Allison v. Parise et al

Filing 30

ORDER denying as moot 3 motion to dismiss; granting 12 motion to dismiss; granting 15 motion to dismiss; denying as moot 15 Motion for More Definite Statement; granting 18 Motion to Set Aside Judgment; granting 18 motion to amend/correct. See Order for details. Plaintiff shall file an amended complaint within fourteen days. Signed by Judge Elizabeth A. Kovachevich on 3/8/2013. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

ANN M. ALLISON,

TAMPA DIVISION

Plaintiff,
CASE NO. 8:12-CV-1313-T-17EAJ

v.

DOMINIQUE PARISE, etal
Defendants.

ORDER
This cause is before the Court on:

Dkt.

3

Dkt. 12
Dkt. 15
Dkt. 18

Dkt. 24
Dkt. 26

Amended Motion to Dismiss (Parise)
Motion to Dismiss (Parise)
Amended Motion to Dismiss,

Motion for More Definite Statement (Albano, Lopez, City)
Motion to Set Aside Judgment Denying
Motion to Dismiss Third Amended Complaint,
Motion to Amend or Correct Motion to Dismiss (Parise)
Response
Response

This case was removed on June 12, 2012 from Hillsborough County Circuit
Court.

Plaintiff Ann M. Allison has filed a Third Amended Complaint against Defendants

Dominique Parise, Joseph Parise, Detective Lopez and Chief Albano, in their official
and individual capacities, and the City of Temple Terrace, FL. The Third Amended
Complaint (Dkt. 2) includes the following:

Count I
Count II
Count III

Defamation - Libel
Defamation - Slander
Defamation - Libel

Count IV

Defamation - Slander

Count V

Civil Conspiracy

Dominique Parise
Dominique Parise
Joseph Parise
Joseph Parise
D. Parise, J. Parise, Lopez, Albano

Case No. 8:12-CV-1313-T-17EAJ

Count VI

Tortious Interference with

Count VII

Intentional Infliction of

Business Relationship

D. Parise, J. Parise, Lopez

Emotional Distress
Count VIII

D. Parise, J. Parise, Lopez, Albano

False Arrest &

Imprisonment

Count IX
Count X

D. Parise, J. Parise,

Lopez, Albano, City of
Temple Terrace
D. Parise, J. Parise, Lopez,
Albano, City

Malicious Prosecution

Claim for Unconstitutional

Custom or Policy Due
Process Violation/Failure

To Reasonably Investigate

Lopez,
Albano, City

(Sec. 1983)
Count XI

Sec. 1983 Failure to Train

Lopez, Albano, City

And Supervise

I. Dkt. 18

Motion to Set Aside Judgment Denying Motion to Dismiss Third Amended
Complaint; Motion to Amend Motion to Dismiss

Defendants Dominique and Joseph Parise move to set aside the Order Denying
Motion to Dismiss entered in Hillsborough County Circuit Court because Defendants did
not become aware of the Order until August 17, 2012. Defendants argue that

Defendants will be severely prejudiced because if Defendants had received the Court's
Order, Defendants would have moved for reconsideration. The Court notes that a

hearing on Defendants' Motion to Dismiss Third Amended Complaint (Dkt. 3) was
conducted on May 23, 2012. The Hillsborough County Circuit Court entered an order

denying the Motion to Dismiss on June 20, 2012. This case was removed on June 12,
2012.

Defendants also seek leave to file an Amended Motion to Dismiss; Defendants

filed Defendants' Motion to Dismiss Third Amended Complaint (Dkt. 12) on August 7,
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Case No. 8:12-CV-1313-T-17EAJ
2012.

Plaintiff Allison objects to both Motions.

The Court does not know the basis for the denial of Defendants' Amended
Motion to Dismiss in State Court. The Court believes that the Court's consideration of

Defendants' Motion to Dismiss (Dkt. 12) will assist the Court in the adjudication of this
multi-Count, multi-Defendant case by. For this reason, and in order to avoid prejudice
to Defendants, the Court will determine Defendants' Motion to Dismiss (Dkt. 12), and

grants leave to Defendants to file the Motion.
After consideration the Court denies the Amended Motion to Dismiss (Dkt. 3) as

moot; the Court grants the Motion to Set Aside Judgment (Dkt. 18), and grants leave
to Defendants to file the Motion to Dismiss (Dkt. 12).

