BROWN v. FLORIDA DEPARTMENT OF HEALTH

Filing 126

ORDER OF DISMISSAL; adopting Report and Recommendations: The report and recommendation is accepted. The defendants motions to dismiss and for summary-judgment, ECF No. 58 and 69 are granted. The clerk must enter judgment stating, This action was resolved on a motion to dismiss and a motion for summary judgment. It is ordered that the plaintiff Karl Andrew Brown recover nothing. The claims against the defendant Florida Department of Health are dismissed on the merits. All other motions are denied has moot. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 9/24/2015. (dac)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
KARL ANDREW BROWN,
Plaintiff,
v.

CASE NO. 4:13cv462-RH/CAS

FLORIDA DEPARTMENT OF HEALTH,
Defendant.
_____________________________/
ORDER OF DISMISSAL
The State of Florida Department of Health entered a contract with Vitaver
and Associates under which Vitaver was to provide information-technology
services. Vitaver entered a contract with the plaintiff Karl Andrew Brown under
which Mr. Brown was to provide at least some of the services Vitaver was
obligated to provide under its contract with the Department. When the Department
became dissatisfied with work done by Mr. Brown, Vitaver terminated Mr.
Brown’s contract.
In this action Mr. Brown asserts claims against the Department under
Florida common law and under Title VII of the Civil Rights Act of 1964. The
Department has moved to dismiss the common-law claims for failure to state a
Case No. 4:13cv462-RH/CAS

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claim on which relief can be granted. And the Department has moved for summary
judgment.
The motions are before the court on the magistrate judge’s report and
recommendation, ECF No. 121, and Mr. Brown’s objections, ECF Nos. 124 and
125.
The report and recommendation correctly concludes that Mr. Brown has
failed to state a common-law claim on which relief can be granted. Mr. Brown
says his claims are for “Torts-Negligence-Malfeasance” and “Perjury” during
investigations. None of these theories survive analysis.
First, the facts alleged by Mr. Brown, even if true, would not support a
negligence claim. Negligence claims ordinarily extend to personal injury, physical
damage to property, and professional services. With exceptions not applicable
here, a negligence claim cannot go forward based only on economic harm of the
kind now at issue. This is sometimes explained as the “economic-loss rule.”
And Florida law does not recognize a claim for “malfeasance” or “perjury”
or for any undefined “tort.” Florida law recognizes a claim for wrongful
interference with a contractual relationship, but Mr. Brown has not alleged facts
supporting such a claim, and such a claim does not lie against an entity with an
interest in the contract allegedly interfered with. See, e.g., W.D. Sales &
Brokerage LLC v. Barnhill’s Buffet of Tenn., Inc., 362 F. App’x 142, 143 (11th

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Cir. 2010) (stating that a cause of action for tortious interference with a contractual
relationship does not exist “if the defendant has any beneficial or economic interest
in, or control over, that relationship” (quoting Palm Beach County Health Care
Dist. v. Prof’l Med. Educ., Inc., 13 So. 3d 1090, 1094 (Fla 4th DCA 2009))); JDI
Holdings, LLC v. Jet Mgmt., Inc., 732 F. Supp. 2d 1205, 1228 (N.D. Fla. 2010)
(stating that a necessary element of a tortious-interference claim is “the absence of
any justification or privilege” (citing Fla. Tele. Corp. v. Essig, 468 So. 2d 543, 544
(Fla. 5th DCA 1985))).
The report and recommendation also correctly concludes that Mr. Brown
was not the Department’s employee within the meaning of Title VII. Further, Mr.
Brown does not allege, and the record would not support a finding, that Mr. Brown
was an employee, rather than an independent contractor, of Vitaver. One who is an
independent contractor, not an employee, has no claim under Title VII. See
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998)
(“[O]nly those plaintiffs who are ‘employees’ may bring a Title VII suit.”); Cobb
v. Sun Papers, Inc., 673 F.2d 337 (11th Cir. 1982) (affirming the district court’s
holding that the plaintiff was an independent contractor and thus was not protected
by Title VII).
For these reasons,
IT IS ORDERED:

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1.

The report and recommendation is accepted.

2.

The defendant’s motions to dismiss and for summary-judgment, ECF

No. 58 and 69, are granted.
3.

The clerk must enter judgment stating, “This action was resolved on a

motion to dismiss and a motion for summary judgment. It is ordered that the
plaintiff Karl Andrew Brown recover nothing. The claims against the defendant
Florida Department of Health are dismissed on the merits.”
4.

All other motions are denied has moot.

5.

The clerk must close the file.

SO ORDERED on September 24, 2015.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv462-RH/CAS