King et al v. Board of County Commissioners, Polk County, Florida et al
Filing
151
ORDER: Plaintiffs' Motion for Reconsideration (Doc. # 146 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 1/23/2018. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NANCY KING, THE OCCUPATIONAL
HEALTH CENTER, INC., and
WORK LOSS MANAGEMENT, INC.,
Plaintiffs,
v.
Case No. 8:16-cv-2651-T-33TBM
BOARD OF COUNTY COMMISSIONERS,
POLK COUNTY, FLORIDA, KANDIS
BAKER-BUFORD, individually,
LEA ANN THOMAS, individually,
and JIM FREEMAN, individually,
Defendants.
__
/
ORDER
This
matter
comes
before
the
Court
pursuant
to
Plaintiffs Nancy King, the Occupational Health Center, Inc.,
and Work Loss Management, Inc.’s Motion for Reconsideration
(Doc. # 146), filed on January 3, 2018. Defendants Board of
County Commissioners, Polk County, Jim Freeman, Kandis BakerBuford, and Lea Ann Thomas responded on January 23, 2018.
(Doc. # 150). For the reasons that follow, the Motion is
denied.
1
I.
Background
A detailed recitation of the facts of this case is
unnecessary at this time. Plaintiffs initiated this action on
September 15, 2016, asserting claims for First Amendment
retaliation and for violation of Florida’s Whistleblower Act
for public employees, Section 112.3187, Fla. Stat. (Doc. #
1). Subsequently, King filed her Second Amended Complaint
(Doc. # 43), and Defendants moved to dismiss. (Doc. ## 4851). The Court denied the motions and held that some of King’s
speech, specifically her speech “regarding the possibility of
reverse
discrimination
lawsuits
and
the
falsification
of
records by Mr. J,” was plausibly citizen speech on a matter
of public concern. (Doc. # 58 at 14-16).
Later, Defendants moved for summary judgment. (Doc. ##
103-106). After briefing, the Court granted the motions in
part by granting summary judgment on King’s First Amendment
retaliation claims but dismissing the state whistleblower
claims without prejudice. (Doc. # 138). Judgment was entered
on December 6, 2017. (Doc. # 140). Plaintiffs now move for
reconsideration
of
the
Court’s
summary
judgment
Order,
arguing that the Court erred in finding that King’s speech
was not protected by the First Amendment, that no genuine
question of material fact existed as to causation, and that,
2
alternatively, the individual Defendants were entitled to
qualified immunity. (Doc. # 146). Defendants have responded,
(Doc. # 150), and the Motion is ripe for review.
II.
Legal Standard
Under Federal Rule of Civil Procedure 59, “[a] motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e). “The
only
grounds
for
granting
a
Rule
59
motion
are
newly-
discovered evidence or manifest errors of law or fact.”
Anderson v. Fla. Dep’t of Envtl. Prot., 567 F. App’x 679, 680
(11th Cir. 2014)(quoting Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007)(quotation marks omitted)). Granting relief
under Rule 59(e) is “an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of
scarce judicial resources.” United States v. DeRochemont, No.
8:10-cr-287-T-24MAP, 2012 WL 13510, at *2 (M.D. Fla. Jan. 4,
2012)(citation omitted). Furthermore, “a Rule 59(e) motion
[cannot be used] to relitigate old matters, raise argument or
present evidence that could have been raised prior to the
entry
of
judgment.”
Michael
Linet,
Inc.
v.
Wellington, 408 F.3d 757, 763 (11th Cir. 2005).
3
Vill.
of
III. Analysis
Plaintiffs
summary
insist
judgment
the
ruling
Court
for
should
three
reconsider
reasons.
First,
its
they
contend that the Court erred in determining that King’s speech
was
not
protected
speech
under
governing
law.
Second,
Plaintiffs assert that newly discovered evidence shows there
is a genuine issue of material fact as to whether King’s
speech was the cause of her contract being put through a
competitive bidding process. And, third, they argue that the
Court erred in determining that the individual Defendants are
entitled to qualified immunity.
A.
King’s Speech was Not Citizen Speech on a Matter of
Public Concern
Reconsideration is not warranted for the Court’s finding
that King’s speech was not protected by the First Amendment.
In arguing for reconsideration, Plaintiffs emphasize that the
Court previously denied dismissal of King’s First Amendment
claims as to her speech regarding the alleged falsification
of Mr. J’s medical records and the reporting of potential
reverse
discrimination
Plaintiffs
attempt
to
liability.
cast
the
(Doc.
Court’s
#
146
summary
at
4).
judgment
ruling that King’s speech was not citizen speech on a matter
4
of public concern as a “reversal,” “without explanation,” of
the Court’s previous ruling. (Id. at 4-5).
