Bill v. City of North Lauderdale et al

Filing 43

ORDER AND OPINION granting 12 Motion to Dismiss. Signed by Judge Kenneth A. Marra on 3/25/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-61342-CIV-MARRA/MATTHEWMAN
GREG BILL,
Plaintiff,
vs.
CITY OF NORTH
LAUDERDALE,
FRANK BURELLO, and
DAVID WYGLADALSKI,
Defendants.
_____________________/
ORDER AND OPINION GRANTING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendants Frank Burello and David
Wygladalski’s Motion to Dismiss Counts IV and VIII of Plaintiff’s Amended Complaint
[DE 12]. The Court has carefully considered the motion, the response (filed three
months late1), the reply, and is otherwise fully advised in the premises.
Plaintiff, Gregory Bill (“Bill”), filed an Amended Complaint (“Compl.”) against
his employer, the City of North Lauderdale (“City”), and two co-workers, Frank
Burello (“Burello”) and David Wygladalski (“Wygladalski”) (together, the “Individual

1

The Court granted Plaintiff an unopposed extension of time until September
17, 2012, to respond to this Motion to Dismiss. Plaintiff never filed a response, or
sought an extension of time to respond. On October 10, 2012, the individual
defendants moved for their Motion to Dismiss to be granted by default. The Court
issued an Order to Show Cause, which was eventually discharged. Plaintiff finally
responded on December 18, 2012. The Court will not extend additional courtesies to
Plaintiff’s counsel if there are further failures to follow the local rules.

Defendants”). Plaintiff has been employed by the City for more than seven years in
the Public Works Department in the canals division. Compl. ¶ 10. The gist of the
Complaint is summarized as follows: “[o]ver the course of the past six (6) years,
Plaintiff has been subject to derogatory comments and ‘writings’ made to the rest of
all City employees which make fun of his national origin, his weight, his age, his
sexual orientation.” Compl. ¶ 15.
The Amended Complaint has one count directed against Wygladalski (Count IV)
and one count directed against Burello (Count VIII). The Individual Defendants argue
both counts should be dismissed because insufficient facts are pled to state a
plausible cause of action, and because both counts improperly co-mingle several
claims without properly identifying the bases for any particular claim.
Standard of Review
For purposes of deciding a motion to dismiss, the Court accepts the allegations
of the complaint as true and views the facts in the light most favorable to it. See,
e.g., Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Murphy v. Federal Deposit
Ins. Corp., 208 F.3d 959, 962 (11th Cir. 2000). A plaintiff is required to allege “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A
complaint may be dismissed if the facts as pled do not state a claim for relief that is
plausible on its face.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009)). “[W]hile notice pleading
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may not require that the pleader allege a ‘specific fact’ to cover every element or
allege ‘with precision’ each element of a claim, it is still necessary that a complaint
‘contain either direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.’” Roe v. Aware Woman
Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quoting In re Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981)).
Discussion2
Count IV is labeled, “Invasion of Privacy, Misappropriation of Intellectual
Property, Defamation, David Wygladalski.” In this count, Wygladalski is alleged to
have acted in only one instance, to wit, that he misappropriated an email address of
an old high school friend of Plaintiff’s and sent her an unflattering picture of
Plaintiff. As discussed more thoroughly in this Court’s Order and Opinion granting the
City of North Lauderdale’s Motion to Dismiss, this count suffers from the same flaws
as does Count III. It improperly co-mingles multiple claims into one count in violation
of the pleading requirements of Federal Rules of Civil Procedure 8 and 10, it does not
assert the elements of the various causes of action or allege sufficient facts to state
valid claims.
Count VIII is labeled, “Abuse of Process, Malicious Prosecution, and Intentional
Infliction of Emotional Distress Against Frank Burello.” In this count, Burello is

2

The Court assumes familiarity with this Court’s Order and Opinion granting
the City of North Lauderdale’s Motion to Dismiss issued this same day.
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alleged to have wrongly filed for an injunction for protection against repeat violence
against Plaintiff, to have included in the Petition for Protection a prior act of
violence, that at the behest of Burello, Broward County Sherriff’s detectives
appeared at Plaintiff’s home to investigate the report, that Burello then filed “a
misdmeanor [sic] complaint with the Broward State Attorney’s office,” and that
Burello then dismissed the action the day before mediation causing Plaintiff
“emotional distress and physical injuries requring [sic] medical treatment.” Compl. ¶
105. As discussed more thoroughly in this Court’s Order and Opinion granting the City
of North Lauderdale’s Motion to Dismiss, this count suffers from the same flaws as
does Count III. It improperly co-mingles multiple claims into one count in violation of
the pleading requirements of Federal Rules of Civil Procedure 8 and 10,and it does
not assert the elements of the various causes of action or allege sufficient facts to
state valid claims. As instructed in the Order and Opinion granting the City of North
Lauderdale’s Motion to Dismiss, to the extent Plaintiff can plead in good faith and
subject to the requirements of Rule 11:
Plaintiff will be given one more opportunity to amend his
complaint. However, the Second Amended Complaint must: (1) comply
with the one-claim-per-count rule, (2) state the elements of the cause
of action and (3) set forth sufficient facts to support the necessary
elements.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants Frank Burello
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and David Wygladalski’s Motion to Dismiss Counts IV and VIII of Plaintiff’s Amended
Complaint [DE 12] is GRANTED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 25th day of March, 2013.

________________________
KENNETH A. MARRA
United States District Judge

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