Nantucket Enterprises, Inc. v. City of Palm Beach Gardens, Florida

Filing 133

ORDER granting 119 Motion to Dismiss for Failure to State a Claim. Signed by Judge Kenneth A. Marra on 7/29/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-81549-CIV-MARRA/JOHNSON
NANTUCKET ENTERPRISES, INC.,
Plaintiff,
vs.
THE CITY OF PALM BEACH GARDENS,
Defendant.
_____________________________________/
ORDER
This cause is before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Third
Amended Complaint With Prejudice (DE 119). The motion is briefed and ripe for review. The Court
has carefully reviewed the briefs and is otherwise fully advised in the premises.
I. Background1
In 1992, Plaintiff Nantucket Enterprises, Inc. (“Plaintiff”) secured a lease to operate a
restaurant and nightclub in a hotel, retail, and office complex in Palm Beach Gardens, Florida. (DE
115 ¶ 2) (“Third Amended Complaint” or “Complaint”). Plaintiff leased the premises from 1992
to 2008. (Third Amended Complaint ¶¶ 2, 27, 33). “The premises are either formerly or presently
owned or controlled by John D. MacArthur or one or more of the business entities he was affiliated
with, including the presently existing John D. and Catherine T. MacArthur Foundation.” (Third
Amended Complaint ¶ 5).

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The Court accepts all of Plaintiff’s allegations as true in determining whether it has stated a claim for which
relief can be granted. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Plaintiff alleges that the Defendant City of Palm Beach Gardens (“the City”) has an unofficial
custom or practice of allowing certain properties—including properties owned or formerly owned
by John D. MacArthur or one or more of the businesses with which he was affiliated or
controlled—to be developed, constructed, or maintained outside of the normal building procedures,
statutes, rules, and regulations with which other properties must comply. (Third Amended Complaint
¶ 20(a)).2 One such property, according to Plaintiff, is the property on which its leased premises is
located. Plaintiff alleges that the property “has never received final building approvals or a certificate
of occupancy,” but “the City issued a red tag to [Plaintiff] and temporarily closed [its] business
operations because [Plaintiff] was unable to timely obtain necessary building permits or a certificate
of occupancy, in large part due to the improper development the City allowed through the [property
on which the leased premises is located.]” (Third Amended Complaint ¶ 20(c)).3 This improper
development included the City’s allowing development “without sufficient proof of ownership,
without sufficient survey and legal descriptions, without proper environmental reports and analysis,
without timely completion (to this date) of development conditions and obligations, without final

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For example, “the City allowed development and construction of the following properties outside of the proper
strictures of applicable statutes, rules, codes and procedures”: Tanglewood, which was allowed to be improperly
subdivided and built without proper planning, permitting, and final approval in the mid-1970’s; the W eiss School, which
was allowed to make renovations much more substantial than Plaintiff’s renovations (and the City did not require a new
certificate of occupancy, it only required a certificate of completion in 2009); 4440 PGA Blvd, which was built without
proper planning, permitting, final approval, and any certificate of occupancy in 1976; 4350 PGA Blvd., which was built
without proper planning, permitting, final approval, and any certificate of occupancy from 1988 to present (and which
has undergone renovations much more substantial than Plaintiff’s renovations, and the City did not require a new
certificate of occupancy); Golfer’s Village; JDM Country Club; PGA National Golf Club Estates; [t]he Former Holiday
Inn on PGA Blvd, which was built without proper planning, permitting, final approval, and any certificate of occupancy
in the early 1970’s; Burns Road Public Storage; and the former Sermatec Building on Burns Road.” (Third Amended
Complaint ¶ 20(b), (e)).
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Notwithstanding this Court’s admonishment in a previous order that Plaintiff’s complaint “does not explain
what a ‘red tag’ is, nor does it explain the City’s purported reason for placing the ‘red tags,’” (DE 31 at 2 n.2), Plaintiff’s
Third Amended Complaint still fails to clarify both what “red tags” are and why the City places them.

