# Savales v. Waters

> District Court, M.D. Florida · March 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10104680

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104680

## How later opinions describe it (automated extraction)

- holding that because federal excessive force claim could proceed, “parallel state law claim of battery” could also proceed
- holding that citizens who are not detained or seized can ignore law enforcement questions and continue on their way

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

EVA HELDA SAVALES, an
individual

Plaintiff,

v. Case No. 3:19-cv-523-J-32PDB

JANENE WATERS, an individual,
RIVERBEND PARTNERS, LLC, a
Delaware limited liability company,
JOSEPH STREAN, an individual,
WILLIAM S. CATER, an individual,
WRH REALTY SERVICES, INC., a
Florida corporation, STARE
DECISIS USA, LLC, a Delaware
limited liability company, and CITY
OF JACKSONVILLE,

Defendants.

ORDER
A woman calls 911 to report that another woman hit her with a six-foot-
long two-by-four piece of wood. After taking a statement from the alleged victim
and a witness, law enforcement attempts to talk to the 87-year-old alleged
perpetrator. But she refuses to get out of her car and tells the officer to go away.
Without further warning, the officer physically removes her from the car,
slamming her to the ground in the process, leading to this lawsuit claiming,
among other things, false arrest and excessive force.

This case is before the Court on Defendants William Cater and the City
of Jacksonville’s Motion to Dismiss (Doc. 23), Defendant Janene Waters’s
Motion to Dismiss (Doc. 24), which Defendant WRH Realty Services, Inc. joined
(Doc. 25). Plaintiff Eva Helda Savales responded in opposition to each motion

to dismiss. (Docs. 34, 45). Additionally, Defendant Riverbend Partners, LLC
filed a Motion for Summary Judgment, (Doc. 51), which has no response.
I. BACKGROUND
A. Facts Alleged in the Complaint

On October 19, 2015, Savales was loading her car with items from her
apartment, which she rented from Casa Del Rio St. Johns (the name that
Defendant Riverbend Partners, LLC was doing business as). (Doc. 16 ¶ 21).
Casa Del Rio was managed by WRH, and WRH employed Waters to conduct

Casa Del Rio’s day-to-day operations. Id. ¶¶ 6–11. Waters demanded that
Savales, who was parked on the grass, move her car, but Savales declined to do
so. Id. ¶¶ 21–23.
Waters became upset and she called 911 and allegedly falsely reported

that Savales “assaulted her while holding a board and threatened to choke
[Waters and Joseph Strean] with a chain.” Id. ¶ 26. Strean worked for Arlington
Wrecker Service (the name that Defendant Stare Decisis USA, LLC was doing
business as), and Casa Del Rio or WRH hired Arlington Wrecker to remove
unauthorized vehicles from the apartment complex. Id. ¶¶ 12–16. On the date

in question, Arlington Wrecker dispatched Strean to tow Savales’s car. Id. ¶ 13.
After the 911 call, Waters and Strean allegedly agreed to falsely report that
Savales had assaulted or battered Waters so that Savales would be arrested
and Strean could tow her car. Id. ¶ 29. Cater, an officer with the Jacksonville

Sheriff’s Office (“JSO”), responded to Waters’s 911 call. Id. ¶¶ 18, 27.
Upon arrival at Casa Del Rio, Waters informed Cater that she managed
Casa Del Rio and stated that she had an ongoing dispute with Savales. Id.
¶¶ 30–31. During that conversation, Waters “falsely reported” that the eighty-

seven-year-old Savales hit her on the right thigh with a six-foot-long two-by-
four. Id. ¶ 32. Cater did not see any injuries. Id. ¶ 33. Cater next spoke with
Strean, who recounted the same events as Waters. Id. ¶ 35. Cater located a two-
by-four leaning against a dumpster within the apartment complex but he did

not locate a chain. Id. ¶ 3.
Cater approached Savales, who was approximately one-hundred feet
away in her car with the engine running. Id. ¶ 37. Through the open driver’s
side window, Cater asked Savales to step out of the vehicle, but Savales, who

was not engaging in any threatening activity, refused to speak to Cater and
asked him to leave. Id. ¶¶ 38–40. “Without warning or further instruction . . .
[Cater] opened the driver’s side door and forcibly removed [Savales] from the
driver’s seat . . . and slammed her face down on the pavement of the parking lot
before placing his right foot in her back until he had secured her hands behind

her back in handcuffs.” Id. ¶ 41. Among other injuries, Savales’s foot was
smashed by her car door and she tore her shoulder.
Savales was booked at the Duval county jail on charges of aggravated
battery with a deadly weapon (a second degree felony) and resisting an officer

without violence (a first degree misdemeanor). Id. ¶ 45; see §§ 784.045 &
843.02, Fla. Stat. (2019). Savales remained in the jail until October 23, 2015
when she posted a surety bond of $55,006. (Doc. 16 ¶ 45). On November 19,
2015, Savales was charged by information with one count of battery (a first-

degree misdemeanor) and one count of resisting an officer without violence. Id.
¶ 48. The State Attorney’s Office declined to prosecute these charges after
Savales “was adjudicated mentally incompetent . . . .” Id. ¶ 49.
B. Procedural History

