat. 768.72 did not apply to cases filed in federal court, see id....

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC Before BIRCH and CARNES, Circuit Judges, and MILLS * , Senior District Judge. CARNES, Circuit Judge: In our prior opinion in this case, we held that Florida Statute § 768.72 conflicts with and must yield to the “short and plain statement” rule contained in Federal Rule of Civil Procedure 8(a)(3), and as a result a Florida plaintiff in federal court because of diversity jurisdiction need not obtain leave of court before pleading a request for punitive damages....

...oyalty in addition to any breach of contract claim they may assert, since the Amended Complaint alleges separate tortious conduct. [20] D. Punitive Damages Several Defendants argue that AmeriFirst has not adequately pled punitive damages pursuant to § 768.72 of the Florida Statutes as AmeriFirst has not made an evidentiary showing that such damages are appropriate and has not sought Court permission. [21] This Court recently held in Citron v. Armstrong World Indus., Inc., 721 F.Supp. 1259 (S.D.Fla.1989), that § 768.72 does not apply to state claims being litigated in federal court. As explained in that case, Fed.R.Civ.P. 9(g) must be applied in lieu of § 768.72, since the state statute is procedural in nature and directly conflicts with the federal rule....

...at 1262 (quoting NAL II, Ltd. v. Tonkin, 705 F.Supp. 522, 529 (D.Kan.1989). See also Berry v. Eagle-Picher, 1989 WL 77764, 1989 U.S. Dist. LEXIS 7671 (N.D.Ill. June 26, 1989). Consequently, Defendants' argument that the punitive damages claims should be dismissed pursuant to § 768.72 fails....

...he claim must be dismissed. This argument misses the point. Plaintiff is not seeking damages under HOLA; rather, Plaintiff cites the alleged HOLA violations as evidence that Defendants breached their state common law breach of fiduciary duties. [21] Section 768.72 provides in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......

...knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. Fla. Stat. § 768.72(2)....

...ins an `open question.'"). C. Punitive Damages Finally, RJR challenges the $25 million punitive damage award arguing it is improperly based on the Engle findings and excessive in light of the $3.3 million in compensatory damages awarded Mrs. Martin. Section 768.72(2), Florida Statutes, requires a plaintiff seeking punitive damages to prove by clear and convincing evidence the defendant is guilty of intentional misconduct or gross negligence....

...580, 582 (M.D.Fla.1995) (citing Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965)); See also: Cohen v. Office Depot, Inc., 184 F.3d 1292 (11th Cir.1999), vacated on other grounds by 204 F.3d 1069 (11th Cir.2000) (holding that Fla. Stat. § 768.72, requiring an evidentiary showing before pleading entitlement to punitive damages, was inconsistent with Fed.R.Civ.P....

...Accordingly, it is the opinion of this Court that Count IX of Defendant's Counterclaim should be dismissed. Punitive Damages Plaintiff has filed a Motion to Strike Defendant's request for punitive damages for failure to comply with the pleading requirements set forth in Section 768.72, Florida Statutes....

...Under the Federal Rules, a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Courts, however, have abrogated these liberal pleading requirements when greater specificity is required. Section 768.72, Florida Statutes (1987), represents such a departure from the liberal requirements of notice pleading. Florida Statute Section 768.72 requires that a Plaintiff plead with greater specificity when asserting a claim for punitive damages....

...Florida courts have held that this statute is substantive in nature and, thus, should be applied by a federal court in Florida, sitting in diversity. Smith v. Department of Ins., 507 So.2d 1080 (Fla. 1987). Accordingly, Plaintiff in the instant case is bound by the more stringent pleading requirements of Section 768.72. Upon review of Defendant's Counterclaim, it is evident that Defendant has failed to comply with the special pleading requirements of Section 768.72....

...in a claim for punitive damages. Accordingly, this Court hereby strikes Defendant's request for punitive damages. The Court, however, hereby grants Defendant 20 days within which to amend its Counterclaim to comport with the pleading requirements of Section 768.72, Florida Statutes (1987)....

...Spurney, 797 F.2d 214, 216 (5th Cir.1986) (contract language did not require segregation of the funds owed by one party to another, and thus, did not establish Plaintiff's ownership interest in the funds, so as to sustain a conversion action. [4] Florida Statute Section 768.72 provides in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...In a diversity action, state law applies to punitive damages awards. Dunn v. Koehring Co., 546 F.2d 1193, 1201 (5th Cir.1977); see, e.g. Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir.2000). Florida law provides, pursuant to Fla. Statute § 768.72(1), that In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. Fla. Stat. § 768.72(1)....

...ges against Avante Group, Inc. and Avante at Leesburg, Inc. The issue we must resolve is whether Despain made a sufficient showing by evidence in the record or proffer to establish a reasonable basis to plead a claim for punitive damages pursuant to section 768.72(1), Florida Statutes (1999)....

...After once again considering the proffered facts and the record evidence, the trial court denied the subsequent motion and the case proceeded to trial, resulting in a verdict and judgment awarding compensatory damages to Despain. In order to properly decide whether the requisite showing was made under section 768.72(1) to allow Despain's claim for punitive damages, we must first determine the correct standard that establishes whether misconduct is so egregious as to warrant an award of punitive damages....

...level of at least ordinary negligence. Schropp; Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Beverly Enters.-Fla., Inc. [3] C. The Pleading Requirements In order to plead a claim for punitive damages, a plaintiff must comply with section 768.72(1), Florida Statutes....

...The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. § 768.72(1), Fla....

...(1999) (emphasis added); [4] see also Fla. R. Civ. P. 1.190. Because the amount of an award may be a pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer. Accordingly, although section 768.72(1) is procedural in nature, it also provides a substantive right to parties not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisite showing under the statute has been made to the trial court. Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996); Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995). [5] *642 There is no definition of the term "reasonable basis" in section 768.72(1). Therefore, in deciding whether a "reasonable basis" was established by the record evidence and proffer presented by Despain to allow the requested claim for punitive damages under section 768.72(1), we must determine the appropriate standard of review—de novo or abuse of discretion—to apply. II. Standard Of Review To Determine Whether A Reasonable Basis Has Been Shown To Allow A Claim For Punitive Damages Because section 768.72(1) provides a substantive right to a defendant not to be subjected to discovery of his or her financial worth until the trial court has found a reasonable basis for a plaintiffs claim for punitive damages, the court in Holmes v....

...Although we are not much persuaded by that particular reasoning, we do agree with the part of the decision in Holmes that indicates the de novo standard of review is appropriate. We will now endeavor to explain why we arrive at this conclusion. In discussing the requirements of section 768.72(1), the court in State of Wisconsin Investment Board v....

...Surrey Place of Ocala v. Goodwin, 861 So.2d 1291 (Fla. 5th DCA 2004) (holding that a hearing on a motion to amend to allege punitive damages is not necessary); Solis v. Calvo, 689 So.2d 366, 369 n. 2 (Fla. 3d DCA 1997) ("Pursuant to Florida Statute section 768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....

...A formal evidentiary hearing is not mandated by the statute.") (citation omitted); Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996) ("[A]n evidentiary hearing is not mandated by the statute before a trial court has authority to permit an amendment. Pursuant to section 768.72(1), a proffer of evidence can support a trial court's determination."); Will v. Systems Eng'g Consultants, Inc., 554 So.2d 591 (Fla. 3d DCA 1989); see also Porter v. Ogden, Newell & Welch, 241 F.3d 1334 (11th Cir.2001). Because record evidence or proffer is specified in section 768.72(1), we reject the argument that the abuse of discretion standard applies to determine whether the trial court properly found that a reasonable basis was or was not established....

...record evidence or a proffer is sufficient to establish a reasonable basis to plead a claim for punitive damages; rather, the finding of a reasonable basis under the statute requires a legal determination by the trial court that the requirements of section 768.72(1) have been met....

...4th DCA 1991) ("That finding necessarily includes a legal determination that the kind of claim in suit is one which allows for punitive damages under our law. Thus, to that extent, the legal sufficiency of the punitive damage pleading is also in issue in the section 768.72 setting.")....

...[2] Section 400.023, Florida Statutes, was substantially amended in 2001 and subsection (5) was deleted. That amendment became effective after the cause of action in the instant case accrued. We will, therefore, apply the provisions of subsection (5) of the 1999 version of section 400.023. [3] Section 768.72 was amended in 1999 as part of the 1999 Tort Reform Act to include subsection (3), which adopts a different standard....

...This amendment became effective on October 1, 1999. Ch. 99-225, § 22, Laws of Fla. Because the cause of action in the instant case accrued prior to that date, the new standard does not apply. [4] As part of the 1986 Tort Reform Act, the Legislature enacted section 768.72, which imposed requirements that had to be complied with before a litigant was entitled to plead a claim for punitive damages. The Legislature substantially amended section 786.72 when it enacted the 1999 Tort Reform Act to add three new subsections. However, the provisions of the previous version of section 768.72 were included unchanged in subsection (1) of the amended version. Because the cause of action in the instant case accrued prior to enactment of the 1999 Tort Reform Act, we will apply the previous version of section 768.72. However, we cite to subsection (1) of section 768.72 because that is the version that appears in the bound volume of the 1999 Florida Statutes. We also note that section 768.735, Florida Statutes (1999), enacted as part of the 1999 Tort Reform Act, provides that the provisions of section 768.72(2)-(4), 768.725, and 768.73 do not apply in civil actions arising under chapter 400, Florida Statutes. § 768.735(1), Fla. Stat. (1999). Although section 768.735 is not applicable to the instant action either, we note with interest that even under its provisions, the requirements of subsection (1) of the amended version of section 768.72 do apply to claims for punitive damages under chapter 400 because they are not excluded by section 768.735....

...[29] The Court is unclear as to why Austins have included the second portion of this allegation beginning with "than." [30] In its Reply, BKC acknowledged this Court's ruling in State of Wis. Inv. Bd. v. Plantation Square Assoc., Ltd., 761 F.Supp. 1569, 1576 (S.D.Fla.1991), holding that Fla.Stat. § 768.72 is inapplicable to federal diversity actions....

...Punitive Damages. Finally, the defendant has moved to strike the plaintiffs' demand for punitive damages contained in all counts of the complaint on the grounds that the plaintiffs have not complied with Florida's requirements for punitive damages. Specifically, Section 768.72, Florida Statutes (1993), provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......

...nd maliciously and was guilty of wanton disregard of the rights of the Plaintiff." See Bankest Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537 (S.D.Fla.1989). Accordingly, the motion to strike the demand for punitive damages for failure to comply with Section 768.72 is GRANTED, and it is STRUCK from all counts of the complaint....

...Plaintiff Knight's Federal and Florida RICO claim satisfies sufficient RICO elements to withstand a motion to dismiss. Punitive Damages Defendant argues that Plaintiff's demand for punitive damages in the amount of $25,000,000 must be stricken. The Court does not agree. Florida Statutes, § 768.72 states that "no claim for punitive damages shall be permitted unless there is reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." In this case, Plai...

...dly fraudulent sales. The court's jurisdiction is derived exclusively from the diverse citizenship of the parties. I. Punitive Damages The defendants have moved to dismiss SWIB's claim for punitive damages for failure to comply with Florida Statutes § 768.72....

...Plaintiff has submitted a "proffer" of documents which it claims meets the statutory basis for asserting punitive damages but at the same time argues that the court need not examine the proffer in that, under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its progeny, § 768.72 is a state procedural rule undeserving of application by a federal court sitting in diversity....

...Lundgren, 814 F.2d at 606. Absent scrutiny under these two lines of analysis, deciding when to apply a state rule in federal court becomes a battle of divining rods and crystal balls. With these analyses in mind, then, the court turns its attention to § 768.72. A. The Statute as Both a Pleading Rule and a Discovery Rule Preliminarily, it must be conceded that § 768.72 is both a pleading rule and a discovery rule....

...However the last sentence, permitting discovery of a defendant's financial worth only after a punitive damage claim has been permitted, is of an entirely different nature than the rest of the statute and, for Erie purposes, must be *1573 analyzed separately as a rule of discovery. [4] B. The Pleading Aspects of § 768.72 Since the statute's adoption in 1986, other district courts in Florida have addressed the issue of whether § 768.72 is procedural or substantive under the Erie doctrine. With the notable exception of Citron v. Armstrong World Industries, Inc., 721 F.Supp. 1259 (S.D.Fla.1989), all reported cases have applied § 768.72 as substantive State law in federal diversity actions....

...appealable, and because the district court's ruling would in all likelihood not affect the outcome of the litigation, [5] appeal of such a ruling, though possible in some narrow contexts, [6] has proven elusive as of yet. (1) The Pleading Aspects of § 768.72 Under the Hanna Analysis In addressing the first question under Hanna — whether § 768.72 directly collides with a Federal Rule — it is first necessary to discern the relevant rule....

...Rule 9(g) requires that "[w]hen items of special damages are claimed, they shall be specifically stated." Yet read in light of the Supreme Court's pronouncements in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), the court finds no unavoidable conflict between Rule 9(g) and § 768.72....

...In our view, in diversity actions, Rule 3 governs the date from which various timing requirements of the federal rules begin to run, but does not affect state statutes of limitations. Id. (footnotes omitted). Similarly, Rule 9(g) can co-exist with § 768.72....

...Conceivably, a state statute could allow a right of action to punitive damages to accrue only six months after the filing of a lawsuit or only after a plaintiff prevailed on its underlying compensatory claim. Neither these delays in the pleading of punitive damages nor that engendered by § 768.72's requirement of some minimum reasonable basis determination directly conflicts with Rule 9(g)....

...The Florida statute, however, does directly and irreconcilably conflict with Federal Rule 8. Rule 8(a)(2) provides that a plaintiff's complaint establishes a claim by setting forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Section 768.72 obviously requires much more than a mere "short and plain statement" for establishing a punitive damage claim in that it necessitates 1) the presentation of evidence in the record or proffered by Plaintiff to demonstrate that there exi...

...41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957): " [A]ll the Rules require is a `short and plain statement of the claim' that will give the defendant notice of what the plaintiff's claim is and the grounds upon which it rests." (Emphasis added.) To apply § 768.72 in federal courts would, in essence, convert the pleading of punitive damages from the requirement of mere notice to a quasi-adjudication of plaintiff's claim, requiring evidentiary inquiry and discovery, argumentation of counsel, and a judicial ruling....

...ith the pleading philosophy embodied in Rule 8. 5 C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE: § 1202 at 68 (2d ed. 1990). See also, Sparkman v. McFarlin, 601 F.2d 261, 276 n. 16 (7th Cir.1979). Having concluded that the pleading aspects of § 768.72 conflict with the Federal Rules, the court must next determine whether, under the Hanna analysis, Rule 8(a) is beyond the scope of the Rules Enabling Act, 28 U.S.C....

...district courts." 28 U.S.C. § 2072. Nor does Rule 8, as herein applied, "abridge ... or modify any substantive right" within the meaning of the Enabling Act. Defendants argue — citing for support all the Florida district courts, save Citron, which have addressed § 768.72 — that not applying the statute in Federal court would abridge their substantive rights as defined by the Florida Supreme Court in Smith v. Dept. of Insurance, 507 So.2d 1080 (Fla. 1987). Smith was a broad constitutional attack on the 1986 Tort Reform and Insurance Act. In part, the Florida Supreme Court held in Smith that § 768.72 did not violate the State Constitution's separation of powers clause in that the provision was not merely procedural and solely a matter of concern for the judiciary, but sufficiently affected substantive rights of civil litigants as to properly fall within the sphere of the legislature's powers. Id. at 1092 n. 10. Specifically, the Court held: Section [768.72] is clearly substantive because it sets the standard for establishing a claim for punitive damages. The legislature, which has the authority to abolish punitive damages can surely set the standard for establishing such claims. The Court is of the view that [§ 768.72] create[s] substantive rights and further that any procedural provisions of [this] section[] [is] intimately related to the definition of those substantive rights. Id. (Quoting and adopting the trial court's opinion). Yet, as Citron ably notes, the Florida Supreme Court had neither the cause nor the capacity to determine whether § 768.72 is substantive or procedural for purposes of federal diversity actions. Citron, 721 F.Supp. at 1261. In holding that the statute sets the standard for "establishing" punitive claims, the Court must have meant only "the pleading of" such claims. It could not mean that § 768.72 adds any substantive element to punitive damage claims, because it clearly does not. To attain an award of punitive damages, a plaintiff in Florida still needs to establish the same level of fraudulent, malicious, or wanton conduct [8] by a defendant whether or not the statute is applied. Section 768.72 merely changes the time at which a plaintiff can plead punitive claims and at which defendants are formally exposed to such claims....

...procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights. Id. at 445-46, 66 S.Ct. at 246. This court is of the decided view that statutes such as § 768.72 neither alter the substantive elements governing punitive damages nor grant litigants any substantive rights within the meaning of the Rules Enabling Act....

...' mandate embodied in the Enabling Act. Nor is there any suggestion that application of Rule 8 here would in any way transgress Congress's Constitutional bounds. Accordingly, Rule 8(a) controls and the court declines to apply the pleading aspects of § 768.72. Though the court's somewhat extensive analysis has been necessary to address the current confusion concerning § 768.72, a plethora of authority exists to support the court's conclusion....

...1989) (plaintiffs need not plead "ultimate facts" in accord with Florida pleading requirements but are bound only by Rule 8(a)(2) of the Federal Rules). See generally, 5 C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE: § 1204 at 81-85. (2d ed. 1990). (2) The Pleading Aspects of § 768.72 Under the Erie Analysis Because the statute clashes with Rule 8 and Hanna applies, the court has had no need to conduct an Erie analysis. Yet even if no conflict between § 768.72 and the Federal Rules existed, the court would not apply the statute's pleading aspects as failure to do so would lead to neither an inequitable administration of the laws nor to forum-shopping....

...at 468, 85 S.Ct. at 1142; Walker, 446 U.S. at 752-53, 100 S.Ct. at 1986. Because of the statute's own liberal procedures for amendment, all diligent litigants with valid punitive damage claims in State court are eventually able to assert their claims under § 768.72, thus ensuring the same outcome under either rule of procedure....

...Not only, then, is the statute not "substantive" within the meaning of the Rules Enabling Act under the Hanna analysis, neither is it "substantive" for Erie purposes. See Hanna, 380 U.S. at 471, 85 S.Ct. at 1143-44 (the two definitions of "substantive" are not identical). C. The Discovery Aspects of § 768.72 The last sentence of § 768.72, providing that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted" is unique among the state punitive damage pleading statutes of which the court is aware, and indeed, appears to be unique among state discovery rules....

...thereby inapplicable in diversity actions. See Ille, 87 F.R.D. at 542; Mid Continent Cabinetry, 130 F.R.D. at 151 n. 1. Hesitant to decide the issue on divine intuition alone, the court looks to Hanna and Erie for help. (1) The Discovery Aspects of § 768.72 Under the Hanna Analysis As Hanna instructs, the first task for the court is to determine whether the federal rule is broad enough to cover the point in dispute....

...at 470, 85 S.Ct. at 1143, 14 L.Ed.2d at 16; see also, Walker, 446 U.S. at 749-50, 100 S.Ct. at 1984-85. In light of Walker and Ragan, the court finds no unavoidable conflict between Rule 26 and the delay in discovery of a defendant's financial worth predicated by § 768.72....

...Courts deem discovery of financial worth relevant so that, once punitive liability has been determined, the factfinder can better fashion an appropriate measure of damages by taking into account the defendant's means. See Section I.C., supra. [10] In apparent contravention of § 768.72, Rule 26 presumes access to discovery contemporaneous with a determination of relevancy....

...Under either the State rule or the Federal Rule, plaintiff will have in hand evidence of the defendant's financial condition at the time it becomes necessary for the factfinder to determine punitive liability. [13] Equally telling as to the lack of conflict between § 768.72 and the Federal Rules is the fact that at least some federal courts — interpreting the Federal Rules — have deemed it proper to postpone discovery of net worth along the lines contemplated by § 768.72....

...Squared off against this potential flexibility of Rule 26 and the federal policies underlying it stand substantial State policies, of which the delay in discovery of financial worth proves an "integral" part. [14] See Walker, 446 U.S. at 751-52, 100 S.Ct. at 1985-86. By adding the last sentence to § 768.72, the Florida legislature has granted its citizens a limited right of privacy to information concerning their net worth when faced with punitive damage claims....

...[15] In light of the "several policies served" by the State discovery provision and the lack of a strong federal interest in demanding immediate access to financial worth discovery, the court has little trouble reconciling the seeming confrontation between § 768.72 and Rule 26....

...at 1985. Accordingly, Hanna does not apply. Instead, the State rule deserves further scrutiny under the "twin aims of Erie." Hanna, 380 U.S. at 468, 85 S.Ct. at 1142; Walker, 446 U.S. at 752-53, 100 S.Ct. at 1986. [17] (2) The Discovery Aspects of § 768.72 Under the Erie Analysis Failure to adopt the State discovery practice would not lead to an inequitable administration of the laws. It is difficult — if not impossible — to imagine how pre-trial production of evidence of financial worth sooner, rather than later, would change the result of any given litigation. Yet the court finds that disregard of § 768.72's discovery provision could lead to forum-shopping....

...would be likely to cause a plaintiff to choose the federal court"). (Emphasis added). Plaintiffs with insubstantial punitive damage claims — especially those of the harassing and unscrupulous sort — would likely prefer the federal over the State forum were § 768.72 not applied *1580 there, hoping to gain access to otherwise protected financial records for their own sake or with the hope of using the threat of such sensitive discovery as an otherwise unearned bargaining chip....

...Ross, 107 F.R.D. at 328 (application of New York rule prevented plaintiff from discovering famous entertainer's net worth and annual income until punitive liability established). Though the potential class of plaintiffs which would be tempted to forum shop were § 768.72 disregarded by federal courts is likely small, it is well-defined. And it is precisely that class of plaintiffs which the statute seeks to keep at bay. Accordingly, this court finds the discovery provision of § 768.72 substantive for Erie purposes and will give it effect in this action. [18] (3) Applying the Discovery Aspects of § 768.72 Under normal circumstances, application of § 768.72's discovery provision will likely come before the court in the guise of a motion for protective order by the defendant or on a motion to compel or for leave to seek discovery of financial worth by the plaintiff....

...by arguing their own evidence. [20] The court seriously doubts that the statute intended such a fact-intensive investigation into the merits of Plaintiff's punitive claim. Without attempting to determine precisely what type of showing is required by § 768.72, the court believes it must ultimately be a lesser standard than that required for summary judgment. Though the burden is on SWIB to survive a § 768.72 challenge of insufficiency, see Will v....

...Systems Engineering Consultants, 554 So.2d 591, 592 (Fla.App. 3 DCA 1989), the standard of proof required merely to assert Plaintiff's punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a § 768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff....

...Accordingly, defendants' motion to dismiss SWIB's claim for attorney fees shall be granted. ORDER For the foregoing reasons, it is hereby ORDERED and ADJUDGED that the defendants' motion to dismiss Plaintiff's claim for punitive damages is DENIED as the pleading provisions of Florida Statutes § 768.72 shall not be given effect by this court. It is further ORDERED and ADJUDGED that the discovery provision of Florida Statutes § 768.72 shall be given effect by this court and that Plaintiff has met that provision's standard for obtaining discovery of the defendants' financial worth....

...It is further ORDERED and ADJUDGED that the defendants' motion to dismiss Plaintiff's claim for attorney fees is GRANTED. NOTES [1] These motions include the Wenal Defendants' Motion to Strike Claim for Punitive Damages and Attorneys' Fees, Plaintiff's Proffer of Evidence Pursuant to Florida Statutes § 768.72, the Wenal Defendants' Response to Plaintiff's Proffer, the Zaremba Defendants' Memorandum in Opposition to Plaintiff's Proffer, Plaintiff's Motion to Strike Memoranda in Opposition to Plaintiff's Proffer of Evidence, the Wenal Defendants'...

...general rules of practice and procedure and rules of evidence for cases in the United States district courts ... Such rules shall not abridge, enlarge or modify any substantive right. [4] Neither the parties nor the other courts which have addressed § 768.72 have applied the Hanna or Erie analysis to the statute's discovery provision....

...[15] The Court in Tennant did qualify its holding by allowing defendants to obtain protective orders preventing disclosure where they could establish that no "actual factual basis" yet existed for punitive damages. Id. However, even this qualification conflicts substantially with § 768.72 to the extent it places the onus on defendant to move for protection from disclosure, rather than presuming protection, and places the burden on defendant to show the insubstantiality of plaintiff's case, rather than on plaintiff to establish the reasonableness of its punitive claim. [16] Undoubtedly, the pleading provisions of § 768.72 also serve an integral part of the State's policy of curing past abusive pleading practices which have contributed to an "insurance availability and affordability crisis." Preamble, Tort Reform and Insurance Act of 1986, Ch. 86-160, 1986 Fla.Laws 695, 699. Yet in view of the immense challenge § 768.72 presents to the strong federal interest in maintaining a system of notice pleading, the statute's conflict with Rule 8 — and the resulting virtual presumption of its non-applicability in federal court — cannot be avoided. [17] The court is also mindful of the fact that the legislature's passage of § 768.72 could be deemed the creation of a new evidentiary privilege....

...as compelled by state statutes in diversity cases"). See e.g., Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga.1976) (in diversity case, state statute excluding medical review proceedings from discovery was controlling). [18] Of course, the application of § 768.72 in this instance and in future instances only pertains to discovery relating to punitive damage claims arising under the court's diversity jurisdiction....

...[11] Stop Me if You Think That You've Heard This One Before The Defendants next advance the familiar argument that the Plaintiffs' prayer for punitive damages should be stricken insofar as it fails to meet the pleading requirements of the Tort Reform Act, Fla.Stat. § 768.72 (1991). [12] The issue becomes whether § 768.72 is procedural or substantive in nature, since a federal court sitting *1579 in diversity action must apply federal law to matters of procedure and follow the substantive law of the forum state with respect to matters of substance....

...Rule 8 merely requires that the complaining party provide "a short, plain statement of the claim showing that the pleader is entitled to relief," while Rule 9(g) provides that items of special damages, such as punitive damages, are to be specifically pleaded. On the other hand, Florida Statute § 768.72, which sets forth the pleading guidelines for alleging punitive damages pursuant to Florida law, represents a departure from the liberal requirement of notice pleading....

...It prohibits a claim for punitive damages unless there is evidence in the record or proffered by the Plaintiff which provides a reasonable basis for recovery. In other cases, Defendants have advanced the familiar argument that the Florida Supreme Court in Smith v. Dept. of Ins., 507 So.2d 1080 (Fla.1987) interpreted § 768.72 as being substantive law for the purposes of Erie....

...ling would in all likelihood not affect the outcome of the litigation, appeal of such a ruling, though possible in some narrow contexts, has proven elusive as of yet." Plantation Square, 761 F.Supp. at 1573. The Florida Supreme Court in Smith deemed § 768.72 "substantive" in the sense that the state legislature, by adopting this portion of the Tort Reform Act, did not encroach on the court's rule-making authority....

...The Smith court did not, however, consider the substantive-procedural distinction in Erie terms. Smith, therefore, has no relevance to this court's specific inquiry. After surveying the caselaw, the undersigned is in agreement with the majority of the judges in the Southern District of Florida that § 768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court....

...[11] Perhaps the Plaintiffs could institute a qui tam action. See generally United States ex rel. Williams v. NEC Corp., 931 F.2d 1493 (11th Cir.1991); United States of America v. Christino Enriquez et al., No. 90-6105-CIV-PAINE, 1991 WL 236502, 1991 U.S. Dist LEXIS 14698 (S.D.Fla.Jul. 12, 1991). [12] Section 768.72 provides in part that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...Plaintiffs sued Ford, as well as Firestone; however, Ford was dropped as a party prior to trial. Plaintiffs' recovery against Firestone was based on failure to warn of a known defect and strict liability. The jury determined plaintiffs' damages were $55,400, but that Firestone was only twenty-percent responsible. Section 768.72, Florida Statutes (2000), provides that claims for punitive damages will not be permitted unless there is a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery...

...f discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Punitive damage amendments are different than traditional amendments in that section 768.72 has created a substantive legal right not to be subject to a punitive damage claim until the trial court rules that there is a reasonable evidentiary basis for punitive damages....

...vor of allowing amendments, Yun Enters. v. Graziani, 840 So.2d 420, 423 (Fla. 5th DCA 2003), is not appropriate for reviewing proposed punitive damage amendments. When a trial court is determining if a plaintiff has made a "reasonable showing" under section 768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo....

...Defendants moved to dismiss the punitive damages claim, asserting that the plaintiffs did not allege a sufficient basis to award punitive damages. Defendants also moved to strike the punitive damages claims, asserting that plaintiffs did not strictly comply with section 768.72, Florida Statutes (1993), because they failed to proffer any evidence or establish any record entitling plaintiffs to relief. At a hearing on the motions, the plaintiffs argued that by virtue of signing this complaint under oath, they had testified under oath about these acts and had complied with section 768.72. Thereafter, the trial court denied both motions. Next, defendants sought a writ of certiorari in the Fifth District Court of Appeal. In denying the writ, the district court focused on the language in section 768.72 which states that "[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence......

...to dismiss and motion to strike, it met its obligation to review the record before allowing the punitive damages claims. Id. at 158. Judge Peterson dissented, stating that he would have granted the petition for certiorari. Judge Peterson noted that section 768.72 required a plaintiff to obtain leave from the court to incorporate a claim for punitive damages before the claim could be asserted....

...e granted certiorari, quashed the order denying the motion to dismiss and alternative motion to strike, and remanded the action to the trial court for further proceedings without prejudice to allow the plaintiffs to follow the procedures required by section 768.72. Id. (Peterson, J., dissenting). We accepted jurisdiction because this case expressly and directly conflicts with this Court's recent decision in Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995). In Globe Newspaper, we analyzed section 768.72, which provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for the recovery of such damages....

...t requires the plaintiff to show this evidentiary basis before the court may allow such a claim. Consequently, we concluded that certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section 768.72....

...Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (financial worth discovery), and Sports Products, Inc., v. Estate of Inalien, 658 So.2d 1010 (Fla. 4th DCA 1994), review dismissed, 659 So.2d 1088 (Fla.1995), the district court ruled that the procedure mandated by section 768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section 768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed....

...ree counts at issue. After a hearing, the trial court granted the motion to amend. Petitioners now seek review. Certiorari Analysis “Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, [Florida Statutes (2016),] but not to review the sufficiency of the evidence.” Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995)). Section 768.72(1), Florida Statutes (2016), provides in relevant part: “In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla....

...Subsection (2) sets forth the burden of proof at trial and provides: “A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla....

...e defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. § 768.72(2)(a), Fla....

...to amend the complaint to add a claim for punitive damages. There, we addressed what standard of review should be applied to a trial court’s pretrial decision to deny the amendment. Holmes , 891 So.2d at 1191 . We specifically noted that, because section 768.72 creates a substantive right, the abuse of discretion standard, which requires all doubts to be resolved in favor of allowing amendments, is not appropriate. Id. Instead, we concluded that the appropriate standard of review is de novo. Id. In reaching that conclusion, we made a comparison in which we determined that the “reasonable showing” under section 768.72 is “similar to determining whether a complaint states a cause of action or the record supports a summary judgment, both of which are reviewed de novo.” Id....

...Unfortunately, the trial court focused on the language “whether the complaint states a cause of action,” disregarding the other part of the analogy, whether “the record supports a summary judgment.” The analogy this Court drew in Holmes was made in determining the proper standard of review. Section 768.72(1) “create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper, 658 So.2d at 519 (emphasis added). The procedural protection of this statute requires more than mere allegations. We agree with Petitioners that an evaluation of the evi-dentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true....

...The statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery. The trial court used an inadequate standard and failed to comply with the procedural requirements of section 768.72(1)....

...ve damages in count V. We can find no order in the record addressing this motion. Trans World and Metz asserted in their motion to dismiss the amended complaint that count V should be dismissed because Gandy failed to comply with the requirements of section 768.72, Florida Statutes (1999)....