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development approval and sign off and without a certificate of occupancy.” Id. And because of this
allegedly improper development, Plaintiff concludes, “[it] was unable to timely complete its own
renovations to the Leased Premises. For example, due to the absence of as-builts for [the property
on which Plaintiff’s leased premises is located], [Plaintiff] was materially delayed in securing
permits and licensing from regulatory agencies. For the same reasons, [Plaintiff] never could have
obtained the certificate of occupancy because there is no certificate of occupancy on the underlying
properties . . . .” Id.
Plaintiff further alleges that this unofficial custom or practice was enforced through the City’s
final policymakers: Doug Wise (“the head building official”); Ron Ferris (the City Manager); and
the City Council.4 “The City Manager has ultimate decisionmaking on approving or denying
Certificates of Occupancy.” (Third Amended Complaint ¶ 17). “The City Council is charged with
final decisionmaking on allowing development within the City, approving Planned Unit
Developments . . ., approving construction through permits and ordinances, [and] approving
subdivision of properties (commercial and residential).” (Third Amended Complaint ¶¶ 18, 22).
“Ron Ferris and the City Council are policy makers of the City because they are responsible for
decisions affecting development and building within the City, they are responsible for the decisions
to enforce or not to enforcement [sic] of laws, codes and the regulations of the State, County and
City within the City [sic] and they are responsible for the health, safety and welfare of those living,
working, visiting or schooling within the City.” (Third Amended Complaint ¶¶ 19, 22).

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This unofficial custom or practice is allegedly permanent and well-settled because it has been in place from
the early 1970’s to at least 2009. (Third Amended Complaint ¶ 23).

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It is Plaintiff’s position that “[w]hile the City allows development and construction on certain
properties[,] it arbitrarily enforces its codes and regulations upon others and unlawfully enforces
same through red tags, including the issuance of red tags upon [Plaintiff,] Robert H. Donelian, Palm
Beach Community Church, and the Borland Center/Midtown.” (Third Amended Complaint ¶ 20(d)).
The reasons for this disparate enforcement, according to Plaintiff, are “favoritism and to cover up
environmental contamination caused by allowing industrial waste to be dumped by properties and
utilities” that John D. MacArthur or one of his entities owned or operated. (Third Amended
Complaint ¶¶ 20(a), 24). Plaintiff alleges that the City’s “policy” is meant to “cover up the fact that
for decades the water, sewer lines and/or ground at the [p]roperty and surrounding areas has been
contaminated,” that the City was operating a water plant and waste water treatment plant to the
northwest of the property “without any proper licensing or permitting for a decade or more,” and that
the City let other industries dump industrial waste into the water plant and waste water treatment
plant. (Third Amended Complaint ¶¶ 25–26, 32). Plaintiff further alleges that Ron Ferris and the City
Council knew of the water and ground contamination at the property and surrounding areas and of
an alleged “cover up of the lack of sewage capacity in Palm Beach Gardens, Florida . . . .” (Third
Amended Complaint ¶¶ 31, 34).
In November 2008, the City sought Plaintiff’s compliance with code provisions that required
Plaintiff to obtain a certificate of occupancy—a certificate that, according to Plaintiff, the City could
never issue because the entire complex “was constructed without proper permitting and code
compliance . . . .” (Third Amended Complaint ¶¶ 27, 33, 38, 51). At some point, the City Manager
allegedly approved “the armed removal of [Plaintiff] on November 12, 2008—the day [Plaintiff] was