On May 3, 2019, Cater and the City removed the case to this Court. (Doc.
1). On May 16, 2019, Cater and the City and Riverbend Partners filed motions
to dismiss the Amended Complaint (which had been originally filed in state
court). (Docs. 4, 5). On June 10, 2019, the Court entered an order advising

Savales that her responses to the motions to dismiss were overdue and
extending the deadlines to June 24, 2019. (Doc. 10). On the new deadline,
instead of responding to the motions to dismiss, Savales filed a Second Amended
Complaint. (Doc. 16). The following day, Savales requested leave to file a second
amended complaint, (Doc. 19), which was granted, (Doc. 21).

The Second Amended Complaint, the operative complaint, alleges sixteen
causes of action: Florida malicious prosecution against Waters (Count I);
Florida malicious prosecution against WRH based on Waters’s conduct as its
employee (Count II); Florida malicious prosecution against Casa Del Rio based

on Waters’s conduct as an apparent agent (Count III); Florida malicious
prosecution against Strean (Count IV); Florida malicious prosecution against
Arlington Wrecker based on Strean’s conduct as its employee (Count V); Florida
civil conspiracy against Waters and Strean (Count VI); Florida civil conspiracy

against WRH for Waters conduct as its employee (Count VII); Florida civil
conspiracy against Casa Del Rio based on Waters’s conduct as an apparent
agent (Count VIII); Florida civil conspiracy against Arlington Wrecker based on
Strean’s conduct as its employee (Count IX); Florida unlawful arrest against

Cater (Count X); Florida unlawful arrest against the City, which is pled in the
alternative to Count X (Count XI); Florida battery and excessive force against
Cater (Count XII); Florida battery and excessive force against the City, which
is pled in the alternative to Count XII (Count XIII); Florida malicious

prosecution against Cater (Count XIV); 42 U.S.C. § 1983 unlawful detention
and arrest claim based on false arrest against Cater (Count XV); and 42 U.S.C.
§ 1983 unlawful detention and arrest claim based on excessive force against
Cater (Count XVI).

Casa Del Rio answered, (Doc. 22), and subsequently filed an amended
answer, (Doc. 58). Cater and the City filed a Motion to Dismiss, (Doc. 23),
seeking dismissal of all claims against them. Waters also filed a Motion to
Dismiss, (Doc. 24), which WRH joined, (Doc. 25).

Savales’s counsel again failed to timely respond to the motions. Thus, the
Court entered an order extending the deadline to August 21, 2019 and required
Savales’s counsel to certify in writing “that he has read Local Rule 3.01(b) and
understands his obligations therein. In the future, and without further notice

to plaintiff’s counsel, the Court will rule on any motion to which plaintiff’s
counsel fails to timely respond in this or any other case, assuming it is
unopposed.” (Doc. 29). Savales’s counsel filed the certification on the due date,
(Doc. 30), and filed a motion for extension of time to extend the response

deadline by one day. (Doc. 31). The motion was granted, extending the deadline
to respond to the motions to dismiss to August 22, 2019. (Doc. 32). On August
23, 2019, Savales’s counsel filed another motion for extension of time to file a
response. (Doc. 33). However, this motion failed to comply with Middle District

of Florida Local Rule 3.01(g), requiring a certification that counsel have
conferred regarding the motion and whether it is opposed. Id.; Doc. 35.
On August 26, 2019, without a ruling on the second motion for extension
of time, Savales filed a response in opposition to Waters and WRH’s motion to

dismiss. (Doc. 34). Two days later, the Magistrate Judge entered an order
requiring Savales to supplement her motion for an extension to time with an
appropriate Rule 3.01(g) certification by September 4, 2019. (Doc. 35). Savales
failed to comply with this Order, and on September 19, 2019, the Magistrate

Judge ordered Savales to show cause why the Court should not impose
sanctions for Savales’s failure to comply with the Court’s prior Order. (Doc. 38).
Savales’s counsel was warned that “failure to attend the hearing could result in
sanctions without further notice.” (Doc. 38).

