People For The Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc. et al

Filing 272

ORDER: Defendants' Objection to the Magistrate Judge's Report and Recommendation 270 is OVERRULED. The Report and Recommendation of the Magistrate Judge (Doc. 269) is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review. Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint 265 is DENIED. Signed by Judge Charlene Edwards Honeywell on 1/17/2019. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC.,
Plaintiff,
v.

Case No: 8:16-cv-2899-T-36AAS

DADE CITY’S WILD THINGS, INC.,
STEARNS ZOOLOGICAL RESCUE &
REHAB CENTER, INC., KATHRYN P.
STEARNS and RANDALL E. STEARNS,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon the Report and Recommendation (“R&R”) filed
by Magistrate Judge Amanda Arnold Sansone on October 10, 2018 (Doc. 269). In the R&R, the
Magistrate Judge recommends that the Court deny Defendants’ Motion to Dismiss PETA’s Second
Amended Complaint. Defendants timely filed an Objection to the R&R (Doc. 270), to which PETA
responded (Doc. 271). Upon consideration of the R&R and the parties’ filings, the Court will
overrule Defendants’ Objection, adopt, confirm, and approve in all respects the R&R, and deny
Defendants’ Motion to Dismiss.
I.

BACKGROUND

The background of this case is set forth in detail in previous orders. Relevant to this Order,
People for the Ethical Treatment of Animals, Inc. (“PETA”), an animal rights group, sued Dade
City’s Wild Things, Inc., Stearns Zoological Rescue & Rehab Center, Inc., Kathryn P. Stearns,
and Randall E. Stearns (“Defendants”) for alleged violations of the Endangered Species Act, 16

U.S.C. § 1531, et seq. (the “ESA”) 1 in connection with Defendants’ operation of a family-run zoo
in Dade City, Florida that houses tigers and tiger cubs. Doc. 1; Doc. 37; Doc. 256. Following
protracted litigation, including Defendants’ noncompliance with the Magistrate Judge’s discovery
orders and related ensuing events, 2 PETA filed a Motion for Leave to File Second Amended
Complaint to add new factual allegations and to incorporate the legal standard under the ESA as
refined by the Eleventh Circuit’s opinion in PETA v. Miami Seaquarium, 879 F.3d 1142 (11th Cir.
2018), adhered to on denial of reh’g, 905 F.3d 1307 (11th Cir. 2018). Doc. 238. The Court granted
PETA’s motion, and PETA filed its Second Amended Complaint. Doc. 254; Doc. 256.
Defendants filed a Motion to Dismiss PETA’s Second Amended Complaint and PETA
filed a response in opposition. Doc. 265; Doc. 268. Upon this Court’s referral, the Magistrate Judge
entered the R&R recommending that the Court deny Defendants’ Motion to Dismiss. Doc. 266;
Doc. 269. Defendants filed an Objection, and PETA responded. Doc. 270; Doc. 271.
II.

LEGAL STANDARD

When a party makes a timely and specific objection to a Magistrate Judge’s Report and
Recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990).
With regard to those portions of the Report and Recommendation not objected to, the district judge
applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc., 817 F. Supp.
1558, 1562 (M.D. Fla. 1993). Upon review, the district judge may accept, reject, or modify in
whole or in part, the Report and Recommendation of the Magistrate Judge. Fed. R. Civ. P. 72. The

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The ESA prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B). “Take” means to “harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §
1532(19).
2
See Doc. 230 for additional background.

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district judge may also receive further evidence or recommit the matter to the Magistrate Judge
with further instructions. Id.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a pleading
must include a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,
conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id.
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked
assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if
accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). The court, however, is not bound to accept as true a legal
conclusion stated as a “factual allegation” in the complaint. Id.
III.