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prepared to show its entitlement to the Certificate of Occupancy through a final walk through . . . .”
(Third Amended Complaint ¶¶ 27, 33, 53).
Plaintiff alleges that “[a]s part of the scheme to hide the environmental contamination, the
true owners of [t]he [p]roperty were concealed and the City knew this to be another problem with
[Plaintiff’s] business plans. In fact, the purported owners/operators concocted an elaborate scheme
to transfer the [p]roperty which included a bogus mortgage and fraudulent foreclosure action. The
City was aware of these unlawful acts and allowed them to continue.” (Third Amended Complaint
¶ 39). Plaintiff further alleges that “[t]he City fabricated code violations to mete out heavy handed,
unnecessary, unlawful and abusive building and code enforcement tactics, and to harass and
stonewall [Plaintiff] through building officials, inspectors, and police officers, specifically including
the Chief Building Official at the time, Douglas Wise[,] to further the City’s policy or custom.”
(Third Amended Complaint ¶ 40).
According to Plaintiff, “[t]he City responded favorably to the owners’ solicitation to
orchestrate code enforcement proceedings by [the City] for use as a distraction to [Plaintiff] and as
a potential back up plan in the event the owners’ planned November 4, 2008 lockout of [Plaintiff]
failed.” (Third Amended Complaint ¶ 41). “Further, the City initiated its own abuses by the code
enforcement and building departments as a policy and a custom to extort disputed payments from
[Plaintiff] to the City.” (Third Amended Complaint ¶ 42).
Plaintiff alleges that the City’s actions were intended to (and did) intimidate Plaintiff. (Third
Amended Complaint ¶ 43). Plaintiff further alleges that “the City knowingly, oppressively and
maliciously applied its policies and customs to [Plaintiff] to violate [Plaintiff’s] consitutional rights
and Florida Law in accepting and responding to knowingly false reports of trespass and criminal
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accusations against [Plaintiff], in agreeing to force and pressure by the landlord, owners and
managers that the City place a “red tag” on the doors and entrances to [Plaintiff’s] restaurant and
lounge and its kitchen facilities as a material participation in the efforts of the Landlords’ plan to
unlawfully and forcibly take [Plaintiff’s] property rights and takeover its business operations.” (Third
Amended Complaint ¶ 47).
On November 8, 2010, Plaintiff filed a two-count complaint in state court alleging claims
under 42 U.S.C. § 1983 for deprivation of civil rights and under Florida Statute § 119.07 for
violation of Florida’s Public Records Act. (DE 1). On December 2, 2010, the City filed a motion
to dismiss and concurrently filed a notice of removal. Id. Instead of responding to the motion,
Plaintiff sought leave to file an amended complaint (DE 15), which this Court granted (DE 16).
Plaintiff filed its amended complaint on March 21, 2011 (DE 17), and the City moved to dismiss the
amended complaint on March 23, 2011. (DE 22). On August 5, 2011, the Court granted the City’s
motion to dismiss and gave Plaintiff until August 29, 2011, to file its second amended complaint.
(DE 31). After receiving four separate extensions, Plaintiff filed its second amended complaint on
December 6, 2011. (DE 35). The City moved to dismiss that complaint, and the Court granted the
City’s motion, stating as follows:
The Court has carefully reviewed the Second Amended Complaint (“SAC”) and
concludes that it again fails to state a plausible claim. The SAC is one man’s version
of the developmental history of the City of Palm Beach Gardens which inexplicably
purports to have some causal connection to Plaintiff’s eviction from a commercial
leasehold. The eviction also purports to constitute some type of constitutional
violation. To the extent there are some allegations that may arguably approach the
articulation of the violation of some constitutional right, the allegations are wholly
conclusory. The observation that the complaint does not meet the plausibility
requirement for pleading a valid claim in the federal courts would be an
understatement.

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(DE 101). The Court further noted that “Plaintiff shall have one last opportunity to amend his
complaint to allege a plausible constitutional violation.”
Plaintiff’s Third Amended Complaint brings seven counts against the City: violation of equal
protection under 42 U.S.C. § 1983 (Count I); deprivation of substantive due process under 42 U.S.C.
§ 1983 (Count II); deprivation of procedural due process under 42 U.S.C. § 1983 (Count III);
deprivation of the right to be free from unreasonable force and seizure of property under 42 U.S.C.
§ 1983 (Count IV); deprivation of the right to rewarded by industry under the Florida Constitution
(Count V); public records violations under Florida Statute § 119.07 (Count VI); and mandamus to
comply with public records requests (Count VII). The City moves to dismiss with prejudice
Plaintiff’s final complaint.
Just like Plaintiff’s previous three attempts, the instant complaint is disorganized, repetitive,
and implausible. But most importantly, the final amendment has failed to cure the pleading
deficiencies that the Court addressed in its earlier orders. The City’s motion to dismiss is accordingly
granted. Plaintiff’s claim shall be dismissed with prejudice.
II. Legal Standard
Rule 8(a) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief’ in order to give the defendant fair notice
of what the plaintiff’s claim is . . . and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). The Supreme Court has held that
“[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
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not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
(citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (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.; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261
(11th Cir. 2009). Thus, “only a complaint that states a plausible claim for relief survives a motion
to dismiss.” Iqbal, 129 S. Ct. at 1950. When considering a motion to dismiss for failure to state a
claim, the court must “accept[] the allegations in the complaint as true and constru[e] them in the
light most favorable to the plaintiff.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th
Cir. 2010) (internal quotation marks omitted).
III. Discussion
A. Count I: Equal Protection under 42 U.S.C. § 1983
“The Supreme Court has placed strict limitations on municipal liability under § 1983.”
Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (citing City of Canton v. Harris, 489
U.S. 378, 385 (1989) and Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A county’s
liability under Section 1983 “may not be based on the doctrine of respondeat superior.” Id. A local
government is “liable under Section 1983 only for acts for which the local government is actually
responsible.” Marsh v. Butler Cnty., 268 F.3d 1014, 1027 (11th Cir. 2001). “Indeed, a county is
liable only when the county’s ‘official policy’ causes a constitutional violation.” Grech, 335 F.3d