On September 26, 2019, Savales’s counsel filed the supplement with the
appropriate 3.01(g) certification. (Doc. 40). On that same day he filed: two
discovery matters that were stricken for violating Local Rule 3.03(d), (Doc. 52);
a motion to file a response to Cater and the City’s motion to dismiss out of time,

(Doc. 44); and a motion for leave to file a response in excess of the page
limitations, (Doc. 43).
On October 11, 2019, the Magistrate Judge conducted the show cause
hearing and granted Savales’s motion for extension of time to file a response to

Waters and WRH’s motion to dismiss and Savales’s motion to file a response to
Cater and the City’s motion to dismiss out of time. (Docs. 46, 60). Additionally,
the Magistrate Judge granted in part Savales’s motion for leave to file a
response in excess of the page limitation. (Doc. 60). Based on Savales’s counsel’s
responses at the show cause hearing, the Magistrate Judge declined to impose

sanctions and discharged the Order to Show Cause. (Doc. 47).
On October 23, 2019, Casa Del Rio (Riverbend) filed a motion for
summary judgment asserting that there was no apparent agency among it and
Waters, and thus judgment should be entered in its favor. (Doc. 51). Per the

Case Management and Scheduling Order, Savales had twenty-one days to
respond to the motion for summary judgment. (Doc. 18 at 2). Like many others
in this case, that deadline passed without a response from Savales. On
December 5, 2019 (twenty-one days after the deadline), the Clerk entered a

Summary Judgment Notice that, among other things, informs the parties:
[Y]ou you are hereby further advised: (1) failing to respond to these
motion(s) will indicate that the motion(s) are not opposed; (2) all
material facts asserted by the movant in the motion(s) will be
considered to be admitted by you unless controverted by proper
evidentiary materials (counter-affidavits, depositions, exhibits,
etc.) filed by you; and (3) you may not rely solely on the allegations
of the issue pleadings (e.g., complaint, answer, etc.) in opposing
these motion(s).

(Doc. 59 at 2). Savales never filed a response.
Further, although the Clerk issued a summons for Stare Decisis USA,
LLC (Arlington Wrecker) on September 25, 2019, they have not appeared and
there is no indication they have been served.
II. CATER AND THE CITY’S MOTION TO DISMISS
Cater and the City move to dismiss each claim asserted against them.

(Doc. 23). For the federal § 1983 claims against Cater, he asserts he is protected
by qualified immunity because he did not violate a clearly established
constitutional right. For the Florida counts, Cater and the City contend that
Savales has failed to state a claim for various reasons.

A. False Arrest and § 1983 False Arrest
Savales alleges in the Second Amended Complaint that Cater unlawfully
arrested her and asserts Florida false arrest claims against Cater and the City
and a federal § 1983 false arrest claim against Cater. Cater and the City seek

dismissal of these claims, arguing that Cater had probable cause to arrest
Savales and therefore cannot be held liable. (Doc. 23). To the contrary, Savales
contends that Cater did not have probable cause because the information he
received was untrustworthy and he did not conduct an adequate investigation.

(Doc. 45 at 4–8, 19–20).
Under both Florida and federal law, probable cause is an absolute bar to
a claim of false arrest.1 Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998).

1 To receive qualified immunity from a § 1983 false arrest claim, a
defendant need only show arguable probable cause instead of probable cause.
However, because Cater had actual probable cause, it is unnecessary to
determine whether he had arguable probable cause. Additionally, because the
existence of probable cause negates any constitutional violation, the Court need
not conduct the second step of the qualified immunity analysis—whether the
Determining whether an officer had probable cause is the same under both
Florida and federal law. Id.

Probable cause is determined by “whether, at the time of the arrest, ‘the
facts and circumstances within the officers’ knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man
in believing that the [suspect] had committed or was committing an offense.’”

Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (alteration adopted)
(quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). “An arresting officer is required
to conduct a reasonable investigation to establish probable cause. An officer,
however, need not take ‘every conceivable step . . . at whatever cost, to eliminate

the possibility of convicting an innocent person.’” Rankin, 133 F.3d at 1435–36
(alterations in original) (citations omitted) (quoting Tillman v. Coley, 886 F.2d
317, 321 (1989)). “Importantly, in evaluating probable cause, an officer may not
‘unreasonably disregard certain pieces of evidence’ by ‘choosing to ignore

information that has been offered to him or her’ or ‘electing not to obtain easily
discoverable facts’ that might tend to exculpate a suspect.” Cozzi v. City of
Birmingham, 892 F.3d 1288, 1294 (11th Cir. 2018) (alterations adopted)
(quoting Kingsland v. City of Miami, 382 F.3d 1220, 1229, 1233 (11th Cir.

