Bybee v. Knight et al
ORDER granting in part 5 --motion to dismiss; dismissing with prejudice Count VI; denying the remainder of Doc. 5 ; answer due 8/20/2015. Signed by Judge Steven D. Merryday on 8/5/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FRANK E. BYBEE,
CASE NO. 8:15-cv-1026-T-23MAP
TOM KNIGHT, et al.,
In late August 2014, non-parties vandalized Frank E. Bybee’s recreational
vehicle, which Bybee had parked at Conley RV, Inc. A local news channel
interviewed Bybee, a police officer, about the vandalism. Tom Knight, Sheriff of
Sarasota County, punished Bybee for the interview. In this action, Bybee sues
(Doc. 2) Knight, Conley RV, Roger Conley, and Jeffrey Conley. Conley RV, Roger
Conley, and Jeffrey Conley (collectively, the Conley defendants) move (Docs. 5, 6) to
dismiss Counts III, IV, V, and VI.
1. Count III
Count III is entitled “VIOLATIONS OF SECTION 112.532, FLORIDA
STATUTES (Defendant KNIGHT in his Official Capacity and the Conley
Defendants).” (Doc. 2 at 25) Section 112.532 contains approximately 1,700 words
and six sub-sections, each with further sub-sections.
The Conley defendants reasonably infer that Bybee alleges a claim under
Section 112.532(3), which grants Bybee “the right to bring civil suit against” a
Conley defendant “for filing [with Knight] a complaint against [Bybee] which the
[Conley defendant] knew was false when it was filed.” The Conley defendants argue
that Bybee fails to state a claim because “[t]here is no allegation in the Complaint
that says any Conley Defendant ‘filed’ a complaint against Plaintiff.” (Doc. 6 at 2)
The Conley defendants correctly note that Bybee failed to use the word “filed”; the
complaint alleges that Knight “received” a complaint from “one or more of the
Conley defendants.” (Doc. 2 at 29) But “[t]he Court will not dismiss an action
simply because Plaintiffs fail to use ‘magic words’ when the pleading is otherwise
sufficient.” Platinum Estates, Inc. v. TD Bank, N.A., 2012 WL 760791 (S.D. Fla.
Mar. 8, 2012) (Marra, J.).
Also, the Conley defendants argue that Bybee fails to state a claim because
“[t]here [i]s no allegation that any Conley Defendant filed or voiced a complaint that
they knew was false.” (Doc. 6 at 2) The Conley defendants correctly note that Bybee
fails to allege explicitly that the Conley defendants “knew [the complaint] was false.”
However, Bybee’s complaint alleges that the Conley defendants submitted a
“baseless and punitive” complaint to Knight in retaliation for Bybee’s “expos[ing]”
the Conley’s “business practices . . . on television.” (Doc. 2 at 30) “Dismissing the
complaint for the failure to choose the correct words, when the meaning of the
allegations [is] clear, would return us to the days of the common law forms of
pleading.” Smith v. Meese, 821 F.2d 1484, 1496 (11th Cir. 1987). Bybee’s meaning is
2. Count IV
Count IV alleges “tortious interference with an advantageous business
relationship” against the Conley defendants. (Doc. 2 at 31) To state a claim for
tortious interference with a business relationship, a plaintiff must allege “(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) damage to the plaintiff as a result of the breach of the
relationship.” Gossard v. Adia Servs., Inc., 723 So. 2d 182, 184 (Fla. 1998) (internal
quotation marks omitted).
The Conley defendants admit that “the Complaint generally recites all of the
essential elements” of a claim for tortious interference but assert, “The Complaint
does not contain any ultimate facts or specific allegations concerning the Conley
Defendants’ conduct that support Plaintiff’s bare and general allegations to any
degree.” (Doc. 6 at 3) The Conley defendants neither identify a specific missing
allegation nor cite legal authority. Further, a review of the complaint reveals that the
complaint complies with Rule 8(a)(2), Federal Rules of Civil Procedure, which
requires “a short and plain statement of the claim.”
