Baker et al v. Town of Palm Beach, Florida et al

Filing 25

OPINION AND ORDER. ORDER denying 9 Motion to Dismiss. Signed by Judge Kenneth A. Marra on 9/6/2017. (kpe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 16-81771-CIV-MARRA/MATTHEWMAN

BLUE WATER ENTERPRISES, INC.,
Plaintiff,
v.
TOWN OF PALM BEACH, FLORIDA, and the
TOWN OF PALM BEACH POLICE DEPARTMENT,
Defendants.
______________________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendants Town of Palm Beach and Town of Palm
Beach Police Department’s Motion to Dismiss Plaintiffs’ Verified Complaint [DE 9].1 The
Court has reviewed all papers submitted in connection with the motions, the entire file, and is
otherwise duly advised in the premises. These motions are ripe for the Court’s consideration.
BACKGROUND FACTS
The Verified Complaint in this action sets forth the following alleged facts. Plaintiff Blue
Water Enterprises, Inc. is the owner of the M/Y Time Out. [DE 1 at ¶ 4]. On September 7, 2016,
Thomas Henry Baker was navigating the M/Y Time Out from the Bahamas to Palm Beach,
Florida when he suffered an engine failure as he neared the Palm Beach Inlet. [DE 1 at ¶14]. He
called “mayday” seeking assistance and attempted to anchor his vessel about a half-mile off
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The motion was brought against Plaintiffs Thomas Henry Baker and Blue Water
Enterprises, Inc. Subsequent thereto, the Court granted Plaintiffs’ request to drop Mr. Baker as a
Plaintiff. [DE 24]. The motion continues as against Blue Water Enterprises, Inc.
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shore from the Town of Palm Beach. [Id. at ¶15]. Before help could arrive, five to seven foot
seas and high winds pushed his vessel into the beach bow first in the Town of Palm Beach, just
on the south side of the Palm Beach Inlet jetty. [Id. at ¶16].
Town of Palm Beach police arrived and arrested Mr. Baker, charging him with boating
under the influence. [Id. at ¶17]. Mr. Baker asked the police for the opportunity to make
arrangements to secure his vessel, but this request was denied. The vessel was left floundering in
rough surf and high winds. [Id. at ¶18]. Being unsecured and unattended, the vessel completely
turned about in the rough seas and wind and within a few hours was astern to the shore taking on
water and sand. [Id. at ¶22]. When Mr. Baker returned to the vessel, he was advised by the
local towing and salvage companies that it was no longer possible to tow the vessel off the beach.
[Id. at ¶23].
The Verified Complaint alleges a claim for damages arising out of the failure of the
Defendants to protect the vessel after Mr. Baker was arrested. [DE 1]. Plaintiff alleged that the
incident at issue occurred on the navigable waters of the United States, and that it bears a
substantial relationship to a traditional maritime activity and has the potential to disrupt maritime
commerce. As such, Plaintiff alleges that this case falls within the Court’s admiralty jurisdiction.
[Id.].
POSITIONS OF THE PARTIES
Defendants move to dismiss the Verified Complaint for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Rule 12(b)(6). They allege
that there is no maritime jurisdiction, because the alleged incident did not occur on navigable
waters, rather, it occurred on the beach. [DE 9 at 2]. They state that Plaintiffs have asserted a
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claim under Florida’s “undertaker’s doctrine,” which they argue fails here as Plaintiff has not
pled physical harm. They argue that Plaintiff’s claims are based upon the allegedly negligent
investigation by the Town’s officers, which claims are barred by Florida law. Defendants state
that the Police Department must be dismissed, because it is not a distinct legal entity. [Id.].
Finally, Defendants argue that this action is premature for failing to comply with the waiver of
sovereign immunity rules set forth in Fla. Stat. §768.28. [DE 9 at 13].
In response, Plaintiff argues that this case falls within the Court’s admiralty jurisdiction
[DE 10 at 2-5]; that Defendants have not provided any legal authority demonstrating that the
Police Department is not a legal entity separate from the Town; that it is not relying upon
Florida’s undertaker’s doctrine [Id. at 5-6]; that Plaintiff is not accusing Defendants of violation
of their discretionary judgment in making an arrest, or of negligent investigation [Id. at 6]; and
that Fla. Stat. 768.28 does not apply [Id. at 9-10].
In reply, Defendants reiterate that Plaintiff’s case fails the two-pronged test for admiralty
jurisdiction [DE 11 at 2]; that Plaintiff has not established that a duty of care exists on the facts
set forth in the Complaint [Id. at 5-10]; and that the Town Police Department is not a separate
entity from the Town [Id. at 10].
LEGAL STANDARDS
Motion to Dismiss for Lack of Subject Matter Jurisdiction
As the Eleventh Circuit explained in Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir.
1990),
Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two
forms. “Facial attacks” on the complaint “require[ ] the court merely to look and
see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction,
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and the allegations in his complaint are taken as true for the purposes of the
motion.” . . . “Factual attacks,” on the other hand, challenge “the existence of
subject matter jurisdiction in fact, irrespective of the pleadings, and matters
outside the pleadings, such as testimony and affidavits, are considered.”
Id. at 1528-29 (Citations Omitted). Defendants argue that this case presents a situation where the
attack on subject matter jurisdiction is factual; so, no presumption of truthfulness attaches to
Plaintiff’s allegations [DE 11 at 2].
Motion to Dismiss for Failure to State a Claim
With respect to the motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires that a pleading contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” The Supreme Court has held that “[w]hile a complaint attacked by a
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 not do. Factual allegations must be
enough to raise a right to relief above a speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal 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) (quotations and citations omitted). “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. Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950.

