Clarke v. Phelan et al
Filing
57
Omnibus Order on Motions to Dismiss denying 18 Motion to Dismiss for Failure to State a Claim(Answer to amended complaint due by 10/11/2017.); denying 19 Motion to Dismiss for Failure to State a Claim( Admissions due by 10/11/2017.); denying 19 Motion for More Definite Statement. Signed by Judge Robert N. Scola, Jr on 9/28/2017. (lan) Modified text on 9/28/2017 (dm).
United States District Court
for the
Southern District of Florida
Dara Clarke, Plaintiff,
v.
Charles Phelan, and others,
Defendants.
)
)
)
) Civil Action No. 16-25217-Civ-Scola
)
)
Omnibus Order on Motions to Dismiss
This matter is before the Court upon two motions to dismiss filed by the
Defendants City of Aventura, Terry Scott, and Joseph Craig (collectively, “the
City Defendants”) (ECF No. 18), and by the Defendants Charles Phelan, Gary
Cohen, Privé Developers, LLC, Two Islands Development Corp., BH3 Realty,
LLC, NI Holdings, LLC, Last Lot Corp., Nomur Holdings, LLC, and Daniel
Lebensohn (collectively, “the Developer Defendants”)1 (ECF No. 19). After
careful consideration of the motions, all opposing and supporting submissions,
and the applicable case law, the Court denies the motions (ECF Nos. 18 and
19).
1. Background
At its core, this case arises from a disagreement about where the
sidewalk ends. However, unlike the Shel Silverstein poem, there is no grass
growing soft and white, sun burning crimson bright, or peppermint wind. Shel
Silverstein, Where the Sidewalk Ends: the Poems & Drawings of Shel
Silverstein (Harper and Row, ed., 1st ed. 1974).
The Plaintiff, Dara Clarke, owns a home in the Island Estates
development on the southern of two adjacent islands located in Dumfounding
Bay within the City of Aventura (the “City”). (Am. Compl. ¶¶ 7, 9, 24-25.) In
March of 2013, the Developer Defendants began a condominium development
named Privé at Island Estates, located on the northern island. (Id. ¶ 22.) As a
condition of the development, the City required that the Developer Defendants
construct certain sidewalks pursuant to conditions placed by the City through
a variance when the southern island was developed. (Id. ¶ 23.) As a result, the
The Developer Defendants object to being designated as such, and refer to
themselves as the “Non-City Defendants.” However, the Plaintiff Dara Clarke refers to
them as the Developer Defendants in the Amended Complaint (ECF No. 14); thus, for
the sake of clarity, the Court will utilize the Plaintiff’s nomenclature.
1
Defendant Two Islands Development Corp. applied for a permit to construct a
sidewalk in part on property owned by Clarke. (Id. ¶¶ 24-25.)
When the permit was issued under a utility easement, Clarke, and other
impacted property owners from the Island Estates development, initiated a
lawsuit in Florida state court, in which they challenged the legality of the
sidewalks, and sought to prevent their construction (the “State Lawsuit”). (Id.
¶¶ 26, 30.) The state court judge entered an order granting the injunction,
which prevented the Developer Defendants from constructing the sidewalk on
what the judge determined was the Plaintiff’s property. (Id. ¶¶ 31-32; ECF No.
14, Exh. B.) However, the Third District Court of Appeal reversed the order
granting the property owners’ motion for temporary injunction and remanded
for a new injunction hearing, based upon a procedural error during the original
evidentiary hearing. (Id. ¶ 33; ECF No. 14, Exh. C.) The Developer Defendants
began construction on the sidewalks within one day of the reversal by the Third
District Court of Appeal, before the mandate issued and another temporary
injunction hearing could be held. (Id. ¶ 34.)
