Schober v. Town of Fort Myers Beach, Florida
Filing
33
ORDER granting in part and denying in part 25 Defendant Town of Fort Myers Beach, Florida's Motion to Dismiss Amended Complaint with Prejudice. Counts One, Two, and Three of the Amended Complaint are DISMISSED with prejudice. As to Counts F our and Five, Defendant is DIRECTED to submit a supplemental brief of no more than five (5) pages on the issues noted above on or before December 1, 2014. Plaintiff may file a response on or before December 8, 2014 of no more than five (5) pages. Signed by Judge Sheri Polster Chappell on 11/17/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THERESA SCHOBER,
Plaintiff,
v.
Case No: 2:13-cv-857-FtM-38CM
TOWN OF FORT MYERS BEACH,
FLORIDA, a Florida municipal
corporation,
Defendant.
/
ORDER1
This matter is before the Court on Defendant Town of Fort Myers Beach, Florida's
Motion to Dismiss Amended Complaint with Prejudice (Doc. #25) filed on August 18,
2014. Plaintiff Teresa Schober filed an Opposition to Defendant's Motion to Dismiss (Doc.
#26) on September 2, 2014. Thus, the motion is ripe for review.
BACKGROUND2
A. Plaintiff's employment with Defendant
Plaintiff worked for Defendant for approximately nine years, serving its
archeological interests. (Doc. #9 at ¶¶ 22-23). She started as a consultant, but Defendant
1
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their Web sites. Likewise, the Court has no agreements with any of these third parties or their Web sites.
The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that
a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
2
At the motion to dismiss stage, the Court must "accept as true the factual allegations" set forth in Plaintiff's
Amended Complaint. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006); see also Williams v.
Mohawk Indus., Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006). The facts as recited in this Order, however,
may not be the facts later proven.
1
eventually hired her full time and promoted her to Director of Cultural Resources. (Id. at
¶ 26). During her tenure, Plaintiff exceeded Defendant's performance expectations and
was never disciplined. (Id. at ¶¶ 24-25).
Plaintiff's work environment changed in February 2010 when Terrance Stewart
became Defendant's Town Manager. (Id. at ¶ 27). When Plaintiff met Stewart on or
about February 17, 2010, he allegedly told her that she would no longer oversee
Defendant's historical properties and would be assigned public works responsibilities. (Id.
at ¶ 32). At the same meeting, Stewart told Plaintiff that the mayor told him to fire her,
but that he was "going to make up [his] own mind." (Id.). Plaintiff interpreted Stewart's
remarks to be discriminatory and threatening. (Doc. #9 at ¶ 34). She reported Stewart's
remarks to Evelyn Wicks, Defendant's Finance Director who also held human resources
responsibilities. (Id. at ¶ 35). Wicks took no remedial action. (Id.).
Plaintiff thereafter resolved to perform to the best of her ability in hopes that her
performance would curb Stewart's alleged discriminatory behavior. (Id. at ¶ 36). Stewart
did not respond as Plaintiff had hoped. (Id. at ¶ 36). He allegedly threatened Plaintiff by
suggesting he had convinced three council members to support his decision to fire her.
(Id. at ¶¶ 37-38).
Stewart also allegedly spoke to Plaintiff in a patronizing and
condescending fashion, referring to conversations with her as "daddy talks." (Doc. #9 at
¶ 40). In Plaintiff's presence, Stewart stated that he was proud of his wife for leaving the
workforce when she became pregnant and that he found pregnant women to be beautiful.
(Id. at ¶¶ 41-42).
Stewart further commented on Plaintiff’s non-Christian religious affiliation. (Id. at
¶ 43). For instance, he told a group of tourists that the Calusa Indian tribe was "Christian."
2
(Id.). Plaintiff corrected Stewart, stating the Calusa tribe was not religious in the traditional
sense. (Id.). Stewart allegedly retorted, "[y]ou don't make fun of my religion, and I will
not make fun of yours." (Id. at ¶ 44).
On January 28, 2011, Stewart advised Plaintiff that he was replacing her position
with a newly created Parks and Recreation position and that she would not fill the new
job. (Doc. #9 at ¶¶ 46-47). At that time, Stewart told her neither when she would be
replaced nor what position, if any, she would fill. (Id. at ¶ 47). Plaintiff unsuccessfully
inquired about when she would change positions and her future job title. (Id. at ¶¶ 5051).