DISCUSSION

A. Clearly Erroneous Review
The vast majority of Defendants’ Objection is a verbatim reproduction of the Motion to
Dismiss. Compare Doc. 265 with Doc. 270. But, “[w]here an objecting party . . . simply reiterates
his original arguments, the court reviews the Report and Recommendation only for clear error.”
Johnson v. Thomas, No. 4:12-cv-1899-KOB-JEO, 2015 WL 1512088, at *3 (N.D. Ala. Mar. 31,
2015) (internal quotation marks omitted). Accord Silvers v. Verbata, Inc., No. 5:17-cv-169-OC34PRL, 2018 WL 1992204, at *1 (M.D. Fla. Apr. 27, 2018) (“If no specific objections to findings
of facts are filed, the district court is not required to conduct a de novo review of those findings.”
(citing Garvey v. Vaughn, 993 F.2d 776, 779, n. 9 (11th Cir. 1993))); Kharod v. City of Atlanta,

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No. 1:11-cv-01104-CC-AJB, 2014 WL 11517843, at *1 (N.D. Ga. Jan. 27, 2014) (stating that “a
party who ‘simply reiterates his original arguments’ has not met the specificity requirement” of 28
U.S.C. § 636(b)(1)(C) (quoting Thomas v. Astrue, 674 F. Supp. 2d 507, 511 (S.D.N.Y. 2009))).
Thus, the Court reviews the R&R for clear error.
Upon review of the R&R and the parties’ submissions, the Court cannot conclude that the
R&R is clearly erroneous. Rather, the R&R thoroughly addresses each of Defendants’ contentions
in the Motion to Dismiss, explaining through detailed analysis why each of Defendants’ arguments
are without merit and why the Motion to Dismiss is subject to denial.
The R&R first addresses Defendants’ contention that PETA lacks standing. Defendants
argue PETA lacks standing because the alleged injuries are de minimis, speculative, and not caused
by Defendants. The R&R explains that Defendants conflate PETA’s alleged injury with the alleged
injuries to the tigers. For purposes of standing, PETA’s alleged injury is the frustration of its
organizational mission and need to divert its resources due to Defendants’ conduct. Moreover, the
R&R explains, contrary to Defendants’ contention, PETA does allege that Defendants are
responsible for the injury; thus, PETA sufficiently alleges a casual connection between its injury
and Defendants’ conduct. Based on this, as well as additional discussion of each element of
standing, the R&R concludes that PETA has standing to asserts its claims against Defendants. That
conclusion is supported by law and the allegations in the Second Amended Complaint, and is not
clearly erroneous.
Next, the R&R addresses Defendants’ argument that PETA does not state a claim for ESA
violations under the “threat of serious harm” standard as articulated in the Eleventh Circuit’s
decision in Miami Seaquarium. The Magistrate Judge provides a detailed discussion of Miami
Seaquarium, including the district court’s opinion, the Eleventh Circuit’s decision affirming that

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opinion, and the Eleventh Circuit’s decision denying rehearing. Because Miami Seaquarium is
relevant to the Court’s analysis here and infra, the Court briefly summarizes the pertinent details
of that case.
Miami Seaquarium involved PETA’s ESA challenge concerning the conditions of a captive
endangered killer whale, Lolita, at the Miami Seaquarium’s facility. 189 F. Supp. 3d 1327 (S.D.
Fla. 2016); 879 F.3d at 1144. The district court granted summary judgment in favor of Miami
Seaquarium, concluding that PETA lacked evidence to show that the complained-of conditions
“gravely threaten[ed] Lolita’s existence.” 189 F. Supp. 3d at 1354. The Eleventh Circuit affirmed,
holding that “harm” or “harassment” under the ESA “is only actionable if it poses a threat of
serious harm.” 879 F.3d at 1150. In Miami Seaquarium, Lolita’s injuries—physical and
psychological injury caused by inability to engage in normal swimming and diving behaviors,
psychological injury caused by the absence of a socially compatible companion, physical injury
and stress caused by other cetaceans’ behavior, an eye condition, blisters and wrinkles from sun
exposure, antibiotic and other medical treatment, general unhealthiness such as kidney
impairment, abnormal behavior such as listless floating, teeth wear, and conditions likely to reduce
lifespan—failed to meet this standard when the undisputed evidence was considered. 879 F.3d at
1144, n. 2; 905 F.3d at 1309.
A petition for panel rehearing was filed, and the Eleventh Circuit issued an opinion denying
rehearing. 905 F.3d at 1307-08. The opinion denying rehearing adhered to the Eleventh Circuit’s
previous decision and reiterated that “harm” or “harassment” under the ESA are not actionable
“unless they meet a threshold level of severity—any actionable ‘harm’ must be serious and any
actionable ‘harass[ment]’ must pose the threat of serious harm.” Id. at 1310. The Eleventh Circuit
further noted that although it had determined that Lolita’s conditions did not rise to the level of a