Citing no particular page of Networkip, LLC v. Spread Enterprises, Inc., 922 So. 2d
355 (Fla. 3d DCA 2006), the Conley defendants assert that “the conduct of the
Conley Defendants, that was alleged in the Complaint, was privileged and justified as
it was undertaken to protect their own economic interests.” (Doc. 6 at 3) A
defendant may move to dismiss based on facts or law that present also an affirmative
defense, but “the applicability of the defense has to be clearly indicated and must
appear on the face of the pleading to be used as the basis for the motion.” Wright &
Miller, Federal Practice and Procedure, Vol. 5B, § 1357 (3d ed. 2015) (footnote omitted).
In the motion to dismiss, the Conley defendants assert a matter in the nature of an
affirmative defense (that is, a matter in avoidance of the claim) but identify no
allegations in the complaint that serve as a factual predicate on which to base the
defensive assertion. In other words, the Conley defendants fail to “clearly indicate”
that the applicability of the defense “appear[s] on the face of the” complaint.
3. Count V
Count V alleges civil conspiracy against each defendant. To state a claim for
civil conspiracy, a plaintiff must allege “(1) an agreement between two or more
parties; (2) to do an unlawful act or to do a lawful act by unlawful means; (3) the
doing of some overt act in pursuance of the conspiracy; and (4) damage to plaintiff as
a result of the acts done under the conspiracy.” Philip Morris USA, Inc. v. Russo,
___ So. 3d ___, 2015 WL 1472282, at *5 n.9 (Fla. Apr. 2, 2015).
The Conley defendants assert that the complaint “does not allege sufficient
ultimate facts to establish that the Conley Defendants participated in any concert of
action, any unlawful purpose or any lawful purpose by any unlawful means.”
(Doc. 6 at 3) Like before, the Conley defendants neither identify a specific missing
allegation nor cite legal authority; the complaint complies with Rule 8(a)(2), which
requires “a short and plain statement of the claim.”
Also, the Conley defendants assert that “the Complaint contains no factual
allegations whatsoever which demonstrate the Conley Defendants’ involvement in
any alleged conspiracy with any other Defendant.” (Doc. 6 at 3) However, a civil
conspiracy exists between “two or more parties,” which means “two or more
persons.” The Conley defendants are three persons (and, also, three parties to this
4. Count VI
Count VI alleges a claim under Section 448.045, Florida Statutes, which
“deem[s]” a person who commits an act described in the statute “guilty of a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.”
The Conley defendants argue that “the plain reading of F. S. 448.045 reveals that the
Florida Legislature did not intend to permit F. S. 448.045 to serve as a basis for a
private cause of action.” (Doc. 6 at 4) The defendants are correct; no private right of
action exists under Section 448.045. Irwin v. Miami-Dade Cnty. Pub. Sch., 2009 WL
497648, at *5 (S.D. Fla. Feb. 25, 2009) (Cooke, J.) (holding that “Fla. Stat. § 448.045
cannot be sued upon in a private cause of action” because the statute “provides for a
criminal punishment but . . . does not discuss civil remedies”), aff’d, 398 Fed.
Appx. 503 (11th Cir. 2010) (per curiam); Morrison v. Morgan Stanley Properties, 2007
WL 2316495, at *10 (S.D. Fla. Aug. 9, 2007) (Torres, J.) (same); see also Ochab v.
Morrison, Inc., 517 So. 2d 763, 764 (Fla. 2d DCA 1987) (“While the legislature has
provided criminal penalties for violation of [Section 562.50, Florida Statutes], it has
not provided civil remedies. We decline to act where the legislature has chosen not
to . . . .”).
The Conley defendants motion (Doc. 5) to dismiss is GRANTED IN PART.
Count VI is DISMISSED WITH PREJUDICE. The motion (Doc. 5) to dismiss is
otherwise DENIED. No later than AUGUST 20, 2015, the Conley defendants must
ORDERED in Tampa, Florida, on August 5, 2015.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?