In June 2011, Stewart submitted a formal budget proposal. (Id. at ¶ 51). The
proposal did not include the new Parks and Recreation position previously noted. (Id.).
On or about August 11, 2011, however, Plaintiff learned that the Parks and Recreation
position was added to the budget proposal and a twenty percent (20%) pay reduction was
proposed for her post.
(Id. at ¶ 52). Stewart neither discussed the proposed pay
reduction with Plaintiff nor notified her that he was submitting the proposal. (Doc. #9 at
¶ 52).
According to Plaintiff, Stewart purposely did not tell her about the pay cut because
of Defendant's policy on collecting accrued and unused leave upon separation of
employment. (Id. at ¶¶ 54-56). At the time in question, Defendant required department
directors, like Plaintiff, to give one month's advance notice of separation in order to
receive any accrued and unused leave at the director pay rate. (Id. at ¶ 54). For Plaintiff
to receive her accrued and unused leave at the director pay rate, she resigned on August
31, 2011. (Id. at ¶¶ 54-56).
3
B. Plaintiff's alleged theft of Defendant's archaeological items
On September 21, 2012, Marilyn Miller, Esq., Defendant's attorney, wrote a letter
to Plaintiff that "strongly implied, if not outright stated," she had stolen archaeological
items from Defendant. (Id. at ¶ 62). This letter arrived more than one year after Plaintiff
left Defendant's employ.
On September 27, 2012, the Cultural and Environmental Learning Center Advisory
Board ("CELCAB") held a public meeting. (Id. at ¶ 66). Patti Evans, Defendant's Parks
and Recreation Director, and Regan McBride, Plaintiff's former assistant, read and
distributed the letter at the meeting. (Doc. #9 at ¶¶ 66-68). Evans and McBride also
accused Plaintiff of stealing and misappropriating certain artifacts Defendant owned. (Id.
at ¶ 68).
At some unknown time, Defendant allegedly disparaged Plaintiff to the Florida
Archaeology Network and to Annette Snapp, an archaeologist consultant whom
Defendant hired to help with a flooded archeological site called the Mound House. (Id. at
¶ 69). According to Plaintiff, Defendant told Snapp that Plaintiff was responsible for the
Mound House's disaster preparedness, which was untrue. (Id.).
On October 15, 2012, Stewart stated at a public meeting that he was going to
report Plaintiff's alleged theft to the Sheriff. (Id. at ¶ 71). Sometime thereafter, Plaintiff
received a telephone call from Detective TJ Guitler. (Id. at ¶ 78). He asked Plaintiff
questions about Defendant's allegedly missing artifacts. (Doc. #9 at ¶ 78). Plaintiff
responded that she used to work for Defendant and discussed the September 21, 2012
letter. (Id. at ¶ 79).
4
According to Plaintiff, Defendant expected her to help locate the missing artifacts
on her own time and free of charge.
(Id. at ¶ 80).
Because Defendant allegedly
threatened her with a legal action if she did not cooperate, Plaintiff hired an attorney. (Id.
at ¶¶ 80-81). Upon her attorney's advice, she wrote a five-page statement to Defendant,
detailing
her
last
known
whereabouts
of
the
missing
artifacts.
(Id.
at
¶¶ 82-83). Despite Plaintiff's cooperation, Defendant allegedly continued to repeat false
and negative reports about Plaintiff at public meetings and in the local newspaper. (Id. at
¶ 84).
In the end, Defendant found the allegedly missing artifacts, and Stewart
acknowledged so at a CELCAB meeting on March 28, 2013. (Doc. #9 at ¶¶ 75, 85, 97,
99).
However, neither Stewart nor Defendant apologized to Plaintiff for the false
accusations. (Id. at ¶ 75).
C. Defendant's alleged interference with Plaintiff's business relationships
After Plaintiff resigned in August 2011, she worked as an independent contractor.
(Id. at ¶ 86). Stewart and other employees of Defendant allegedly disparaged her to third
parties in an effort to ensure that she did not work in the community. (Id. at ¶ 87). For
instance, Defendant allegedly interfered with Plaintiff's assignment to serve as an
archaeological guide for a private boat tour group once it learned she was the selected
guide. (Id. at ¶ 88). Defendant advised the tour company that she was not permitted on
the public site and would have to lead the tour from the boat. (Id. at ¶ 89).
