Derrig v. The City of Marco Island, Florida et al

Filing 41

ORDER granting 32 the Defendant, Thomas Carr's Motion to Dismiss Second Amended Complaint; granting 33 the Defendant, the City of Marco Island, Florida's ("the City's") Motion to Dismiss Plaintiff John Derrig's Se cond Amended Complaint.The Complaint is hereby DISMISSED with prejudice. The Clerk of the Court shall enter JUDGMENT in favor of the Defendants Thomas Carr and The City of Marco Island. The Clerk of the Court is further directed to CLOSE the case and TEMINATE any pending motions. Signed by Judge Sheri Polster Chappell on 6/17/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JOHN DERRIG,
Plaintiff,
v.

Case No: Case No: 2:12-cv-464-FtM-99SPC

THE CITY OF MARCO ISLAND,
FLORIDA, a Florida Municipal
Corporation, and THOMAS CARR,
individually,
Defendants.
___________________________________/

ORDER
This matter comes before the Court on Defendant Thomas Carr's Motion to
Dismiss Plaintiff John Derrig’s Second Amended Complaint (Doc. #32) filed on April 23,
2013, and on the Defendant, the City of Marco Island, Florida's (“the City’s”) Motion to
Dismiss Plaintiff John Derrig’s Second Amended Complaint (Doc. #33) filed on April 23,
2013. The Plaintiff filed his Response in Opposition to the Motion to Dismiss Plaintiff
John Derrig’s Second Amended Complaint (Doc. #37) on May 24, 2013 and his
Response in Opposition to the Motion to Dismiss the Plaintiff John Derrig’s Second
Amended Complaint (Doc. #38) on May 24, 2013. The Motions are now fully briefed
and ripe for the Court’s review.
Plaintiff John Derrig is a former Marco Island Police Officer and brought this suit
against the City of Marco Island and its Chief of Police, Thomas Carr, based on the
circumstances surrounding his termination.

Specifically, Plaintiff alleges that he

observed his supervising sergeant tamper with evidence, prompting Plaintiff to draft a
memorandum detailing his observations which he sent to his lieutenant, captain, and
Chief Carr.

Plaintiff was terminated shortly after he sent the memorandum to his

superiors, and Plaintiff believes he was fired as a result of speaking out about his
sergeant’s misconduct in the memorandum.1
The First Amended Complaint was dismissed by the Court in a March 12, 2013
Order (Doc. #26). That Complaint alleged two counts against Defendant Carr, one for
Retaliation under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the other for
Tortious Interference with a Business Relationship, under Florida law. Defendant Carr
and Defendant Marco Island both filed motions to dismiss (Doc. #12 and #13). The
Court found that both counts were insufficiently pled as to both defendants, and
dismissed the First Amended Complaint without prejudice. (Doc. #26 at 2–3).
The Second Amended Complaint was filed on April 2, 2013 (Doc. #29). The only
modifications to the First Amended Complaint that appear in the Second Amended
Complaint are found in Paragraphs 10, 11, and 27. Defendant contends that these
amendments have not cured the defects in the First Amended Complaint, and merely
add conclusory allegations. (See Doc. #32 at 8). In his Response, Plaintiff asserts that
the Second Amended Complaint sufficiently states claims entitled to relief. (Doc. #38).
In deciding a motion to dismiss, the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiffs. Christopher
v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However,
dismissal for failure to state a claim upon which relief may be granted does not require

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Plaintiff does not have a copy of the memorandum for the Court, and the Court has not reviewed its contents.

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appearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561–563,
S. Ct. 127 S. Ct. 1955, 167 L. Ed 2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S.
41, 45–46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the “grounds” of his “entitlement” to relief requires more than
labels, conclusions, and a formulaic recitation of the cause of action’s elements.
Twombly, 550 U.S. 544, 561–563.
To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must
simply give the defendants fair notice of what the plaintiff’s claim is and the grounds
upon which it rests. Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.
Ct. 992, 152 L. Ed. 2d 1 (2002). Although the pleading standard announced in Fed R.
Civ. P. 8 does not require “detailed factual allegations,” it does demand more than an
unadorned, “the-defendant-unlawfully-harmed-me accusation.”