Plaintiffs are wrong. First, a denial of a motion to
dismiss does not preclude the granting of summary judgment
for the defendant following discovery. See Vintilla v. United
States, 931 F.2d 1444, 1447 (11th Cir. 1991)(“[T]he district
court’s denial of the government’s initial motion to dismiss
was not a final judgment. The court was therefore free to
reconsider its ruling on jurisdiction at the summary judgment
stage.”); see also Joseph v. Napolitano, No. 11-21468-CIV,
2012 WL 3244674, at *4 (S.D. Fla. Aug. 9, 2012)(explaining
that the law of the case doctrine did not apply and did not
preclude the district court from granting summary judgment to
defendant where the court had earlier denied a motion to
dismiss).
Second, the Court did not “reverse itself” in ruling
that King’s speech was not protected in its summary judgment
Order. The Court never held in its Order on the motions to
dismiss that King’s speech was protected under the First
Amendment as a matter of law. The Court held only that King
had plausibly alleged that her speech was protected, which
was sufficient to survive the pleading stage. See, e.g., (Doc.
# 58 at 16-18)(“At the motion to dismiss stage, where the
5
Court must accept the allegations of the Second Amended
Complaint as true, King has plausibly alleged that her speech
touched on a matter of public concern and was motivated by
such a concern.”).
In its summary judgment Order, the Court acknowledged
its previous denial of Defendants’ motions to dismiss and
explained that it was time, “with the benefit of discovery,”
to “again address whether King’s speech” was protected. (Doc.
# 138 at 38). Such assessment after review of the complete
record was necessary because the legal question of whether
speech is protected by the First Amendment is highly factspecific. See Worley v. City of Lilburn, 408 F. App’x 248,
252
(11th
Cir.
2011)(“[T]he
analysis
of
First
Amendment
retaliation claims involves intensely fact-specific legal
determinations.”); Mitchell v. Hillsborough County, 468 F.3d
1276,
1283
(11th
Cir.
2006)(“In
determining
whether
an
employee’s speech touched on a matter of public concern,
[courts] look to the content, form, and context of a given
statement, as revealed by the whole record.”). The Court
proceeded to provide a lengthy and detailed analysis of the
record in ruling that King’s speech was not protected. And
the record in this case was indeed voluminous, including
6
nineteen depositions, seven affidavits, and hundreds of pages
of documentary evidence.
That the Court held that the Second Amended Complaint
plausibly
pled
a
prima
facie
case
for
First
Amendment
retaliation in no way undermines the propriety of the Court’s
determining, upon review of the developed record, that a prima
facie case had not been established. The Court’s conclusion
at the motion to dismiss stage that King’s speech regarding
the
falsification
of
records
and
potential
reverse
discrimination liability was plausibly protected was altered
by discovery, which provided significantly more information
about the content and context of King’s speech.
Nor do Plaintiffs’ other arguments on this aspect of the
Court’s ruling merit reconsideration. They have not shown any
manifest errors of law or fact in the Court’s Order. Rather,
Plaintiffs vent dissatisfaction with the Court’s reasoning,
which
is
not
the
proper
purpose
of
a
motion
for
reconsideration.
B.
The New Evidence Could Have Been Discovered Earlier
“[W]here
a
party
attempts
to
introduce
previously
unsubmitted evidence on a motion to reconsider, the court
should not grant the motion absent some showing that the
7
evidence was not available during the pendency of the motion.”
Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997).
The evidence attached to the Motion for Reconsideration
includes three affidavits — two from Kushner and Mulloney,
who were King’s points of contact at the County, and one from
King herself. (Doc. # 146-1; Doc. # 146-2; Doc. # 146-3). In
her affidavit, King explains how she requested Kushner and
Mulloney draft their new affidavits after discussing the
Court’s summary judgment Order with them. (Doc. # 146-1). In
their affidavits, Kushner and Mulloney elaborate on a 2013
email chain, which had the subject line “Nancy Davis King,”
in which a lawyer from the County Attorney’s Office expressed
that a state statute emailed by Kushner and Mulloney did not
exempt
medical
services
contracts
from
the
competitive
bidding process. (Doc. # 146-2; Doc. # 146-3). They aver that
email chain did not concern King’s contract, but rather dealt
with a separate contract for emergency medical services.
Kushner and Mulloney also represent that the affidavit of the
County
Attorney,
Michael
Craig,
is
incorrect
regarding
interpretation of this email chain.
Plaintiffs assert these affidavits are newly discovered
evidence. (Doc. # 146 at 3). But Plaintiffs have not shown
that this evidence could not have been obtained by counsel
8
before the Court’s entry of its Order. See Messinese v. USAA
Cas.
Ins.
Co.,
2015)(“Although
622
the
F.
App’x
Messineses
835,
assert
840
that
(11th
Cir.
Anderson’s
affidavit demonstrates a causal link between USAA’s alleged
bad faith in failing to timely disclose the homeowner’s
insurance policy and the resulting excess judgment against
the Adamses, they fail to show how this information was
previously unavailable to them.”). Indeed, the depositions of
both Kushner and Mulloney were taken in the course of the
case, with Plaintiffs having an opportunity to ask them
numerous questions. (Kushner Dep. Doc. # 89; Mulloney Dep.
Doc. # 96). Kushner was questioned about the initiation of
the RFP process and the 2013 email chain in particular.