D. Plaintiff's charge of discrimination
On or about November 13, 2012, Plaintiff filed a charge of discrimination with the
Florida Commission on Human Relations ("FCHR"), which, in turn, was dual filed with the
5
United States Equal Employment Opportunity Commission ("EEOC"). (Doc. #9 at ¶¶ 7677; Doc. #25-1).3 On July 25, 2013, the FCHR found no reasonable cause that Defendant
committed an unlawful employment practice. (Doc. #25-2). The EEOC adopted the
FCHR's no-cause finding and notified Plaintiff of her right to sue in federal or state court.
(Doc. #1-1).
Plaintiff timely commenced this action on December 9, 2013. (Doc. #1). She
alleges Defendant discriminated against her based on her sex (female) and religion (nonChristian) and retaliated against her in violation of Title VII of the Civil Rights Act of 1964
("Title VII") and the Florida Human Rights Act ("FHRA"). (Doc. #9). She also contends
that Defendant defamed her and interfered with an advantageous business relationship
in violation of Florida law.
(Id.).
Defendant now moves to dismiss the Amended
Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. #25).
STANDARD OF REVIEW
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the [p]laintiff's
[c]omplaint to determine whether it sets forth sufficient allegations to establish a claim for
relief." House v. Bankers Ins. Co., 43 F. Supp. 2d 1329, 1330 (M.D. Fla. 1999). The
Supreme Court has stated, "[t]o survive a motion to dismiss, a [c]omplaint must contain
3 To
support its Motion to Dismiss, Defendant attached Plaintiff's FCHR Charge of Discrimination (Doc. #251) and the FCHR's Determination letter (Doc. #25-2). Although not attached to the Complaint, the Court
may still consider the FCHR documents without converting the instant Motion to Dismiss (Doc. #25) into a
motion for summary judgment. Under the incorporation by reference doctrine, a court may "consider a
document attached to the pleadings or to a motion to dismiss without converting a Rule 12(b)(6) motion
into a motion for summary judgment if the document is central to the claim and its authenticity is not
challenged." Hearn v. Int'l Bus. Machines, No. 8:13-CV-827-T-30EAJ, 2013 WL 5499610, at *3 (M.D. Fla.
Oct. 1, 2013) (citing Horsley v. Feldt, 304 F.3d 1125, 1134-35 (11th Cir. 2002)). Here, the FCHR documents
are central to Plaintiff's claims because they are a condition precedent to this suit, and the parties do not
dispute their authenticity. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Accordingly, the Court
will consider the FCHR documents when deciding Defendant's Motion to Dismiss.
6
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. The issue in resolving such a motion is not whether the nonmovant will ultimately prevail, but whether the non-movant is entitled to offer evidence to
support his or her claims. Id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. Legal conclusions couched as
factual allegations are not sufficient, nor are unwarranted inferences, unreasonable
conclusions, or arguments. See Twombly, 550 U.S. at 555. Moreover, the plaintiff does
not have to show a likelihood of success; rather, the complaint must merely allege directly or indirectly - each element of a "viable legal theory." Id. at 562-63.
DISCUSSION
A. Discrimination and retaliation claims (Counts One to Three)
Defendant moves to dismiss the Title VII and FCRA discrimination and retaliation
counts on the following grounds: (1) the Title VII claims are time-barred under the 300day statutory period to bring an administrative charge of discrimination; and (2) Plaintiff's
failure to follow Florida's administrative review scheme after the FCHR issued the no-
7
cause determination bars the FCRA claims. (Doc. #25 at 1-2). The Court will address
each argument in turn.
1. Title VII
Before commencing a Title VII action in federal court, a plaintiff in a deferral state
like Florida must file an administrative charge of discrimination within 300 days of the last
discriminatory act. See 42 U.S.C. § 2000e-5; E.E.O.C. v. Joe's Stone Crabs, Inc., 296
F.3d 1265, 1271 (11th Cir. 2002). Alternatively, a plaintiff may file an administrative
complaint with the FCHR within 365 days after the purported discriminatory act. See Fla.
Stat. § 760.11(1). Either way, a plaintiff cannot recover for discrete acts of discrimination
and retaliation that occur outside the applicable statutory period.
See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). "[D]iscrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in timely filed
charges. Each discrete discriminatory act starts a new clock for filing charges alleging
that act." Id. at 113. Discrete acts "are easy to identify" and include "termination, failure
to promote, denial of transfer, or refusal to hire." Id. at 114.