In order to oversee the construction, the Developer Defendants hired
several officers from the Aventura Police Department. (Id. ¶ 35.) In response
and in protest to the construction, Clarke sat on her neighbor’s property line in
order to prevent the construction crews from building the sidewalk on her
property; however, she eventually left the location. (Id. ¶¶ 36-37.) Upon her
return to the house with her husband in his car (Clarke’s vehicle was parked at
the marina within the development), they found that a curb had been
constructed within their property line. (Id. ¶¶ 39-40.) Mr. Clarke drove his car
onto the swale in front of his home, which damaged the newly-constructed
curb. (Id. ¶ 40.) Shortly after, Mr. Clarke began to drive off to take Clarke to
retrieve her vehicle from the marina. (Id. ¶ 40.) Defendant Phelan was parked
at Defendant Cohen’s home, from where he could observe the Clarkes, and
upon seeing the car attempt to drive off, he tried—unsuccessfully—to block
them in their vehicle. (Id. ¶ 42.) Instead, Phelan chased Mr. Clarke’s vehicle to
the marina. (Id. ¶ 43.)
Clarke called the Aventura Police Department once she arrived at her car
at the marina because she feared for her safety. (Id. ¶44.) When Defendant
Officers Scott and Craig ((the “Defendant Officers”) responded to the scene,
Phelan advised them that Clarke had destroyed the Developer Defendants’
construction. (Id. ¶ 45.) When Clarke attempted to explain the situation
regarding her property calmly to the officers, Scott suddenly stomped on her
foot, and then both officers twisted her arms behind her back and lifted her off
the ground, with Scott’s boot still on her foot, and while digging their knees
into her calves. (Id. ¶ 49.) Scott and Craig then dragged Clarke down the block,
berating her, before they threw her into the back of a squad car. (Id.) Clarke did
not resist the officers at any time, despite statements to the contrary in the
subsequent police report. (Id.)
Nonetheless, Clarke was arrested for resisting arrest, criminal mischief,
and disorderly conduct. (Id. ¶ 50.) Clarke waited in the squad car for over an
hour, during which time Phelan, and the Defendant Officers fabricated the
story that she drove her own vehicle over her neighbor’s curb, causing an
inflated amount of damages that would increase her potential charge to a
felony. (Id. ¶ 51). Clarke was then transferred to Miami-Dade county jail and
housed first with the general population, and then placed into a squalid single
holding cell, until she posted bond and was released. (Id. ¶¶ 54-56.)
Following her release, the City conducted no investigation into the
situation with Clarke or the Defendant Officers, and the Developer Defendants
placed a new curb at the property. (Id. ¶¶57-58.) In addition, Clarke began to
receive telephone calls from the media regarding her arrest, and the Developer
Defendants maintained a blog used to defame Clarke. (Id. ¶ 61.) Clarke alleges
that Defendant Lebensohn specifically made statements to the press designed
to impugn her credibility. (Id.) Ultimately, the state attorney declined to
prosecute Clarke on all charges. (Id. ¶ 65.)
In the Amended Complaint, Clarke asserts claims pursuant to 42 U.S.C.
section 1983 against the Defendant Officers for excessive force (Count I);
against the City for endorsing an unofficial policy practice, procedure or
custom of excessive force (Count II), and for failure to discipline or ratification
(Count III); and claims for malicious prosecution (Count IV), negligent reporting
to the police (Count V), and defamation (Count VI), against the Developer
Defendants; and, defamation (Count VII) against Defendant Lebensohn. The
Defendants have all moved to dismiss the claims against them for failure to
state a claim.
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as
true, construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under Federal Rule of Civil
Procedure 8, a pleading need only contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The plaintiff must therefore articulate “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
“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.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” will
not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Yet, where the allegations “possess enough heft” to suggest a plausible
entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557.
“[T]he standard simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence of the required element.” Rivell v. Private
Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (internal
quotations and citation omitted). “And, of course, a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550
U.S. at 556. Through this lens, the Court analyzes the instant motions in turn.