II. Dkt. 12

Motion to Dismiss

A. Standard of Review

1.

Fed. R. Civ. P. 12(b)(6)

"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." "[Djetailed
factual allegations" are not required, Bell Atlantic v. Twomblv. 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to

relief that is plausible on its face," id,, at 570. Aclaim 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,, at 556. Two working principles
underlie Twomblv. First, the tenet that a court must accept a complaint's allegations as

true is inapplicable to threadbare recitals of a cause of action's elements, supported by

Case No. 8:12-CV-1313-T-17EAJ

mere conclusory statements, id,, at 555. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. ig\, at 556. A court considering a motion to dismiss

may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's

framework, they must be supported by factual allegations. 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. See Ashcroft v.

Iqbal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv. 550 U.S. 544
(2007).

2. Consideration of Exhibits Attached to Complaint

The Court limits its consideration to well-pleaded factual allegations, documents

central to or referenced in the complaint, and matters judicially noticed. La Grasta v.
First Union Sec. Inc.. 358 F.3d 840, 845 (11th Cir. 2004). The Court may consider

documents which are central to plaintiffs claim whose authenticity is not challenged,
whether the document is physically attached to the complaint or not, without converting
the motion into one for summary judgment. Speaker v. U.S. Deot of Health and
Human Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1379

(11th Cir. 2010); SFM Holdings. Ltd. v. Banc of America Securities. LLC. 600 F.3d
1334, 1337 (11th Cir. 2010): Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005);
Maxcess. Inc. v. Lucent Techs.. Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir. 2005).

B.

1.

Discussion

Counts I, II, III, IV

Case No. 8:12-CV-1313-T-17EAJ

Florida law provides a qualified privilege negating a claim for defamation where
the speaker acts in good faith, with an interest to be upheld, through a statement limited
in scope to a specific purpose and published on a proper occasion and manner.
Gunder's Auto Center v. State Farm Mut. Auto Ins. Co.. 422 Fed. Appx. 819, 821-22

(11th Cir. 2011). To overcome qualified immunity, the pleading must allege facts
showing "express malice." Express malice is "ill will, hostility and an evil intention to
defame and injure." Lewis v. Evans, 406 So.2d 489, 492 (Fla. 2d DCA 1981). Express
malice cannot be inferred from the fact that some statements are untrue. Dembv v.

English, 667 So.2d 350, 353 (Fla. 1sl DCA 1995). A conclusory allegation unsupported

by factual allegations that statements were made maliciously is not an allegation of
express malice. The question ofwhether qualified immunity attaches is a question of
law. Shawv. R.J. Reynolds. 818 F.Supp. 1539, 1542 (M.D. Fla. 1993).
In Nodarv. Galbreath. 462 So.2d 803, 809 (Fla. 1984), the Florida Supreme
Court held:

A communication made in good faith on any subject matter

by one having an interest therein, or in reference to which he
has a duty, is privileged if made to a person having a
corresponding interest or duty, even though it contains
matter which would otherwise be actionable.

Reporting to law enforcement raises the presumption of a qualified privilege. See
Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1995). The allegations of publication involve

only making reports to law enforcement, and a complaint filed with the Florida Bar.
Complaints made to the Florida Bar are confidential.
Counts I, II, III and IV do not allege publication to the general public. After

consideration, the Court grants the Motion to Dismiss as to Counts I, II, III and IV.

Case No. 8:12-CV-1313-T-17EAJ
2. Count V

A civil conspiracy requires: (a) an agreement between two or more parties; (b) to
do an unlawful act or to do a lawful act by unlawful means; (c) the doing of some overt

act in pursuance of the conspiracy; and (d) damage to the plaintiff as a result of the
acts done under the conspiracy. Raimi v. Furlong. 702 So.2d 1273, 1284 (Fla. 3d DCA

1997). An actionable conspiracy claim requires an actionable underlying tort or wrong.
Wright v. Yurko. 446 So.2d 1162, 1164 (Fla. 5,h DCA 1984).
A Section 1983 conspiracy requires: 1) a violation of Plaintiff's federal rights; 2)

an agreement among the Defendants to violate such a right; and 3) an actionable
wrong. ASection 1983 civil conspiracy claim must be pled with particularity. Fullman v.
Graddick. 739 F.2d 553, 556-7 (11,h Cir. 1984).