The continuing violation doctrine offers an exception to this limitation period and
allows a plaintiff to sue on otherwise time-barred claims where at least one violation
occurred within the period. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1221
(11th Cir. 2001).
"In determining whether a discriminatory employment practice
constitutes a continuing violation, '[the court]' must distinguish between the present
consequence of a one-time violation, which does not extend the limitations period, and
the continuation of the violation into the present, which does." Joe's Stone Crabs, 296
F.3d at 1271 (citation omitted). "[A] plaintiff may not circumvent the limitations period
8
merely by labeling an act a 'continuing' violation. Completed acts such as a termination
. . . are not acts of a 'continuing' nature. Rather, a plaintiff must maintain that a pattern of
discrimination or an employment practice presently exists to perpetuate the alleged
wrong." Jacobs v. Bd. of Regents, 473 F. Supp. 663, 669 (S.D. Fla. 1979) (citation and
internal quotation marks omitted). The continuing violation "doctrine does not apply to
discrete acts of discrimination, such as a promotion denial or refusal to hire." Brooks v.
CSX Transp., Inc., No. 13-12048, 2014 WL 480382, at *2 (11th Cir. Feb. 7, 2014) (citing
Morgan, 536 U.S. at 114).
Here, Plaintiff filed her discrimination charge on November 16, 2012. 4 (Doc. #251 at 1). Consequently, all discrete discriminatory and retaliatory acts that occurred before
January 21, 2012, for Title VII purposes, and November 17, 2011, for FCHR purposes
are not actionable and outside the scope of this case. This means, for example, that
Plaintiff's allegations that Defendant demoted her on January 28, 2011, and constructively
discharge her on August 31, 2011, are untimely. See Joe's Stone Crabs, 296 F.3d at
1271; Thompson v. Orange Lake Country Club, Inc., 224 F. Supp. 2d 1368, 1374 (M.D.
Fla. 2002) ("The timely filing of a charge of discrimination is a prerequisite to bringing a
private suit under Title VII." (citations omitted)).
As best the Court can discern, Plaintiff turns to the continuing violation doctrine to
salvage the otherwise untimely Title VII claims. She argues Defendant engaged in
4
In opposing the instant Motion to Dismiss, Plaintiff states she filed her discrimination charge on September
10, 2012. (Doc. #26 at 6). Plaintiff's statement is cause for concern. She signed and dated the FCHR
discrimination charge on November 13, 2012, and the FCHR date stamped the charge as received on
November 16, 2012. (Doc. #25-1). She also represents in the Amended Complaint that she "filed
discrimination charge on November 13, 2012." (Doc. #9 at ¶ 77). As such, the Court trusts that the
September 10, 2012 date is a typographical error, and not a calculated effort to mask the Title VII claims'
patent untimeliness.
9
several retaliatory acts in 2012 that occurred 300 days after she filed the discrimination
charge. (Doc. #26 at 11-12). Such acts include (1) Defendant accusing Plaintiff of
stealing archaeological items in the September 21, 2012 letter; (2) the letter being read
at the public meeting on September 27, 2012; and (3) Stewart announcing at the public
meeting on October 15, 2012, that he was reporting Plaintiff's alleged theft to the Sheriff.
(Id.). Plaintiff's argument misses twice. First, the alleged retaliatory acts occurred in
2012, more than one year after Plaintiff ended her employment relationship with
Defendant. Plaintiff simply ignores the obvious requirement that one must have an
employment relationship with the accused to maintain claims of workplace discrimination.
Second, Plaintiff cannot dodge the 300-day limitations period by merely stating the
continuing violation doctrine "allows a plaintiff like Ms. Schober to sue on otherwise timebarred claims where at least one violation occurred within the time period." (Id. at 12).
She does not claim, as required, that Defendant engaged in a pattern of retaliation or had
an employment practice that perpetuated the alleged wrong. See Jacobs, 473 F. Supp.
at 669. She needs more than "some specificity" that this a continuing violation case in
order to rescue her otherwise time-barred discriminatory or retaliatory allegations. (Doc.
#26 at 13).