2004)).

right was clearly established.
“Generally, an officer is entitled to rely on a victim’s criminal complaint
as support for probable cause.” Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir.

1998). However, “officers should not be permitted to turn a blind eye to
exculpatory information that is available to them, and instead support their
actions on selected facts they chose to focus upon.” Kingsland v. City of Miami,
382 F.3d 1220, 1228 (11th Cir. 2004). Although not “every failure by an officer

to discover ‘easily discoverable facts’ violates the Fourth Amendment
. . . officers cannot ‘conduct an investigation in a biased fashion or elect not to
obtain easily discoverable facts.’” Washington v. Rivera, 939 F.3d 1239, 1248
(11th Cir. 2019) (quoting Kingsland, 382 F.3d at 1229). Further, “an officer

cannot ignore facts that would give a reasonable officer ‘sufficient concerns.’”
Id. (quoting Tillman, 886 F.2d at 321).
Officers investigating an alleged battery are not required to find evidence
corroborating a physical harm because a battery can be committed without a

resulting injury. Huebner, 93 F.3d at 1188. In Huebner, one sister called 911
claiming that the other sister—Huebner—“pulled her by the hair, punched her
several times in her left cheek, and scratched her on the left wrist.” Id. at 1185.
A first officer arrived and took a statement that corroborated the 911 call, and

then a second officer relieved him and was told the same story. Id. at 1185–86.
The second officer examined the accusing sister for injuries or scratches but did
not find any. Id. at 1186. The second officer then went to Huebner’s house and
placed Huebner under arrest. Id. Huebner claimed that she had called 911, had
cuts on her arm from her sister, and had two witnesses. Id. However, the officer

declined to interview the witnesses and handcuffed Huebner. Id. The district
court found that the second officer was entitled to qualified immunity on the
§ 1983 false arrest claim against him because he had probable cause to believe
Huebner committed a battery. Id. Huebner appealed, advancing the same two

arguments that Savales makes here: (1) the officer did not have reasonably
trustworthy information; and (2) the officer did not conduct an adequate
investigation. Id. at 1187. The Eleventh Circuit found that relying on the
accuser’s sworn statement (that had been the same through three iterations—

the 911 call, the first officer, and then the second officer) was sufficient even
without corroborating physical evidence—“no scratches, red marks, etc.”—
because physical injury is not an element of Florida battery. Id. Relatedly, the
court found that the officer’s investigation was sufficient and he was not

“required to sift through conflicting evidence or resolve issues of credibility, so
long as the totality of the circumstances present[ed] a sufficient basis for
believing that an offense ha[d] been committed.” Id. at 1188 (quoting Dahl v.
Holley, 312 F.3d 1228, 1234 (11th Cir. 2002)).

Similarly, Savales’s false arrest claim fails. Officer Cater arrived at Casa
Del Rio for a reported battery. Waters told Cater that Savales had hit her with
a two-by-four, Strean confirmed the story, and there was a two-by-four in the
vicinity. (Doc. 16 ¶¶ 30–36). This was enough for probable cause. Nonetheless,
Cater attempted to further investigate by asking Savales to step out of her car

but she refused. Id. ¶¶ 38–39. Savales’s refusal to speak with Cater did nothing
to subtract from the probable cause he already had to arrest her.
Savales’s other arguments are not well taken. Battery under Florida law
does not require an injury, so not looking for one (or even the absence of such

injuries) does not negate probable cause. Huebner, 935 F.3d at 1188. Further,
although Tillman holds that officers cannot refuse to investigate their own
serious doubts, Cater attempted to investigate further by interviewing Savales
who refused to comply. See Tillman, 886 F.2d at 321. Lastly, that Cater did not

locate a chain is immaterial. Waters reported in the 911 call that Savales hit
her with a two-by-four and threatened to choke her with a chain. (Doc. 16 ¶ 26).
Because Savales only threatened to choke Waters with a chain, not finding one
does not negate probable cause—it could have easily been an empty threat.

