# JERMC LTD. v. Town of Redington Shores

> District Court, M.D. Florida · April 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10105021

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 24, 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/10105021

## How later opinions describe it (automated extraction)

- explaining that substantive and procedural due process are separate and distinct causes of action
- holding that delayed discovery doctrine does not apply to tortious interference claims

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JERMC LTD, et al.,

Plaintiffs,

v. Case No. 8:19-cv-688-T-60AAS

TOWN OF REDINGTON
SHORES, et al.,

Defendants.
________________________________/

ORDER GRANTING (IN PART) AND DENYING
(IN PART) DEFENDANTS’ MOTIONS TO DISMISS

This matter is before the Court on twelve motions to dismiss:
(1) “Defendant Town of Redington Shores’ Dispositive
Motion to Dismiss First Amended Complaint and
Incorporated Memorandum of Law” (Doc. 46);

(2) “Defendant James Denhardt’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 65);

(3) “Defendant Pat Drumm’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 66);

(4) “Defendant Marybeth Henderson’s Dispositive Motion
to Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 67);

(5) “Defendant Lee Holmes’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 68);

Page 1 of 21
(6) “Defendant Jeff Neal’s Dispositive Motion to Dismiss
First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 69);

(7) “Defendant Michael Robinson’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 70);

(8) “Defendant Bert Adams’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 71);

(9) “Defendant Steve Andrews’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 72);

(10) “Defendant Tom Kapper’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 73);

(11) “Defendant Mary Palmer’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 74); and

(12) “Defendant Joseph Walker’s Dispositive Motion to
Dismiss First Amended Complaint and Incorporated
Memorandum of Law” (Doc. 75).

Plaintiffs JERMC LTD., JERMC Management, Corp. Nashaat Antonious, and
Soheir Antonious filed responses in opposition. (Docs. 59, 62). The Court held a
hearing to address this matter on April 3, 2020. (Doc. 83). At the Court’s direction,
Defendants filed a notice of supplemental authority. (Doc. 84). After reviewing the
motions, responses, legal arguments, court file, and the record, the Court finds as
follows:
Page 2 of 21
Factual Background
Plaintiffs are various entities and persons associated with the premises
known as the Redington Long Pier (“Pier”).1 Defendant Town of Redington Shores

(“Redington Shores”) is a municipal corporation located in Pinellas County, and the
individual Defendants are all former or current employees of Redington Shores.
According to Plaintiffs, Defendants have “engaged in a conspiracy, pattern and
practice to emotionally and financially injured the Plaintiffs, whereby they have
maliciously engaged in: violations of the Sunshine Law, unlawful and selective code
enforcement, extortion of permit fees, pursuance of bad faith litigation for personal

and pecuniary gain, conspiracy to commit an unlawful taking of the Plaintiffs’
properties, interference with Plaintiffs’ contractual and business relationships,
willful and wanton violation of the Plaintiffs’ constitutional rights, harassment and
intimidation of the Plaintiffs’, defamation, and abuse of power.” (Doc. 6 at ¶ 29).
The 14-count amended complaint consists of over 300 paragraphs – including
160 paragraphs in the factual allegations section – and the events described span
from the alleged 2005 interference with the sale of the pier, to a more recent

incident in 2018 involving a hotdog vendor. It is clear to the Court that these
parties have a long and complicated history.

1 According to the allegations of the amended complaint, JERMC LTD. owns the premises, while
JERMC Management manages and operates the Pier. JERMC Management is the general partner
of JERMC LTD., with ownership interests. Nashaat and Soheir Antonious are both limited partners
of JERMC LTD., with ownership interests.
Page 3 of 21
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to relief.”

Fed. R. Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual
allegations,’ it does require ‘more than labels and conclusions’; a ‘formulaic
recitation of the cause of action will not do.’” Young v. Lexington Ins. Co., No. 18-
62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018), report and recommendation
adopted, No. 18-62468-CIV, 2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to survive a motion to dismiss,

factual allegations must be sufficient “to state a claim for relief that is plausible on
its face.” Twombly, 550 U.S. at 555.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)).
Analysis
Count I (Tortious Interference with the Contract for the Sale of the Pier in
2018)