After consideration, the Court grants the Motion to Dismiss, with leave to amend
to allege the conspiracy claim with particularity.
3. Count VI

Tortious interference with a business relationship requires: (1) the existence of a

business relationship; (2) knowledge of the relationship on the part of the defendant; (3)
an intentional and unjustified interference with the relationship by the defendant; and (4)

damages to the plaintiff as a result of the breach of the relationship. Chicago Title Ins.
Co. v. Aldav-Donelson Title Co. of Florida. Inc., 832 So.2d 810, 814 (Fla. 2d DCA 2002)

(citing Tamiami Trail Tours. Inc. v. Cotton. 463 So.2d 1126, 1127 (Fla. 1985)).
After consideration, the Court grants the Motion to Dismiss, with leave to amend

the Complaint to allege facts which explain Defendants' knowledge of the business
relationship.

4. Count VII

Case No. 8:12-CV-1313-T-17EAJ

Defendants argue that the Third Amended Complaint does not allege outrageous
conduct as required under Florida. Geidel v. City of Bradenton Beach. 56 F.Supp.2d
1359, 1368 (M.D. Fla. June 1999).

After consideration, the Court grants Defendants' Motion to Dismiss, with leave

to amend the Complaint to meet the requirements of Florida law.

5. Count VIM

The Court notes that the attachments to the Complaint establish that the Temple

Terrace Police Department provided a report to the State Attorney's Office. The report
indicates that the State Attorney's Office will "direct file." The Court takes judicial notice

of court records (Case No. 08-CF-006887) which indicate that an Information was filed
on April 7, 2008, after which a capias was issued and served. Defendants did not
arrest Plaintiff.

After consideration, the Court grants Defendants' Motion to Dismiss.
6. Count IX

As stated above, the Temple Terrace Police Department provided a report to the

State Attorney's Office, who investigated and filed an Information, after which a capias
was issued and served. A malicious prosecution claim cannot succeed where the

alleged tortfeasor does not make the decision to prosecute. In this case, the State
Attorney's Office made that decision. Burns v. GCC Beverages. Inc., 522 So.2d 1217,
1221 (Fla. 1986).

After consideration, the Court grants Defendants' Motion to Dismiss.
III. Dkt. 15

Motion to Dismiss

Case No. 8:12-CV-1313-T-17EAJ

1. Lopez, Albano - Official Capacity
Plaintiff Allison agrees that the claims asserted against the individual officers in
their official capacity may be dismissed.

After consideration, the Court grants the Motion to Dismiss as to Defendants

Lopez and Albano in their official capacity.

2. City of Temple Terrace - Official Capacity
Under Florida Statute 768.28(9)(a), the City of Temple Terrace cannot be sued
for the willful and/or malicious conduct of its employees.

Defendant City moves to

dismiss for acts of employees done in their official capacity as to the following:
Count V
Count VI
Count VII
Count VIII
Count IX

Civil Conspiracy
Tortious Interference with Business Relationship
Intentional Infliction of Emotional Distress
False Arrest and False Imprisonment
Malicious Prosecution

To the extent that the above Counts involve intentional acts, putting those acts

outside the scope of employment such that Defendants can be sued only in
Defendants' individual capacity, the Court grants the Motion to Dismiss.

3.

Count V

Defendants Lopez and Albano are named in their individual capacity.
After consideration, the Court grants the Motion to Dismiss, with leave to file an
amended complaint describe the conspiracy with particularity.

4. Count VI

Case No. 8:12-CV-1313-T-17EAJ

Defendant Lopez is named in his individual capacity.

After consideration, the Court grants the Motion to Dismiss, with leave to file an
amended complaint which explains the knowledge of Defendant Lopez at the relevant
time.

5. Count VII

Defendants Lopez and Albano are named in their individual capacity.
After consideration, the Court grants the Motion to Dismiss, with leave to file an

amended complaint which makes sufficient allegations of severity to meet the
requirements of Florida law.