...sufficiency of the pleadings to support such a claim. Not considered by the Martin-Johnson court, however, because it had not been adopted when the lower courts considered the issue and did not apply to the parties or their claims in that case, was section 768.72, Florida Statutes (1989), which provides as follows: 768.72 Pleading in civil actions; claim for punitive damages....

...of the November hearing showing that only the replevin count had been considered. Petitioner expanded on his protective order argument by contending that respondents could not have financial worth discovery until they had first made a showing under section 768.72 of evidence in the record or by proffer that some reasonable basis exists for the recovery of punitive damages....

...which initially denied the protective order. On the other hand, the motion to strike the punitive damages claim was first presented March 19th and determined only on April 4th. Moreover, the motion for protective order did not specifically refer to section 768.72, merely to the fact that the discovery requests were irrelevant because they were family law forms. In contrast, the section 768.72 issue was first squarely presented only by the March 19th motion. Moreover, even if the ruling at the March 14th hearing on the motion for protective order could properly be understood as a section 768.72 determination, we should be quite reluctant to treat it as the final order on the subject because respondents had misled the trial judge with their argument that the November hearing on the replevin count had also considered and determined the sufficiency of the claim for punitive damages. We do not suggest that the misleading was intentional, but the effect is undeniable. Hence we find that the statutory issue has been timely brought to us. Turning to the critical issue, we read section 768.72 as creating a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury....

...That finding necessarily includes a legal determination that the kind of claim *1336 in suit is one which allows for punitive damages under our law. Thus, to that extent, the legal sufficiency of the punitive damage pleading is also in issue in the section 768.72 setting. Because the supreme court itself has held that section 768.72 creates substantive legal rights and that its procedures are intimately tied to those substantive rights, see Smith v. Department of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla. 1987), we find it difficult to understand how Martin-Johnson can any longer control this issue. We are not alone in enforcing section 768.72's substantive rights by requiring a factual inquiry into whether the necessary statutory predicate for punitive damages exists before a party can be forced to disclose personal financial worth discovery....

...If the party had to obey an order compelling a response to the discovery requests and could raise the subject only on an appeal after final judgment, the right would be meaningless. The very circumstance which the legislature sought to eradicate in section 768.72 would be allowed to occur....

...STONE, Judge, dissenting. I would deny certiorari on the authority of Martin-Johnson v. Savage. See also, Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987) (en banc). There is no reason to conclude that the supreme court was not aware of section 768.72, Florida Statutes, when deciding Martin-Johnson....

...Punitive Damages Florida law provides that “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” See Fla. Stat. § 768.72 (2)....

...d actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Fla. Stat. § 768.72 (2)(a)....

...In addition, “ ‘[gjross negligence’ means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Fla. Stat. § 768.72 (2)(b)....

...injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file a pleading asserting a claim for punitive damages in a civil action are enumerated in section 768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190. Section 768.72(1) provides that defendants in civil actions shall be free from claims of punitive damages and related financial discovery unless the claimant makes “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla....

...The only basis for awarding punitive damages against individual defendants, such as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla....

...negligence to justify recovery of punitive damages. “Gross negligence means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. at § 768.72(2)(b) (internal quotation marks omitted). 4  As previously stated, a party wishing to pursue punitive damages must first file a motion seeking leave of court to file an amended complaint and then make “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla....

...Evidentiary component of motion to add punitive damages Because Respondent, on remand, may choose to file another motion to amend, we believe it would be helpful to the parties and to the trial court to complete our analysis of the additional requirements of section 768.72 and rule 1.190(f). If the proposed amended complaint contains sufficient allegations of gross negligence, the trial court must next consider whether plaintiff has established a reasonable factual basis for its punitive damage claims....

...During the hearing in this case, Respondent sometimes relied on record evidence, such as deposition testimony and, at other times, Respondent relied on witness testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers, arguing that the proffers did not comply with the requirements of section 768.72 or rule 1.190(f)....

...Evidentiary component of motion to add punitive damages Because Respondent, on remand, may choose to file another motion to amend, we believe it would be helpful to the parties and to the trial court to complete our analysis of the additional requirements of section 768.72 and rule 1.190(f). If the proposed amended complaint contains sufficient allegations of gross negligence, the trial court must next consider whether plaintiff has established a reasonable factual basis for its punitive damage claims....

...During the hearing in this case, Respondent sometimes relied on record evidence, such as deposition testimony and, at other times, Respondent relied on witness testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers, arguing that the proffers did not comply with the requirements of section 768.72 or rule 1.190(f)....

...at 324. The Second District Court of Appeal suggested that “to require written proffers to be filed a reasonable time prior to future hearings would appear to be a reasonable method to assure that such hearings do satisfy the spirit of the statute [section 768.72] and the requirements of due process.” Id....

...e the bases upon which it granted Respondent’s motion to assert punitive damages. Because punitive damages may only be pursued after the trial court finds the plaintiff has met or exceeded 9 the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is required to make an affirmative finding that plaintiff has made a “reasonable showing by evidence,” which would provide a “reasonable evidentiary basis for recovering such damages” if the motion to amend is granted....

...D FOR FURTHER PROCEEDINGS. SAWAYA and LAMBERT, JJ., concur. 2In Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642-44 (Fla. 5th DCA 2005), we held that appellate courts would review, de novo, a trial court’s finding that a section 768.72(1) reasonable basis exists for asserting punitive damages....

...15(a)'s mandate to freely permit a party to amend is to be "heeded." Foman, 371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 222. In the instant case, International Ship has moved to amend its complaint to state claims for punitive damages pursuant to Section 768.72, Fla.Stat. (1995) and Rule 15(a), Fed. R.Civ.P. Section 768.72 provides, in part, that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may *896 move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. See Fletcher v. State of Fla., 858 F.Supp. 169, 173 (M.D.1994) (applying Section 768.72); Lewis v. Snap-On Tools Corp., 708 F.Supp. 1260, 1262 (M.D.Fla.1989) (applying Section 768.72). Neither International Ship nor St. Paul dispute that Section 768.72 is substantive and must be applied by federal courts. Moreover, this Court has on a number of occasions found Section 768.72 to be "substantive" and, thus, has applied Section 768.72 in federal court claims under the Erie Doctrine. See Mahon, 829 F.Supp. at 385; Marcus, 782 F.Supp. at 600 ("Since the State legislature passed Section 768.72, and the State courts have applied it, it is evident that both the legislature and judicial branches of Florida's government consider this to be substantive law"); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 (M.D.Fla. 1989) ("Section 768.72 ......

...ive damages. Any procedural provisions of these sections are intimately related to the definition of those substantive rights"). But see State of Wis. Inv. Bd. v. Plantation Square Assoc., Ltd., 761 F.Supp. 1569, 1573-76 (S.D.Fla.1991) (finding that Section 768.72 clashed with Rule 8, Fed.R.Civ.P.), and Hanna v....

...460, 470, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8, 16 (1965) (stating that the preliminary inquiry for a district court is whether the state provision directly conflicts with a Federal Rule of Civil Procedure), and thus declined to apply the pleading aspects of Section 768.72 because the failure to do so would lead to neither an inequitable administration of the laws nor to forum-shopping); Jones v. Wal-Mart Stores, Inc., 1991 WL 236503, at *2 (S.D.Fla. Apr. 25, 1991) (holding that "inasmuch as Section 768.72 is a pleading statute, it is inapplicable to Florida state law claims being litigated in federal court"); Citron v. Armstrong World Indust., Inc., 721 F.Supp. 1259, 1261 (S.D.Fla.1989) (holding Section 768.72 to be procedural, not substantive)....

...Paul's argument is based purely on a "factual debate" between the parties and their experts and witnesses. Nothing provided by St. Paul, on a legal position, prevents this Court from allowing International Ship leave to amend its complaint. Under Florida law, the plain meaning of Section 768.72 requires only that the plaintiff provide the court with a "reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint." Globe Newspaper Co....

...The Court finds that International Ship has met this burden. Despite St. Paul's factual debate presented in its memorandum of law in opposition, International Ship has proffered record evidence which establishes a "reasonable showing" for a "reasonable basis" for recovery of punitive damages as required by Section 768.72....

...lo moves to dismiss the request for an award of punitive damages against him individually on the state law claims of false arrest, malicious prosecution, and defamation, because there is no record evidence supporting the demand for punitive damages. Section 768.72 of the Florida Statutes requires that the complaint be supported by such record evidence before Plaintiff may demand punitive damages....

...Defendant urges that it is substantive, and should apply in this case. Substantive law is enacted by the State Legislature; whereas, procedural rules are enacted by the Supreme Court of Florida. See Art. V, § 2(a), Fla.Const. Since the State Legislature passed Section 768.72, and the State courts have applied it, it is evident that both the Legislative and Judicial branches of the Florida's government consider this to be substantive law....

...Plantation Square Assoc., Ltd., 761 F.Supp. 1569 (S.D.Fla.1991); Jones v. Wal-Mart Stores, Inc., 1991 WL 236503, 1991 U.S. Dist. LEXIS 16003 (S.D.Fla.1991); Citron v. Armstrong World Indust., 721 F.Supp. 1259 (S.D.Fla. 1989). In Lewis, this Court held that Florida Statutes section 768.72 was substantive, and thus applied in federal court claims under the Erie Doctrine....

...is for recovery of such damages." Further, in Lancer Arabians, the Middle District noted that while the State's characterization of its law as substantive is not binding, it is persuasive. The Middle District then went on to analyze Florida Statutes section 768.72 under the twin aims of the Erie Doctrine, and found the section to be substantive law....

...lice or racial bias are not sufficient under Florida law to support the claim for punitive damages. Unless and until record evidence supports that there is a basis for recovery of punitive damages, the demand is premature. Therefore, consistent with Section 768.72 of the Florida Statutes, all demands for punitive damages will be dismissed without prejudice to refile those demands once they are supported by record evidence....

...CONCLUSION This Court finds that Plaintiff has sufficiently stated a claim on all counts except one: the claimed First Amendment violations sought to be remedied under 42 U.S.C. § 1983. This portion of the complaint is dismissed with leave to amend. Further, consistent with Florida Statutes section 768.72, Plaintiff's demand for punitive damages on the pendent state claims is dismissed without prejudice....

...Kane, Federal Practice and Procedure § 1357 (1969 and Supp.1989) (on motion to dismiss only complaint and attachments considered). Also as to Count III, Frio Ice has not provided evidence showing a reasonable basis for recovering punitive damages against Rodriguez, as required by Fla.Stat. § 768.72 (1986 Supp.1989)....

...how sufficient evidence to allow a claim for punitive damages to be pleaded. Today we consider a petition for certiorari or mandamus posing a separate but related question arising under the identical statute we construed in Henn: viz., whether under section 768.72, Florida Statutes (1993), a pleader can include a claim for punitive damages in an initial pleading without prior leave of court. We conclude that punitive damages claims can be asserted, if at all, only with prior leave of court. We therefore grant certiorari to quash the order of the trial court refusing to strike such an unauthorized claim. Section 768.72, Florida Statutes (1993), provides as follows: 768.72 Pleading in civil actions; claim for punitive damages....

...thorization for pleading a punitive damages claim. Kraft answered the complaint after first seeking to dismiss the action on jurisdictional grounds. Later Kraft moved to strike the punitive damages claims, arguing that claimant had not complied with section 768.72....

...urther hearing within 90 days for the purpose of making the statutory showing, but meanwhile barring financial worth discovery. Kraft's petition for certiorari or mandamus timely reached us. [3] Kraft argues that there is but one possible reading of section 768.72: "That reading is plain from all of its provisions, read separately or together: the statute is designed to keep punitive damage claims out of pleadings until an evidentiary showing is made." It argues that the legislature desired to r...

...e claims, as here, for in terrorem effect. Such claims, it contends, give the claimant undue settlement leverage and force insurance companies to devote resources to claims in spite of their intrinsic lack of merit. Hence, the legislature created in section 768.72 a positive legal right not to be exposed to punitive damages until a court first determines that there is evidence enough for such a claim to be pleaded....

...First, he contends that Kraft has simply misread the statute. It really does not mean that a pleader may not include such a claim in its initial pleading without prior leave of court; rather, he argues, the court may as here allow it to stand while the claimant searches for evidence to support it. Moreover, section 768.72 is in conflict with section 817.41(6), which expressly authorizes punitive damages for misleading advertising violations; and thus he contends that the requirements of section 768.72 were intended to give way to section 817.41(6)....

...To determine whether Kraft has made the kind of extraordinary showing demanded, we begin by analyzing the statutes. It is true that section 817.41 plainly authorizes awards of punitive damages for violations of its terms. It is equally true, however, that the subject of pleading punitive damages is covered only in section 768.72. In other words, while section 817.41 creates an entitlement to punitive damages, it says nothing about how that entitlement shall be pleaded. As to the subject of pleading the entitlement, section 817.41 thus impliedly defers to section 768.72, which allows the pleading only after a judge has determined that the claimant can offer sufficient evidence to allow the claim for punitive damages to be pleaded....

...mall sums of money. From this premise, he argues that the restrictions of Chapter 768, Part II, "will make redress for `private violations' * * * ineffective and prohibitive." Consequently, he urges, the legislature could not possibly have meant for section 768.72 to be a restriction on pleading punitive damages remedies for section 817.41 violations. [4] We are unable to square claimant's conclusions with the language employed in the statutory text. Apart from the legislative directive that, where conflicting, other statutes take precedence over section 768.72, claimant can point to nothing in either of the statutes to support his conclusions....

...7.41. On the other hand, Kraft calls our attention to section 760.11(5), Florida Statutes (1993), in which — while authorizing punitive damages in employment discrimination cases — the legislature has also expressly stated that "The provisions of ss. 768.72 and 768.73 do not apply to this section." We agree with Kraft that, as section 760.11(5) betrays, when the legislature intends to waive the "no-punitive-damage-claim-with-out-leave-of-court" requirement, it obviously knows how to say so in unmistakable language....

...text of section 817.41, must be taken as an intent that the pleading limitation requirement be enforced as to any other statute granting a right for punitive damages unless the granting statute says otherwise. We next confront the precise meaning of section 768.72....

...Legal Proceedings Following the incident at the bank, Val-ladares filed . an action against Bank of America for negligence, battery, and false imprisonment. 1 In an apparent attempt to *6 comply with the legislatively established permissive scope of punitive damages pursuant to Florida Statutes, section 768.72 (1999), Valladares did not include an allegation for punitive damages in his initial complaint....

...Bank of America’s behavior was analogous to the behavior of the bank in Harris in that it also committed acts that went beyond an innocent misunderstanding. *13 Valladares did not specifically allege punitive damages under the negligence count in his original complaint in an attempt to comply with section 768.72, Florida Statutes....

...Although this presents a problem with his award for punitive damages, it should ‘be noted that this statute, precluding an allegation of punitive damages in the initial complaint, has no application to a cause of action for negligent reporting of criminal conduct. Section 768.72 pertains only to a demand for punitive damages....

...ate law claim. D. Punitive Damages Defendants Bodden and Logal move to strike Plaintiffs' demand for punitive damages in Count IV of the Feld Consolidated Amended Class Action Complaint, arguing that Plaintiffs have not complied with Florida Statute § 768.72, which requires there to be evidence in the record or proffered by Plaintiffs establishing a reasonable basis for such damages before a claim for punitive damages may be asserted. Defendants are mistaken that § 768.72 applies to this case, however....

...amages in an action filed in federal court is governed by the provisions of Federal Rule of Civil Procedure 8(a), which requires only "a short and plain statement of the claim showing that [the plaintiff] is entitled to relief," and not by Fla.Stat. § 768.72, which irreconcilably conflicts with the notice pleading requirement of Rule 8(a). Accordingly, the motions to strike the punitive damage claims under § 768.72 are denied....

...Al-Site contends that these materials are essential to prove punitive damages for its second cause of action arising under the Florida common law of unfair competition. Second Amended Complaint at 3-8 (d.e. 24). While this contention may be accurate, Fla. Stat. § 768.72 (1992) sets out certain conditions which must be met before a claimant may plead a claim for punitive damages....

...ant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Fla.Stat. § 768.72 (1992)....