In Count I, Plaintiffs allege that Denhardt, Palmer, Andrews, Walker,
Henderson, and Kapper had knowledge of a contract for the sale of the pier in 2018
and made false statements and misrepresentations to the potential buyers. See
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(Doc. 6 at ¶ 190-95). Plaintiffs allege that these false statements resulted in the
rescission of the contract by the buyers. See (Id. at ¶ 198). In their motions to
dismiss, Defendants argue that Plaintiffs have failed to sufficiently plead a tortious

interference claim related to the sale of the pier in 2018 because they have failed to
allege the existence of a contract.
“The elements of tortious interference with a contract or with a business
relationship are: (1) the existence of either a contract or a business relationship
between the plaintiff and a third party, (2) the defendant’s knowledge of the
contract or business relationship, (3) the defendant’s intentional and unjustified

interference with the contract or business relationship, and (4) damage to the
plaintiff.” Dick’s Sporting Goods, Inc. v. Forbes/Cohen Florida Props., L.P., No.
9:20-CV-80157-ROSENBERG/REINHART, 2020 WL 1536443, at *3 (S.D. Fla. Mar.
30, 2020) (citing Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d 310, 315 (Fla.
4th DCA 2001)).
At the April 3, 2020, hearing, the Court orally denied the motions to dismiss
as to Count I after finding that Plaintiffs sufficiently alleged the existence of a

contract in paragraph 190 of the amended complaint. Defendants’ argument on this
point was unnecessary.2

2 The amended complaint clearly states that “[o]n March 6, 2018, Plaintiffs and the 2018 Pier Buyers
mutually executed a contract for the purchase of the Pier.” (Doc. 6 at ¶ 190) (emphasis added by the
Court).
Page 5 of 21
Count II (Tortious Interference with the Contract for the Sale of the Pier in
2005)

In Count II, Plaintiffs assert a tortious interference claim related to the sale
of the pier in 2005. Plaintiffs allege that Defendants Denhardt, Palmer, Adams,
Holmes, and Andrews made several false statements to the potential buyers of the
Pier in 2005, including that Redington Shores had previously disapproved rezoning
plans submitted with respect to the Pier, and that the State of Florida would not
approve a change in zoning from “recreation” to “hotel/condo.” As a result of these
statements, Plaintiffs allege that the buyers rescinded their contract to purchase
the pier. Defendants argue that this tortious interference claim is barred by the
four-year statute of limitations because the action accrued on or about February 27,
2005, when the last element constituting the cause of action occurred. Defendants
further argue that the delayed discovery doctrine does not apply to intentional torts

such as tortious interference with a contract. Plaintiffs generally argue in
opposition that because the alleged conduct has been “continuous,” the claim is not
barred by the statute of limitations.
To state a claim for tortious interference, Plaintiffs must allege: “(1) the
existence of either a contract or a business relationship between the plaintiff and a
third party, (2) the defendant’s knowledge of the contract or business relationship,
(3) the defendant’s intentional and unjustified interference with the contract or

business relationship, and (4) damage to the plaintiff.” Dick’s Sporting Goods, Inc.,
2020 WL 1536443, at *3. In Florida, a tortious interference claim has a four-year
statute of limitations. A cause of action accrues when “the last element constituting
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the cause of action occurs.” § 95.011, F.S. Although Florida law recognizes the
doctrine of delayed discovery, Florida courts have expressly held that “this doctrine
does not apply to claims of tortious interference.” King v. Bencie, No. 19-11503,

2020 WL 1550916, at *1 (11th Cir. Apr. 1, 2020); Yusuf Mohamad Excavation, Inc.,
793 So. 2d 1127, 1128 (Fla. 5th DCA 2001) (holding that delayed discovery doctrine
does not apply to tortious interference claims).
Upon review, the Court finds that this claim is barred by the statute of
limitations. From the face of the amended complaint, it is clear that the last
element of this tortious interference claim occurred when the buyers rescinded the

contract and Plaintiffs suffered damages in 2005. See § 95.11(3)(o), F.S. Even if
Plaintiffs only learned of the cause of the rescission in June 2018, the delayed
discovery doctrine is inapplicable to tortious interference claims. Moreover,
Plaintiffs’ argument that the continuing tort doctrine operates to revive their claim
is not well taken where the last act of tortious interference related to the sale of the
pier in 2005 occurred in 2005. See TaiDoc Tech. Corp. v. Pharma Supply, Inc., No.
13-80682-CIV-RYSKAMP/HOPKINS, 2014 WL 12861849, at *5 (S.D. Fla. Apr. 9,

2014). Although new events happened between these parties since then, those
occurrences were not related to the 2005 sale of the pier. Consequently, Count II of
Plaintiffs’ amended complaint is dismissed with prejudice.
Counts III and IV (Violation of the Sunshine Law § 286.011 in 2018 and
2005)

In Counts III and IV, Plaintiffs allege that Defendants Henderson, Kapper,
Neal, Drumm, and Robinson violated the Sunshine Law by making decisions
Page 7 of 21
outside of public meetings. Defendants generally argue that the counts are
conclusory and legally insufficient. Defendants further argue that § 286.011, F.S.
does not provide for a cause of action seeking monetary damages.