5. Count VIII

Defendants Lopez, Abano and the City of Temple Terrace are named.
The Court notes that the Temple Terrace Policy Department turned its Report

over to the State Attorney's Office, who investigated and then filed an Information, after
which a capias was issued. Lopez and Albano did not arrest Plaintiff. The issuance of
a capias indicates that probable cause was present. The presence of probable cause
is a complete bar to a claim for false arrest and false imprisonment. Ortega v.
Christian. 85 F.3d 1521, 1525 (11* Cir. 1996).
After consideration, the Court grants the Motion to Dismiss.

6. Count IX

Case No. 8:12-CV-1313-T-17EAJ

Defendants Lopez, Albano and the City of Temple Terrace are named.

In this case, Plaintiff alleges a violation of Plaintiff's Fourth Amendment rights.

To sufficiently allege a federal malicious prosecution claim, a plaintiff must allege:

(1) the elements of the common law tort of malicious prosecution and (2) a violation of
[plaintiff's] Fourth Amendment right to be free from unreasonable seizures. Kingsland
v. City of Miami 382 F.3d 1220, 1234 (11th Cir.2004). In Florida, the elements of the

common law tort of malicious prosecution are: (1) an original judicial proceeding was

commenced against the plaintiff; (2) the defendant was the legal cause of the original
proceeding; (3) the termination of the original proceeding constituted a bona fide
termination of that proceeding in the plaintiff's favor; (4) there was an absence of

probable cause for the original proceeding; (5) the defendant had malice; and (6) the
plaintiff suffered damages as a result of the original proceeding, id. at 1235.
As noted above, the Report attached to the Third Amended Complaint shows
that Defendants turned over their report to the State Attorney's Office for investigation.
Defendants did not decide to prosecute Plaintiff. Plaintiff does not allege that

Defendants acted to improperly influence the decision of the State Attorney's Office.
Eubanksv.Gerwen.40F.3d 1157 (11th Cir. 1994).
After consideration, the Court grants the Motion to Dismiss.

7. Count X

Defendants Lopez, Albano and the City of Temple Terrace are named.
Defendants turned their report over to the State Attorney's Office, who
filed an Information. There are no allegations that Defendants acted to improperly
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Case No. 8:12-CV-1313-T-17EAJ

influence the decision of the State Attorney's Office.

Plaintiff has not alleged facts

sufficient to show the presence of an unconstitutional custom or policy.

After consideration, the Court grants the Motion to Dismiss, with leave to file an
amended complaint.

8. Count XI

Defendants Lopez, Albano and the City of Temple Terrace are named.

The substance of this claim involves allegations of failure to train and supervise.

The allegations of the Third Amended Complaint do not show how the alleged custom
and policy of the City was the moving force behind the alleged constitutional violation.
After consideration, the Court grants the Motion to Dismiss, with leave to file an
amended complaint. Accordingly, it is

ORDERED that:

1. The Motion to Dismiss (Dkt. 3) is denied as moot; the Motion to Set Aside

Judgment and for leave to file an Amended Motion to Dismiss (Dkt. 18) is granted;
2. The Motion to Dismiss of Defendants Dominique and Joseph Parise is

granted as to Counts I, II, III and IV; is granted, with leave to file an amended
complaint within fourteen days as to Count V; is granted, with leave to file an amended
complaint, as to Count VI; is granted, with leave to file an amended complaint, as to
Count VII; is granted as to Count VIII, and is granted as to Count IX.

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Case No. 8:12-CV-1313-T-17EAJ

3. The Motion to Dismiss of Defendants Lopez, Albano and City of Temple

Terrace is granted as to dismissal of Lopez and Albano in their official capacity; is

granted as to dismissal of City of Temple Terrace in its official capacity as to Counts V,
VI, VII, VIII and IX; is granted as to Count V, Lopez and Albano in their individual

capacity, with leave to file an amended complaint; is granted as to Count VI, Lopez in
his individual capacity; is granted as to Count VII, with leave to file an amended

complaint, Lopez and Albano in their individual capacity; is granted as to Count VIII; is
granted as to Count IX; is granted as to Count X, with leave to file an amended
complaint; is granted as to Count XI, with leave to file an amended complaint.
DONE and ORDERED in Chambers, in Tampa, Florida on this

^eCof March, 2013.
day

ELIZABETH^A.^KOVAeHE-ViC H

United States DistricTJudge

Copies to:
All parties and counsel of record

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