Thus, by Savales’s own allegations, Cater had probable cause to arrest Savales
and Counts X, XI, and XV should be dismissed with prejudice.
B. Malicious Prosecution
Savales also alleges malicious prosecution against Cater. “Under Florida

law, the elements a plaintiff must allege [in a malicious prosecution claim]
include . . . an absence of probable cause to initiate the proceeding against him.
Accordingly, the existence of probable cause defeats a malicious prosecution
claim.” Zargari v. United States, 658 F. App’x 501, 506 (11th Cir. 2016) (citing
Alamo Rent–A–Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)). Because

Cater had probable cause to arrest Savales, her malicious prosecution claim
against him, Count XIV, fails. See id.
C. Battery and § 1983 Excessive Force
Savales alleges Florida battery claims against Cater and the City and a

federal § 1983 claim for excessive force against Cater. Cater and the City
contend that the force Cater used during Savales’s arrest was appropriate
under the circumstances. (Doc. 23 at 10, 23).
An officer is entitled to qualified immunity for an excessive force claim

where “a reasonable officer would believe that this level of force is necessary in
the situation at hand.” Stephens v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir.
2017) (quotation marks omitted) (quoting Lee v. Ferraro, 284 F.3d 1188, 1197
(11th Cir. 2002)). The Court must “balance the risk of bodily or psychological

harm to the suspect against the gravity of the threat the officer sought to
eliminate.” Id. (alteration adopted) (quoting McCullough v. Antolini, 559 F.3d
1201, 1206 (11th Cir. 2009)).
In an excessive-force claim under Florida law, “police officers are
entitled to a presumption of good faith in regard to the use of force
applied during a lawful arrest, and officers are only liable for
damage where the force used is ‘clearly excessive.’” Davis [v.
Williams, 451 F.3d 759, 768 (11th Cir. 2006)] (quoting City of
Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3[d] DCA 1996)). “If an
officer uses excessive force, the ‘ordinarily protected use of force
. . . is transformed into a battery.’ ” Id. (quoting Sanders, 672 So.
2d at 47).

Id. at 1329 n.35. Thus, the state law battery and federal § 1983 excessive force
claims are analyzed under the same standard. See Detris v. Coats, 523 F. App’x
612, 617 (11th Cir. 2013) (holding that because federal excessive force claim
could proceed, “parallel state law claim of battery” could also proceed).
Cater was called to the scene to investigate an alleged battery, both
Waters and Strean stated that Savales hit Waters with a two-by-four, they

identified the two-by-four, and then when Cater went to question Savales she
refused to exit her running vehicle and told him to leave. So, Cater was dealing
with a situation that required some further action.
However, as pled, Savales posed no threat to herself or anyone else and

had only been asked once to step out of her vehicle. (Doc. 16 ¶ 40). Thus,
regardless of whether Savales was cooperative, as alleged, it was objectively
unreasonable for Cater to forcibly pull an elderly woman from her car, slam her
to the pavement, and injure her without informing her she was under arrest or

of the consequences of not exiting her vehicle. Id. ¶ 41. While some level of force
may have been appropriate if Savales had continued her refusal to comply with
Cater’s lawful commands, as alleged, Cater asked Savales only once to step out
of her vehicle and he did not warn her that she was under arrest or that her

failure to comply could result in her being physically removed from her vehicle.
See Florida. v. Royer, 460 U.S. 491, 498 (1983) (holding that citizens who are
not detained or seized can ignore law enforcement questions and continue on

their way); (Doc. 16 ¶¶ 40–43). Therefore, taking the alleged facts in the light
most favorable to Savales, Cater’s actions were an “over-reactive,
disproportionate action for the situation relative to [Savales’s] response . . . .”
Stephens, 852 F.3d at 1317.

Turning to the second prong of the qualified immunity analysis, despite
no case directly on point, Cater’s alleged actions were obviously unreasonable.
“In an obvious-clarity case, where the officer’s conduct is plainly objectively
unreasonable, a court does not need prior case law to determine the force used

by the officer was excessive and unlawful, because it was disproportionate.” Id.
at 1318. In determining an obvious-clarity case, the Eleventh Circuit uses three
factors to determine if the force used in making an arrest was objectively
reasonable: “(1) the need for the application of force, (2) the relationship

between the need and amount of force used, and (3) the extent of the injury
inflicted.” Id. (quotation marks omitted) (quoting Vinyard v. Wilson, 311 F.3d
1340, 1347 (11th Cir. 2002)).
Here, the factors demonstrate that Cater’s alleged use of force is “plainly

objectively unreasonable” because Savales was elderly, posed no immediate
threat to the officer or anyone else, was unaware that she was under arrest,
was not actively resisting arrest or fleeing, and was asked only once to step out
of her vehicle. See id.; Vinyard, 311 F.3d at 1347–48. Additionally, Savales
allegedly suffered a “smash[ed] . . . left foot” and a torn right shoulder. (Doc. 16

¶ 118). Although the Court considered whether the alleged use of force was de
minimus, that Cater allegedly knew Savales was elderly, not threatening, and
given no warning about the consequences of her failure to comply, renders the
amount of force alleged here unreasonably excessive. See Stephens, 852 F.3d at

1324 n.27 (stating that officers are entitled to use force where a suspect refuses
to comply with their instructions, but that officers must still “assess not only
the need for force, but also the relationship between the need and the amount
of force used.”). At the pleading stage, the totality of circumstances render the

amount of force used objectively unreasonable such that any reasonable officer
would know that the amount of force would violate the Constitution. Id. Thus,
based on the allegations in the Third Amended Complaint, Cater and the City’s
motion is denied as to the battery and excessive force claims.2 However, Cater

can assert qualified immunity at a later stage of the proceeding as appropriate.

