Florida Panthers et al v. Collier County, Florida et al

Filing 80

OPINION AND ORDER dismissing 28 Plaintiffs' Second Amended Complaint without prejudice; denying as moot 31 Defendants' Motion to Dismiss Second Amended Complaint; denying as moot 42 Plaintiffs' Motion for Summary Judgment; denying as moot 61 Defendants' Motion for Summary Judgment. Plaintiffs may file a Third Amended Complaint within 14 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 5/1/2015. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FLORIDA
PANTHERS,
(Puma
concolor
coryi)
an
endangered
species,
REDCOCKADED
WOODPECKERS,
(Picoides
boralis)
an
endangered species, FLORIDA
WILDLIFE FEDERATION, a notfor-profit
Florida
corporation,
and
COLLIER
COUNTY
AUDUBON
SOCIETY,
INC.,
a
not-for-profit
Florida corporation,
Plaintiffs,
v.

Case No: 2:13-cv-612-FtM-29DNF

COLLIER COUNTY, FLORIDA, a
political subdivision of the
State of Florida, GEORGIA A.
HILLER,
in
her
official
capacity as a Collier County
Commissioner, TOM HENNING,
in his official capacity as
a
Collier
County
Commissioner, TIM NANCE, in
his official capacity as
Collier County Commissioner,
and PENNY TAYLOR, in her
official
capacity
as
a
Collier County Commissioner,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss Second Amended Complaint (Doc. #31) and the
parties’ cross-motions for summary judgment (Doc. #42; Doc. #61).

I.
On August 21, 2013, the Florida panthers, the red-cockaded
woodpeckers,

the

Florida

Wildlife

Federation

(FWF),

and

the

Collier County Audubon Society (CCAS) (collectively, plaintiffs)
initiated this action against Collier County, Florida and Collier
County Commissioners Georgia A. Hiller, Tom Henning, Fred W.
Coyle, 1 and Tim Nance (collectively, defendants) pursuant to the
Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531-1544.
Plaintiffs’ Second Amended Complaint, filed on June 27, 2014, seeks
declaratory

and

injunctive

relief

to

prevent

defendants

from

implementing, enacting, or authorizing land clearing, land uses,
and road extensions into occupied and essential habitats of the
Florida panther and red-cockaded woodpecker without obtaining an
ESA Section 10 Habitat Conservation Plan (HCP) and incidental take
permit

(ITP)

Plaintiffs
County’s

from

also

the

seek

Conservation

U.S.
a

Fish

finding

and

and
and

Coastal

Wildlife

Service

declaration

Management

that

Element

(FWS).
Collier

Policies

6.1.5 and 7.1.2, and Section 3.05.02(c) of Collier County’s Land
Development Code are preempted by the ESA.

(Doc. #28, ¶ 2.)

Defendants assert that the Second Amended Complaint should be
dismissed in its entirety for lack of subject matter jurisdiction,

1Penny

Taylor was sworn in as a Collier County Commissioner
in place of Fred W. Coyle, and was automatically substituted as a
defendant in her official capacity. (Doc. #77.)

2

failure to state a cause of action, and failure to join a party
under Fed. R. Civ. P. 19.

(Doc. #31.)
II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

3

Iqbal, 556 U.S. at 678.
consistent

with

a

“Factual allegations that are merely

defendant’s

facially plausible.”

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.
III.

After

reviewing

the

allegations

in

the

Second

Amended

Complaint, the Court finds that dismissal is warranted because
plaintiffs have failed to put defendants on notice as to the nature
of the claims asserted against them.

Plaintiffs’ Second Amended

Complaints sets forth the underlying factual allegations and the
relief requested, but does not include any substantive counts.

As

a result, the reader must needlessly flip through the pleading to
determine the factual and legal basis supporting each request for
relief.

Although “[a] party may set out 2 or more statements of

a claim or defense alternatively or hypothetically, either in a
single count or defense or in separate ones,” Fed. R. Civ. P.
8(d)(2), a properly drafted pleading “will present each claim for
relief in a separate count,” Anderson v. Dist. Bd. of Trs. of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).

See also

Fed. R. Civ. P. 10(b) (“If doing so would promote clarity, each

4

claim founded on a separate transaction or occurrence . . . must
be stated in a separate count.”).
to

set

forth

a

single

claim

Because plaintiffs have failed

for

relief,

the

Second

Amended

Complaint will be dismissed without prejudice.

See Marlborough

Holdings

Platinum

Grp.,

Ltd.

v.

Azimut-Benetti,

Spa,

Yacht

Collection No. Two, Inc., 505 F. App’x 899, 907 (11th Cir. 2013).
If plaintiffs chose to amend their complaint, they should not
include citations to case law in their Third Amended Complaint as
they did in their Second Amended Complaint.

While plaintiffs’

Third Amended Complaint should briefly state the legal basis for
the causes of action being asserted, legal argument is wholly
unnecessary.
Accordingly, it is now
ORDERED:
1.

Plaintiffs’

Second

Amended

Complaint

(Doc.

#28)

is

dismissed without prejudice to filing a Third Amended Complaint
within FOURTEEN (14) DAYS of this Opinion and Order. 2
2.

Defendants’ Motion to Dismiss Second Amended Complaint

(Doc. #31) is DENIED as moot.
3.

Plaintiffs’ Motion for Summary Judgment (Doc. #42) is

DENIED as moot.

2Pursuant

to the Court’s Standing Order, the parties should
submit to Chambers a courtesy copy of any document that exceeds
twenty-five (25) pages. (Doc. #5.)

5

4.

Defendants’ Motion for Summary Judgment (Doc. #61) is

DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2015.

Copies:
Counsel of record

6

1st

day of