3. Analysis
A. The City Defendants’ Motion (ECF No. 18)
In their motion, the City Defendants argue that the Amended Complaint
fails to state a claim for violation of the Fourth Amendment for excessive force
because the force used was de minimis. In addition, Defendant Officers claim
that they are entitled to qualified immunity. Moreover, the City argues that
there is no sufficient basis to impose municipal liability upon it.
(1) Count I – excessive use of force against Scott and Craig
In Count I, Clarke asserts a claim for violation of 42 U.S.C. section 1983
against Scott and Craig for use of excessive force. The Defendant Officers argue
that the Court should find that the force used was de minimis. However, none
of the cases relied upon by the Defendant Officers is particularly instructive to
this Court’s inquiry, as they involve the review of claims upon summary
judgment, not at the dismissal stage.
Excessive force claims are properly analyzed under the Fourth
Amendment’s objective reasonableness standard. Scott v. Harris, 550 U.S. 372,
381 (2007). “That standard asks whether the force applied is objectively
reasonable in light of the facts confronting the officer, a determination we make
from the perspective of a reasonable officer on the scene and not with the
20/20 vision of hindsight.” Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d
1347, 1353 (11th Cir. 2015) (citing Crenshaw v. Lister, 556 F.3d 1283, 1290
(11th Cir. 2009) (internal quotations omitted). In determining whether the force
used was reasonable, the Supreme Court considers a number of factors,
including “whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Williams v. Bauer, 503 F. App’x 858, 861 (11th Cir.
2013) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The Eleventh
Circuit also instructs that “the force used by a police officer in carrying out an
arrest must be reasonably proportionate to the need for that force, which is
measured by the severity of the crime, the danger to the officer, and the risk of
flight.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). In addition, the
Court considers “the need for the application of force, the relationship between
the need and amount of force used, and the extent of the injury inflicted.”
Mobley, 783 F.3d at 1353 (internal citation and alteration omitted).
The Court concludes that Clarke sufficiently states a claim against the
Defendant Officers for the use of excessive force. As alleged in the Amended
Complaint, after the Defendant Officers responded to the scene at the marina,
they were presented with a 5-foot 3-inch female weighing approximately 110
pounds, who was calm and attempting to provide relevant information
regarding the circumstances of the sequence of events already relayed to them
by Phelan. The Defendant Officers, in turn, are alleged to each weigh
approximately 200 pounds. (Am. Compl. ¶ 50.) During their interaction with
Clarke, Scott, without warning, stomped on Clarke’s foot, and then with Craig
proceeded to twist her arms behind her back and drag her to the squad car. As
a result of the interaction with the Defendant Officers, Clarke sustained a
shoulder injury, and additional injuries to her feet, arms, and hands. Upon the
facts alleged, Clarke posed no threat to the Defendant Officers, nor was she
attempting to flee or otherwise disobeying instructions. Moreover, the
Defendant Officers, relying on information provided to them by Defendant
Phelan, knew only that the crime that Clarke committed was driving over a
curb constructed on her property—not a severe or violent crime. As such, the
Court will not dismiss Clarke’s claim. See Fils v. City of Aventura, 647 F.3d
1272, 1289 (11th Cir. 2011) (stating “that unprovoked force against a nonhostile and non-violent suspect who has not disobeyed instructions violates
that suspect’s rights under the Fourth Amendment.”).
The Defendant Officers next argue that they are entitled to qualified
immunity. Qualified immunity protects government officers from suit in cases
where they have not violated “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “In order to receive qualified immunity, the public
official must first prove that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.” Lee, 284 F.3d at 1194
(internal quotations and citations committed). The parties in this case do not
appear to dispute that Scott and Craig were acting within their discretionary
authority during their interaction with Clarke. Therefore, “the burden shifts to
the plaintiff to show that qualified immunity is not appropriate.” Id. This
showing involves a two-part inquiry: the Court first looks to whether the
Defendant Officers violated a constitutional right, and then whether that right
was clearly established at the time of the incident. Mercado v. City of Orlando,
407 F.3d 1152, 1156 (11th Cir. 2005). The Court has already determined that
Clarke sufficiently states a claim for excessive force in violation of the Fourth
Amendment; therefore, the relevant inquiry is whether the law involving her
claim is clearly established.