Moreover, Plaintiff avers that under 42 U.S.C. § 2000e-5(g), she "may recover
monetary damages for adverse employment effects suffered retroactively up to and
including two years prior to the date her charge was filed." (Doc. #26 at 13). Plaintiff's
reliance on 42 U.S.C. § 2000e-5(g)(1) is woefully inadequate and misplaced. Under
§ 2000e-5(g)(1), a court may order a successful Title VII plaintiff to be reinstated with or
without back pay; and any "[b]ack pay liability shall not accrue from a date more than two
10
years prior to the filing of a charge with the [EEOC]." 42 U.S.C. § 2000e-5(g)(1). The
Court is aware of no precedent, and Plaintiff points to none in her papers, in which
§ 2000e-5(g)(1)'s back pay recovery language allows for a retroactive application of the
300-day limitations period discussed above.
Simply put, the Court can make no
reasonable sense of Plaintiff's argument.
For the reasons explained above, the Court dismisses the Title VII claims with
prejudice.
2. FCRA
Next, Defendant moves to dismiss Plaintiff's FCRA claims because she failed to
pursue an administrative appeal after the FCHR issued its no-cause determination. (Doc.
#25 at 3-5). To maintain a civil action under the FCRA, a plaintiff must first file an
administrative complaint with the FHR within 365 days of the alleged violation. See Fla.
Stat. § 760.11(1). If the FCHR makes a "no cause determination," a claimant must
request an administrative hearing within thirty-five (35) days. See Fla. Stat. § 760.11(7).
A claimant's failure "to request an administrative hearing within 35 days of the 'no cause'
determination bars the complainant from bringing a civil suit for discrimination or
retaliation under the FCRA." Miller v. Fla. Hosp. Waterman, No. 5:13-cv-249, 2013 WL
5566063, at *3 (M.D. Fla. Oct. 8, 2013) (citations omitted); see also Woodham v. Blue
Cross and Blue Shield of Fla., Inc., 829 So.2d 891, 895 (Fla. 2002) ("[T]he FCRA differs
from Title VII, its federal counterpart, in that a 'no cause' determination precludes a civil
suit under the FCRA but not under Title VII.").
Here, the FCHR issued its no-cause determination on July 13, 2013, and Plaintiff
did not request an administrative hearing within thirty-five (35) days as required. (Doc.
11
#25-2). Since Plaintiff did not pursue her only avenue of relief, the FCHR's no cause
determination stands and she is barred from bringing the FCRA claims in this action. See
Fla. Stat. § 760.11(7) (stating if a claimant "does not request an administrative hearing
within the 35 days, the claim will be barred"); Ayers v. Wal–Mart Stores, Inc., 941 F. Supp.
1163, 1167 (M.D. Fla. 1996) ("[F]ailure to pursue administrative remedies after a ‘no
reasonable cause’ dismissal by the FCHR bars any court action for relief."). Thus, the
Court dismisses the FCRA claims with prejudice.
In conclusion, the Court grants Defendant's Motion to Dismiss (Doc. #25) with
prejudice as to Plaintiff’s sex discrimination (Count One), religious discrimination (Count
Two), and retaliation (Count Three) claims.
B.
Defamation and tortious interference with an advantageous business
relationship (Counts Four and Five)
Next, Defendant argues the Court should dismiss the state law claims for
defamation (Count Four) and tortious interference with an advantageous business
relationship (Count Five) because it is absolutely immune from such claims under Florida
law. (Doc. #25 at 5).
In Florida, "executive officials of government are absolutely privileged as to
defamatory publications made in connection with the performance of the duties and
responsibilities of their office[.]" McNayr v. Kelly, 184 So.2d 428, 433 (Fla. 1966). The
privilege attaches to all statements "however false or malicious or badly motivated the
statement may be." Hauser v. Urchisin, 231 So.2d 6, 8 (Fla. 1970). Pertinent here, "[i]f
a city official has absolute immunity against claims for defamation, then the city cannot
be liable for defamation where the liability against the City is premised on respondeat
superior." Medina v. City of Hialeah, No. 02-20957-CIV, 2003 WL 1562281, at *2 (S.D.
12
Fla. Mar. 24, 2003) (citation omitted); see also Murphy v. City of Aventura, No. 08-20603CIV, 2008 WL 4540055, at *5 n.3 (S.D. Fla. Oct. 10, 2008) (stating the city would not be
liable for defamation if the defendant city manager was found to possess absolute
immunity (citation omitted)); Saxon v. Knowles, 185 So.2d 194, 196 (Fla. 4th DCA 1966)
("The alleged liability of the city is based solely on the doctrine of respondeat superior.