...Similarly, no discovery of financial worth can be made without a comparable showing. Wisconsin Invest. Bd. v. Plantation Square Assoc., Ltd., 761 F.Supp. 1569, 1576-81 (S.D.Fla.1991). After an extensive analysis, this Court concludes that all of Fla.Stat. § 768.72 must be applied here. This Court agrees with the court in Plantation Square, concluding that there are two elements to § 768.72: a pleading element and a discovery element. However, the two elements cannot be separated from each other as Plantation Square urges. A. Florida Court Decisions The Florida Supreme Court has interpreted Fla.Stat. § 768.72 as "substantive" in terms of whether the Florida state legislature encroached on the court's rule-making authority in approving the Tort Reform Act....

...See, e.g., Red Cross and Tipton, supra, and Baird v. Koerner, 279 F.2d 623, 627 (9th Cir.1960) ("the Erie rule excepts `matters governed by the Federal Constitution or by Acts of Congress'") (citation omitted). If the Florida Supreme Court's decision in Smith is read to interpret § 768.72 as substantive when applying the Erie doctrine, then the opinion encroaches on the boundaries established by the Rules Enabling Act, 28 U.S.C....

...§ 2072, [1] and the United States *510 Constitution Article VI, Clause 2, the Supremacy Clause. The Constitution leaves the federal courts as the final arbiter of federal law, a role which cannot be usurped by state courts. Therefore, a state court may not construe section 768.72 in light of the Erie doctrine without infringing upon a federal court's authority to interpret the limits of federal law....

...York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), Byrd v. Blue Ridge Rural Electric Co-op, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), and Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), to arrive at the conclusion "that § 768.72 is both a pleading rule and a discovery rule." 761 F.Supp....

...The Court agrees with Plantation Square's conclusion and defers to that reasoning. B. Plantation Square Analysis 1. Discovery Aspect This Court also agrees with Plantation Square's conclusion that federal courts must give effect to the discovery provision of Fla.Stat. § 768.72. Id. at 1580; see also, Key West Convalescent, 619 So.2d 367. In brief, the court concluded that there is no conflict between § 768.72 and Federal Rule of Civil Procedure 26....

...Hanna, 380 U.S. at 468, 85 S.Ct. at 1142. Under this analysis, if one of the aims was violated, then the court must apply the statute as substantive law. Plantation Square, 761 F.Supp. at 1579-81. The Plantation Square court applied the discovery aspects of § 768.72 as substantive law because to do otherwise would lead to forum shopping....

...istrict court discussed the discovery element of the South Dakota statute. The South Dakota district court's opinion tracks Plantation Square, concluding that the discovery aspects of the statute are substantive. Therefore, federal courts must apply § 768.72 by requiring a hearing prior to discovery. This Court agrees with that conclusion. 2. Pleading Aspect A more complicated issue arises as to whether Fla.Stat. § 768.72 creates a substantive right for pleading punitive damages. While many district courts have addressed the ramifications of Section 768.72 without arriving at a consensus, no circuit court has authoritatively discussed Florida's punitive damage amendment provisions. [6] Plantation Square presents the most detailed analysis of the reported decisions and concludes that the pleading aspects of § 768.72 should not be applied to federal courts. Applying the Hanna test, the Plantation Square court held that no conflict existed between Fed.R.Civ.P. 9(g) [7] and § 768.72, but *512 an unavoidable conflict existed between the pleading aspect of § 768.72 and Fed.R.Civ.P. 8(a)(2). [8] Concluding that § 768.72 only changes the time frame in which a plaintiff can plead punitive damages, the court ruled that Fed.R.Civ.P....

...rials related to them. a. Federal/State Conflict Looking to the first test under Hanna, we must determine whether direct conflict exists between the Federal Rules of Civil Procedure and Florida's state law. The only potential conflicts exist between § 768.72 and Fed.R.Civ.P. 8 and 9. The Court will address each in inverse order. First, Fed.R.Civ.P. 9(g) requires that "[w]hen items of special damage are claimed, they shall be specifically stated." There is no conflict between this rule and § 768.72 simply because the rule is silent with respect to the time in which items may be pled in the complaint. Plantation Square, 761 F.Supp. at 1574. Neither does § 768.72 directly conflict with Fed.R.Civ.P. 8. But see, id. at 1574-76 (concluding a direct conflict exists). Specifically, Rule 8(a)(2) requires that the pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." On its face, section 768.72 does not affect the contents of the pleading....

...The Florida law merely requires the pleader to make a showing of specific facts before the court. If the court determines that a claimant has made a reasonable showing of evidence which would provide a reasonable basis for recovery of punitive damages, then the claimant would be granted leave to amend the complaint. See Section 768.72....

...Amendments at 224-25 (emphasis added). Many litigants may interpret newly amended Rule 26 in a way to prematurely force production of financial information. In a Florida state court, punitive damages discovery would not be allowed prior to the evidentiary hearing described in section 768.72 under any circumstances. Under the new Rule 26, the opposite occurs — parties must immediately produce such information "without awaiting a discovery request." Fed. R.Civ.P. 26. If the Court did not impose all of Section 768.72's provisions, Florida plaintiffs may prefer federal courts over state courts; federal pleadings would be able to contain claims for punitive damages prior to hearings and judicial acceptance while state pleadings would not....

...to "otherwise protected financial records" or use the threat of this discovery as an "unearned bargaining chip." Plantation Square, 761 F.Supp. at 1579-80. This forum shopping problem is the precise practice Hanna intended to restrain. By its terms, Section 768.72 creates a substantive right not to be subjected to discovery without a "reasonable basis for recovery of [punitive] damages." The right is likewise demonstrated by the mandate that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Fla.Stat. § 768.72....

...Admittedly, the Court's holding that both pleading and discovery are substantive, as opposed to Plantation Square's holding that only discovery is substantive, only changes the time of the evidentiary hearing to conform with Florida's requirements. However, failing to apply section 768.72 in this manner leads to forum shopping and an inequitable application of the law. Under the confines of Erie, § 768.72 must be applied as substantive law. C. Other Jurisdictions Other federal courts have interpreted statutory provisions similar to Section 768.72 with the exception that other state statutes do not include the final sentence relating to discovery preclusion....

...The Court of Appeals in this case should identify and follow the Texas conflicts rule. What substantive law will govern when Texas' rule is applied is a matter to be determined by the Court of Appeals. Id., 423 U.S. at 4-5, 96 S.Ct. at 168. To apply Section 768.72 in the manner prescribed in Plantation Square is such a prohibited modification. Based on this, district courts cannot rewrite Florida's statutory provisions to accomplish Erie's goals. [9] Further, there is no need to reinterpret Section 768.72 since there is no conflict between the Federal Rules and Florida's law. D. Conclusion After a thorough analysis of the record and of reported case law, the Court concludes that Fla.Stat. § 768.72 can not be divided into multiple sections without changing the meaning of the statute. Therefore, all of Section 768.72 must be applied as substantive law....

...Al-Site simply pled punitive damages in its Second Amended Complaint (d.e. 24). Inclusion of punitive damages associated with Al-Site's second cause of action arising under the Florida common law of unfair competition is premature and improper under § 768.72....

...87) denying Al-Site's motion to Compel Defendants to Produce Certain Documents Requested (d.e. 76) is AFFIRMED. Accordingly, it is ORDERED AND ADJUDGED that Al-Site's motion to compel document requests # 14 and # 15 is DENIED. Al-Site must comply with the pleading aspects of § 768.72 before discovery of the materials relating to punitive damages will be permitted. If necessary, plaintiff Al-site shall file a Motion for Evidentiary Hearing within ten (10) days from the date of this Order pursuant to Fla.Stat. § 768.72....

...he United States district courts. . . . . . (b) Such rules shall not abridge, enlarge, or modify any substantive right. [2] Plantation Square correctly holds that "the Florida Supreme Court had neither the cause nor the capacity to determine whether § 768.72 is substantive or procedural for purposes of federal diversity actions." 761 F.Supp....

...at 1575 (citations omitted) (emphasis added). [3] See Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 n. 4 (M.D.Fla. 1989). If the statute was held to be substantive law, federal courts would be bound by state court decisions interpreting the application of § 768.72 for non- Erie concerns. [4] Fed.R.Civ.P. 26 deals with the scope and methods of discovery. [5] South Dakota's statute, S.D.Codified Laws Ann. § 21-1-4.1, is similar to Fla.Stat. § 768.72 and states in relevant part: In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the Court shall find, after a hearing...

...based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been a willful, wanton, or malicious conduct on the part of the party claimed against. [6] See Morris v. Crow, 825 F.Supp. 295, 298 (M.D.Fla.1993) (section 768.72 "only applies where pendant state claims are brought with federal claims or in diversity suits"); Mahon v. City of Largo, 829 F.Supp. 377, 385 (M.D.Fla. 1993) (section 768.72 is substantive law); Marcus v. Carrasquillo, 782 F.Supp. 593, 600-01 (M.D.Fla.1992) (section 768.72 is substantive state law); L.S.T., Inc....

...Crow, 772 F.Supp. 1254, 1256 (M.D.Fla.1991) (plaintiffs must proffer evidence providing a basis to recover punitive damages prior to pleading in complaint); McCarthy v. Barnett Bank, 750 F.Supp. 1119, 1127 (M.D.Fla.1990) (plaintiffs pled specific acts under § 768.72 to adequately support a claim for punitive damages); Frio Ice, S.A....

...Sunfruit, Inc., 724 F.Supp. 1373, 1383 (S.D.Fla.1989) (punitive claim stricken for failure to provide evidence showing reasonable basis for recovering punitive damages); Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446-47 (M.D.Fla.1989) (section 768.72 "is clearly substantive because it sets the standard for establishing a claim for punitive damages") (citation omitted); Brennan v. Minneola, 723 F.Supp. 1442, 1443 (M.D.Fla.1989) (recognizing that section 768.72 is substantive law even though the state statute was preempted by federal civil rights law); Dah Chong Hong, Ltd....

...Imports, Inc. v. ISCA Corp., 717 F.Supp. 1537, 1542-43 (S.D.Fla.1989) (section requires departure from liberal requirements of notice pleading); and Lewis v. Snap-on Tools Corp., 708 F.Supp. 1260, 1262-63 (M.D.Fla.1989) (must proffer evidence under section 768.72). But see Edgewater Sun Spot, Inc. v. Bay Bank & Trust Co., 154 B.R. 338 (Bankr.N.D.Fla.1993) ("no pre-trial proffer of evidence is necessary"); Burger King Corp. v. Austin, 805 F.Supp. 1007, 1025 n. 30 (S.D.Fla.1992) (section 768.72 inapplicable in federal diversity actions); Kingston Square Tenants Assn. v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566, 1579 (S.D.Fla.1992) (section "768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court"); In re Sahlen & Assoc., Inc. Secur. Litigation, 773 F.Supp. 342, 375 (S.D.Fla.1991) (pleading of punitive damages in federal court is governed by the provisions of FRCP 8(a)); Ameri-First Bank v. Bomar, 757 F.Supp. 1365, 1378 (S.D.Fla.1991) (FRCP 9(g) applies in lieu of § 768.72); Jones v. Wal-Mart Stores, Inc., 1991 WL 236503 (S.D.Fla.1991) (section 768.72 is procedural); Geisinger v. Armstrong World Industries, Inc., 1990 WL 120749 (S.D.Fla.1990) (section "768.72 is a non-substantive pleading statute"); and Citron v. Armstrong World Industries, Inc., 721 F.Supp. 1259 (S.D.Fla.1989) (section 768.72 is procedural and FRCP 9(g) prevails)....

...Johnson, Miami, Fla., for W.R. Grace. Norwood S. Wilner, Jacksonville, Fla., for Armstrong, GAF, Keene, National Gypsum, U.S. Gypsum, Amchem and A.P. Green. MEMORANDUM OPINION NESBITT, District Judge. The court is presented with the issue of whether section 768.72 of the Florida Statutes, which prohibits a claim for punitive damages unless a reasonable basis exists for their recovery, is applicable in federal diversity cases. The court concludes that it is not. On July 1, 1986, the Florida legislature added to its civil code a new section entitled "Pleading in civil actions; claim for punitive damages." Section 768.72 [1] provides that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in the Enabling Act.") (footnote omitted). Defendants advance the familiar argument, however, that the Florida Supreme Court has interpreted section 768.72 as being a substantive law for purposes of Erie. The court disagrees with Defendants' assertion. In Smith v. Dept. of Insurance, 507 So.2d 1080 (Fla.1987), the constitutionality of section 768.72 was challenged....

...nt on the judiciary by the legislative branch. Although the Florida Supreme Court used the terms "substantive" and "procedural," it was deciding a matter of Florida constitutional law. The Florida Supreme Court would have no reason to decide whether section 768.72 was considered substantive or procedural in federal diversity actions, and indeed it was not doing so. The Supreme Court of Florida merely concluded that the legislature's "substantive" power to enact section 768.72 did not violate the Florida Constitution's separation of powers clause. Smith, 507 So.2d at 1092. Accordingly, Smith simply does not stand for the proposition that section 768.72 is a substantive law to be applied in federal diversity cases....

...Therefore, "[t]he only difference resulting from the state law's application is the time in the life of the lawsuit when the court determines whether the claim for punitive damages is appropriate," a difference not material to the result of the litigation. Id. at 529. To summarize, the court finds that section 768.72 is procedural because: (1) section 768.72 conflicts with Federal Rule of Civil Procedure 9(g); (2) section 768.72 is clearly a pleading statute and, indeed, is labelled as such, and pleading requirements under the Florida Rules of Civil Procedure are more stringent than those under the Federal Rules of Civil Procedure [5] ; and (3) even assuming that the Florida and Federal rules do not conflict, no inequitable administration of law will result by not applying section 768.72 in federal diversity actions, as the only practical difference between the Florida statute and the Federal Rules of Civil Procedure relates to the posture in the lawsuit in which a court decides whether a claim for punitive damages is appropriate. [6] For these reasons, the court finds that section 768.72 of the Florida Statutes is procedural and therefore inapplicable in federal diversity actions....

...See Erie, 304 U.S. at 78, 58 S.Ct. at 822. [3] Therefore, the court disagrees with the conclusion reached in the following cases: Dah Chong Hong, Ltd. v. Silk Greenhouse, Inc., 719 F.Supp. 1072 (M.D.Fla.1988) (available on LEXIS and WESTLAW) (holding that section 768.72 is substantive and applicable in federal diversity actions); Bankest Imports, Inc....

...1537 (S.D.Fla.1989) (same); Lewis v. Snap-On Tools Corp., 708 F.Supp. 1260, 1262 (M.D.Fla.1989) (same). [4] Unlike the provision interpreted in Lundgren, where no comparable Federal Rule of Civil Procedure existed which governed notification in governmental tort actions, section 768.72 has a counterpart Federal Rule of Civil Procedure....

...infliction of emotional distress under Florida law. Defendants further seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV as the allegations in the Complaint do not comply with the pleading requirements of Fla.St. § 768.72....

...to the level of sufficiently outrageous conduct to support a cause of action for intentional infliction of emotional distress and recommended that Count IV be dismissed as to both defendants. Finally, the Magistrate Judge found that Florida Statute § 768.72 is procedural and therefore is inapplicable to Plaintiff's claims for punitive damages such that the claims should not be stricken or dismissed....

...l distress under Florida law. Lastly, Defendants seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV, as the allegations in Blount's Amended Complaint do not comply with the pleading requirements of Florida Statute § 768.72....

...for Dresnick's alleged assault and battery is a question of fact best decided by a jury. In accepting Blount's allegations as true, she has sufficiently stated a cause of action against Sterling for respondeat superior liability. VI. FLORIDA STATUTE § 768.72 IS INAPPLICABLE Defendants claim that under Florida's statute regarding the pleading of punitive damages in civil actions, Blount has not provided sufficient facts in the record to establish entitlement to such damages. Fla.Stat. § 768.72 (1995) states in part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......

...so would lead to forum shopping or inequitable administration of the laws. Hanna, 380 U.S. at 468, 85 S.Ct. at 1142. [6] In State of Wisconsin Investment Board v. Plantation Square Associates, Ltd., this Court held under this analysis that Fla.Stat. § 768.72 irreconcilably conflicted with Fed....