“A right may be clearly established for qualified immunity purposes in
one of three ways: (1) case law with indistinguishable facts clearly establishing
the constitutional right; (2) a broad statement of principle within the
Constitution, statute, or case law that clearly establishes a constitutional right;
or (3) conduct so egregious that a constitutional right was clearly violated, even
in the total absence of case law.” Lewis v. City of W. Palm Beach, Fla., 561 F.3d
1288, 1291-92 (11th Cir. 2009) (internal citations omitted). Clarke provides
citations to a number of cases, which she contends support the finding that the
Defendant Officers are not entitled to qualified immunity upon the facts
alleged. The Court agrees, notwithstanding the Defendant Officers’ attempts to
distinguish only one of those cases, because the case law stands for the
proposition that force that is unprovoked against a non-hostile and non-violent
person who is not disobeying instructions violates that person’s Fourth
Amendment Rights. Fils, 647 F.3d at 1289; see also, e.g. Hadley v. Gutierrez,
526 F.3d 1324, 1331 (11th Cir. 2008) (holding that an officer’s punching a
non-resisting suspect in the stomach was excessive); Lee, 284 F.3d at 1199
(denying qualified immunity for officer who slammed secured suspects head
into car).
Thus, Scott and Craig’s conduct violated Clarke’s clearly established
Fourth Amendment rights, because she was calm during their brief exchange,
and they gave her no warning before stomping on her foot, manhandling her,
and then dragging her to the squad car. Therefore, the Defendant Officers are
not entitled to qualified immunity at this juncture.
(2) Counts II and III – Excessive Force and Failure to
Discipline/Ratification against the City
The City argues that Clarke fails to adequately allege a basis for
municipal liability for either excessive force or upon a ratification theory,
because she does not allege any details regarding past complaints of excessive
force against Scott and Craig, and other City police officers.
A municipality cannot be held liable for the actions of its agents under a
respondeat superior theory. Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658,
690-91 (1978). However, a municipality may be sued for violating Section 1983
if the alleged constitutional violation is caused by a municipality’s custom or
policy. Id. Municipal liability under Section 1983 can exist where a persistent
and widespread discriminatory practice is not a formal written policy, or even
where the custom is contrary to written policy. Id. at 691. “In other words, a
longstanding and widespread practice is deemed authorized by the
policymaking officials because they must have known about it but failed to
stop it.” Brown v. City of Ft. Laud., 923 F.2d 1474, 1481 (11th Cir. 1991); see
also Farred v. Hicks, 915 F.2d 1530, 1532-33 (11th Cir. 1990) (“Governmental
entities may be held liable under section 1983 when a governmental ‘policy or
custom’ is the ‘moving force’ behind the constitutional deprivation.”) (citing
Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell, 436 U.S. at 694.
A policy or custom “is established by showing a persistent and
widespread practice and an entity’s actual or constructive knowledge of such
customs, though the custom need not receive formal approval.” German v.
Broward Cty. Sheriff's Office, 315 F. App’x 773, 776 (11th Cir. 2009) (citing
Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986)). For
example, even where a municipality provides rules and regulations for the
operation of its police department, if those rules are repeatedly violated and the
municipality has knowledge of the conduct but fails to rectify the situation
then it may be liable. Depew, 787 F.2d at 1499 (“The continued failure of the
[municipality] to prevent known constitutional violations by its police force is
precisely the type of informal policy or custom that is actionable under section
1983.”).