Plaintiffs appear to only seek monetary damages. However, it is clear that
they may not recover monetary damages for any alleged violations of the Sunshine
Law, which only provides “a penal violation for which the penalty is a fine or
imprisonment.” See Sinclair v. Town of Yankeetown, No. 1:07-cv-035-SPM, 2008
WL 660089, at *4 (N.D. Fla. Mar. 7, 2008). “[T]here is no private action against
individual defendants or the municipality for any monetary damages.” Id.

Consequently, Counts III and IV do not state a claim upon which relief may be
granted and must be dismissed. To the extent that Plaintiffs may seek non-
monetary relief, the Court will permit them the opportunity to amend and refile
these claims, if they may do so in good faith.
Counts V and VI (Violation of 42 U.S.C. § 1983 Constitutional Right to
Substantive and Procedural Due Process Under the 14th Amendment
Against All Individual Defendants and Redington Shores)

In Counts V and VI, Plaintiffs allege that Denhardt, Palmer, Andrews,
Walker, Holmes, Adams, Henderson, and Kapper unlawfully “colluded, conspired,
and abused their power to relay rejections to Plaintiffs’ buyers regarding any zoning
change proposals before they even submitted a formal application or a public
hearing was held,” which “deprived Plaintiffs of any meaningful opportunity of
substantive and procedural due process with respect to the consideration of any
zoning change proposed by their prospective buyers.” See (Doc. 6 at ¶¶ 229-230).
Page 8 of 21
The individual Defendants argue that Count V should be dismissed because it is
barred by the statute of limitations, and because they are entitled to qualified
immunity. Redington Shores argues that Count VI should be dismissed because it

fails to state a claim for relief.
Upon review, the Court finds that this count constitutes an improper shotgun
pleading because it contains claims related to both substantive due process and
procedural due process. See Clewiston Commons, LLC v. City of Clewiston, No.
2:18-cv-339-FtM-38MRM, 2019 WL 2515830, at *2 (M.D. Fla. June 18, 2019)
(finding count constituted shotgun pleading and directing plaintiff to file separate

claims for alleged substantive due process violation and procedural due process
violation); see also Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002)
(distinguishing between substantive due process and procedural due process
claims); Arenal v. City of Punta Gorda, Fla., 932 F. Supp. 1406, 1413 (M.D. Fla.
1996) (explaining that substantive and procedural due process are separate and
distinct causes of action). If Plaintiffs intend to pursue § 1983 claims based on both
substantive due process and procedural due process violations, they are directed to

file these claims as separate counts in their second amended complaint.
Furthermore, Plaintiffs have failed to sufficiently plead their substantive due
process and procedural due process claims. With regard to their substantive due
process claim, Plaintiffs do not specifically identify the constitutional right at issue,
and they do not allege that Defendants’ actions violated clearly-established law. To
the extent that Plaintiffs are alleging a violation of land-use rights, the Court notes

Page 9 of 21
that such rights are state-created and generally may not support a substantive due
process claim. See Lewis v. Brown, 409 F.3d 1271, 1272-74 (11th Cir. 2005).
With regard to their procedural due process claim, Plaintiffs only allege state

action; they do not allege the deprivation of a constitutionally protected interest or
constitutionally inadequate process. Additionally, in order to sufficiently allege a
procedural due process claim, a plaintiff must allege that no adequate state
remedies are available. See, e.g., Clewiston Commons, LLC, 2019 WL 6614220, at
*2. Based on the allegations of the amended complaint, it is unclear whether
Plaintiffs could make the necessary allegations since it appears that they never

actually pursued state remedies. See id. (explaining that “[i]f a plaintiff fails to
avail itself of adequate state remedies, that plaintiff cannot rely on that failure to
claim that the state deprived [it] of procedural due process”). In an abundance of
caution, the Court will allow Plaintiffs to amend their complaint and replead these
claims, if they may do so in good faith.
Count VII (Conspiracy to Commit a Taking in Violation of the 5th
Amendment)