Sinaltrainal v. Coca-

Cola Co., 578 F. 3d 1252, 1268 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662,
677, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868 (2009)). Furthermore, unwarranted
deductions of fact in a complaint are not admitted as true for the purpose of testing the
sufficiency of the allegations. Sinaltrainal, 578 F. 3d at 1268 (citing Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F. 3d 1242, 1248 (11th Cir. 2005)). The facts as pled
must state a claim for relief that is plausible on its face. Sinaltrainal, 578 F. 3d at 1268
(citing Iqbal, 129 S. Ct. at 1950).
The Court will now consider each count against Defendant Carr in his individual
capacity based on the foregoing standards.

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Count I: Retaliation
A. Thomas Carr
The Supreme Court has made clear that “a suit against a state official in his or
her official capacity is not a suit against the official but rather against the official’s office.”
Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312 (1989).
Defendant Carr contends that Plaintiff did not state a cause of action against Carr
in his individual capacity as to Count I because Plaintiff failed to establish that Carr
acted beyond his capacity as chief of police. (Doc. #32 at 6–7). Defendant Carr points
to Paragraph 8 of the Second Amended Complaint, which states: “At all times pertinent,
Carr acted under the color of state law in his official capacity as Chief of Police.” (Doc.
#29 ¶ 8). Plaintiff asserts “[t]he problem with Defendant’s argument is that Plaintiff
clearly sued Defendant in his individual capacity, and not in his official capacity. For this
reason, Defendant’s arguments that Defendant cannot be sued in his official capacity do
not apply.” (Doc. #38 at 5).
In the Second Amended Complaint, Plaintiff’s allegation in Paragraph 8 makes it
abundantly clear that Carr’s actions were “[a]t all times pertinent . . . under the color of
state law in his official capacity as Chief of Police.” (Doc. #29 ¶ 8). Accordingly, on its
face, Count I fails to state a cause of action against Carr in his individual capacity, and
is therefore dismissed.2 See Will, 491 U.S. at 71, 109 S. Ct. 2312.

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The Court further notes that the practice of “group” pleading—in which multiple parties are lumped
together under a single count—is generally problematic under Fed. R. Civ. P. 10(b). See Veltmann v. Walpole
Pharmacy, Inc., 928 F. Supp. 1161, 1164 (M.D. Fla. 1996) (finding pleading insufficient where complaint made it
impossible to determine which defendant committed which alleged act). However, because the Second Amended
Complaint explicitly states that Carr acted in his official capacity “at all times pertinent,” (Doc. #29 ¶ 8), the Court
need not reach the clarity issue under Rule 10.

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Plaintiff’s arguments to the contrary are unpersuasive. That a Defendant’s name
appears in the case caption, (see Doc. #38 at 7), is not dispositive that any particular
count is properly alleged against a Defendant.3 See Blanchard v. Terry & Wright, Inc.,
331 F. 2d 467, 469 (6th Cir. 1964) (“[T]he caption is not regarded as containing any part
of plaintiff’s claim.

We must look to the allegations of the complaint in order to

determine the nature of plaintiff’s cause of action.”).

Further, Plaintiff points to the

language in the Second Amended Complaint that states “Carr’s actions caused
damages” and were “‘taken in reckless indifference to Derrig’s federally protected
rights.’” (Doc. #38 at 7). Yet, these allegations do not sufficiently separate Carr’s
individual capacity from his official capacity—a capacity that Plaintiff alleges Carr acted
within “[a]t all times pertinent.” (Doc #29 ¶ 8). Finally, that “Plaintiff seeks damages
against [Carr] personally,” (Doc. #38 at 7), does not affect the sufficiency of the factual
matter pled as a basis to those damages. Nor is the fact that Count II is against Carr,
personally, (Doc. # 38 at 7), relevant to the consideration of Count I.
Even if Carr were properly named a defendant in his individual capacity under
Count I, the claim would still be dismissed because the amended language does not
cure the defect from the First Amended Complaint.
Because Plaintiff failed to properly state a claim against Carr individually and
separately from his official capacity, Count I must be dismissed as to Carr.