The Court finds that Clarke’s allegations are sufficient to state a claim for
municipal liability against the City. Assuming the truth of the Plaintiff’s
allegations as the Court must in this stage of proceedings, in pertinent part,
Clarke alleges that the City failed to act upon at least twenty (20) complaints of
excessive force, including two against Scott and seven against Craig over the
course of their careers. (Am. Compl. ¶¶ 18-19, 57-58.) Clarke further alleges
that the City has failed to prevent repeated known constitutional violations
despite conducting investigations into such incidents and allowed witness and
evidence tampering in order to protect its officers, demonstrating a pattern of
deliberate indifference with respect to officer misconduct. (Id. ¶¶ 57-58, 87-89.)
At the pleading stage nothing more is required. See Fundiller v. City of Cooper
City, 777 F.2d 1436, 1443 (11th Cir. 1985) (“If established, [the allegation that
the City . . . has a custom of allowing the use of excessive force,] provides the
requisite fault on the part of the City, as a persistent failure to take disciplinary
action against officers can give rise to the inference that municipality has
ratified conduct, thereby establishing a ‘custom’ within the meaning of Monell.”)
(internal citation omitted).
While additional facts are always helpful, the City cites no case law in
support of its contention that Clarke must allege additional specific factual
details at this stage in proceedings with respect to the merits of the past
complaints, and such claims are not subject to a heightened pleading
standard. See Rivas v. Figueroa, 2012 WL 1378161, at *4 (S.D. Fla. Apr. 20,
2012) (Scola, J.) (denying motion to dismiss where the plaintiffs alleged five
instances of past unconstitutional practices, and that the defendant city was
on notice but failed to take remedial action). Whether Clarke can ultimately
prove that such a policy or custom in fact exists is an issue for another day.
B. The Developer Defendants’ Motion (ECF No. 19)
In their motion, the Developer Defendants argue that Clarke’s claims
against them are barred by the litigation privilege.2 The Developer Defendants
further argue that the claims for negligent reporting to police (Count V), and
defamation (Count VI) are subject to dismissal for the additional reason that
they impermissibly lump together allegations against different defendants and
conclusory allegations in violation of Rule 8 of the Federal Rules of Civil
Procedure; that they are entitled to a qualified privilege with respect to Count
V; and that the defamation claims (Counts VI and VII) lack the requisite
specificity; and therefore, that Clarke fails to state a cause of action with
respect to these claims. In the alternative, the Developer Defendants move for a
more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil
Procedure.
Although the Developer Defendants initially asserted the litigation privilege with
respect to Clarke’s claim for malicious prosecution, in their reply (ECF No. 28), they
withdraw their argument based upon the Florida Supreme Court’s decision in
Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017).
2
(1) The litigation privilege
At the outset, the Court notes that even though the Developer
Defendants profess an inability to discern which claims are being asserted
against them such that they are unable to defend themselves, they nonetheless
rally together to assert the litigation privilege with respect to each of the
Plaintiff’s claims.
“In Myers v. Hodges, 53 Fla. 197, 210, 44 So. 357, 361 (1907), [the
Florida Supreme Court] recognized the principle of the litigation privilege in
Florida, essentially providing legal immunity for actions that occur in judicial
proceedings.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.
2d 380, 383 (Fla. 2007). The privilege “extends to the protection of the judge,
parties, counsel, and witnesses, and arises immediately upon the doing of any
act required or permitted by law in the due course of the judicial proceeding or
as necessarily preliminary thereto.” Pledger v. Burnup & Sims, Inc., 432 So.2d
1323, 1325-26 (Fla. 4th DCA 1983) (quoting Ange v. State, 123 So. 916 (Fla.
1929)). The privilege “applies across the board to actions in Florida, both to
common-law causes of action, those initiated pursuant to a statute, or of some
other origin.” Echevarria, 950 So. 2d at 384. “Just as participants in litigation
must be free to engage in unhindered communication, so too must those
participants be free to use their best judgment in prosecuting or defending a
lawsuit without fear of having to defend their actions in a subsequent civil
action for misconduct.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell,
P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). Although Florida
courts have construed the litigation privilege as an affirmative defense, it “may
be considered in resolving a motion to dismiss when the complaint affirmatively
and clearly shows the conclusive applicability of the defense to bar the action.”