In Count VII, Plaintiffs allege that Defendants Denhardt, Palmer, Andrews,
Walker, Henderson, and Kapper conspired to pursue a “taking” of Plaintiffs’
property by executing a land use amendment, which sought to lower the maximum
density for developable units on the Pier. Plaintiffs allege that in furtherance of
this “conspiracy,” these Defendants made intentional misstatements to the 2018
pier buyers, stating that the maximum density allowable was fifteen units per acre
even though the current maximum density was twenty-five units per acre.
Page 10 of 21
Defendants contend that “conspiracy to commit a taking” does not constitute a
cause of action.
Upon review, the Court finds that Plaintiffs have failed to and cannot state a

cognizable claim for relief in Count VII. See Coles v. Board of Park Commr’s, No.
3:08CV2968, 2009 WL 2922036, at *1 (N.D. Ohio Sept. 8, 2009) (holding that
because plaintiffs cannot assert a claim for violation of the Takings Clause against
an individual defendant, there is no cognizable cause of action under § 1983 for
conspiracy to violate the Takings Clause). Consequently, Count VII is dismissed
with prejudice.

Counts VIII and IX (Violation of 42 U.S.C. § 1983 Civil Right to Equal
Protection Clause – Unlawful and Selective Code Enforcement Against All
Individual Defendants and Redington Shores)

In Counts VIII and IX, Plaintiffs allege that Defendants violated their equal
protection rights through selective code enforcement. Defendants argue that
Plaintiffs have failed to sufficiently allege an equal protection claim related to
selective code enforcement.
Governmental entities are required to treat similarly situated people alike
under the Equal Protection Clause. See, e.g., Campbell v. Rainbow City, Ala., 434
F.3d 1306, 1313-14 (11th Cir. 2006). Although typical equal protection claims are
based on membership in a vulnerable group, courts including the Eleventh Circuit
do not limit equal protection claims to only this type of discrimination and have also
recognized an individual’s right to be free from intentional discrimination by
government officials. See, e.g., id (citing E&T Realty v. Strickland, 830 F.2d 1107,
Page 11 of 21
1112 (11th Cir. 1987)). To sustain an equal protection claim based on selective
enforcement, a plaintiff must plead and prove that: (1) the plaintiff was treated
differently from other similarly-situated individuals, and (2) the governmental

entities unequally applied a facially neutral ordinance for the purpose of
discriminating against them. See Strickland v. Alderman, 74 F.3d 260, 264 (11th
Cir. 1996).
To prevail on an equal protection claim based on a “class of one” theory, a
plaintiff must show that the plaintiff was treated differently from similarly situated
individuals, and that there is no rational basis for the difference in treatment. See,

e.g., Vill. of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000) (per curiam). This
generally requires a plaintiff to identify a comparator to demonstrate
discriminatory conduct. See Eisenberg v. City of Miami Beach, 1 F. Supp. 3d 1327,
1340 (S.D. Fla. 2014) (citations omitted). The Eleventh Circuit has emphasized that
a plaintiff may not merely rely on “broad generalities in identifying a comparator.”
Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1307 (11th Cir.
2009); see also Apothecary Dev. Corp. v. City of Marco Island, Florida, 517 F. App’x

890, 892 (11th Cir. 2012).
The Seventh Circuit has developed an exception to the general comparator
requirement and “recognizes class of one claims in cases where illegitimate
governmental conduct or animus is easily demonstrated[,] but similarly situated
individuals are difficult to find.” Eisenberg, 1 F. Supp. 3d at 1340 (quoting Swanson
v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013)). This exception is applicable

Page 12 of 21
only “[i]f animus is readily obvious” based on treatment of the plaintiffs. Id. It does
not appear that the Eleventh Circuit has addressed this particular issue, but even
assuming the Eleventh Circuit would recognize a class of one claim without the

identification of a similarly situated comparator, the Seventh Circuit standard
based on animus is a challenging standard to meet. Id. at 1341-42.
The Court finds that Plaintiffs have failed to state a “class of one” equal
protection claim. Plaintiffs failed to allege the existence of at least one similarly
situated comparator “and only generally allege[d] the treatment received by
Plaintiffs was different from that of others similarly situated.” See id. at 1342.