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threat of serious harm, the circumstances in Miami Seaquarium were “unique” and the outcome
should not “t[ie] the hands of future courts in cases involving younger, healthier animals who may
be faced with different circumstances.” Id. at 1309. Moreover, the Eleventh Circuit declined to
define the contours of the “threat of serious harm” standard, instead “allowing district courts the
flexibility to apply that rule to future circumstances with which they are presented.” Id.
As the R&R noted, an important distinction between Miami Seaquarium and this case is
that here, the Court is asked to resolve a motion to dismiss. Unlike at the summary judgment stage,
a district court reviewing a motion to dismiss assesses only the four corners of the complaint to
determine whether the plaintiff properly states a claim. Thus, unlike in Miami Seaquarium, where
the district court reviewed evidence concerning Lolita’s injuries, including their cause and effect,
the Court here only reviews the allegations in the Second Amended Complaint, assumed true, to
assess whether PETA states a plausible claim.
As the R&R found, PETA’s allegations of serious harm or the threat of serious harm are
supported by examples. The most obvious example is PETA’s allegation that Defendants caused
the death of three tiger cubs. Doc. 256 at ¶¶ 89, 92. Additional allegations lend further support to
PETA’s assertion that the tigers were allegedly subject to serious harm or the threat of serious
harm. E.g., Doc. 256 at ¶¶ 30, 32, 34, 36, 45, 47, 53-54, 58-59, 71, 73-74, 90. Contrary to
Defendants’ argument, PETA’s Second Amended Complaint is not merely conclusory, and the
Magistrate Judge did not clearly err in recommending that Defendants’ Motion to Dismiss be
denied.
Next, the R&R rejects Defendants’ contention that the Animal Welfare Act (“AWA”)
preempts PETA’s ESA claims. The R&R’s conclusion that the AWA does not preempt the ESA
is supported by case law, including Miami Seaquarium, as well as allegations in the Second

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Amended Complaint. The Court cannot conclude that the Magistrate Judge’s determination in this
respect is clearly erroneous.
Lastly, the R&R rejects Defendants’ argument that PETA failed to join necessary or
indispensable parties—Greg Woody (“Woody”) and Joe Maldonado (“Maldonado”)—under
Federal Rule of Civil Procedure 19(a). Defendants argue that Woody and Maldonado are necessary
parties because they arranged for the transport of the tigers, an event which is connected to PETA’s
allegations concerning the tiger cubs’ deaths. But, as the R&R explains, neither Woody nor
Maldonado are an impediment to the Court according relief to the existing parties; neither Woody
nor Maldonado have claimed an interest in the action; Defendants did not identify what interests
Woody or Maldonado would have in the action; and Defendants do not describe a situation
whereby resolving this action would result in a risk of double, multiple, or inconsistent obligations.
The Magistrate Judges’ conclusion that PETA has not failed to join necessary or indispensable
parties, based on the Federal Rules of Civil Procedure and Eleventh Circuit precedent, is not clearly
erroneous.
B. De Novo Review
The only discussion that Defendants provide in the Objection that is not a verbatim
reproduction of the Motion to Dismiss concerns the Eleventh Circuit’s opinion denying rehearing
in Miami Seaquarium. That opinion was released after Defendants filed their Motion to Dismiss,
but before the Magistrate Judge entered the R&R. 905 F.3d 1307; Doc. 269. Although the parties
did not have the opportunity to brief the Eleventh Circuit’s opinion denying rehearing, the
Magistrate Judge considered the decision, as discussed supra, in making her recommendation.
Doc. 269 at p. 11. According to Defendants, however, the Magistrate Judge misinterpreted or