2 The City also argues that the state law battery and false imprisonment
claims against it should be dismissed because Savales failed to allege with
particularity that she complied with the required notice provision in Florida
Statute § 768.28(6). (Doc. 23 at 4–5). Savales alleges that she “has performed
all conditions precedent prior to bringing this action as to each of the
Defendants named herein.” (Doc. 16 ¶ 20). Such a general averment is sufficient
to satisfy the notice provision in § 768.28(6). See Bustetter v. Armor Corr.
Health Servs., Inc., 919 F. Supp. 2d 1282, 1286 (M.D. Fla. 2013) (“Plaintiff
responds that he has generally alleged performance of all conditions precedent
in paragraph 27 of his amended complaint, and as such, his allegation of
III. WATERS AND WRH’S MOTION TO DISMISS
Waters moves to dismiss the two claims against her: malicious

prosecution (Count I) and civil conspiracy (Count VI). (Doc. 24 at 2). WRH joined
Waters motion arguing that because the claims against Waters should be
dismissed, WRH cannot be held vicariously liable for Waters’s actions. (Doc. 25
at 2).

A. Malicious Prosecution
Under Florida law, a plaintiff must establish six elements to prevail on
her malicious prosecution claim:
(1) an original criminal or civil judicial proceeding against the
present plaintiff was commenced or continued; (2) the present
defendant was the legal cause of the original proceeding against
the present plaintiff as the defendant in the original proceeding;
(3) the termination of the original proceeding constituted a bona
fide termination of that proceeding in favor of the present plaintiff;
(4) there was an absence of probable cause for the original
proceeding; (5) there was malice on the part of the present
defendant; and (6) the plaintiff suffered damage as a result of the
original proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994). The
absence of any element is fatal to a malicious prosecution claim. Id. Waters
argues that Savales has failed to allege a bona fide termination in her favor, the

compliance is sufficient . . . .”) (citing Ritter v. City of Jacksonville, No. 3:07-cv-
506-J-16HTS, 2007 WL 2298347, at *3 (M.D. Fla. Aug. 7, 2007); Smith v.
Rainey, 747 F. Supp. 2d 1327, 1337 (M.D. Fla. 2010)).
absence of probable cause, and that Waters instigated the criminal prosecution.
(Doc. 24 at 2).

A “bona fide termination” “means that the first suit, on which the
malicious prosecution suit is based, ended in a manner indicating the original
defendant’s (and current plaintiff’s) innocence of the charges or allegations
contained in the first suit . . . .” Doss v. Bank of Am., N.A., 857 So. 2d 991, 994

(Fla. 5th DCA 2003). It is not enough that the termination of the first suit be
favorable to the defendant in that suit, the termination must demonstrate the
first suit’s lack of merit. Id. “[S]uits that terminate because of technical or
procedural reasons or considerations other than the merits of the first suit, are

not ‘bona fide terminations’ and will not support a malicious prosecution suit.”
Id. A good faith declination to prosecute can be a bona fide termination, but only
if done as a result of the suit’s lack of merit. See Alamo, 632 So. 2d at 1355;
Gatto v. Publix Supermarket, Inc., 387 So. 2d 377, 380–81 (Fla. 3d DCA 1980)

(“The underlying reason for a ‘nolle prosequi,’ even as the underlying reason for
a ‘declination to prosecute’ or a ‘no information,’ may or may not be related to
the merits of the cause being abandoned.”).
Regarding the bona fide termination, Savales alleges that “[o]n April 16,

2016, [Savales] was adjudicated mentally incompetent . . . and the State
Attorney’s Office declined to prosecute the charges . . . based on such
adjudication.” (Doc. 16 ¶ 49). Under Florida law, “[t]he test used to determine
the defendant’s competency is whether the defendant has a ‘sufficient present
ability to consult with his lawyer with a reasonable degree of rational

understanding-and whether he has a rational as well as factual understanding
of the proceedings against him.’” Maxwell v. State, 974 So. 2d 505, 509 (Fla. 5th
DCA 2008) (quoting Hill v. State, 473 So. 2d 1253, 1257 (Fla. 1985)). Thus,
mental incompetency relates to Savales’s ability to appreciate the proceedings

and is irrelevant to the merits of such proceedings. Therefore, the State
Attorney’s Office’s declination to prosecute Savales based on her mental
incompetency adjudication is not a bona fide termination. Accordingly, the
malicious prosecution claims (Counts I through V) shall be dismissed.3