...necessitates 1) the presentation of evidence ... that there exists a reasonable basis for a punitive damage claim and 2) court review and determination that Plaintiff's evidentiary proffer meets the statute's "reasonable basis" standard.... To apply § 768.72 in federal courts would, in essence, convert the pleading of punitive damages from the requirement of mere notice to a quasi-adjudication of plaintiff's claim, requiring evidentiary inquiry and discovery, argumentation of counsel, and a judicial ruling....

...The majority of judges in the Southern District of Florida agree with this view, and have held that when the Florida provision conflicts with a Federal Rule of Civil Procedure, the Federal Rule is applicable. See Burger King Corp. v. Austin, 805 F.Supp. 1007, 1025 n. 30 (S.D.Fla.1992) (§ 768.72 is inapplicable in federal diversity actions); Kingston Square Tenants Association v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566, 1579 (S.D.Fla.1992) ("[T]he majority of judges in the Southern District of Florida (agree) that § 768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court"); AmeriFirst Bank v....

...9(g), and that therefore, the federal rule must be applied in lieu of the state rule); In re Sahlen Assoc., Inc. Secur. Litigation, 773 F.Supp. 342, 375 (S.D.Fla.1991) (pleading in federal court is governed by FRCP 8(a)); Jones v. Wal-Mart Stores, Inc., No. 90-14113-Civ, 1991 WL 236503 (S.D.Fla. April 25, 1991) (§ 768.72 is procedural); Benjamin Geisinger v. Armstrong World Indus., No. 90-0872-Civ, 1990 WL 120749 (S.D.Fla. Aug. 10, 1990) (§ 768.72 is a non-substantive pleading statute); Citron v....

...1989) (finding the Florida statute to be procedural as it conflicted with Fed.R.Civ.Proc. 9(g) and so applying the federal rule). Dresnick and Sterling argue that several cases from the Middle District and one case from the Southern District have held § 768.72 to be substantive. See, e.g., Al-Site, 842 F.Supp. at 509-10; [7] Marcus v. *1375 Carrasquillo, 782 F.Supp. 593, 600 (M.D.Fla. 1992). However, in light of the persuasive analysis in Plantation, and the strong inclination in this District to hold § 768.72 procedural, the undersigned finds that in the instant case § 768.72 is inapplicable to Blount's claim for punitive damages in Count III....

...[5] This is assuming that the Federal Rule meets the second part of the Hanna analysis: It must not be beyond the scope of the Rules Enabling Act or otherwise unconstitutional. 380 U.S. at 470-71, 85 S.Ct. at 1143-44. [6] The Florida Supreme Court has held that § 768.72 creates a substantive right "not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages"....

...er(s) of federal law, a role which cannot be usurped by the state courts." Al-Site Corp. v. VSI Intern, Inc., 842 F.Supp. 507, 510 (S.D.Fla. 1993). [7] Defendants pointed out at the hearing held before the undersigned that the court in Al-Site found § 768.72 to be substantive partly because of 1993 Amendments to the General Provisions Governing Discovery, Fed.R.Civ.P. 26. Al-Site, 842 F.Supp. at 512-13. The court there found no direct conflict between § 768.72 and 8(a), and continuing its analysis under Erie, decided that the recent Amendments made forum-shopping more likely and so violated the Erie test, and therefore determined the Florida provision was substantive. Id. However, even if forum-shopping may be more likely post-1993 so as to subvert the aims of Erie, this court agrees with the majority of the Southern District cases that there is a direct conflict under Hanna and holds § 768.72 procedural for this reason, without reaching the Erie analysis....

...(b). The Court finds the memorandum of Plaintiff in opposition persuasive on this issue and finds the complaint sufficient. PUNITIVE DAMAGES Defendants seek to have the claims for punitive damages stricken from Counts IV, V, VI, and VII pursuant to Section 768.72, Florida Statutes. Section 768.72 prohibits a claim for punitive damages "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." This section is substantive and in a diversity case must be applied. Smith v. Department of Insurance, 507 So.2d 1080, 1092 (Fla.1987). The Court agrees with Defendants that the requirements of Section 768.72 have not been met....

...Plaintiff having made five attempts to state a cause of action of invasion of privacy, and, having failed on each occasion, the Court finds Count VI should be dismissed with prejudice. PUNITIVE DAMAGES CLAIMS Plaintiffs seek punitive damages in connection with Counts I, IV, V, VII, IX, XI, XII, XIII, and XIV. Pursuant to Section 768.72, Florida Statutes, in a civil action, ......

...evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The state trial judge found that the claims of Plaintiffs were subject to the requirements of 768.72, because all of the dates in the complaint were subsequent to the July 1, 1986, effective date of the Act. As to Counts I, IV, V, VII, and IX the complaint, where the question is addressed, asserts that all actions occurred prior to July 1, 1987. The complaint is unclear as to which if any of the actions arose prior to the effective date of 768.72, July 1, 1986....

...ornia case, Lowder v. Snap-on Tools Corp. The Court, upon due consideration, concludes that the proffer of evidence by Plaintiffs do not constitute a "reasonable showing" providing a "reasonable basis" for recovery of punitive damages as required by Section 768.72, Fla.Stat....

...8 common law on the basis of strict liability on a common carrier for the misconduct of its agents, whether or not such agents are managers or are acting outside the scope of their employment. She claims that Fla. Stat. § 768.72(3) is consistent with this theory. Delta claims that, under Fla. Stat. § 768.72(3), the Florida Legislature has mandated when an employer may be liable for punitive damages based on an employee’s conduct. The punitive damages claim must be dismissed because neither Delta nor its management participated in, ratified, condoned or consented to the actions of the four lower level employees accused of misconduct. We agree. Section 768.72(3) provides that punitive damages may be imposed upon an employer for the conduct of its employee or agent only of the employer actively and knowingly participates, condones, ratifies or consents to such conduct....

...[3] For purposes of a statute of limitation, this simplifies matters because the tort accrues when the testator dies or the will is filed for probate. [4] The trial court dismissed this action prior to the stage at which the Whalens could seek punitive damages. See § 768.72, Fla....

...The petitioners filed an answer and affirmative defenses to the complaint alleging the following grounds: 1) failure to state a cause of action; 2) lack of personal jurisdiction; 3) improper venue; 4) negligence on Leondakos' part; 5) lack of subject matter jurisdiction; 6) forum non conveniens; and 7) failure to comply with section 768.72, Florida Statutes (1989) (no claim for punitive damages can be brought in a civil action without a reasonable showing by the evidence of a basis for recovery of such damages)....

...Amended Complaint. Punitive Damage Claims and the State Law Causes of Action The individual defendants have also moved to dismiss Sanders's claims for punitive damages on the state law causes of action. Specifically, Defendants assert that Fla.Stat. § 768.72 applies in this action to prevent Sanders's punitive damage claims as unsupported by the reasonable showing of evidence required by the statute. Sanders responds that § 768.72 does not apply in federal actions, or alternatively, if the statute is applicable, the record contains sufficient evidence for the Court to find a reasonable basis for the punitive damage claims as the statute requires. [3] *575 1. Applicability of Fla.Stat. § 768.72 in Federal Litigation Fla.Stat. § 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...507 (S.D.Fla.1993), the most recent opinion in the Southern District considering the statute. In Al-Site, the court disagreed with other courts of this District having considered the issue by finding that both the pleading and discovery aspects of Section 768.72 should be applied substantively in federal court, whereas prior decisions either had rejected the applicability of the pleading aspect of the statute or had rejected it in toto as procedural and thus superseded by relevant Federal Rules of Civil Procedure, i.e. Fed.R.Civ.P. 8(a)(2), 9(g) and 26. This Court accepts the conclusion of Al-Site finding Section 768.72 fully applicable in federal litigation....

...United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), provides the basis for jurisdiction over Sanders' pendent state law claims against the individual defendants. To determine whether or not to apply Fla.Stat. § 768.72 to those claims, this Court takes heed of Justice Brennan's unequivocal assertion in Gibbs that a federal court hearing such claims "is bound to apply state law to them." 383 U.S....

...in aims of Erie, " *576 discouragement of forum-shopping and avoidance of inequitable administration of the laws, would be satisfied by application of the state law. Hanna requires that this Court first determine if conflict exists between Fla.Stat. § 768.72 and similar federal law....

...8(a)(2) obliges the pleader to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." The state statute carries no requirement as to the content of the pleader's claim for damages. Nor does the statute require the specificity of Fed.R.Civ.P. 9(g). [4] Fla.Stat. § 768.72 simply requires that the court supervise the pleading of punitive damages, such that no access to discovery of a defendant's net worth, for example, will be available until the court has permitted the punitive damage claims based on a successful factual showing of a reasonable basis therefor. The statutory burden of production of § 768.72 not found in the federal rules suggests to the Court, as it did to the Al-Site court, that the Florida Legislature has deliberately fashioned a procedure requiring court approval in every instance before net worth discovery may proceed....

...[5] Thus it can be inferred that the aim of such a procedure is to protect litigants from forced disclosure of their financial situation on the whim of their opposition. Applying the second part of the Hanna analysis, the Court determines that failure to employ Section 768.72 would inevitably lead to inequitable administration of the laws where as here, the only bases for federal court jurisdiction are the Title VII claims asserted against the employer defendant....

...there can be no prejudice to apply equally to them the law of their state of residence, when such law would be applied to the claims at issue as a matter of course if this case was being heard in state court. 2. Plaintiff's Compliance with Fla.Stat. § 768.72 Under the foregoing analysis, Fla....

...[4] Fed.R.Civ.P. 9(g) states: "When items of special damage are claimed, they shall be specifically stated." [5] The Court adopts the reasoning of the Al-Site and Plantation Square courts with respect to the applicability of the discovery aspect of Section 768.72 in federal litigation....

...signed to cause, and actually causing detrimental reliance by the plaintiff. Id. at 539. We agree with the appellees that Turner's attempt to inject punitive damages into this suit was untimely. [2] As the Florida Supreme Court recently ruled, under section 768.72, Florida Statutes (1993), a plaintiff is required to obtain leave from the trial court to amend the complaint before punitive damages may be asserted and any punitive damages claim alleged prior to a party asking for and receiving leave of court must be dismissed or stricken....

...See, Dr. P. Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So.2d 465, 467 (1943) ("It is in the province of the trial court to determine as a matter of law whether or not there is a basis for punitive damages and instruct the jury accordingly."). [3] Section 768.72 creates a positive legal right in the defendant not to be subject to financial worth discovery until the trial court has determined that there is an evidentiary basis for a punitive damages claim to go to the jury....

...here is no such thing as "negligent" commission of "intentional" tort). Therefore, Quilling's complaint fails to state a cause of action for negligence. In closing, with regard to Quilling's claim for punitive damages, since he has not complied with section 768.72 of the Florida Statutes, his claim for punitive damages must be stricken....

...PARIENTE and LEWIS, JJ., concur in result only. NOTES [1] The Calder Mobile is a sculpture by Alexander Calder. [2] A hearing was held on July 25, 2000, on Jacoboni's motion for leave to amend his complaint to assert a claim for punitive damages. Jacoboni filed the motion pursuant to section 768.72(1), Florida Statutes (1999), which provides in relevant part: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which woul...

...The admission that the motion must be treated as one to dismiss consequently *1446 places the issues before this Court anew. [1] The Court, however, construes the Magistrate's ruling as a recommendation to this Court that the motion be granted on the basis that plaintiff did not satisfy the strictures of Fla.Stat. § 768.72. Given plaintiff's timely objection to the Magistrate's ruling, the Court examines the challenged aspects of the issue de novo. Plaintiff's primary argument denies the applicability of § 768.72 under the Erie [2] doctrine. Plaintiff argues that the statute is purely procedural and therefore federal law supplants it. Defendants note that the Florida courts treat § 768.72 as substantive law, see, e.g., Smith v. Dep't of Ins., 507 So.2d 1080, 1092 n. 10 (Fla.1987), and that notice-of-claim statutes, which defendants analogize to § 768.72, are given substantive application under the Erie doctrine, see, e.g., Felder v....

...Citrus County, 710 F.Supp. 318, 321 (M.D.Fla.1989). Although the Court does not view the present statute as comparable to the notice-of-claim statute at issue in Redner, [3] the principles of the Erie doctrine compel adherence to the procedures of § 768.72....

...The court prefaced its analysis, however, with the observation that the substantive interests embodied in the statute would require a protective order suspending discovery during the pendency of the waiting period. Id. In other words, Lundgren instructs this Court to identify the substantive kernel of the statute, § 768.72, and respect those rights, but the procedural options for doing so are a matter of federal law. In this case, though, the procedure and the substance appear inextricably intertwined. Section 768.72 "defines the conditions the plaintiff must meet to recover punitive damages.......

...." Smith, 507 So.2d at 1092 & n. 10 (quoting and adopting trial court's opinion); [4] accord Brennan v. City of Minneola, Case No. 88-177-Civ-Oc-12, Order Denying Motions to Dismiss and to Abstain, 723 F.Supp. 1442, 1443 (M.D.Fla.1989) (finding that § 768.72 is substantive law under Erie doctrine). Thus, the procedures within § 768.72 shape the elements of the punitive damages claim and must be treated with *1447 the respect given to substantive state law. This Court is aware of one reported case in this district that has applied § 768.72 and it does so consistent with this ruling....

...of many defendants. Not only would the opportunity to coerce settlements provide an incentive to select forums, it seems plain that federal courts could become party to the inequitable administration of justice if a punitive damages claim barred by § 768.72 proceeded to trial and resulted in a verdict awarding substantial punitive damages. For all these reasons, the Court finds that plaintiff must comply with § 768.72 to proceed on the punitive damages claim. [5] The foregoing ruling is made with one caveat. Section 768.72 became effective for causes of action arising on or after July 1, 1986....

...1983), cert. denied, 449 So.2d 264 (Fla. 1984). The Court will dismiss the punitive damages claim, but this disposition does not bar subsequent efforts to seek leave to amend to include the claim upon a proper showing of entitlement consistent with Fla.Stat. § 768.72....

...fore the court in its supplemental jurisdiction. On both the state law claims, Ms. Teel, prays for punitive damages. Defendant Pratt & Whitney now moves to strike this prayer, pursuant to Rule 12 of the Federal Rules of Civil Procedure, arguing that section 768.72, Florida Statutes (1995), precludes such pleading. II. DISCUSSION A. Section 768.72, Florida Statutes Section 768.72 states the following requirements: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to asset a claim for punitive damages as allowed by the rules of civil procedure.... No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. § 768.72, Fla.Stat. (1995). Ms. Teel appears willing to concede that § 768.72 applies, a view which coincides with other district courts in Florida....

...[1] However, the applicability of this statute to claims arising under Florida law is a matter of some *1536 dispute in the Southern District of Florida. [2] No case from the Eleventh Circuit has resolved the dispute—most likely because a decision to apply or to reject § 768.72 is not immediately appealable and because the harm from an erroneous rejection of the statute falls most heavily on parties who settle in the face of unwarranted punitive damages claims and financial worth discovery....

...by the trial court in submitting to the jury only those claims for punitive relief which are supported by the evidence at trial. [3] Without an appellate opinion on point and because of the lack of consensus within the district, the applicability of § 768.72 remains an essential issue for the court to determine today. The cases from this district that have considered § 768.72 divide along their characterization of it....

...The balance of the statute, then, serves as the restriction on pleading that the earlier case law recognized. See Al-Site, 842 F.Supp. at 509; Plantation Square, 761 F.Supp. at 1572-73. The merit of this two-part analysis has been confirmed by the Florida Supreme Court which, in a slightly different context, declared that "section 768.72 create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper Co....

...as substantive law for claims in federal court which arise under Florida law. See Al-Site, 842 F.Supp. at 511; Plantation Square, 761 F.Supp. at 1580; see also Sanders, 942 F.Supp. 571, 576 n. 5. Still, the applicability of the pleading component of § 768.72 remains in dispute, with the Plantation Square court finding it procedural and therefore irrelevant in federal court and with the Al-Site court finding the opposite....

