Powell v. Fravel et al

Filing 52

ORDER denying as moot 43 motion to dismiss; granting in part and denying in part 47 motion to dismiss. This action is REMANDED to the Circuit Court of the Ninth Judicial CircuitCourt, in and for Orange County, Florida. Signed by Judge Roy B. Dalton, Jr. on 2/14/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DONALD W. POWELL, JR.,
Plaintiff,
v.

Case No. 6:16-cv-1630-Orl-37DCI

BROOKE FRAVEL; JEANNE FRAVEL;
MICHAEL JAKUBISIN; LAKE
HIGHLAND PREPARATORY SCHOOL,
INC.; LAKE HIGHLAND
PREPARATORY SCHOOL
FOUNDATION, INC.; and TIMOTHY P.
WALKER,
Defendants.
ORDER
This cause is before on the following matters:
1.

Defendant Brooke Fravel’s Motion to Dismiss Count Four of the Amended
Complaint (Doc. 43), filed December 8, 2016;

2.

Defendant Timothy P. Walker’s Motion to Dismiss Counts XXI and XXII of
the First Amended Complaint (Doc. 47), filed December 15, 2016; and

3.

[Donald W. Powell, Jr.’s] Response in Opposition to Defendant Timothy P.
Walker’s Motion to Dismiss Complaint (Doc. 50), filed January 5, 2107.
BACKGROUND1

On August 12, 2016, Donald W. Powell, Jr. (“Plaintiff”) initiated a lawsuit in the
Circuit Court of the Ninth Judicial Circuit Court, in and for Orange County, Florida against

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These facts are taken from the Complaint, the allegations of which the Court must
accept as true when considering a motion to dismiss. See Linder v. Portocarrero,
963 F.2d 332, 334 (11th Cir. 1992).

Defendants—Brooke Fravel (“Student”), Jean Fravel (“Parent”), Michael Jakubisin
(“Jakubisin”), Lake Highland Preparatory School, Inc. (“LHPS”), Lake Highland
Preparatory School Foundation, Inc. (“LHPAF”), and Timothy P. Walker (“Officer
Walker”)—based on a series of events that occurred after Student falsely accused
Plaintiff of repeated sexual assaults. (Doc. 2 (“Complaint”).) On September 19, 2016,
Defendants removed the action to this Court based on federal question jurisdiction.
(Doc. 1.) Soon thereafter, Officer Walker moved for, and the Court granted, dismissal of
all claims against him. (See Docs. 3, 39.) The Court granted Plaintiff leave to file an
Amended Complaint. (Doc. 39.)
In an Amended Complaint (Doc. 41), Plaintiff asserts twenty-two claims against
Defendants, including a federal claim pursuant to 42 U.S.C. § 1983 against Officer Walker
for “denial of due process” (Count XXII). (Id. ¶¶ 182–191.) The remainder of the claims
are brought under state law, including: (1) four defamation claims and a malicious
prosecution claim against Student (Counts I, II, III, IV, & XIX); (2) two defamation claims
and a malicious prosecution claim against Parent (Counts V, VI, & XX); (3) four
defamation claims against Jakubisin (Counts VII, X, XIII & XVI); (4) four defamation
claims against LHPS (Counts VIII, XI, XIV, XVII); (5) four defamation claims against
LHPSF (Counts IX, XII, XV, XVIII); and (6) a malicious prosecution claim against Officer
Walker (Count XXI). (See id. ¶¶ 34–181.)
Student moves to dismiss Count IV (see Doc. 43), and Officer Walker moves to
dismiss Counts XXI and XXII (see Doc. 47). Plaintiff has only responded to Officer
Walker’s motion, and the time to respond to Student’s motion has passed. Therefore,
these matters are now ripe for adjudication.

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STANDARDS
Federal Rule of Civil Procedure 8(a)(2) requires a claimant to plead “a short and
plain statement of the claim showing that the pleader is entitled to relief.” A complaint
does not need detailed factual allegations; however, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief 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, 545 (2007) (alterations and internal quotation marks
omitted). When a complaint is challenged under Rule 12(b)(6), a court accepts as
true all well- pleaded factual allegations and disregards unsupported conclusions of law.
See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. at 678.
DISCUSSION
In response to Officer Walker’s motion, Plaintiff concedes the dismissal of Count
XXII—the only claim upon which the subject matter jurisdiction of the Court rests.
Specifically, Plaintiff states that he has no “cause of action under 42 U.S.C. § 1983 for a
claim of due process.” (See Doc. 50, ¶ 28.) In light of Plaintiff’s concession, Count XXII is
due to be dismissed. See Darnell v. Rivera, No. 6:15-cv-999-ORL-37TBS,
2016 WL 309050, at *3 (M.D. Fla. Jan. 26, 2016) (dismissing two federal claims where
the plaintiff conceded to dismissal).
Having dismissed Count XXII, the Court now lacks original jurisdiction over this
action. The Court therefore declines to exercise supplemental jurisdiction over Plaintiffs’
remaining state law claims, which will be remanded to state court. See 28 U.S.C.

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§ 1367(c)(3).
CONCLUSION
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that:
1.

Defendant Timothy P. Walker’s Motion to Dismiss Counts XXI and XXII of
the First Amended Complaint (Doc. 47) is GRANTED IN PART.

2.

Count XII is DISMISSED WITH PREJUDICE.

3.

In all other respects, Defendant Timothy P. Walker’s motion is DENIED AS
MOOT.

4.

Defendant Brooke Fravel’s Motion to Dismiss Count Four of the Amended
Complaint (Doc. 43) is DENIED AS MOOT.

5.

The Court declines to exercise supplemental jurisdiction over Plaintiffs’
state law claims. Thus, Counts I through XXI are DISMISSED WITHOUT
PREJUDICE.

6.

This action is REMANDED to the Circuit Court of the Ninth Judicial Circuit
Court, in and for Orange County, Florida

7.

The Clerk is directed to close this case.

DONE AND ORDERED in Chambers in Orlando, Florida, on February 14, 2017.

Copies:
Counsel of Record

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