Furthermore, Plaintiffs have not pleaded “such obviously harassing or malicious
conduct on the City’s part so that unequal treatment may be inferred.” See id. As
such, Counts VIII and IX are dismissed without prejudice.
Count X (Malicious Prosecution of Code Enforcement Against Plaintiffs)

In Count X, Plaintiffs allege that Denhardt, Palmer, Andrews, Walker,
Holmes, Adams, Henderson, and Kapper maliciously prosecuted a two-year code
enforcement case against them that was contrary to the law. Defendants contend
that Plaintiffs have failed to state a claim upon which relief may be granted.
Initially, the Court notes that it is unclear whether Plaintiffs are pursuing
this claim under state law (based on the common law tort of malicious prosecution),
or under federal law (based on an alleged § 1983 violation). For this reason alone,
Count X is subject to dismissal as a shotgun pleading. Additionally, Plaintiffs fail to
allege each of the elements of a malicious prosecution claim. See Hoelper v. Coats,

Page 13 of 21
No. 8:10-cv-1324-T-17EAJ, 2011 WL 5525350, at *5 (M.D. Fla. Nov. 14, 2011). The
factual allegations are conclusory and fail to provide sufficient detail to support
their claim. In their second amended complaint, Plaintiffs are directed to include

additional information about the underlying action(s), including any case names
and numbers upon which they seek to base their malicious prosecution claim.
Count XI (Tortious Interference with Sale of Nashaat and Soheir
Antonious’s Residential Property)

In Count XI, Plaintiffs assert a tortious interference claim against Denhardt
and Palmer in relation to the sale of the Antoniouses’ residential property in 2016.
Defendants argue that Plaintiffs have failed to sufficiently allege a claim because
they fail to allege the existence of a contract for sale.
As the Court has previously explained, a tortious interference claim consists
of the following elements: “(1) the existence of either a contract or a business
relationship between the plaintiff and a third party, (2) the defendant’s knowledge
of the contract or business relationship, (3) the defendant’s intentional and
unjustified interference with the contract or business relationship, and (4) damage
to the plaintiff.” Dick’s Sporting Goods, Inc., 2020 WL 1536443, at *3.
Upon review, the Court finds that Plaintiffs have sufficiently alleged a
tortious interference claim related to the sale of the Antoniouses’ residential
property. The Court notes that although Defendants argue that there was no

contract, Plaintiffs allege that they were involved in negotiations and a contract for
the sale of the property existed. See (Doc. 6 at ¶¶ 271-73, 279). For the purpose of

Page 14 of 21
ruling on the motions to dismiss, the Court accepts these allegations as true.
Consequently, the motions to dismiss are denied as to Count XI.
Count XII (Tortious Interference with Plaintiffs’ Advantageous Business
Relationship with Hot-Dog Vendor)

In Count XII, Plaintiffs allege that Denhardt, Henderson, Kapper and Palmer
were aware of a business arrangement and/or contract between Plaintiffs and a
hotdog vendor regarding hotdog sales on the Pier, but nonetheless “compelled” law
enforcement officers to forcibly remove the vendor under threat of arrest.
Additionally, Plaintiffs allege that Palmer made false statements to the hotdog
vendor to intimidate him into ending his business relationship with Plaintiffs. As a
result, Plaintiffs allege that the vendor rescinded his agreement with Plaintiffs.
Upon review, the Court finds that Plaintiffs have sufficiently alleged a
tortious interference claim related to the hotdog vendor. As such, the motions to

dismiss are denied as to Count XII.
Count XIII (Civil Conspiracy to Emotionally and Financially Injure the
Plaintiffs)

In Count XIII, Plaintiffs generally allege that Denhardt, Palmer, Andrews,
Walker, Holmes, Adams, Henderson, and Kapper engaged in a civil conspiracy
against Plaintiffs from 2000-2018 by committing a wide array of unlawful conduct,
including: “unlawful and selective code enforcement, extortion of permit fees,
pursuance of bad faith litigation for personal and pecuniary gain, conspiracy to
commit an unlawful taking of the Plaintiffs property, interference with Plaintiffs’
contractual and business relationships, willful and wanton violation of Plaintiffs’
Page 15 of 21
constitutional rights, harassment and intimation of the Plaintiffs, defamation,
abuse of power, and the pursuance of a plot of emotionally and financially injuring
the Plaintiffs.” (Doc. 6 at ¶ 291-97). Defendants generally argue that Plaintiffs