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Indeed, Defendant Marco Island is also named in the caption, yet the Second Amended Complaint is clear
that Count II is not applicable to the city. Thus, that Carr is listed in the caption is no more than an acknowledgment
that at least one of the counts in the Complaint is alleged against Carr, individually.

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B. The City of Marco Island
In order to properly state a claim against a government employer for retaliation
against constitutionally protected speech, the Plaintiff-employee must allege that he or
she “spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S.
410, 418, 126 S. Ct. 1951, 1958 (2004).

Because Plaintiff failed to establish this

element in the First Amended Complaint, (see Doc. #26), the Court will now consider
Plaintiff’s amendments in the Second Amended Complaint.
According to the Order dismissing the First Amended Complaint, the “factually
unsupported and formulaic legal conclusions” contained therein were that Plaintiff wrote
the memorandum as “a private citizen on his own time” and that the memorandum was
“outside of his official duties.” (Doc. #26 at 2). In his Second Amended Complaint,
Plaintiff added the following language to Paragraph 10: “[Plaintiff] spoke as a private
citizen because he was at home and off the clock, and also because [Plaintiff] made the
Statement outside of his official duties . . . .”

(Doc. #29 ¶ 10).

Further, Plaintiff

elaborated upon the scope of “official duties” in Paragraph 11: “[Plaintiff’s] official duties
do not include the supervision of his Sergeant, responsibility for MIPD internal affairs,
the authority to discipline his Sergeant, or any further action with respect to his
Sergeant’s misconduct.” (Doc. #29 ¶ 11).
In Carter v. Incorporated Village of Ocean Beach, the Second Circuit held that
police officers who reported the misconduct of their supervisors up the chain of
command did not engage in constitutionally protected speech under Garcetti. 415 Fed.
App’x 290, 293 (2d Cir. 2011). The Court noted that the alleged misconduct was known
to Plaintiffs “only by virtue of their jobs as police officers,” id., and found that because

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the awareness of the misconduct arose on the job, the police officers’ reporting was
pursuant to employment responsibilities and not as citizens on a matter of public
concern under Garcetti. Id; Garcetti, 547 U.S. at 421, 126 S. Ct. at 1960. Indeed,
Garcetti definitively stated that “[w]hen a public employee speaks pursuant to
employment responsibilities . . . there is no relevant analogue to speech by citizens who
are not employees.” 547 U.S. at 424, 126 S. Ct. at 1961.
Plaintiff contends that it is outside the scope of his official duties to report the
misconduct of supervisors. (Doc. #29 ¶ 11); (Doc. #37 at 8). Aside from the fact that,
as a police officer, Plaintiff had the ability to arrest his sergeant for tampering with
evidence, if he believed he had probable cause to do so, courts have found police
officers to have a general duty to report the misconduct of superiors as part and parcel
of their employment. See Hunt v. City of Portland, 726 F. Supp. 2d 1244, 1274 (D. Or.
2010) (“[G]enerally, a police officer is officially obligated to report unlawful conduct and
misconduct to their supervisors . . . .”); Carter, 415 Fed. App’x at 293.
The speech at the crux of Plaintiff’s retaliation claim is the memorandum he sent
to his superiors. Based on the facts pled in the Second Amended Complaint, there is
no reason to believe that the alleged memorandum was anything other than an
employee’s complaint to his supervisors up the chain of command. Simply because the
Plaintiff drafted the memorandum “at home and off the clock,” (Doc. #29 ¶ 10), does not
change the fact that Plaintiff was writing pursuant to his duties as a police officer. See
Hunt, 726 F. Supp. 2d at 1274. Accordingly, the additional language in the Second
Amended Complaint does not salvage the Retaliation Claim against the City of Marco
Island, and is therefore subject to dismissal.

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Count II: Tortious Interference with a Business Relationship
In order to state a claim for tortious interference with a business relationship
under Florida law, a Plaintiff must establish:

“(1) the existence of a business

relationship under which the claimant has rights; (2) the defendant’s knowledge of the
relationship; (3) an intentional and unjustified interference with the relationship; (4) by a
third party; and (5) damage to the claimant caused by the interference.” Rudnick v.
Sears, Roebuck & Co., 358 F. Supp. 2d 1201, 1205 (S.D. Fla. 2005).
Generally, a supervisor cannot be held liable for terminating an employee
because he is considered a party to the employment relationship, and only third parties
can be held liable for interference with an employment relationship. Alexis v. Ventura,
66 So. 3d 986, 988 (Fla. 3d DCA 2011).