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at 1329. Thus, Plaintiff must “‘identify a municipal ‘policy’ or ‘custom’ that causes [its] injury.’”
Id. (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)).
A § 1983 plaintiff “has two methods by which to establish a county’s policy: identify either
(1) an officially promulgated county policy or (2) an unofficial custom or practice of the county
shown through the repeated acts of a final policymaker for the county.” Id. “Because a county rarely
will have an officially-adopted policy of permitting a particular constitutional violation, most
plaintiffs . . . must show that the county has a custom or practice of permitting it and that the
county’s custom or practice is ‘the moving force [behind] the constitutional violation.’” Id. at 1330
(quoting City of Canton, 489 U.S. at 389).
To establish Ҥ 1983 liability against a municipality based on custom, a plaintiff must
establish a widespread practice that, ‘although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the force of law.’”
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (quoting City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988)); see also Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir.
1999) (“To establish a policy or custom, it is generally necessary to show a persistent and widespread
practice.”).
Additionally, to allege municipal liability under Section 1983, “a plaintiff (1) must show that
the local governmental entity, here the [City], has authority and responsibility over the governmental
function in issue and (2) must identify those officials who speak with final policymaking authority
for that local governmental entity concerning the act alleged to have caused the particular
constitutional violation in issue.” Grech, 335 F.3d at 1330.