B. Civil Conspiracy
Under Florida law:
A civil conspiracy claim requires: (1) an agreement between two or
more parties; (2) to do an unlawful act or to do a lawful act by
unlawful means; (3) the doing of some overt act in pursuance of the
conspiracy; and (4) damage to plaintiff as a result of the acts done
under the conspiracy.

3 “A district court may on its own motion dismiss an action as to
defendants who have not moved to dismiss where such defendants are in a
position similar to that of moving defendants or where claims against such
defendants are integrally related.” Courboin v. Scott, 596 F. App’x 729, 735
(11th Cir. 2014) (citing Loman Dev. Co. v. Daytona Hotel & Motel Suppliers,
Inc., 817 F.2d 1533, 1537 (11th Cir. 1987)). Because Savales relies on the same
bona fide termination for each of her malicious prosecution claims, dismissal of
those claims against the nonmoving Defendants (Strean and Stare Decisis USA,
LLC) is appropriate.
Philip Morris USA, Inc. v. Russo, 175 So. 3d 681, 686 (Fla. 2015). Waters asserts
that because Savales’s malicious prosecution claim fails, her civil conspiracy

also fails because she cannot demonstrate an unlawful act. (Doc. 24 at 9–10).
However, Savales argues that the civil conspiracy claim is not dependent upon
her malicious prosecution claims because she has sufficiently alleged that
Waters and Strean conspired to violate Florida statutes §§ 817.49 & 837.05.

(Doc. 34 at 16).
Sections 817.49 and 837.05 make it unlawful for any person to convey
false information regarding the commission of a crime to law enforcement.
§§ 817.49 & 837.05, Fla. Stat. (2019). Savales alleges that Waters and Strean

agreed to falsely report that Savales had assaulted or battered Waters. (Doc. 16
¶¶ 27–35, 87). Although this appears to be an “unlawful act,” there is a split in
authority on whether the unlawful act must be a tort and not a crime. Compare
Phila. Indem. Ins. Co. v. Hamic, No. 8:12-cv-829-T-26EAJ, 2012 WL 5055558,

at *1 (M.D. Fla. Oct. 18, 2012) (“In the civil context of conspiracy, the unlawful
act is a tort, not a crime . . . .”), with Bocciolone v. Solowsky, No. 08-20200-CIV,
2009 WL 936667, at *7 (S.D. Fla. Apr. 6, 2009) (finding that plaintiff sufficiently
alleged larceny to support its civil conspiracy claim). As this was not the basis

for Waters’s motion to dismiss, the Court will deny the motion and allow Waters
to raise the issue on a full record if appropriate.
C. Attorneys’ Fees
Lastly, Waters and WRH move to strike Savales’s request for attorneys’

fees because there is no contractual or statutory basis for such fees. (Doc. 24 at
10). As to the claims for civil conspiracy (the only state law claims remaining),
Savales has failed to plead a contractual or statutory basis for attorneys’ fees.
As the Court is unaware of any contractual or statutory basis for such fees, the

demand for attorneys’ fees as to the civil conspiracy claims shall be stricken.4
See, e.g., Resmondo v. N.H. Ins. Co., No. 8:13-CV-2907-T-30EAJ, 2013 WL
6894857, at *1 (M.D. Fla. Dec. 31, 2013); Associated Indus. Ins. Co. v. Advanced
Mgmt. Servs., Inc., No. 12-80393-CIV, 2013 WL 1176252, at *3 (S.D. Fla. Mar.

20, 2013).
IV. RIVERBEND’S MOTION FOR SUMMARY JUDGMENT
Savales asserts two claims against Casa Del Rio (Riverbend): malicious
prosecution (Count III) and civil conspiracy (Count VIII). The Court has already

determined that the malicious prosecution claims are due to be dismissed with
prejudice. Thus, Riverbend’s motion for summary judgment pertains only to the
civil conspiracy claim against it. Although Savales failed to respond to the
motion for summary judgment despite having an opportunity to do so,5 the