have failed to state a claim upon which relief may be granted by failing to allege the
elements of a civil conspiracy claim. Defendants further argue that all claims
predicated upon a conspiracy must be dismissed because they are barred by the
intracorporate conspiracy doctrine.
“Under Florida law, the elements of civil conspiracy are: ‘(a) an agreement
between two or more parties, (b) to do an unlawful act or to do a lawful act by

unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and
(d) damage to plaintiff as a result of the acts done under the conspiracy.’” HRCC,
Ltd. v. Hard Rock Cafe Int’l (USA), Inc., 302 F. Supp. 3d 1319, 1324-25 (M.D. Fla.
2016) (quoting United Techs. Corp v. Mazer, 556 F.3d 1260, 1271 (11th Cir. 2009)).
However, pursuant to the intracorporate conspiracy doctrine, “a civil conspiracy
claim will not succeed where the only members of the alleged conspiracy are a
corporation and/or its officers.” Id. This doctrine applies to public entities, such as

Redington Shores and its employees. See Tillman v. Orange County, Fla., 519 F.
App’x 632, 636 (11th Cir. 2013).
Upon review, the Court finds that Plaintiffs’ civil conspiracy claim is facially
insufficient as pleaded because the only members of the alleged conspiracy are the
employees of Redington Shores and the subject of the alleged conspiracy involves
job-related functions within the scope of employment of Defendants (namely code

Page 16 of 21
enforcement and zoning decisions). As such, Count XIII is dismissed without
prejudice.
Count XIV (Intentional Infliction of Emotional Distress on Nashaat and
Soheir Antonious)

In Count XIV, Plaintiffs allege that Denhardt, Palmer, Andrews, Walker,
Holmes, Adams, Henderson, and Kapper engaged in unlawful conduct with the
intention of causing them emotional distress, including “unlawful and selective code
enforcement, extortion of permit fees, pursuance of bad faith litigation for personal
and pecuniary gain, conspiracy to commit an unlawful taking of the Antoniouses’
property, interference with Plaintiffs’ contractual and business relationships, willful
and wanton violation of [the] Antoniouses’ constitutional rights, harassment and
intimidation of the Antoniouses, defamation, abuse of power, and the pursuance of a
plot of emotionally and financially injuring the Antoniouses.” See (Doc. 6 at ¶ 299-

300).
To sufficiently plead a claim for intentional infliction of emotional distress, a
plaintiff must set forth facts that establish: (1) the defendant’s conduct was
intentional or reckless; (2) the conduct is extreme and outrageous; (3) there is a
causal connection between the wrongful conduct and the emotional distress; and (4)
the emotional distress is severe. See King v. State of Florida, 650 F. Supp. 2d 1157,
1167 (N.D. Fla. 2009). Outrageous conduct is conduct that is “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized society.” See
id. (quoting Ford Motor Credit Co. v. Sheehan, 373 So. 2d 956, 959 (Fla. 1st DCA
Page 17 of 21
1979)). “The standard for outrageous conduct is particularly high in Florida.”
Patterson v. Downtown Med. & Diagnostic Ctr., 866 F. Supp. 1379, 1383 (M.D. Fla.
1994). “[W]hether a person’s conduct is sufficiently outrageous and intolerable as to

form the basis for a claim of intentional infliction of emotional distress is a matter of
law for the court, not a question of fact.” Debose v. Univ. of South Florida, 178 F.
Supp. 3d 1258, 1273 (M.D. Fla. 2016) (quoting Griffin v. Polk Cty. Sheriff’s Office,
No. 8:09-cv-960-T-33MAP, 2009 WL 5171754, at *2 (M.D. Fla. Dec. 23, 2009))
(emphasis in original).
Even assuming the allegations of the amended complaint are true, the acts

and conduct alleged do not rise to the necessary level of outrageousness to state a
claim for intentional infliction of emotional distress. See Thomas v. City of Palm
Coast, No. 3:14-cv-172-J-32PDB, 2015 WL 7429051, at *4 (M.D. Fla. Nov. 23, 2015)
(“Maliciously issuing repeated code enforcement violations against a property is not
sufficiently outrageous to form a claim for intentional infliction of emotional
distress.”); Callaway v. Hernandez, No. 2:07-cv-132-FtM-29SPC, 2010 WL 1249936,
at *10 (M.D. Fla. Mar. 25, 2010) (holding that even if the conduct at issue –

maliciously issuing repeated code enforcement violations against the property – was
an attempt to put plaintiff out of business, it still would not rise to the requisite
level of outrageousness). In this case, although the misconduct may be considered
“unprofessional, objectionable, and even cruel,” it cannot be considered “outrageous”
as a matter of law. See King, 650 F. Supp. 2d at 1167. As such, Count XIV is
dismissed with prejudice.