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1276 (11th Cir. 2004) (internal
quotations and citations omitted); see also Blake v. Seterus, Inc., 2017 WL
543223, at *3 (S.D. Fla. Feb. 9, 2017) (King, J.).
In the Amended Complaint, Clarke alleges that the Developer Defendants
collectively bullied and harassed anyone appearing to threaten their ability to
develop Privé, and that Phelan, acting in his own and the other Developer
Defendants’ interests, manufactured a story regarding Clarke’s conduct with
respect to driving over the newly-constructed curb at her house in order to
ensure that she would be charged with a felony. (Am. Compl. ¶¶ 100-01.)
Specifically, and as already detailed, Phelan observed the Clarkes from outside
of Cohen’s home, and attempted to block them in before they could leave to
retrieve Clarke’s car from the marina. When he was unable to do so, he chased
Mr. Clarke’s car to the marina, where he spoke first to the Defendant Officers,
and told them that Clarke had destroyed the Developer Defendants’ property.
While Clarke was waiting in the squad car after being placed under arrest,
Phelan spoke with the Defendant Officers, and concocted the false account of
Clarke’s conduct, he provided false information regarding the cost of repair for
the damaged sidewalk to ensure that Clarke would be charged with a felony,
and he, along with Cohen, provided sworn statements containing false
accusations and damage estimates. (Id. ¶¶ 51, 64.) In addition, the Developer
Defendants undertook efforts to impugn Clarke’s reputation and to gain
leverage in the pending State Lawsuit challenging the legality of the sidewalk,
including publishing a blog called “Aventura Bytes,” which they used to defame
Clarke, Levensohn’s making statements to the press to undermine Clarke’s
credibility, and Phelan’s boasting that Clarke “was the b---- he had arrested.”
(Id. ¶¶ 61, 64-66.)
The Developer Defendants argue that because Clarke alleges that their
actions were intended to harm her in response to her resistance to the sidewalk
construction, their actions therefore bear some relation to the State Lawsuit,
and they are thus shielded by Florida’s broad litigation privilege. Although the
litigation privilege offers broad protection, the Court disagrees that the actions
alleged may be fairly viewed as required by, permitted by, or even related to,
the State Lawsuit, nor were they taken in the course of judicial proceedings.
Rather, as alleged, the Developer Defendants capitalized on the opportunity to
take one of their most active opponents down a few notches. Allowing the
litigation privilege to extend to the Developer Defendants’ acts upon these facts
would essentially provide carte blanche to engage in any type of behavior, as
long as a there exists a pending court proceeding. This, the Court will not do.
(2) Failure to comply with Fed. R. Civ. P. 8
The Developer Defendants next argue that the Plaintiff impermissibly
lumps them together without distinguishing which one of them took the
relevant actions. Therefore, the Developer Defendants argue that Counts IV-VI
should be dismissed, or that the Plaintiff should be required to provide a more
definite statement. The Plaintiff responds that she has properly identified two
distinct groups of defendants—the City Defendants and the Developer
Defendants—the relationship among them, and sets out her claims against
each group.
Rule 8 only requires “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a), within the TwomblyIqbal plausibility standard. Under this rule, when a complaint alleges that
multiple defendants are liable for multiple claims, a court must determine
whether the complaint gives fair notice to each defendant. Although a
complaint against multiple defendants is usually read as making the same
allegation against each defendant individually, Crowe v. Coleman, 113 F.3d
1536, 1539 (11th Cir. 1997), “at times, a plaintiff’s grouping of defendants in a
complaint may require a more definite statement.” George & Co. v. Alibaba.com,
Inc., 2011 WL 6181940, at *2 (M.D. Fla. Dec. 13, 2011) (citing Veltmann v.