Exoneration of the city manager necessarily requires the exoneration of his employer, the
City of Sanford." (citation omitted)).
Defendant declares, without explanation, that it enjoys an absolute privilege to the
defamation claim under the above principles. (Doc. #25 at 5). Defendant, however,
overlooks the basic principle that executive officials enjoy the absolute privilege. See
e.g., City of Miami v. Wardlow, 403 So.2d 414, 416 (Fla. 1981) (finding that a police officer
enjoyed an absolute privilege in making slanderous statements about plaintiff to a police
captain in another city); Densmore v. City of Boca Raton, 368 So.2d 945, 948 (Fla. 4th
DCA 1979) (finding a city manager enjoyed an absolute privilege in disclosing his reasons
for discharging the plaintiff). This oversight is important because Plaintiff sues only
Defendant, a municipal corporation, rather than an executive official.
As it stands,
Defendant's absolute privilege hinges on whether the executive official who allegedly
defamed Plaintiff acted within the orbit of his employment duties and responsibilities.
Defendant offers no argument on this point, and the Court declines to devise arguments
on its behalf.
Adding confusion to the matter, Plaintiff wholly mistakes Defendant's absolute
privilege argument. Instead of arguing that Defendant has no absolute privilege under
McNayr and its progeny, she contends that Defendant has no sovereign immunity from
13
vicarious liability for its employee's tortious acts under Florida Statute § 768.28(9)(a).5
Plaintiff's contention is grossly misplaced as Defendant does not move to dismiss the tort
claims under § 768.28(9)(a). Plaintiff's mistaken reading of Defendant's argument is
further problematic because a municipality's immunity under § 768.28(9)(a) is separate
and distinct from its absolute privilege under McNayr. In short, Plaintiff inexplicably
misses the mark in responding to Defendant's arguments.
Finally, the subpar briefing with respect to the tort claims has greatly frustrated the
Court’s analysis. Defendant simply declared that it is absolutely immune from liability for
defamation and tortious interference without offering meaningful analysis and application
to the facts as alleged. Indeed, Defendant failed to cite a single case standing for this
blanket proposition. Plaintiff's argument, in turn, was completely non-responsive. For
reasons unknown, Plaintiff also went to great lengths to argue she sufficiently pled
plausible facts to establish Defendant's liability and that the Amended Complaint complies
with Rule 8 of the Federal Rules of Civil Procedure. This effort was unnecessary (and
undoubtedly wasteful) in the face of Defendant's decision to move to dismiss on
procedural grounds.
Because the Court cannot decide on the face of the Amended Complaint and the
parties' arguments whether the tort claims (Counts Three and Four) can in fact proceed,
the Court requests supplemental briefing on the following issues: (1) whether the
5
Generally, Florida law permits a plaintiff to recover against a municipality for the tortious acts of its
employees based on a theory of vicarious liability. See Fla. Stat. § 768.28 (governing the State of Florida
and its subdivision's waiver of sovereign immunity from tort liability); Laster v. City of Tampa Police Dep't,
575 F. App'x 869, 872 (11th Cir. 2014) (citations omitted). To prevail on a theory of vicarious liability against
a municipality under Florida Statute § 768.28, a plaintiff must show liability on the part of the municipality's
employee. See Laster, 575 F. App'x at 873. A municipality, however, is not liable for an employee's act or
omission committed with a malicious purpose. See Fla. Stat. § 768.28(9)(a).
14
executive official(s) who allegedly defamed Plaintiff are acted in connection with the
official's employment duties and responsibilities such that Defendant enjoys absolute
privilege under McNayr and its progeny where; and (2) whether Defendant is immune
under Florida Statute § 768.28.
Accordingly, it is now
ORDERED:
(1) Defendant Town of Fort Myers Beach, Florida's Motion to Dismiss Amended
Complaint with Prejudice (Doc. #25) is GRANTED in part and DENIED in part.
a. Counts One, Two, and Three of the Amended Complaint are
DISMISSED with prejudice.
b. As to Counts Four and Five, Defendant is DIRECTED to submit a
supplemental brief of no more than five (5) pages on the issues noted
above on or before December 1, 2014. Plaintiff may file a response on
or before December 8, 2014 of no more than five (5) pages.
DONE and ORDERED in Fort Myers, Florida on this 17th day of November, 2014.
Copies: All Parties of Record
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