An exception exists when a terminating

supervisor acts outside the scope of his employment “solely with ulterior purposes” or
not in the principal employer’s best interest. Id.; O.E. Smith’s Sons, Inc. v. George, 545
So. 2d 526, 528 (Fla. 1st DCA 1989). The Alexis court explained that “an allegation that
the defendant was not acting on the employer’s behalf or was acting to its detriment
satisfies the ‘third party’ requirement.” 66 So. 3d at 988.
The Second Amended Complaint contains a modification in Paragraph 27 that
Defendant Carr asserts does not cure the defect from the First Amended Complaint.
(See Doc. #32 at 8). Count II in the First Amended Complaint was dismissed because
Plaintiff had failed to allege anything beyond “formulaic legal conclusions.” (Doc. #26 at
3).

Further, the Court stated “malicious motivation alone is insufficient to hold the

terminating employee liable.” (Doc. #26 at 3 (citing Alexis, 66 So. 3d at 988)).
In the Second Amended Complaint, Paragraph 27 states:

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In causing the termination of Derrig’s employment with Marco Island, Carr
acted soley with an ulterior purpose, and against Marco Island’s best
interests and to Marco Island’s detriment. Specifically, Carr acted soley
with an ulterior purpose because Carr had a personal vendetta against
Derrig, because Carr wanted to silence Derrig from speaking about police
misconduct at MIPD, and because Carr wanted to punish Derrig for
speaking out against his Sergeant for committing police misconduct.
Carr’s actions were against Marco Island’s best interests and to Marco
Island’s detriment because, by terminating Derrig, Carr caused MIPD to
lose the services of a high-functioning, vigilant, and successful police
officer. Moreover, by terminating Derrig, Carr discouraged other police
officers at MIPD from speaking about police misconduct.
(Doc. #29 ¶ 27).
The amended language begins with the word “Specifically.” By itself, the added
language regarding Carr’s “personal vendetta against Derrig” is not enough to meet the
exception to the third party rule because “an allegation that defendant was maliciously
motivated does not by itself mean that defendant acted outside the scope of his
employment.” Alexis, 66 So. 3d at 988 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla.
3d DCA 1987)).

Furthermore, Plaintiff’s amended and elaborated-upon assertions

regarding Marco Island’s best interests, even taken as true, do not go beyond the
conclusory allegations in the First Amended Complaint. (see Doc. #26 at 3). Instead the
Plaintiff asserts that the City of Marco Island will suffer harm because he no longer
works there.

Thus, the Plaintiff failed to allege enough factual matter to meet the

exception under Alexis and survive dismissal under Fed. R. Civ. P. 12(b)(6).
Conclusion
Based upon the allegations in the Plaintiff’s Complaint, the Plaintiff has not
sufficiently pled either Count I or Count II. Therefore, under Fed. R. Civ. P. 12(b)(6), the
Plaintiff’s Complaint is due to be dismissed. Because the Plaintiff has now filed two

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Amended Complaints without being able to establish a claim, the Complaint is due to be
dismissed with prejudice.
Accordingly, it is now
ORDERED:
(1) The Defendant, Thomas Carr’s Motion to Dismiss Second Amended
Complaint (Doc. #32) is GRANTED.
(2) The Defendant, the City of Marco Island, Florida's (“the City’s”) Motion to
Dismiss Plaintiff John Derrig’s Second Amended Complaint (Doc. #33) is
GRANTED.
(3) The Complaint is hereby DISMISSED with prejudice.
(4) The Clerk of the Court shall enter JUDGMENT in favor of the Defendants
Thomas Carr and The City of Marco Island
(5) The Clerk of the Court is further directed to CLOSE the case and TEMINATE
any pending motions.
DONE and ORDERED in Fort Myers, Florida this 17th day of June, 2013.

Copies: All Parties of Record

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