...at 1576 (finding pleading component inapplicable) with Al-Site, 842 F.Supp. at 514 (finding the opposite). This split of authority, in light of the ubiquity of the statute, requires the court to analyze the matter anew. Thus, the court now determines whether the pleading component of § 768.72 must be viewed as binding on the federal courts. *1537 B. The Applicability of § 768.72 to Pleading Punitive Damages in Federal Court Determining whether § 768.72 applies to the pleading of punitive damages for claims arising under Florida law depends on the Erie Doctrine....

...s of inequitable administration of the law and forum shopping. Walker v. Armco Steel Corp., 446 U.S. 740, 752, 100 S.Ct. 1978, 1986, 64 L.Ed.2d 659 (1980); Hanna, 380 U.S. at 468, 85 S.Ct. at 1142 (discussing the "twin aims" of the Erie rule). Since § 768.72 affects pleading issues which are also governed by the Federal Rules of Civil Procedure, the court must first determine the applicability of Hanna. 1. A Hanna v. Plumer Analysis for Conflict with the Federal Rules A Hanna analysis is required only if § 768.72 actually conflicts with the Federal Rules....

...Rule 9(g) expands on Rule 8(a) as follows: "[w]hen items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g) (1996). Punitive damages are special damage within the meaning of Rule 9(g). Citron, 721 F.Supp. at 1261. True to the uncertainty which surrounds § 768.72 in this district, even the cases which find a conflict with the Federal Rules differ as to which particular rule creates the conflict....

...ute because the rule was silent as to when such damages must be pleaded. Plantation Square, 761 F.Supp. at 1574 (emphasis in original). In the context of Rule 8(a), however, the Plantation Square court considered the evidentiary threshold imposed by § 768.72 to be a threat to the minimal notice requirements that the rule embodies....

...Id. at 1574. Construing this possible outcome as a conflict between Rule 8(a) and the statute, the Plantation Square court followed the second prong of Hanna by applying the Rules Enabling Act. Id. Under the Rules Enabling Act, the court held that § 768.72 did not create a substantive right which was abridged by Rule 8(a). Id. at *1538 1575-76 (distinguishing Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987)). Thus, § 768.72 did not displace Rule 8(a) and did not apply to the pleading of punitive damages on claims which arise under Florida law in federal court. Id. at 1576. In Citron, by contrast, the court conducted a Hanna analysis but found no conflict between § 768.72 and Rule 8(a)....

...The straightforward rationale of the Citron court was that "Rule 9(g) unambiguously requires a plaintiff to set forth a demand for punitive damages in its complaint." Id. Turning next to the Rules Enabling Act, to see whether the conflicting Federal Rule 9(g) improperly abridged a substantive right created by § 768.72, the Citron court made an analogy to another statute, § 768.28, Florida Statutes — the pre-suit notice requirement for tort actions against the state—which has been ruled not to be substantive for purposes of the Erie doctrine. Id. at 1261-62 (citing Lundgren v. McDaniel, 814 F.2d 600, 606 (11th Cir.1987) and § 768.28(6), Fla.Stat.). By equating the pre-suit waiting period of § 768.28 with the prohibition on unwarranted punitive damages of § 768.72, the Citron court concluded that § 768.72 must likewise be non-substantive. Id. Therefore, the Citron court declined to apply § 768.72 to the pleading of punitive damages on state law claims in federal court. Id. Still a third judge in this district, Judge Atkins, has found no conflict with the Federal Rules of Civil Procedure and thus resorted to a straight-forward Erie analysis, unguided by Hanna and the Rules Enabling Act, to determine that § 768.72 applies in diversity actions....

...aded and then noted that Rule 8, particularly subsection (a)(2), required no additional showing besides a "short and plaint statement of the claim." Id. at 512 (quoting Fed.R.Civ.P. 8(a)(2)). Finding no conflict between this language and the text of § 768.72, the Al-Site court turned to a conventional Erie analysis. Id. at 513. Looking to equalize the administration of substantive law between state and federal courts, as Erie requires, the Al-Site court concluded that failing to apply § 768.72 to pleading in federal court would give federal litigants an "unearned bargaining chip" relative to litigants in state court....

...As a result the Al-Site court concluded that "[t]he right to be free from discovery related to punitive damages is created by Florida's statute as a whole and must be applied as a whole." Id. at 514. With three such contrasting opinions on whether § 768.72 conflicts with the Federal Rules, the court is left to conduct its own Hanna analysis, looking first for conflict with Federal Rules 8 and 9....

...Significantly, even if Rule 8(a)(2) or (a)(3) were construed to require the pleading of punitive damages, there is no requirement as to when they need be pleaded, much as the Al-Site and Plantation Square courts noted in the Rule 9(g) context. Thus, Rule 8 cannot be said to be facially or operationally in conflict with § 768.72. Consideration of Rule 9(g) leads to the same conclusion. Rule 9(g) requires "[w]hen items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g). Thus, if any rule is implicated by § 768.72, it is Rule 9(g)....

...However, even Rule 9(g) is also silent as to when punitive damages must be pleaded, as both the Al-Site and Plantation Square courts have noted. See Al-Site, 842 F.Supp. at 512; Plantation Square, 761 F.Supp. at 1574. Accordingly, by conditioning the right to claim punitive damages on an evidentiary showing, § 768.72 does no violence to Rule 9(g). It merely affects the time at which the mandate of Rule 9(g) becomes relevant. In other words, Rule 9(g) does not apply until the right to plead punitive damages first accrues under § 768.72....

...15(a) (requiring that leave to amend be "freely granted"). It is the free amendment policy of the Federal Rules that makes mere notice pleading possible. Far from conflicting with the basic notice requirements of the Federal Rules, as the court feared in Plantation Square, § 768.72 accords with this most basic assumption about the development of a lawsuit. Thus, in keeping with the conclusion of the court in Al-Site, it is the conclusion of this court that the pleading component of § 768.72 does not conflict with any of the Federal Rules of Civil Procedure. Accordingly, the answer to the question of whether § 768.72 should be applied in federal court turns not on the high standard of Hanna and the Rules Enabling Act, but on the more conventional Erie analysis: whether § 768.72 is of a sufficiently substantive nature that it must be applied to prevent forum shopping or the inequitable administration of the law. See Walker, 446 U.S. at 752, 100 S.Ct. at 1986; Hanna, 380 U.S. at 468, 85 S.Ct. at 1142. 2. An Erie v. Tompkins Analysis for Inequitable Administration of the Law Much recent precedent in this district has recognized that § 768.72 is substantive under Erie, at least as regards its discovery component....

...For additional guidance on whether the statute as a whole is substantive, the court also looks to the recent Florida Supreme Court case of Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995). In Globe, the high court had to determine whether § 768.72 was of sufficiently substantive a nature to allow the interlocutory appeal of pretrial motions which raised the statute as a restriction on pleading punitive damages....

...o be subject to a punitive damages claim and ensuing financial worth until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Id. (emphasis added). This substantive interpretation of § 768.72 by the Supreme Court of Florida is longstanding. Cf. Smith v. Department of Ins., 507 So.2d 1080, 1092 (Fla.1987) (holding § 768.72 a valid for scheme for implementing substantive rights against a challenge that the statute invaded the powers of the judiciary to control procedure)....

...of Civil Procedure—the court is bound by the determination of the Supreme Court of Florida. Precedent from the Middle District of Florida concurs in this view. Marcus, 782 F.Supp. at 600 (collecting cases). Even if the court were not bound to treat § 768.72 substantively, the court reaches the same conclusion independently....

...sity cases. See Blanchard v. State Farm Mut. Auto. Ins. Co., 931 F.2d 789 (11th Cir.1991) (per curiam) (pronouncing judgment in accord with answer of Supreme Court of Florida to certified question). Like the statute addressed in the Blanchard cases, § 768.72 is properly viewed as a statute which prevents a claim from accruing prior to a court ruling. [4] Thus, the statute clearly has a substantive effect on the right to plead and to pursue punitive damages. When claims arising under Florida law are litigated in federal court, the substantive nature of § 768.72 in restricting the available remedies is even more clear, principally because of the close, and perhaps even indivisible, link between federal pleading and federal discovery....

...As noted by the Al-Site court above, the mandatory disclosure of all information related to the pleadings under Rule *1541 26 of the Federal Rules would induce premature production of financial worth information and create an "unearned bargaining chip" if § 768.72 did not restrict pleading of the punitive remedies sought in federal court....

...approved discovery. Finally, such a practice may also risk placing a party in non-compliance with the discovery rules pending the court's ruling on the need to disclose financial worth information. Thus, while it may be possible in theory to divide § 768.72 into a discovery component and a pleading component, no such ready distinction exists in practice....

...If the statutory right to be free from financial discovery and punitive damages claims is to be given any practical effect in federal court, it must apply to pleading as well. To avoid the forum-shopping and inequitable administration of the law that Erie warns against, § 768.72 must be treated as a substantive its entirety, and the pleading of punitive damages must be guided accordingly. Properly applied, § 768.72 bars a prayer for punitive damages for claims under Florida law unless and until reasonable proof is adduced of an entitlement to such damages....

...Plaintiff's prayer for punitive damages in the ad damnum clause of the complaint is STRICKEN without prejudice as to all counts arising under Florida law. NOTES [1] Cf. Martin v. Honeywell, Inc., 1995 WL 868604 (M.D.Fla. July 18, 1995) (Bucklew, J.) (holding § 768.72 a substantive limitation on punitive damages which federal courts must apply); Marcus v....

...This so-called "check," however, invokes hindsight to moot on appeal the very question which the court faces today: whether a party should be spared the threat of punitive damages and related discovery from the very inception of suit. [4] As noted previously, the Citron court likened § 768.72 to a different statute, § 768.28, Florida Statutes....

...e requirement of § 768.28). However, an analogy to § 768.28 may not be a helpful one. For example, the waiting period required by § 768.28 is materially distinguishable from the outright bar to unsupported punitive damages claims that is posed by § 768.72. In fact, it is just such a distinction, among others, that underlies the Middle District of Florida's uniform determination that § 768.72 is substantive under Erie, despite Lundgren. See Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 (M.D.Fla.1989) (distinguishing § 768.72 from § 768.28 under Erie )....

...Lenard, Judge. ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge. CARNES, Circuit Judge: In our prior opinion in this case, we held that Florida Statute § 768.72 conflicts with and must yield to the "short and plain statement" rule contained in Federal Rule of Civil Procedure 8(a)(3), and as a result a Florida plaintiff in federal court because of diversity jurisdiction need not obtain leave of court before pleading a request for punitive damages....

...The standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 is de novo, because a proposal for settlement is in the nature of a contract. See Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002). Florida law holds that before a claim for punitive damages is allowed, section 768.72 requires a plaintiff to make an initial showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of such damages....

...s. The complaint further alleged that as a result of defendants' negligence, Barnes wandered from the facility unaccompanied, accidently fell into a pond and drowned on December 30, 1996. Plaintiff sought compensatory damages, and later, pursuant to section 768.72, Florida Statutes (1995), was granted leave to amend by adding a claim for punitive damages....

...e "more than a real possibility, though not necessarily better than a 50-50 probability." Glaab, 236 So.2d at 184. By comparison, current statutes authorize an award of punitive damages based on clear and convincing evidence of gross negligence. See § 768.72(2), Fla....

...blem.3 The Trustees also sought a declaratory judgment requiring the Defendants to indemnify the Trustees for any adverse tax consequences resulting from the drafting error. In addition, the Trustees sought punitive damages pursuant to Florida Stat. § 768.72....

...required by 5 The parties also discuss in their briefs whether the actions taken by the Trustees were reasonable. The district court did not address the issue and the record is not developed enough for us to do so either. Florida Stat. § 768.72....

...y did not allege any facts outside of the complaint and, alternatively, did not allege sufficient facts to support a punitive damages claim. We disagree. This court has held that the pleading rules set forth in Fed.R.Civ.P. 8(a)(3) preempt § 768.72's requirement that a plaintiff must obtain leave from the court before including a prayer for punitive damages. See Cohen v. Office Depot, Inc., 184 F.3d 1292, 1299 (11th Cir.1999), vacated in part, 204 F.3d 1069 (11th Cir.2000). However, § 768.72 also has a discovery component which states that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Fla. Stat. § 768.72. Prior to allowing discovery of financial net worth information, Defendants argue that § 768.72 requires a plaintiff who has made a claim for punitive damages to produce evidence or make a proffer of evidence that shows a reasonable basis for the punitive damages claim....

...on to dismiss or a motion to strike, not a summary judgment motion. See Will v. Systems Eng'g Consultants, Inc., 554 So.2d 591, 592 (Fla.App. 3 Dist.1989); see also Solis v. Calvo, 689 So.2d 366 (Fla.App. 3 Dist.1997) ("Pursuant to Florida Statute section 768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....

...Punitive Damages Lastly, the Amended Complaint asks the Court to award punitive damages. In Florida, punitive damages can only be awarded where a pleading provides a "reasonable basis" for an allegation that a party acted with "intentional misconduct or gross negligence." Fla. Stat. § 768.72 (1) - (2) ; see also Gerlach v....

..."Intentional misconduct means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, *1265 resulting in injury or damage." Fla. Stat. § 768.72 (2)(a) (internal quotes omitted). "Gross negligence means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." Id. at § 768.72(2)(b) (internal quotes omitted)....

...The Petitioners argue that the trial court's order infringes on their substantive right not to be subjected to financial worth discovery until the trial court makes a finding that there is an evidentiary basis for a punitive damages claim as provided for in *369 section 768.72, Florida Statutes (1991)....

...The trial court interpreted this section to mean that a claim for punitive damages is allowed without pleading or proving malicious or willful disregard of the rights of others. The trial court's interpretation of section 400.023 conflicts with the requirements of section 768.72 which specifically provides that "[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Section 768.72, Fla. Stat. (1991). Section 768.72 creates "a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury." Henn v. Sandler, 589 So.2d 1334, 1335 (Fla. 4th DCA 1991); see Wolper Ross Ingham & Co. v. Liedman, 544 So.2d 307 (Fla. 3d DCA 1989) (holding that party seeking punitive damages is not entitled to financial worth discovery until the party complies with section 768.72)....

...Dupont, 455 So.2d 1026 (Fla. 1984); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla. 1983). Dr. Frazier's affidavit provides an insufficient basis to add the claim for punitive damages, as it failed to establish a reasonable basis for recovery of punitive damages. Section 768.72, Fla....

...cedural matters. Colhoun v. Greyhound Lines, Inc., 265 So.2d 18, 20 (Fla. 1972); Pledger v. Burnup & Sims, Inc., 432 So.2d 1323, 1329 (Fla. 4th DCA 1983), rev. denied, 446 So.2d 99 (Fla. 1984); Restatement (Second) of Conflicts §§ 122, 127 (1971). Section 768.72, Florida Statutes (1989), provides, as a procedural matter, the following: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...ars reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Third, the plaintiffs failed, as required by Section 768.72, Florida Statutes (1989), to make a reasonable evidentiary showing below which would provide a reasonable basis for recovery of punitive damages under New York law....

...Hippie to amend his complaint to state a claim for punitive damages. Before a plaintiff can assert a claim for punitive damages, he must make a "reasonable showing by evidence in the record or proffered by [him] which would provide a reasonable basis for recovery of such damages." § 768.72(1), Fla....

...King, 658 So.2d 518, 519 (Fla. 1995). On appeal, the standard of review is de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial court is determining if a plaintiff has made a `reasonable showing' under section 768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo.")....

...ch. (Compl. at 30-33, 37-38.) As such, Defendants' Motion to Dismiss for Failure to State a Claim is denied. II. Motion to Strike Defendants move to strike all references to punitive damages from the Complaint. Defendants assert that Fla. Stat. Ann. § 768.72 (West 1999) clearly provides that "no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Moreover, Defendants cite multiple cases as supporting the proposition that § 768.72 is substantive and therefore must be applied by federal district courts having diversity jurisdiction....

...he terms of the [Rule's] Enabling Act nor constitutional restriction." See Cohen v. Office Depot, Inc., 184 F.3d 1292, 1296 (11th Cir.1999) reh'g granted. The federal district courts have reached different conclusions when applying the Hanna test to § 768.72. See id. However, earlier this year the Eleventh Circuit in Cohen v. Office Depot, Inc . determined that § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(3). See id. at 1299. Following Hanna, the court in Cohen concluded that "the pleading requirements of Florida Statutes § 768.72 are inapplicable in federal diversity cases." Id....