Page 18 of 21
Conclusion
For the reasons discussed above, the Court grants in part, and denies in part,
the motions to dismiss. The motions are denied as to Counts I, XI, and XII. The

motions are granted to the extent that Counts II, VII and XIV are denied with
prejudice. Counts III, IV, V, VI, VIII, IX, X, and XIII are dismissed without
prejudice, with leave to amend. Plaintiffs are directed to file a second amended
complaint correcting the aforementioned deficiencies within the timeframe specified
below. In their second amended complaint, Plaintiffs are specifically directed to –
as part of each count – clearly allege which of the Defendants the claim is against,

and if the Defendant is an individual, whether the claim is against that Defendant
in his or her official or individual capacity.3
In light of the voluminous and lengthy filings, and for the sake of clarity, both
parties are strongly encouraged to simplify the issues before the Court in their
future filings; for instance, by filing a streamlined second amended complaint, or
joint defense motions where possible instead of twelve individual motions with
identical or substantially similar legal arguments.

It is therefore
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant Town of Redington Shores’ Dispositive Motion to Dismiss
First Amended Complaint and Incorporated Memorandum of Law”
(Doc. 46) is GRANTED IN PART and DENIED IN PART;

3 For example, “Count XII – Tortious Interference with Plaintiffs’ Advantageous Business
Relationship with Hot-Dog Vendor – Against Defendants Denhardt, Henderson, Kapper, and Palmer
in their Individual Capacities.”
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(2) “Defendant James Denhardt’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 65)
is GRANTED IN PART and DENIED IN PART;

(3) “Defendant Pat Drumm’s Dispositive Motion to Dismiss First Amended
Complaint and Incorporated Memorandum of Law” (Doc. 66) is
GRANTED IN PART and DENIED IN PART;

(4) “Defendant Marybeth Henderson’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 67)
is GRANTED IN PART and DENIED IN PART;

(5) “Defendant Lee Holmes’s Dispositive Motion to Dismiss First Amended
Complaint and Incorporated Memorandum of Law” (Doc. 68) is
GRANTED IN PART and DENIED IN PART;

(6) “Defendant Jeff Neal’s Dispositive Motion to Dismiss First Amended
Complaint and Incorporated Memorandum of Law” (Doc. 69) is
GRANTED IN PART and DENIED IN PART;

(7) “Defendant Michael Robinson’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 70)
is GRANTED IN PART and DENIED IN PART;

(8) “Defendant Bert Adams’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 71)
is GRANTED IN PART and DENIED IN PART;

(9) “Defendant Steve Andrews’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 72)
is GRANTED IN PART and DENIED IN PART;

(10) “Defendant Tom Kapper’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 73)
is GRANTED IN PART and DENIED IN PART;

(11) “Defendant Mary Palmer’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 74)
is GRANTED IN PART and DENIED IN PART;

(12) “Defendant Joseph Walker’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 75)
is GRANTED IN PART and DENIED IN PART;
Page 20 of 21
(13) The motions to dismiss are DENIED as to Counts I, XI, and XII.

(14) The motions to dismiss are GRANTED to the extent that Counts II,
VII and XIV of the amended complaint are DENIED WITH
PREJUDICE.
(15) The motions to dismiss are GRANTED to the extent that Counts III,
IV, V, VI, VIII, IX, X, and XIII of the amended complaint are
DISMISSED WITHOUT PREJUDICE, with leave to amend.
Plaintiffs are directed to file their second amended complaint on or
before May 26, 2020. Failure to file a second amended complaint as
directed shall result in the dismissal of this action without prejudice
without further notice.
DONE and ORDERED in Chambers, in Tampa, Florida, this 24th day of
April, 2020.

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“TOMBARBER }}=—_.
UNITED STATES DISTRICT JUDGE

Page 21 of 21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105021. Public record. Not legal advice.