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When considering a motion to dismiss, the Court must accept all of the plaintiff’s
allegations as true in determining whether a plaintiff has stated a claim for which relief could be
granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). As a general rule, the Court must
“limit[] its consideration to the pleadings and exhibits attached thereto” when deciding a Rule
12(b)(6) motion to dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
2000)(internal quotation marks and citation omitted).
DISCUSSION
The Court Has Subject Matter Jurisdiction in Admiralty Over This Case
The Supreme Court in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995),
outlined the test that a court applies to determine whether it has subject matter jurisdiction in
admiralty over a tort.
[A] party seeking to invoke federal admiralty jurisdiction pursuant
to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions
both of location and of connection with maritime activity. A court
applying the location test must determine whether the tort occurred
on navigable water or whether injury suffered on land was caused
by a vessel on navigable water. . . . The connection test raises two
issues. A court, first, must “assess the general features of the type
of incident involved,” . . . to determine whether the incident has “ a
potentially disruptive impact on maritime commerce,” . . . .
Second, a court must determine whether “the general character” of
the “activity giving rise to the incident” shows a “substantial
relationship to traditional maritime activity.” . . . .
Id. at 534. (Citations omitted).
Defendants argue that Plaintiff has failed the location test, because the tort occurred after
the vessel was pushed into the beach. [DE 9 at 5]. They argue that “a beach does not fall under
the definition of navigable water.” [Id. at 6]. While this argument has superficial appeal, it is