4 See supra note 4.
5 See supra Part I.B.
Court cannot simply grant it. “[A] district court ‘cannot base the entry of
summary judgment on the mere fact that the motion was unopposed, but,

rather, must consider the merits of the motion.’” Howard v. Gee, 538 F. App’x
884, 891 (11th Cir. 2013) (quoting United States v. One Piece of Real Prop.
Located at 5800 SW 74th Ave., Miami, 363 F.3d 1099, 1101 (11th Cir. 2004)).
“A district court must also ‘ensure that the motion itself is supported by

evidentiary materials.’” Id. (quoting 5800 SW 74th Ave., 363 F.3d at 1101); see
also Fed. R. Civ. P. 56.
Casa Del Rio’s motion argues that the undisputed material facts prove
that Waters was not Casa Del Rio’s apparent agent, and, thus, Casa Del Rio

cannot be held liable for Waters’s actions. (Doc. 51 at 4). Additionally, Casa Del
Rio asserts that Savales admitted in her deposition that she is not seeking
damages against Casa Del Rio, which is a required element for her civil
conspiracy claim.

Under Florida law, “an apparent agency exists only if each of three
elements are present: (a) a representation by the purported principal; (b) a
reliance on that representation by a third party; and (c) a change in position by
the third party in reliance on the representation.” Mobil Oil Corp. v. Bransford,

648 So. 2d 119, 121 (Fla. 1995). Although the determination of an agency
relationship is normally a question of fact, “when the moving party fails to
produce any supportive evidence or when the evidence presented is so
unequivocal that reasonable persons could reach but one conclusion, that
question of fact becomes a question of law to be determined by the court.”

Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1311 (11th Cir.
2019) (quoting Hickman v. Barclay’s Int’l Realty, Inc., 5 So. 3d 804, 806 (Fla.
4th DCA 2009)).
The only evidence before the Court is Savales’s deposition. In it, Savales

confirms that Riverbend never made any representations to her, that she never
spoke with anyone from Riverbend, and that Riverbend was not directly
involved in the incident leading to this lawsuit. (Doc. 51-1 at 23). With Savales
and Riverbend each being given an opportunity to present evidence on the issue,

reasonable persons could reach but one conclusion: that Riverbend made no
representation to Savales that would have created an apparent agency. See
Marchisio, 919 F.3d at 1311. Accordingly, Savales’s civil conspiracy claim
against Riverbend based on Waters’s actions as an apparent agent fails.6

Accordingly, it is hereby
ORDERED:
1. Defendants Janene Waters and WRH Realty Services, Inc.’s Motion
to Dismiss (Docs. 23, 24) is GRANTED in part and DENIED in part:

6 Even if the Court had not already dismissed the malicious prosecution
claim against Riverbend, the lack of an apparent agency relationship between
Waters and Riverbend would result in judgment in Riverbend’s favor on the
malicious prosecution claim.
a. Counts I, II, III, IV, and V for malicious prosecution are
DISMISSED with prejudice.

b. The claims for attorneys’ fees under Counts VI, VII, and IX are
STRICKEN.
c. The motion is DENIED as to Counts VI and VII.
2. Defendants William Cater and the City of Jacksonville’s Motion to

Dismiss (Doc. 23) is GRANTED in part and DENIED in part:
a. Counts X (Florida Unlawful Arrest against Cater), XI (Florida
Unlawful Arrest against the City), XIV (Florida malicious
prosecution against Cater), and XV (42 U.S.C. § 1983 for false

arrest against Cater) are DISMISSED with prejudice.
b. The motion is DENIED as to Counts XII, XIII, and XVI.
3. Defendant Riverbend Partners, LLC’s Motion for Summary
Judgment is GRANTED.

4. Finding no just reason for delay, the Clerk shall enter judgment for
Defendant Riverbend Partners, LLC and against Plaintiff Eva Helda Savales
for Counts III and VIII.
5. Not later than March 31, 2020, Defendants Janene Waters, WRH

Realty Services, Inc., William Cater, and the City of Jacksonville shall answer
the remaining claims against them: Count VI for civil conspiracy against
Waters and Strean, Count VII for civil conspiracy against WRH, Count XII for
battery against Cater, Count XIII for battery against the City, and Count XVI
for § 1983 excessive force against Cater.
6. Not later than March 20, 2020, Plaintiff shall file proof of service
of process for Stare Decisis USA, LLC. Failure to file the required proof of
service will result in dismissal of the remaining claim (Count IX) against Stare
Decisis USA, LLC in accordance with Federal Rule of Civil Procedure 4(m),
without further notice.
7. This case continues to be governed by the Case Management
Scheduling Order (Doc. 18), as amended (Doc. 37).
DONE AND ORDERED in Jacksonville, Florida this 9th day of March,
2020.

TIMOTHY J. CORRIGAN
United States District Judge
jjb
Copies to:
Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104680. Public record. Not legal advice.