Walpole Pharmacy, Inc., 928 F. Supp. 1161, 1164 (M.D. Fla. 1996) (internal
quotations omitted). Indeed, a complaint that “lump[s] all the defendants
together in each claim and provid[es] no factual basis to distinguish their
conduct” fails to satisfy Rule 8. Lane v. Capital Acquisitions & Mgmt. Co., 2006
WL 4590705, at *5 (S.D. Fla. Apr.14, 2006). “A motion for a more definite
statement is intended to provide a remedy for an unintelligible pleading, rather
than a vehicle for obtaining greater detail.” Euro RSCG Direct Resp., LLC v.
Green Bullion Fin. Servs., 872 F. Supp. 2d 1353, 1358 (S.D. Fla. 2012) (Cohn,
J.) (internal quotation marks omitted).
The Amended Complaint does not violate Rule 8, nor is a more definite
statement required. This is not a case in which Clarke lumps all the defendants
together in each claim and fails to delineate which facts are applicable to each.
As set forth by the Plaintiff, the Developer Defendants are all involved in the
Privé development project. (Am. Compl. ¶ 2.) Clarke also alleges who each of
the Developer Defendants are, and the relationships among them—specifically,
that Phelan and Cohen “were acting on their individual behalf and in
furtherance of the interests for the Developer Defendants as their agents.”
(Resp. at 14, ECF No. 22; Am. Compl. ¶ 20.) In addition, Clarke alleges that all
of the Developer Defendants together participated in a scheme to bully and
harass anyone standing in the way of their development efforts with respect to
the Privé development project, in part by privately hiring police officers to
monitor the construction, and attempting to negatively impact Clarke’s
reputation and credibility. Without citing case law in support, the Developer
Defendants, like the City Defendants, attempt to impose a higher pleading
standard upon the Plaintiff in this case, which the Court will not.
(3) Qualified privilege for negligent reporting claim (Count V)
The Developer Defendants contend that they are entitled to a qualified
privilege with respect to Clarke’s claim for negligent reporting to the police,
based upon Valladares v. Bank of America Corp., 197 So. 3d 1, 11 (Fla. 2016),
in which the Florida Supreme Court recognized such a privilege for mistaken,
but good faith reports of suspected criminal activity. The Developer Defendants
argue that in order to state a viable claim for negligent reporting to the police,
the requisite level of malice involved is equivalent to the negligence necessary
to sustain an award of punitive damages, and that the Plaintiff fails to plead
such malice. The Court disagrees, as the Developer Defendants read Valladares
too narrowly.
In Valladares, the Florida Supreme Court held that
a cause of action is available to one injured as a result
of a false report of criminal behavior to law
enforcement when the report is made by a party which
has knowledge or by the exercise of reasonable
diligence should have knowledge that the accusations
are false or acts in a gross or flagrant manner in
reckless disregard of the rights of the party exposed, or
acts with indifference or wantonness or recklessness
equivalent to punitive conduct.
197 So. 3d at 2. Thus, as this Court reads Valladares, if there are allegations
showing knowledge on the part of an individual that the report to police is
false, a cause of action for negligent reporting will lie.
Upon review, Clarke’s allegations are sufficient to state a claim. In
pertinent part, she alleges that the Developer Defendants engaged in a scheme
to harass and bully anyone standing in the way of the Privé development; and
to that end, that Phelan concocted a story in conjunction with the Defendant
Officers that Clarke drove her car over a neighbor’s curb and falsely reported
the level of damage to the sidewalk construction in order to ensure that Clarke
would be charged with a felony. Clarke further alleges that both Phelan and
Cohen provided sworn statements containing such false accusations and
damage estimates to the State Attorney’s Office, which ultimately declined to
prosecute. As a result, the Developer Defendants are not entitled to the
qualified privilege.