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incorrect both legally and factually.
As noted in SCHOENBAUM, ADMIRALTY & MARITIME LAW § 3.3 (5th ed. 11/16 update):
“The traditional domain of admiralty jurisdiction is, of course, the sea, including waters within
the ebb and flow of the tide.” See Hassinger v Tideland Elec. Membership Corp., 781 F.2d 1022
(4th Cir. 1986)(holding that admiralty jurisdiction extends at all times in tidal areas to the mean
high water mark).
Although Defendants are accurate that the Complaint alleges that the vessel was pushed
into the beach, the Complaint never alleges that the vessel was entirely beyond the mean high
water mark. In fact, the Complaint states to the contrary, when it alleges that the vessel “was left
floundering in rough surf . . . .” [DE 1 at ¶ 18], and “[b]eing unsecured and unattended, the
vessel completely turned about in the rough seas and wind and within a few hours was astern to
the shore taking on water and sand.” [Id. at ¶ 22].
In discussing the location of the vessel, Defendants ask the Court to consider the police
reports and the report of the Florida Fish and Wildlife Conservation Commission in their moving
papers. They argue that even though these documents are outside the four corners of the
complaint, they can be considered as central to Plaintiff’s claims and undisputed in terms of
authenticity. [DE 9 at 5, ftn 3].
The Court need not address this argument, because the Court can consider these
documents as part of the factual attack on subject matter jurisdiction. Although unnecessary to
do so in light of the specific allegations in the Complaint discussed supra, these documents
actually support Plaintiff’s position. The Reporting Officer Narrative states that the yacht
“appeared to have run aground approximately 15 yards off shore . . . .” [DE 9-2 at 4 (bold
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emphasis added)]. A vessel that is “off shore” is not “on the beach” or beyond the mean high
water mark. This Report also notes that “Baker and Shaffer did manage to reboard the vessel and
gather some personal property prior to the vessel becoming unsafe to board again as it took on
water.” [Id. at 4 (bold emphasis added)]. Obviously, the vessel could not have taken on water if
it was not in the water.
The Incident Summary Report of the Florida Fish and Wildlife Conservation Commission
notes that by 9/13/16, “the vessel had rolled completely onto its port side and was resting on the
sea bottom in approximately 6 feet of water.” [DE 9-3 at 2]. Pictures attached to this Report
show the vessel in the water. [Id. at 4-6]. The Commission cited Mr. Baker for having left “a
derelict vessel on the waters of the state.” [Id. at 8].
The Defendants do not dispute the facts stated in these documents. They note that prior
to the arrival of the Town’s officers, Baker had “already run the vessel aground in the shallow
waters near the coastline . . . .” [DE 9 at 6]. Therefore, Defendants concede that the vessel was
in shallow water. Defendants simply misconstrue the legal implications of the vessel having been
in shallow water. Such water is considered “navigable” for purposes of admiralty jurisdiction.
The Court finds, therefore, that Plaintiff’s Complaint satisfies the location test for
admiralty jurisdiction.
Defendants next argue that Plaintiff has not met the connection test, because the incident
did not have a potentially disruptive impact on maritime commerce, nor was there a substantial
relationship to traditional maritime activity. [DE 9 at 7]. Plaintiff responds that Defendants’
actions left a vessel floundering in shallow water just south of the Palm Beach Inlet. Plaintiff
notes that clearly there was the potential to disrupt maritime commerce. [DE 10 at 3].
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The Court finds that the Complaint contains sufficient facts to satisfy the connection test
for determining maritime jurisdiction. The Complaint asserts that when the vessel was grounded,
it was “just on the south side of the Palm Beach Inlet jetty.” [DE 1 at ¶ 16]. Defendants’ moving
papers concede as much when they append the police report, which states that the vessel was
“approximately 100 yards south of the Palm Beach Inlet.” [DE 9-2 at 4]. The Complaint alleges
that Mr. Baker asked the police for the opportunity to make arrangements to secure his vessel,
and that this request was denied. The vessel was left floundering in rough surf and high winds
[Id. At ¶ 18].
Based upon these alleged facts, the Court finds that the incident had a potentially
disruptive impact on maritime commerce, and the general character of the activity that gave rise
to the incident shows a substantial relationship to traditional maritime activity. The abandoned
vessel potentially could have interfered with traffic in and out of the nearby Port. A disabled
vessel running aground in shallow water, and the impact on commerce of leaving the vessel
abandoned in that condition, is substantially related to traditional maritime activity.
The Court, therefore, finds that it has subject matter jurisdiction over this matter pursuant
to 28 U.S.C. § 1333. Having determined that it has jurisdiction, the Court will now address the
portion of Defendants’ motion arguing that the Complaint fails to state a claim against them.
Plaintiff’s Complaint States a Claim For Which Relief Could be Granted
In evaluating this portion of Defendants’ Motion to Dismiss, the Court must accept all of
Plaintiff’s allegations as true in determining whether it has stated a claim for which relief could
be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). As a general rule, the Court must
“limit[] its consideration to the pleadings and exhibits attached thereto” when deciding a Rule
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12(b)(6) motion to dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
2000)(internal quotation marks and citation omitted).
Defendants have appended to their motion papers documents beyond the four corners of
the Complaint and exhibits attached thereto. While the Court took those documents into account
in conducting its factual based inquiry into its subject matter jurisdiction to hear this case, it
cannot do so in connection with this portion of Defendants’ motion. The Court does not agree
with Defendants’ analysis that the Court can consider these documents as central to Plaintiff’s
claims. [DE 9 at 5, n. 3].
The salient facts at issue as set forth in Plaintiff’s Verified Complaint are as follows:
18. Plaintiff Baker asked the police for the opportunity to make
arrangements to secure his vessel. His request was denied. The
M/Y Time Out was left floundering in rough surf and high winds.
19. In violation of generally accepted policies, procedures and
practices exercised by law enforcement statewide in Florida, the
Town of Palm Beach police failed to make arrangements to tow
and impound the M/Y Time Out.
[DE 1 at 4].
From these facts, Plaintiff alleges that Defendants had a duty to protect Plaintiff’s
property and have the vessel towed; that Defendants breached this duty when they failed to make
arrangements to protect the vessel and have it towed; and that Defendants further breached their
duty and violated Fla. Stat. Sec. 823.11.2
Appended to the Complaint are the Florida Fish and Wildlife Conservation Commission
General Orders Manual, which authorizes its sworn members to impound and store vessels, and
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No Party has discussed the allegation under section 823.11. The Court, therefore, does
not address it here.
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the Florida Highway Patrol Policy Manual providing rules applicable to the towing and
impoundment of vehicles by the Florida Highway Patrol. [DE 1 at 8-17]. The Court does not
comment on whether or to what extent these documents can be used in the future litigation of this
case. The Court has not taken them into account in its evaluation of whether the Complaint
states a claim.
“In admiralty the duty of care may be derived from three basic sources: (1) duly enacted
laws, regulations, and rules; (2) custom; and (3) the dictates of reasonableness and prudence.”
SCHOENBAUM, ADMIRALTY & MARITIME LAW § 5.2 (5th ed. 11/16 update)(citations omitted).
Here, the Complaint adequately alleges that custom and the dictates of reasonableness and
prudence created a duty on the part of the Defendants.
Defendants rely heavily upon Hoefling v. City of Miami, 17 F. Supp.3d 1227 (S.D. Fla.
2014), aff’d in part, rev’d in part, and remanded for further proceedings, 811 F.3d 1271 (11th
Cir. 2016). The lower court in Hoefling held that in the absence of any cases under maritime law
stating that police officers owe a duty of care to an individual member of the public with respect
to the enforcement of the law, Florida law precluding such a claim controlled. 17 F. Supp.3d at
1241.
This Court does not agree that the absence of a maritime case on point necessarily
requires the application of state law. Nevertheless, even if this Court were to apply Florida law
as Defendants urge, Plaintiff still has stated a valid claim.
The instant case is factually distinguishable from Hoefling and other cases asserting that
there is no duty under Florida law to an individual member of the public with respect to the
enforcement of the law. What distinguishes this case is the allegation that Mr. Baker asked the
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police for the opportunity to make arrangements to secure his vessel, but his request was denied.
It is further alleged that the M/Y Time Out was left floundering in rough surf and high winds. [DE
1 at 4].
At this early stage of the litigation, these allegations are sufficient to raise a special duty
under Florida law on the part of the officers on the scene. The analysis of a special duty tort in
Pollack v. Florida Dept. of Highway Patrol, 882 So.2d 928 (Fla. 2004), is instructive here. “The
premise underlying this theory is that a police officer’s decision to assume control over a
particular situation or individual or group of individuals is accompanied by a corresponding duty
to exercise reasonable care.” Id. at 935.3
Defendants separately argue that the Verified Complaint must be dismissed, because the
Plaintiff failed to comply with Fla. Stat. § 768.28. As noted in Plaintiff’s responding papers, this
section does not apply to maritime cases. See, generally Workman v. New York City, 179 U.S.
552, 573-74 (1900)(local law does not control maritime law).
Finally, Defendants argue that this case must be dismissed as against the Town Police
Department. Defendants’ moving brief states, in conclusory fashion, that the Town Police
Department must be dismissed from this lawsuit, because it does not have any legal existence
separate and apart from the Town itself. [DE 9 at 4]. Defendants rely upon Ball v. City of Coral
Gables, 548 F. Supp.2d 1364 (S.D. Fla. 2008). The Ball Court noted that:

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Plaintiff also argues that the Town’s police department “had undertaken the customary
duty to make arrangements to secure the vessel, but failed to follow through and insure the vessel
was in fact secured.” [DE 10 at ¶ 35]. Plaintiff cites to an exhibit to Defendants’ moving papers,
which the Court cannot consider in connection with this motion to dismiss. Plaintiff has no such
claim in the Verified Complaint; therefore, the Court has not considered this argument in
reaching its decision.
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The Eleventh Circuit has stated that ‘[s]heriff’s departments and police
departments are not usually considered legal entities subject to suit.”. . . The
capacity to sue or be sued is “determined by the law of the state in which the
district court is held.’” . . . Under Florida law, “‘where a police department is an
integral part of the city government as the vehicle through which the city
government fulfills its policing functions it is not an entity subject to suit.’” . . . .

Id. at 1369. The Coral Gables Police Department was granted summary judgment based upon an
affidavit from the Chief of Police outlining that the Police Department met these criteria. Id. at
1369-70.
Plaintiff has alleged that the Town of Palm Beach Police Department is a department of
the Town of Palm Beach. Defendants’ attorneys have argued that the Police Department does
not have any legal existence separate and apart from the Town itself, but the Court cannot rely
upon this statement. Any facts supporting this statement are in the possession of Defendants.
Plaintiff should have an opportunity to conduct discovery on this issue. Then, this issue can be
properly addressed by a motion for summary judgment, as was done in the Ball case.
CONCLUSION
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants Town of Palm Beach and Town of
Palm Beach Police Department’s Motion to Dismiss Plaintiffs’ Verified Complaint [DE 9] is
DENIED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 6th of September, 2017.
_____________________________
KENNETH A. MARRA
United States District Judge
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