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Here, Plaintiff does not attempt to allege that the City’s course of conduct towards it was an
official policy, and its attempt to allege the existence of “an unofficial custom or practice” fails. In
response to Plaintiff’s first attempt to make the “unofficial custom or practice” allegation, this Court
held:
While Plaintiff alleges several instances of allegedly antagonistic conduct towards
[its] Restaurant—such as harassing building inspections, harassment from off-duty
policy officers hired by the landlords, and evicting Plaintiff from the premises—this
conduct was limited to the restaurant alone. The alleged custom did not affect anyone
else. This was not a “widespread” or “pervasive” practice, but instead a “single
incidence.” Accordingly, the alleged conduct towards Plaintiff is insufficient to
constitute a custom for Section 1983 liability.
Additionally, the only officials specifically identified as being involved in the
alleged harassment towards Plaintiff are Sergeant Jack Schnur and Mr. Wise, the
head building official. Plaintiff does not allege that either individual was a “final
policymaker for the [City],” and as such Plaintiff has failed to sufficiently allege a
Section 1983 claim based on these officials’ alleged conduct.
Thus, because Plaintiff has failed to allege sufficiently an official policy, an
unofficial custom, or a final policymaker that caused the alleged constitutional
violations, Plaintiff’s Section 1983 claim against the City fails. However, because
this ruling is based on a pleading deficiency, the Court will permit Plaintiff leave to
amend the complaint to attempt to cure these defects. Specifically, Plaintiff should
allege whether the City’s antagonism towards nightclubs on PGA Boulevard is an
official policy, stemming from a policy statement, ordinance, regulation, or final
policymaker, or whether it is an unofficial custom. If the latter, Plaintiff should allege
whether other nightclubs, or any other entity, suffered similar harassment under the
alleged custom. Plaintiff should also allege who or what entity set forth the alleged
policy or custom. That is, Plaintiff should identify the officials or entities responsible
for the alleged policy or custom and allege facts supporting the conclusion that those
officials or entities are final policymakers.
(DE 31 at 7–9) (citations omitted). In an attempt to heed the Court’s advice, Plaintiff now alleges
that the City’s unofficial custom or practice allows certain properties, see supra note 2, to be
developed, constructed, or maintained outside of the normal building procedures, statutes, rules, and
regulations with which other properties (such as the property on which Plaintiff’s leased premises
is located) must comply. (Third Amended Complaint ¶ 20(a)). And Plaintiff further alleges that this
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unofficial custom or practice was enforced through the City’s final policymakers, which include the
head building official, the City Manager, and the City Council.
The problem with Plaintiff’s allegations is that, even if taken as true, they fail to establish that
the City unequally applied a facially neutral ordinance for the purpose of discriminating. To prevail
on the type of equal protection claim Plaintiff has brought, “basically a selective enforcement claim,”
Plaintiff must show that (1) it was treated differently from other similarly situated entities, and (2)
the City unequally applied a facially neutral ordinance for the purpose of discriminating against
Plaintiff. See Campbell v. Rainbow City, 434 F. 3d 1306, 1314 (11th Cir. 2006) (citing Strickland
v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996)).
At bottom, taking Plaintiff’s allegations as true, Plaintiff has failed to establish the existence
of a conspiracy or how the alleged conspiracy motivated the City to allegedly violate Plaintiff’s
constitutional rights in a discriminatory way. As the City correctly points out:
Plaintiff essentially alleges that the City, along with the owner (“true owner/”fake”
owner, it is not clear), engaged in an ultimately successful scheme of getting the
Plaintiff out of the building and out of its lease. Other than conclusory [allegations]
that some of these actions were motivated by the City’s desire to further the City’s
policy or custom there are no factual allegations that would make this plausible.
Indeed, if the City and the owners/landlord were scheming to get [Plaintiff’s]
restaurant out of the building how would this further the alleged custom of
conspiracy? Indeed, why would the “conspirators” lease to the Plaintiff in the first
place if only to have to force them out later, or alternatively why would the
“conspirators” not just continue with their “scheme” of not requiring proper
permitting in the “conspirators’” buildings and let the Plaintiff expand without any
permitting so as to not shed light on the “conspiracy” and hidden “scheme of
covering up environmental contamination?”
(DE 119 at 7). The City raises a number of valid questions, and Plaintiff has failed to address any
of them (either through the instant complaint or through Plaintiff’s response to the City’s motion to
dismiss).
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The Third Amended Complaint contains no factual allegations that would make it plausible
that the City conspired with anyone to arbitrarily enforce its code, cover up environmental
contaminations, or both. But even assuming the existence of Plaintiff’s alleged conspiracy, Plaintiff
has failed to allege any facts that, taken as true, would make it plausible that the conspiracy was the
moving force behind the constitutional deprivations Plaintiff allegedly suffered.
B. Count II: Substantive Due Process under 42 U.S.C. § 1983
Plaintiff’s second count is virtually identical to its first: it merely removes the paragraph
dealing with the differing treatment of similarly situated persons. The crux of Plaintiff’s claim is that
its right to substantive due process was violated when the City required Plaintiff to obtain a
certificate of occupancy, when it “red tagged” a portion of Plaintiff’s property for not obtaining a
certificate of occupancy, and when it forced Plaintiff “out of the entirety of the Leased Premises
without a court order at the request of the purported owners and landlords of the Property.” (Third