(Kushner Dep. Doc. # 89 at 33:11-38:7). The 2013 email chain
at issue was an exhibit to Kushner’s deposition. (Id. at 118).
Furthermore, the Craig affidavit was filed with the motions
for summary judgment — 30 days before Plaintiffs’ responses
were due. (Craig Aff. Doc. # 112). Plaintiffs could have
prepared
and
submitted
the
affidavits
along
with
their
responses to the motions for summary judgment.
Now, after the Court has ruled on the motions for summary
judgment, Plaintiffs have elicited further statements from
Kushner and Mulloney about the 2013 emails in an attempt to
9
buttress weaknesses in their own case. The Court agrees with
Defendants
that
this
evidence
was
available
during
the
pendency of the motions for summary judgment. See Barr v. One
Touch Direct, No. 8:15-cv-2391-T-33MAP, 2016 WL 2898509, at
*2
(M.D.
Fla.
May
18,
2016)(denying
motion
for
reconsideration based on new evidence where “[t]he record
before
the
Court
[did]
not
support
a
finding
that
the
documents attached to the Motion for Reconsideration were not
available
during
the
pendency
of
the
Motion
to
Review
Administrative Prerequisites”). Therefore, the Court refuses
to consider the new statements of Kushner, Mulloney, or King
as a basis upon which to reconsider its Order.
The rest of Plaintiffs’ argument as to the causation
issue
is
just
an
attempt
to
relitigate
old
arguments.
Plaintiffs have not presented a manifest error of law or fact
based
on
the
Court’s
analysis
of
the
record
evidence.
Reconsideration is not warranted.
C.
The Individual Defendants are Entitled to Qualified
Immunity
Finally,
Plaintiffs
argue
that
the
Court
erred
in
alternatively finding the individual Defendants were entitled
to qualified immunity. (Doc. # 146 at 18). They contend the
law was clearly established that King’s speech was protected
10
under the First Amendment. Plaintiffs again emphasize the
Court’s
Order
denying
dismissal
of
the
First
Amendment
claims. (Id. at 20-21).
There,
the
Court
denied
Defendants’
assertion
of
entitlement to qualified immunity at the motion to dismiss
stage. (Doc. # 58 at 26). The Court held that the “Second
Amended Complaint sufficiently allege[d] that the individual
Defendants
violated
King’s
clearly
established
First
Amendment rights when they refused to renew King’s contract
in retaliation for her protected speech.” (Id.). Still, the
Court
clarified
that,
“with
the
benefit
of
discovery,
[Defendants] may be able to establish that they are entitled
to qualified immunity later in the proceedings.” (Id.). And,
because Defendants failed to address the Pickering balancing
prong of the First Amendment claims, the Court did not address
whether the law was clearly established regarding that prong
in determining that Defendants were not entitled to qualified
immunity. (Id. at 25).
But,
in
their
motions
for
summary
judgment,
the
individual Defendants presented persuasive arguments as to
all prongs of King’s First Amendment claims. Upon review of
the motions, the Court determined that the law must be clearly
established as to both the citizen speech on a matter of
11
public concern prong and the Pickering balancing prong in
order to defeat qualified immunity. (Doc. # 138 at 57)(citing
Maggio v. Sipple, 211 F.3d 1346, 1355 (11th Cir. 2000)).
Furthermore, in the summary judgment Order, the Court
acknowledged that law can be clearly established under the
“obvious clarity” method and that Plaintiffs believed that
method applied. (Doc. # 138 at 55). Nevertheless, the Court
determined that method did not apply “because ‘it is not “so
obvious” that [Defendants] violated the First Amendment in
light of the close merits question of whether’ King spoke as
an employee or as a citizen.” (Id. at 55-56)(quoting Carollo
v. Boria, 833 F.3d 1322, 1333 (11th Cir. 2016)). The Court
also noted the Supreme Court’s recent warning that “clearly
established law should not be defined at a high level of
generality.” (Id. at 57)(quoting White v. Pauly, 137 S. Ct.
548, 552 (2017)).
Plaintiffs are dissatisfied with the Court’s reasoning
on these issues. But they fail to present a manifest error of
law in the Court’s determinations that the “obvious clarity”
method was inappropriate and that the right to protected
speech needs to be established through general statements of
the law that make the unlawfulness apparent or through case
law with materially similar facts.
12
Furthermore, Plaintiffs ignore an important part of the
Court’s Order. The Court also held that, even if clearly
established law showed King’s speech was citizen speech on a
matter of public concern, it was not clearly established that
the Pickering balancing test would weigh in King’s favor.
(Doc. # 138 at 61). Therefore, the law was not clearly
established
as
to
King’s
retaliation
claims
and
the
individual Defendants were entitled to qualified immunity.
No manifest error of law or fact has been shown regarding
the Court’s ruling on qualified immunity. Therefore, the
Court will not reverse its ruling.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiffs’ Motion for Reconsideration (Doc. # 146) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
23rd day of January, 2018.
13
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?