...§ 1332. Office Depot moved to strike the punitive damages request from the complaint and dismiss the lawsuit. The court granted the motion to strike the 3 punitive damages request on the ground that Cohen had failed to comply with Florida Statutes § 768.72, which requires a plaintiff to obtain leave from the court before including a prayer for punitive damages in a pleading....

...But that can occur only if Cohen is permitted to assert her request for punitive damages. The district court struck Cohen’s prayer for punitive damages, because she failed to comply with the conditions for seeking punitive damages set forth in Florida Statutes § 768.72. Section 768.72 provides as follows: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...6  issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Cohen argues that she satisfied the requirements of § 768.72 because she proffered evidence of malice and wanton and reckless conduct sufficient to establish a reasonable basis for her punitive damages claim. However, the Florida Supreme Court has interpreted § 768.72 as requiring the dismissal of any request for punitive damages asserted without leave of the court....

...king for and receiving leave of the court must be dismissed or stricken.”). See also WFTV, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. 5th Dist. Ct. App. 1998); Mayer v. Frank, 659 So. 2d 1254, 1255 (Fla. 4th Dist. Ct. App. 1995). Thus, if § 768.72 applies in this case, the district court correctly struck the request for punitive damages from Cohen’s complaint, which means that request could not provide a basis for federal diversity jurisdiction. If, on the other hand, § 768.72 does not apply, then the request for punitive damages should not have been struck, and would provide a sufficient basis to satisfy the amount-in-controversy 7 requirement for diversity jurisdiction. Accordingly, we must determine whether the pleading requirements of § 768.72 apply here, which entails resolving whether they conflict with any Federal Rule of Civil Procedure.2 Federal courts sitting in diversity are required to apply state substantive law and federal procedural law....

...outcome-determinative, the Court retreated from the York test 13 years later in Byrd v. Blue Ridge Rural Electric Coop., 356 U.S. 525, 78 S. Ct. 893 (1958). That decision held that in order to decide which rule should apply, courts must balance 2 We recognize that § 768.72 contains a discovery component as well as a pleading component, however, its discovery provision is not at issue in this case. 8 the federal interest in uniform process against the state interest in uniformity of results....

...ress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the [Rules] Enabling Act nor constitutional restrictions.” Hanna, 380 U.S. at 471, 85 S. Ct. at 1144. In addressing the applicability of § 768.72, at least one district court asked if it is substantive or procedural, and in answering that question looked to state law decisions characterizing the provision as substantive for some other purpose (such as the division of authority between the state legislature and judiciary)....

...ral rule that is either unconstitutional or should not have been adopted under the Rules Enabling Act process because it is a matter of substantive law. That exception will be exceedingly rare, and it does not apply here because, as we shall see, § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(3), which is a procedural rule and is not unconstitutional....

...But those 10 determinations are not reached where the first prong of Hanna applies, i.e., where the state provision conflicts with a federal rule of procedure. Applying the Hanna test, federal district courts in Florida have reached different conclusions about whether § 768.72 applies in diversity cases. Most of the courts to address the matter agree that § 768.72 implicates Federal Rules of Civil Procedure 8(a) and 9(g), but they have split almost evenly on whether the statute actually conflicts with either or both of those rules....

...Plantation Square Assocs., Ltd., 761 F. Supp. 1569, 1573-80 (S.D. Fla. 1991) (conflicts with Rule 8(a)); Citron v. Armstrong World Indus., Inc., 721 F. Supp. 1259, 1261-62 (S.D. Fla. 1989) (conflicts with Rule 9(g)). Cohen argues that § 768.72 conflicts with Federal Rule of Civil Procedure 8(a)(2) and (a)(3)....

...nal pleading formalities, requiring only that the pleading “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957). Cohen argues that § 768.72 essentially requires heightened pleading for punitive damages claims, contrary to the short and plain statement rule of 8(a)(2). It is clear, however, that a request for punitive damages is not a “claim” within the meaning of 8(a)(2); it is only part of the relief prayed for in a claim. Thus, there is no conflict between § 768.72 and Rule 8(a)(2). As one district court has pointed out, “the more relevant portion of Rule 8 appears to be subsection (a)(3).” Teel, 953 F....

...Miller, Federal Practice and Procedure § 1255, at 366 (2d ed. 1990)). Punitive damages are a remedy, so under the rule a request for them should be included in the complaint. As we noted above, 12 however, § 768.72 prohibits the inclusion of a request for punitive damages in any pleading without leave of court. Thus, it appears that § 768.72 does conflict with Rule 8(a)(3). Office Depot contends that there is no real conflict between § 768.72 and Rule 8(a)(3) because Federal Rule of Civil Procedure 54(c) essentially renders Rule 8(a)(3) a nullity....

...ly reinforces Rule 8(a)(3)’s direction that the relief sought be included in the complaint. Even if Rule 8(a)(3) does not require a plaintiff to include in a complaint a request for all the relief sought, there is still a conflict between § 768.72 and Rule 8(a)(3), because the rule clearly allows the plaintiff to include a request for punitive damages in her initial complaint, whereas § 768.72 prevents her from doing so....

...Lockheed Missiles & Space Co., 171 F.3d 1208, 1217 (9th Cir. 1999); S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60 F.3d 305, 307 (7th Cir. 1995); Exxon Corp. v. Burglin, 42 F.3d 948, 950 n.3 (5th Cir. 1995); Neifeld v. Steinberg, 438 F.2d 423, 426 (3d Cir. 1971). Rule 8(a)(3) “occupies [§ 768.72's] field of operation,” because Rule 8(a)(3) governs the ability of plaintiffs to request any and all of the relief sought (including punitive damages) in all pleadings that state a claim (including initial complaints). If applied in federal court, § 768.72 would impair the operation and effect of Rule 8(a)(3). 14  The nature of the conflict between § 768.72 and Rule 8(a)(3) is similar to the conflict in Hanna itself....

...to include a prayer for punitive damages, 15 nor is she required to proffer evidence or obtain leave of court before doing so. In short, Rule 8(a)(3) occupies the field in which the pleading portion of § 768.72 would otherwise operate, leaving no room for it. The two provisions do conflict. Having concluded that Florida Statutes § 768.72 conflicts with Rule 8(a)(3), we must apply Rule 8(a)(3) unless it transgresses the Rules Enabling Act or the Constitution....

...242, 246 (1946). Finally, none of the parties in this case or any other cases have challenged Rule 8(a)(3) as unconstitutional, and we see no basis for such a challenge. III. CONCLUSION Our application of Hanna leads us to conclude that the pleading component of § 768.72 does not apply in this case due to its conflict with Rule 8(a)(3). For that reason, we hold that the pleading requirements of Florida Statutes § 768.72 are inapplicable in federal diversity cases....

...s to extort real estate brokerage commissions to which Debtor was not entitled. The compensatory damage award was based upon evidence that the fraudulent lien prevented the closing of a contract to sell the Property. The court also found cause under § 768.72, Florida Statutes (1989) to award punitive damages representing three times the compensatory award....

...His conduct was "malicious" within the meaning of the statute. In sum, this Court is satisfied that the compensatory damages awarded under § 713.31 arose from willful and malicious conduct by the Debtor. The state court also imposed punitive damages pursuant to § 768.72, Florida Statutes (1989)....

...damages in its Order of January 1990. In its Amended Final Judgment awarding compensatory and punitive damages issued in August 1990, the court referred to the fraudulent liens as well as to evidence presented at the damages hearing and relied upon § 768.72 in awarding treble punitive damages. Section 768.72 permits such damages if "there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." *584 Although the Debtor later filed a motion for rehea...

...summary judgments. The trial court denied the motion for partial summary judgment and directed Will to provide discovery of his financial worth. The claim for punitive damages and the order directing the disclosure of financial worth are governed by section 768.72, Florida Statutes (1987), which provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...ciency of the evidence pertaining to the punitive damage claims. After careful consideration of the parties' thorough memoranda, we conclude that the issue should be presented to the trial court in the first instance under the standards set forth in section 768.72 and the Wolper Ross decision.

...The trial court applied the 1999 version of the statute, specifically section 768.73(1)(c), Florida Statutes (1999), to conclude that the excess award is appropriate. Although the 1999 statute certainly applies to the specific torts committed by the Defendant in the instant case, see section 768.72(2)(a) and(b), Florida Statutes (1999), I need not analyze whether the award falls within the statutory exception because this cause of action accrued in April 1993 rendering the 1999 statute inapplicable....

...ral business practice by Provident to deny claims in reckless disregard for insureds' rights. Thus, Hogan pleads sufficient facts in his claims for punitive damages against Provident for the alleged statutory violations in Counts I—III. Pursuant to § 768.72, Florida Statutes, punitive damages on the common law claims under Counts IV—VII require a showing of intentional misconduct or gross negligence....

..."Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. § 768.72(2)(a), Fla. Stat. "Gross negligence" means that the defendant's conduct was so reckless or *1290 wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. § 768.72(2)(b), Fla....

...Therefore, the Court does not find an award of future damages appropriate. C. Punitive Damages Under Florida law, in order to recover punitive damages, a plaintiff must demonstrate to the trier of fact that the defendant is personally guilty of intentional misconduct or gross negligence. See FLA. STAT. ANN. § 768.72 (West Supp.2002)....

...The Florida legislature has defined "gross negligence" as conduct which is "so reckless or wanting in care that it constituted] a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." See FLA. STAT. ANN. § 768.72(2)(b) (West Supp.2002)....

...162, p. 6-7). Myrtle Grove v. Taylor, 614 So.2d 22, 23 (Fla. 1st DCA 1993); Ten Assocs. v. Branson, 492 So.2d 1149, 1150 (Fla. 3d DCA 1986). However, the cases provided by Hady Enterprises were decided before the Florida legislature's amendment of Section 768.72, which allows recovery of punitive damages based on clear and convincing evidence of "intentional misconduct" or "gross negligence." 1999 Fla....

...Under Florida law, “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2) (2005)....

...t had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Id. §768.72(2)(a). In order to demonstrate gross negligence, the plaintiff must show “the defendant’s 38 conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of person exposed to such conduct.” Id. §768.72(2)(b)....

...4th DCA 1998) (“While an absence of probable cause can result in a finding of legal malice, legal malice, based solely on the absence of probable cause, is insufficient to support an award of punitive damages.”). In this case, the clear and convincing standard of proof required under §768.72 is determinative....

...disregard for the rights and safety of others. Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla.1999) (footnote omitted). The Legislature codified the definition of "gross negligence" (as a predicate for a punitive damages claim) in section 768.72(2)(b), Florida Statutes (2007): "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct....

...Defendants' motion raises a single issue that has divided the judges of the Southern District of Florida for some time. Defendants argue that plaintiffs' demand for punitive damages should be stricken because it fails to comply with the pleading requirements of section 768.72 of the Florida Statutes....

...[1] The undersigned has briefly considered this issue on previous occasions. In Frio Ice, S.A. v. SunFruit, 724 F.Supp. 1373, 1383 (S.D.Fla.1989), rev'd on other grounds, 918 F.2d 154 (11th Cir.1990), the undersigned assumed, without discussion, that section 768.72 does apply in diversity cases....

...lor v. Lee, Case No. 96-8170-CIV-RYSKAMP (Omnibus Order, March 12, 1997). Due to the frequent recurrence of this issue, and the fact that the Eleventh Circuit may never have the opportunity to resolve it, the Court believes that a full discussion of section 768.72's application in diversity actions is warranted. Section 768.72 provides as follows: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....

...which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The Florida Supreme Court has "read 768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995); see also Smith v. Department of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla.1987) (section 768.72 creates substantive rights). Thus, if the statute applies at the pleading stage, plaintiffs demand for punitive damages must be stricken. Several courts have recognized that section 768.72 contains two requirements, one concerning pleading and the other concerning discovery....

...The Court finds no reason to disagree with this analysis *1190 at this juncture, but would simply remark that the substantive right to be free from financial discovery absent a proper pleading of punitive damages means very little if the liberal standards of the Federal Rules of Civil Procedure, and not the first half of section 768.72, govern at the threshold stage....

...It is of course old hat that the day of the "brooding omnipresence in the sky" has passed and that federal courts sitting in diversity must apply the common and statutory law of the relevant state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Indeed, as applied to state statutes such as section 768.72, this precept predates even Erie, which only overruled Swift v....

...If, however, the state law and federal rule conflict, the Court must apply the federal rule only, unless it appears that the federal rule was not adopted pursuant to a constitutional delegation of authority in the Rules Enabling Act, 28 U.S.C. § 2072. [2] Accordingly, the Court must first consider whether section 768.72 conflicts with any federal rule....

...strict of Florida have reached a number of differing conclusions as to whether either of these rules conflicts with the statute. In Wisconsin Inv. Bd. v. Plantation Square Assocs., Ltd., 761 F.Supp. 1569, 1573 (S.D.Fla.1991), Judge However held that section 768.72 conflicts with Rule 8(a), but not 9(g)....

...Judges Atkins and Hurley have found that the statute conflicts with neither federal rule. See Teel, 953 F.Supp. at 1539; Al-Site Corp. v. VSI Int'l, Inc., 842 F.Supp. 507, 512-13 (S.D.Fla.1993). Filling out the range of logical possibilities, the Court now holds that section 768.72 conflicts with both rules. Rule 8(a) contains two separate requirements that might be thought to conflict with section 768.72....

...1160, 122 L.Ed.2d 517 (1993) (rejecting heightened pleading requirement in § 1983 cases against municipalities). The Court therefore concludes that any state statute imposing a pleading requirement stricter than that of Rule 8 conflicts with the Federal Rules. [3] In his recent Teel opinion, Judge Hurley found that section 768.72 does not conflict with Rule 8 because Rule 8 specifies the "how" of pleading, but not the "when." 953 F.Supp....

...In other words, the short and plain statement standard remains in effect, but the plaintiff cannot offer such a short and plain statement until he has made a record showing of facts sufficient to support the claim. Respectfully, the Court believes that this reading misconstrues the outworking of section 768.72. The Florida Supreme Court has made clear that section 768.72 forbids a party even to raise a punitive damages claim in its complaint without prior leave of the Court....

...mination that the kind of claim in suit is one which allows for punitive damages under [Florida] law." Henn v. Sandler, 589 So.2d 1334, 1335-36 (Fla. 4th DCA 1991). Thus, "the legal sufficiency of the punitive damage pleading is also in issue in the section 768.72 setting." Id....

...ad the punitive damages issue in a legally sufficient manner, presumably by alleging facts sufficient to sustain an award of punitive damages. See also McDonald v. Dade County Public Health, 677 So.2d 23, 24 (Fla. 3d DCA 1996) (plaintiff may satisfy 768.72 by making a proffer of evidence sufficient to support claim for punitive damages); Key West Convalescent Center v....

...mention satellite proceedings to determine the factual propriety of the satellite pleadings. *1192 The Court cannot agree that these satellite procedures do not conflict with the liberal standards of Rule 8. [4] The considerations that suggest that section 768.72 conflicts with Rule 8 suggest also that the statute conflicts with Rule 9(g)....

...See Italiano v. Jones Chemicals, Inc., 908 F.Supp. 904, 907 (M.D.Fla.1995) ("Rule 9(g) requires no more than a specific statement that allows Defendants to prepare a responsive pleading and begin their defense."). As with Rule 8, the conflict with section 768.72 arises from the fact that the statute in effect requires a satellite pleading to the court, requesting permission to plead a claim for punitive damages. Contrary to Rule 9(g), this pleading must proffer facts sufficient to support a punitive damages award. Rather than merely stating the special damages the plaintiff hopes to recover, as contemplated by Rule 9(g), section 768.72 requires the plaintiff essentially to survive a summary judgment-type inquiry on the issue of punitive damages at the pleading stage of the litigation. Thus, the Court sees a conflict between Rule 9(g) and section 768.72. In summary, the Court finds that application of section 768.72 in federal court would upset the notice pleading system constructed by Rules 9(g) and 8(a)....