(4) Defamation claims (Counts VI and VII)
The Developer Defendants move to dismiss the defamation claims on the
basis that Clarke fails to allege facts sufficiently with respect to who published
the alleged statements to whom, and the time frame within which the
statements were made, in part based upon the Plaintiff’s lumping together the
allegations against all the Developer Defendants. However, the Court has
already rejected the lumping argument. The Developer Defendants also appear
to suggest that a defamation claim asserted against a corporation requires
additional information.
In order to state a cause of action for defamation under Florida law, a
plaintiff must allege that “(1) the defendant published a false statement; (2)
about the plaintiff; (3) to a third party; and (4) the plaintiff suffered damages as
a result of the publication.” Five for Entertainment S.A. v. Rodriguez, 877 F.
Supp. 2d 1321, 1328 (S.D. Fla. 2012) (Seitz, J.) (quoting Fortson v. Colangelo,
434 F. Supp. 2d 1369, 1378 (S.D. Fla. 2006) (Seltzer, M.J.). A plaintiff must
also allege “facts such as the identity of the speaker, a description of the
statement, and provide a time frame within which the publication occurred.”
Fowler v. Taco Viva, Inc., 646 F. Supp. 152, 157-58 (S.D. Fla. 1986) (King, J.).
Upon review, Clarke identifies the makers of the allegedly defamatory
statements, the audiences to whom these statements were made, and specifies
that such statements were made following her release on bond. Thus, Clarke’s
allegations are sufficient.
In the Amended Complaint, she alleges that Lebehnson, Phelan and
Cohen, individually and as agents of the Developer Defendant entities, made
false statements to the Miami Herald and the South Florida Business Journal
claiming that Clarke committed a crime in order to injure her reputation, that
they maintained the “Aventura Bytes” website that falsely claimed that she was
guilty of a felony, and made statements to the Miami Herald and Real Deal
calling Clarke a “spoiled brat” engaged in a “college prank” to protect her
property. In addition, Clarke has alleged oral defamation, which need not set
out the allegedly defamatory statements verbatim. Nezelek v. Sunbeam
Television Corp., 413 So. 2d 51, 55 (Fla. 3d DCA 1982). Nor must a claim for
oral defamation set out the defamatory statements with particularity. Scott v.
Busch, 907 So. 2d 662, 667 (Fla. 5th DCA 2005). Thus, viewing the Amended
Complaint in its entirety and construed in favor of the plaintiff, Clarke states
sufficient claims against the Developer Defendants for defamation.
Lastly, the Developer Defendants argue for dismissal of the defamation
claims on the basis that the statements are pure opinion, and therefore, not
actionable. Under Florida law, “[p]ure opinion occurs when the defendant
makes a comment or opinion based on facts which are set forth in the article or
which are otherwise known or available to the reader or listener as a member of
the public.” From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla. 1st DCA
1981). And while statements of pure opinion are not actionable, a defendant
may not invoke the pure opinion defense if the underlying facts are false or
inaccurately represented. Lipsig v. Ramlawi, 760 So. 2d 170, 184 (Fla. 3d DCA
2000). “The distinction between fact and pure opinion/rhetorical hyperbole is a
critical one; to be actionable, a defamatory publication must convey to a
reasonable reader [or listener] the impression that it describes actual facts
about the plaintiff or the activities in which he participated.” Fortson v.
Colangelo, 434 F. Supp. 2d 1369, 1379 (S.D. Fla. 2006) (Seltzer, M.J.). Context
is key to the determination. Horsley v. Rivera, 292 F.3d 695, 702 (11th Cir.
2002). Taking into consideration the totality of the facts alleged in context, the
Court will not determine at this juncture that the statements made regarding
Clarke’s character and reputation are pure opinion as a matter of law.
4. Conclusion
For the foregoing reasons, the motions to dismiss (ECF Nos. 18 and 19)
are denied. The Defendants shall file their answer(s) to the Amended
Complaint by October 11, 2017.
Done and ordered at Miami, Florida on September 28, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge
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