Schober v. Town of Fort Myers Beach, Florida

Filing 36

ORDER re 34 Memorandum in support filed by Town of Fort Myers Beach, Florida. Defendant Town of Fort Myers Beach, Florida's Supplemental Memorandum Regarding Motion to Dismiss Counts IV and V of Plaintiff's Amended Complaint 34 is DENIED. Signed by Judge Sheri Polster Chappell on 1/12/2015. (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
Supplemental Memorandum Regarding Motion to Dismiss Counts IV and V of Plaintiff's
Amended Complaint (Doc. #34) filed on December 1, 2014. Plaintiff Theresa Schober
filed a Response to Motion to Dismiss Counts IV and V of Complaint, or In the Alternative
for Leave to Amend (Doc. #35) filed on December 8, 2014. This matter is ripe for review.
The facts underlying this case have been recited at length in an earlier Order (Doc.
#33) and need not be repeated in detail here. In brief, Plaintiff commenced this action
against Defendant, her former employer. (Doc. #1). She asserted, among other things,
that Defendant defamed her (Count Three) and interfered with an advantageous business
relationship (Count Four) in violation of Florida law.

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On August 18, 2014, Defendant moved to dismiss the Amended Complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. #25). Defendant argued that
the Court should dismiss Counts Three and Four because it was absolutely immune from
such claims under Florida law. The Court declined to rule on this defense because the
parties' briefs failed to present this issue in a coherent manner. (Doc. #33 at 12-15).
Accordingly, the Court directed supplemental briefing on the following questions: (1)
whether the executive official(s) who allegedly defamed Plaintiff acted in connection with
the official's employment duties such that Defendant enjoys absolute privilege under
McNayr v. Kelly, 184 So.2d 428, 433 (Fla. 1966) and its progeny; and (2) whether
Defendant is entitled to immunity under Florida Statute § 768.28. (Doc. #33 at 14-15).
On December 1, 2014, Defendant filed its supplemental response. (Doc. #34).
Although given the opportunity to present arguments on pointed issues the Court deemed
significant to rule on this matter, Defendant instead chose to recite the general law on
absolute and statutory immunity that the Court had already identified in its previous order.
(Id. at 2-4; Doc. #33 at 12-13). Defendant continues to baldly declare immunity for Counts
Three and Four without any meaningful analysis or application to the facts as alleged in
the Amended Complaint. As previously warned, the Court declines to devise arguments
on Defendant's behalf so that it can meet the standards of absolute and/or statutory
immunity.
Plaintiff filed her response on December 8, 2014, and it fares no better.2 Plaintiff
dedicates the first portion of her brief to arguing that she has sufficiently pled a prima facie

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In order to comply with the Court's five-page limit, Plaintiff formatted her supplemental response with
narrower margins, a smaller font size, and closer line spacing. (Doc. #36). This violates Middle District of
Florida Local Rule 1.05(a) and the Court's clear direction. In all future filings, Plaintiff must strictly comply

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case for defamation and tortious inference under Florida law. (Doc. #35 at 3-4). The
sufficiency of her allegations, however, is not at issue. Plaintiff then contends that
Defendant is not entitled to qualified immunity. (Id. at 4-5). This line of argument is
similarly misplaced because Defendant is not asserting qualified immunity. Qualified
immunity is separate and distinct from the absolute and statutory immunities on which the
Court asked for the supplemental briefing.
It was Defendant's burden to present the Court with the legal grounds to support
its immunity defense.

Having received nothing of substance from either party that

adequately addresses this issue, the Court will deny Defendant's Motion to Dismiss
Counts Three and Four of the Amended Complaint. Although the Court cannot resolve
the immunity issue at this stage of litigation, it expects that the parties will flesh out this
matter during discovery.
Accordingly, it is now
ORDERED:
Defendant Town of Fort Myers Beach, Florida's Supplemental Memorandum
Regarding Motion to Dismiss Counts IV and V of Plaintiff's Amended Complaint (Doc.
#34) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 9th day of January, 2015.

Copies: All Parties of Record

with the Court's Local Rules. Failure to do so will result in the Court striking non-conforming documents.

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