Amended Complaint ¶ 84).
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State
shall . . . deprive any person of life, liberty, or property, without due process of law.” See Doe ex rel.
Doe v. City of Opa-Locka, No. 11-21975-CIV, 2013 WL 1176239 (S.D. Fla. Mar. 20, 2013). “As
a general matter, the Court has always been reluctant to expand the concept of substantive due
process because the guideposts for responsible decisionmaking in this unchartered area are scarce
and open-ended.” Albright v. Oliver, 510 U.S. 266, 271–72 (1994) (plurality). Notably “[t]he
protections of substantive due process have for the most part been accorded to matters relating to
marriage, family, procreation, and the right to bodily integrity.” Id. at 272 (citing Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833, 847–49 (1992)).
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Plaintiff has presented the Court no valid reason or authority that supports expanding the
concept of substantive due process to a situation involving a corporate entity’s eviction from a
commercial leasehold, and the Court sees no reason to do so here. Count II of Plaintiff’s complaint
shall accordingly be dismissed.
C. Count III: Procedural Due Process under 42 U.S.C. § 1983
Plaintiff alleges that it has a constitutionally protected property right in its lease and its
business operations under the lease, and that the City’s conduct deprived Plaintiff of its right when
it required Plaintiff to obtain a certificate of occupancy that was not required and when it forced
Plaintiff out of the leased premises without a court order at the request of the purported owners and
landlords of the property. (Third Amended Complaint ¶ 90). Plaintiff further alleges that it had a
hearing scheduled by the City due to its alleged failure to comply with the certificate of occupancy
issues, but “the City deprived [Plaintiff] of these due process rights when it red tagged portions of
the [p]roperty, stopped the final inspection process on November 12, 2008 without basis and for
improper purposes and then when it forced [Plaintiff] and its agents out of the Leased Premises
without any court order or legal process and prior to the hearing.” (Third Amended Complaint ¶ 93).
“It is axiomatic that, in general, the Constitution requires that the state provide fair
procedures and an impartial decisionmaker before infringing on a person’s interest in life, liberty,
or property.” McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994). “[A] procedural due process
violation is not complete,” however, “unless and until the State fails to provide due process. In other
words, the state may cure a procedural deprivation by providing a later procedural remedy; only
when the state refuses to provide a process sufficient to remedy the procedural deprivation does a
constitutional violation actionable under section 1983 arise.” Id. at 1557 (citing Zinermon v. Burch,
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494 U.S. 113, 123 (1990)); see also id. at 1560 (“When a state procedure is inadequate, no
procedural due process right has been violated unless and until the state fails to remedy that
inadequacy.”).
Thus, “[a]ll that due process requires . . . is a post-deprivation ‘means of redress for property
deprivation satisfying the requirements of procedural due process.” Id. at 1563 (citing Paratt v.
Taylor, 451 U.S. 527, 537 (1981)). Here, even assuming Plaintiff suffered a procedural deprivation
at the hands of the City, “[it] has not suffered a violation of [its] procedural due process rights unless
and until the State of Florida refuses to make available a means to remedy the deprivation.” Plaintiff
has failed to allege that Florida has refused to make available a means to remedy his deprivation, and
its claim of a violation of procedural due process necessarily fails as a matter of law.
D. Count IV: Unreasonable Force and Seizure of Property under 42 U.S.C. § 1983
Plaintiff alleges that, even as a corporate entity, it has the right to be free from unreasonable
force and seizure of its property. To that end, Plaintiff alleges that the City’s actions deprived it of
that right when the City required Plaintiff to obtain a certificate of occupancy that was not required,
when it red tagged Plaintiff’s restaurant, lounge, and kitchen for not obtaining a certificate of
occupancy, and when it forced Plaintiff “out of the entirety of the leased premises without a court
order at the request of the purported owners and landlords of the [p]roperty.” (Third Amended
Complaint ¶ 97). Plaintiff further alleges that “[t]he actions of the City were more than necessary and
involved excessive force through the threat of arrest through armed police officers forcing Plaintiff
and its agents out of the Leased Premises without court order.” (Third Amended Complaint ¶ 98).
Plaintiff provides no support for its proposition that a corporate entity may bring a § 1983
claim for unreasonable force and seizure of property; and the Court concludes that, as a matter of
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law, no such claim has been sufficiently alleged here. Plaintiff’s claim of unreasonable force and
seizure of property shall accordingly be dismissed.
E. Counts V, VI & VII: Remaining State Law Claims
Having dismissed the federal law claims in this action, and finding no diversity of jurisdiction
over the parties, the state law claims (Counts V, VI & VII) against the City can only be maintained
through the Court’s exercise of supplemental jurisdiction. See Moore v. Miami-Dade Cnty., No. 0622705-CIV, 2007 WL 4644629, at *6 (S.D. Fla. Dec. 10, 2007) (citing 28 U.S.C. § 1367(c)(3)). The
Court declines to exercise supplemental jurisdiction over these state law claims.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to
Dismiss Plaintiff’s Third Amended Complaint With Prejudice (DE 119) is GRANTED. Counts I,
II, III & IV of Plaintiff’s Third Amended Complaint are DISMISSED WITH PREJUDICE. The
Court declines to exercise supplemental jurisdiction over the remaining state law counts, so those
counts (V, VI & VII) are DISMISSED WITHOUT PREJUDICE. Judgment shall be entered
separately.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 29th day of July, 2013.
_______________________________________
KENNETH A. MARRA
United States District Judge

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