...The Rules, however, arrive before the Court with a strong presumption of constitutionality. Id. at 6, 107 S.Ct. at 970. The Court sees no reason to doubt the constitutionality of Rules 8 or 9, and until someone convincingly rebuts their presumption of constitutionality, the Court will continue to follow them in preference to section 768.72. Accordingly, the Court holds that pleading requirements of section 768.72 do not bind federal litigants....

...judgments, conflicted with Rule 38 of the Federal Rules of Appellate Procedure, which gives the circuit court discretion in determining whether or not to award damages for frivolous appeals. 480 U.S. at 1, 107 S.Ct. at 967. This Court believes that section 768.72's elimination of the "short and plain statement" standard has much the same effect as the Alabama statute's elimination of the circuit's court discretion as to appellate damages....

...Far from altering substantive rights under state law, it alters the role of the Court itself in adjudicating the diverse parties' dispute. [4] Although Judge Hurley distinguishes the Eleventh Circuit's opinion in Lundgren v. McDaniel, 814 F.2d 600 (11th Cir.1987), the Court believes that Lundgren supports a finding that section 768.72 is procedural within the meaning of Hanna....

...Of course, the state law which creates the cause of action may also specify the time at which the cause of action accrues. The state may not, however, dictate to the federal courts the procedures it must follow in conforming to this timing requirement. In section 768.72, the State has not merely stated that a claim for punitive damages does not accrue unless conditions X, Y, and Z are met....

...Defendants' motions have seven distinct assertions. The first of these is defendants' motion for a more definite statement, which the Magistrate has denied. See Order entered January 12, 1989. The Court will address each of the six remaining issues. Defendants' second assertion is that Fla. Stat. § 768.72 bars the claim for punitive damages at this time....

...Defendant describes the statute as "a neutral and uniformly applicable Rule of Civil Procedure [which] is not a substantive burden." Defendants' Memorandum at 6-7. This description is erroneous. The Florida Supreme Court has considered an argument that § 768.72, which codifies 1986 Fla....

...The statute survived scrutiny on the basis that it is "clearly substantive because it sets the standard for establishing a claim for punitive damages." Smith v. Dep't of Insurance, 507 So.2d 1080, 1092 n. 10 (Fla.1987) (adopting and approving trial court opinion on this issue). Consequently, § 768.72 does not apply to a claim for punitive damages in a federal civil rights suit....

...1st DCA 1995). The court also did not err by striking the Dadics' claim for punitive damages, as a claim for punitive damages may not be asserted without the trial court having first determined that a factual basis for such damages exists as required by section 768.72, Florida Statutes (1997)....

...h the presuit statutory requirements. This case is analogous to Ortega v. Silva, 712 So.2d 1148 (Fla. 4th DCA 1998). There we ruled that certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000). Id. at 1149. We cited to Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996), for the holding that certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72, but not so broad as to encompass review of the sufficiency of the evidence to support a claim for punitive damages when the trial judge has followed the procedural requirements of that statute....

...Petitioner Norwegian Cruise Lines, ("Norwegian") seeks certiorari review from the denial of its motion to strike respondent Gregorio Zareno's ("Zareno") request for punitive damages. We grant certiorari and direct the trial court to strike Zareno's claim for punitive damages based upon failure to comply with Section 768.72, Florida Statutes (1997)....

...breach of maintenance and cure obligations. The complaint included a demand for punitive damages. Thereafter, Norwegian moved to strike the punitive damages demand on the basis that Zareno had failed to comply with state law procedures set forth in Section 768.72. Section 768.72 requires a proffer of record evidence to support a punitive damages claim and states specifically: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or...

...damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Norwegian contended that by electing the state court forum, Zareno was compelled to comply with the procedural requirements of Section 768.72 and could not subject Norwegian to financial worth discovery absent the showing of a reasonable evidentiary basis for recovery of punitive damages. Zareno responded by arguing that federal maritime law gave him the absolute right to plead punitive damages without the need to proffer record evidence. Zareno contended that Section 768.72 created a substantive condition precedent in direct conflict with federal maritime law and thus was inapplicable to federal maritime cases filed in state court....

...Exxon Shipping Co., 984 F.2d 1270, (1st. Cir.), cert. denied, 508 U.S. 981, 113 S.Ct. 2987, 125 L.Ed.2d 682 (1993)(state law preempted only if found in direct conflict with basic maritime principles). Therefore we must determine whether the requirement in Section 768.72 of showing a reasonable basis for punitive damages contradicts substantive maritime law....

...s conduct on the part of the shipowner. See McWilliams v. Texaco, Inc., 781 F.2d 514 (5th Cir.1986); Gaspard v. Taylor Diving & Salvage Co., Inc., 649 F.2d 372 (5th Cir.1981). We agree with Norwegian that this substantive standard is not affected by Section 768.72. Section 768.72 does not impose additional obligations on a plaintiff who files in state court because the standards for whether or not punitive damages are recoverable remain the same. Section 768.72 only affects the screening method and timing of the claim by requiring a proffer at the complaint stage to demonstrate a reasonable basis for punitive damages before the claim may be submitted to the jury....

...ages at the complaint stage, neither conflicts with, nor adds to, substantive federal maritime standards for punitive damages. See Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992), review denied, 626 So.2d 207 (Fla.1993). Therefore Section 768.72 does apply to maritime claims filed in state courts, and a defendant may not be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable basis for *795 the punitive damages claim to be presented to the jury. See Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995). Since Zareno failed to proffer an evidentiary basis for his punitive damages claim pursuant to Section 768.72, the claim must be stricken....

CONNER, J. The petitioners seek certiorari review from a trial court order granting the respondent’s motion for leave to, amend his complaint to seek punitive damages on a claim of defamation per se. See § 768.72, Fla....

...ny was false. The petitioners further argued that the respondent’s conclusory, self-serving statements in his affidavit were insufficient for the required proffer of evidence. The trial court entered an order simply stating the motion was granted. Section 768.72, Florida Statutes (2015), provides that a claim for punitive damages will not be permitted uhless there is a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recove...

...The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing. Notably, an evidential hearing is not required. Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996) (“Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination.”). Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, but not to review the sufficiency of the .evidence....

...t matter jurisdiction is patently lacking. Therefore, as a matter of fairness, Plaintiff is entitled to recover from the Defendants the actual amount of the expenses incurred as a result of the improper removal of this action"). [1] Under Fla. Stat. § 768.72, "gross negligence" means that "the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."

...motivated by evil intent or involves callous or reckless indifference to federally protected rights. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); H.C. by Hewett v. Jarrard, 786 F.2d 1080 (11th Cir.1986). Under Florida Statutes, § 768.72, the plaintiff cannot bring a claim for punitive damages unless there is record evidence of a basis for such a claim. Florida Statutes § 768.72 is substantive and can be applied by Federal District Courts....

proceedings where there is a fraud claim. See § 768.72, Fla. Stat. (2004); First Interstate Dev. Corp

...profits are still subject to disgorgement because the activities were efforts for which he was duly compensated. See Pidcock, 854 F.2d at 448. Punitive Damages The trial court found that the Appellants did not establish a factual basis for punitive damages. Section 768.72(2), Florida Statutes (2006), provides that "[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of...

...fendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage." § 768.72(2)(a). In turn, "gross negligence" was defined to mean "that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." § 768.72(2)(b). At trial, a plaintiff is required to establish the entitlement to an award of punitive damages by clear and convincing evidence. § 768.725. When claims for punitive damages are made, the respective provinces of the court and jury are well defined....

...PUNITIVE DAMAGES In addition to Defendants' motion to strike the substantive counts of Plaintiffs' complaint, they also move that Plaintiffs' request for punitive damages be struck. As Plaintiffs' request for punitive damages is based on state claims, Florida law controls their request. The relevant statute, Section 768.72, Florida Statutes (1989), states that a reasonable showing by evidence in the record or proffered by the claimant which shows a reasonable basis for recovery of punitive damages is necessary to sustain such a claim....

...is applied to determine whether a complaint states a cause of action. See, e.g., Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial court is determining if a plaintiff has made a `reasonable showing' under section 768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo."); Tiger Point Golf & Country Club v....

(11th Cir. 2010) (quoting Fla. Stat. § 768.72(2) ). Under § 768.72(3), punitive damages may be imposed

punitive damages, a party must comply with section 768.72, Florida Statutes. Leavins v. Crystal, 3 So

showing by evidence in the record,” pursuant to section 768,72(1), Florida Statutes. Third, the legal

749 So.2d 483, 486 (Fla.1999). Pursuant to section 768.72(2), Florida Statutes (2005), a defendant may

in the record to comply with Florida Statute Section 768.72, which provides that "no claim for punitive

failure to comply with Fla.Stat. § 768.72. (14) The demand for trial by jury set

without prior trial court authorization, pursuant to § 768.72.[5]Mayer v. Frank, 659 So.2d 1254 (Fla. 4th DCA

amendment to allow a claim for punitive damages Section 768.72 of the Florida Statutes creates a “substantive

in light of the procedural requirements of section 768.72, Florida Statutes, which requires a trial court

Bank of America points out, however, Fla. Stat. § 768.72 was amended in 1999, subsequent to the decision

concerning punitive damages is permitted." Fla. Stat. 768.72. Prior to allowing discovery of financial

damages claim for failure to comply with Fla.Stat. § 768.72. Last, defendant argues that the cause of action

Co. v. King, 658 So.2d 518, 520 (Fla.1995); see § 768.72, Fla. Stat. (1999). The plaintiff is required

Cases, No. 96-1, 689 So.2d 1042, 1044 (Fla.1997); § 768.72(2), Fla. Stat. (2001). Under this standard, malice

recovery of [punitive] damages” as required by section 768.72(1), Florida Statutes (2003). This issue does

motion to strike a punitive damages claim. Section 768.72, Florida Statutes, provides that "... no claim

appellants had not made a proper showing under Section 768.72, Florida Statutes (1989), that they were entitled

claim for punitive damages pursuant to Fla. Stat. § 768.72. The Honorable Phillip Bloom, Circuit Court Judge

standard. It points out that the court relied on section 768.72(3), Florida Statutes (2000), which provides

conformed with the procedural requirements of section 768.72, Florida Statutes, in allowing a punitive damages

generally are available for intentional torts. See § 768.72(2), Fla. Stat. (2003). In view of this principle

court followed the procedural requirements of section 768.72, Florida Statutes). Respondent, Christopher

orders.”), superseded by statute on other grounds, § 768.72, Fla. Stat. (1986), as recognized in Henn v. Sandler

conformed with the procedural requirements of section 768.72[, Florida Statutes (1993)] . . . .").

of punitive damages under Florida Statutes section 768.72 (1989), and therefore the State Tort Punitive

complaint to add a demand for punitive damages. See § 768.72, Fla. Stat. (1987). Regarding the proper measure

1987), superseded by statute on other grounds, § 768.72, Fla. Stat. (1989)))., To be entitled to certiorari

request to add punitive damages pursuant to section 768.72 in some instances, stating: In Kraft General

conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to

the provisions of Florida Statute § 768.72. Pursuant to section 768.72, "no claim for punitive damages

an insufficient basis for punitive damages. Section 768.72(2), Florida Statutes (2001), provides for the

punitive damages and, accordingly, is governed by section 768.72, Florida Statutes (1987), which provides as

hearing. This claim is based upon Florida Statute section 768.72 (1995) which provides in part: In any civil

order, the court acknowledged that, pursuant to section 768.72(1), Florida Statutes, Plaintiffs needed to

the complaint to allege punitive damages. See § 768.72, Fla. Stat. (2003). In response to the complaint

complied with *473 the procedural requirements of section 768.72, Florida Statutes (1995), which has recently

*1371 V. The Pleading Provisions of Fla.Stat. § 768.72 Do Not Apply To State Claims Being Litigated In

to employers and corporate defendants under section 768.72(3), Florida Statutes (2012), we grant the petition

without first complying with the requirements of section 768.72, Florida Statutes (2001).[1] Delta Fire furnished

assert a punitive damages claim. See § 768.72, Fla. Stat. (2014). Certiorari review is available

punitive damages violates Florida Statutes section 768.72, which bars a punitive damages claim “unless

for failure to comply with Florida Statutes Section 768.72, which provides: In any civil action, no claim

the procedural requirements associated with section 768.72, Florida Statutes (1999). See Globe Newspaper

complaint to add a claim for punitive damages.6 Section 768.72, Florida Statutes (2014), provides in part:

C. § 1330(a), 28 U.S.C. § 1602 et seq., and section 768.72 of the Florida Statutes. Plaintiffs filed their

plaintiff failed to make a reasonable showing under section 768.72, Florida Statutes, for a recovery of punitive

as premature punitive damage discovery under section 768.72. Neither should be countenanced before final

conformed to the procedural requirements ■ of section 768.72 of the Florida Statutes, we are compelled to

strike those allegations based upon Fla.Stat. § 768.72, et seq. which establish special requirements

damages. Globe Newspaper, 658 So.2d at 520. Section 768.72 provides that, before a plaintiff may seek

punitive damages claim as unjustified under section 768.72, Florida Statutes (1991) is reviewable by certiorari

ordered premature punitive damage discovery under section 768.72, Florida Statutes (2003). By allowing this

protective order, arguing that Florida Statutes § 768.72(1) requires that before Plaintiff may engage in

INDIVIDUAL CAPACITY According to Fla.Stat. Section 768.72 (1991), "In any civil action, no claim for

considered to constitute a "reasonable basis" ( section 768.72(1) ) for the recovery of punitive damages.

sustain a punitive damages claim in accordance with § 768.72 of the Florida Statutes. For the reasons set forth

1987), superseded by statute on other grounds, § 768.72, Fla. Stat. (1989). The trial court’s order departs

and a jury trial pursuant to Florida Statutes § 768.72, and in the alternative compensatory damages under

1202, 1220 (11th Cir. 2010) (quoting Fla.Stat. § 768.72(2) (2005) ). Plaintiff's amended complaint does

failed to follow the procedural requirements of section 768.72, Florida Statutes, we grant the petition.

to adhere to the procedural requirements of section 768.72, Florida Statutes (2002). See generally Globe

other grounds 798 F.2d 1355 (11th Cir.1986). Section 768.72, Florida Statutes, prohibits a claim for punitive

intended to allow a punitive damages claim. Section 768.72(1), Florida Statutes (2016), provides that

seeking punitive damages under Florida Statute § 768,72 cannot state a claim by merely making conclu-sory

Inc. v. Meeks, 778 So.2d 322 (Fla. 2d DCA 2000); § 768.72, Fla. Stat. (2002). We modify the Committee’s

misconduct or gross negligence." Fla. Stat. § 768.72 (2). The statute then defines "intentional

award of punitive damages pursuant to Fla. Stat. § 768.72[2], as limited by Fla. Stat. § 624.155(5)[3],

Neither parties dispute that Florida Statute § 768.72 is substantive and must be applied by Federal

the egregiousness of Belle Glade’s conduct. Section 768.72(2), Florida Statutes (2009) (emphasis added)

such claims against corporate defendants under section 768.72(3), Florida Statutes (2016), we grant the petition

claim for punitive damages. Florida Statute Section 768.72 prohibits a claim for punitive damages "unless

damages. Plaintiff assumes she must comply with § 768.72, Florida Statutes, which requires the submission

respondent. WARNER, J. Contrary to the provisions of section 768.72, Florida Statutes (1997), the respondent filed

claims for punitive damages under Florida Statute § 768.72. Even though no party to this action has alleged

AUTHORIZING AN AMENDMENT FOR PUNITIVE DAMAGES Section 768.72(1), Florida Statutes (2009), provides that

reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2014). Finally, we reverse

Court of Appeals held that because Florida Statute § 768.72 conflicted with Federal Rule of Civil Procedure

sufficient to comply with the requirements of section 768.72, Florida Statutes, thereby permitting amendment

intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2). The statute defines the terms as follows:

comply with the procedural requirements of section 768.72, Florida Statutes (1999). See Globe Newspaper

claim in a civil action in Florida is governed by § 768.72, Florida Statutes. A punitive damages claim can

amend to add a claim for punitive damages under section 768.72, Florida Statutes (2002), since it does not

for punitive damages under Florida Statute, section 768.72, by not providing a "reasonable showing by