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ignored portions of the Miami Seaquarium decision denying rehearing, thus wrongly
recommending that Defendants’ Motion to Dismiss be denied.
Defendants insert their new discussion—approximately five paragraphs—between the
arguments originally presented in the Motion to Dismiss. Although it is not clear that Defendants’
few additional paragraphs should be considered specific objections given that they are made a part
of Defendants’ reiterated arguments, the Court will nonetheless construe them as objections, in the
interest of thoroughness, and will review the corresponding portions of the R&R de novo.
1. PETA Plausibly Alleges ESA Violations
First, Defendants argue that the Magistrate Judge ignored the Eleventh Circuit’s discussion
of certain specific injuries in Miami Seaquarium that “plainly failed” to meet the “threat of serious
harm” standard. 905 F.3d at 1309. Apparently, Defendants believe that the injuries to Lolita in
Miami Seaquarium are comparable to the alleged injures to the tigers described in the Second
Amended Complaint, and, for that reason, cannot survive Defendants’ Motion to Dismiss.
Defendants’ argument references the following portion of the Miami Seaquarium opinion denying
rehearing:
In any event, some injuries noted by Appellants would, given the record evidence,
plainly fail to meet the “threat of serious harm” standard. For example, Appellants
cite the “rakes” inflicted when the Pacific white-sided dolphins with whom Lolita
shares her tank scrape her with their teeth. But cetaceans, including orcas and
dolphins, undisputedly rake each other in the wild. And Appellants’ own expert
rated Lolita’s rakes as a three to four on a scale from one to ten, with ten being the
most raked orca observed in the wild and one being the least raked orca observed
in the wild. So, not only is Lolita suffering fewer rakes than the average wild orca,
she is receiving care to make sure her rakes heal. Given that evidence, Lolita’s
rakes are not serious enough to illustrate that the conditions of her captivity amount
to “harm” or “harass[ment]” in violation of the ESA.
Id. (emphasis added).

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The Court rejects Defendants’ comparison of the facts of Miami Seaquarium to the facts
of this case. Importantly, the Eleventh Circuit in Miami Seaquarium did not determine that certain
injuries could never rise to the level of a threat of serious harm; 3 rather, the Eleventh Circuit held
that, given the evidence, Lolita’s injuries did not rise to the level of a threat of serious harm. Again,
as discussed in the R&R and supra, the procedural posture of this case is critical. In Miami
Seaquarium, the district court, and the Eleventh Circuit on review, analyzed the available and
undisputed evidence provided in connection with a summary judgment motion. Here, the Court
does not review any available evidence because the focus of the Motion to Dismiss is on the four
corners of the Second Amended Complaint.
PETA provides various examples of the ways in which it says Defendants’ conduct created
serious harm or a threat of serious harm to the tigers. Upon de novo review, the Court agrees with
the Magistrate Judge that PETA’s allegations are sufficient to withstand Defendants’ Motion to
Dismiss.
2. The AWA Does Not Prevent PETA From Stating Plausible ESA Claims
Defendants also argue that the R&R incorrectly determines that the AWA does not preempt
the ESA. Defendants contend that pursuant to the Eleventh Circuit’s discussion of the relationship
between the AWA and ESA in Miami Seaquarium, a plaintiff cannot be allowed to sue where a
defendant’s conduct complies with AWA regulations.
Defendants misconstrue Miami Seaquarium’s discussion of the two laws. Miami
Seaquarium noted only that the ESA could effectively nullify the AWA if “harass” and “harm”
were interpreted more broadly than how the Eleventh Circuit interpreted the terms in that case—

3

Even if the Eleventh Circuit had decided that the injuries described in Miami Seaquarium could never reach the level
of a threat of serious harm, that would not affect the plausibility of the Second Amended Complaint, which alleges
different injuries than those described in Miami Seaquarium.

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i.e., if the terms were given their dictionary definitions. 879 F.3d at 1150. But the Court does not
interpret “harass” or “harm” any more broadly than the Eleventh Circuit in Miami Seaquarium. To
the contrary, the Magistrate Judge and this Court have explicitly followed the Eleventh Circuit’s
directive that “harass” or “harm” are only actionable where such “poses a threat of serious harm.”
Id.
Finally, even if Defendants’ assertion—that a plaintiff cannot sue a defendant who
complies with the AWA—were correct, Defendants’ argument would fail here. That is because
PETA’s Second Amended Complaint includes allegations that Defendants did not comply with
the AWA. Doc. 256 at ¶¶ 40, 48, 67, 76, 86, 89. Thus, Defendants’ final contention is meritless.
Upon de novo review, the Court finds that PETA plausibly states a claim for ESA violations.
Accordingly, it is ORDERED:
1.

Defendants’ Objection to the Magistrate Judge’s Report and Recommendation

(Doc. 270) is OVERRULED.
2.

The Report and Recommendation of the Magistrate Judge (Doc. 269) is adopted,

confirmed, and approved in all respects and is made a part of this Order for all purposes,
including appellate review.
3.

Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. 265)

is DENIED.
DONE AND ORDERED in Tampa, Florida on January 17, 2019.

Copies to:
Counsel of Record and Unrepresented Parties, if any
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