The opinion
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; and
ORDER DENYING IN PART, AND DISMISSING IN
PART, DEFENDANTS’ MOTIONS FOR SANCTIONS
This matter is before the Court on several motions:
(1) “Town of Redington Shores’ Dispositive Motion to
Dismiss Plaintiffs’ Second Amended Complaint and
Incorporated Memorandum of Law” (Doc. 92);
(2) “Defendant James Denhardt’s Dispositive Motion to
Dismiss the Second Amended Complaint and Motion
to Dismiss-Motion for Summary Judgment as to
Counts V and VII and Incorporated Memorandum of
Law” (Doc. 94);
(3) “Defendants Bertram Adams, Steven Andrews,
Marybeth Henderson, Leland Holmes, Thomas
Kapper, Mary Palmer, and Joseph Walker’s
Dispositive Motion to Dismiss the Second Amended
Complaint and Motion to Dismiss-Motion for
Summary Judgment as to Counts V and VII and
Incorporated Memorandum of Law” (Doc. 95);
(4) “Town of Redington Shores’ Motion for Sanctions”
(Doc. 137);
(5) “Defendant James Denhardt’s Motion for Sanctions”
(Doc. 138);
(6) “Defendants Henderson, Neal, Robinson, and Drumm’s
Motion for Sanctions as to Count II” (Doc. 139); and
(7) “Defendants Adams, Andrews, Henderson, Holmes,
Walker, Palmer, and Kapper’s Motion for Sanctions”
(Doc. 140).
The Court held a hearing to address the motions to dismiss on June 10, 2020.
(Doc. 110). Due to the nature of the qualified immunity and sovereign immunity
arguments raised by Defendants, in an abundance of caution, the Court converted
the motions to dismiss (Docs. 92; 94; and 95) into motions for summary judgment
and gave the parties the opportunity to submit supplemental responses, including
evidence. (Doc. 109). On June 20, 2020, Plaintiffs filed their responses in
opposition to the motions. (Docs. 117; 118; 119). On June 26, 2020, Defendants
filed their replies. (Docs. 131; 132; 134). After reviewing the motions, responses,
replies, court file, and the record, the Court finds as follows:
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
(“Town” or “Redington Shores”) is a municipal corporation located in Pinellas
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.
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 injure 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 initial complaint, which was filed in state court on February 16, 2019,
consisted of 286 paragraphs and 13 separate causes of action. (Doc. 1-1). After the
case was removed, Plaintiffs filed an amended complaint.
The 14-count first amended complaint, filed on March 25, 2019, consisted of
over 300 paragraphs – including 160 paragraphs in the factual allegations section.
(Doc. 6). The events described spanned from the alleged 2005 interference with the
sale of the pier, to a more recent incident in 2018 involving a hotdog vendor. This
complaint was dismissed by the Court for numerous pleading deficiencies, with
leave to amend. (Doc. 85).
The 9-count second amended complaint, filed on May 12, 2020, consists of
over 300 paragraphs – including 173 paragraphs in the factual allegations section.
(Doc. 88). It remains clear to the Court that these parties have a long and
complicated history.2
Analysis
Count V – Malicious Prosecution – Violation of 42 U.S.C. § 1983 Pursuant to
the Fourth Amendment: Unreasonable Seizure
In Count V, Plaintiffs allege that Defendants Denhardt, Palmer, Andrews,
Walker, Holmes, Adams, Kapper, and Henderson violated their Fourth Amendment
rights when, acting under the color of state law and in the scope of their
employment, they instigated a malicious code enforcement action without a
jurisdictional basis and unlawfully executed a lien against their property.3
Absolute Immunity
Denhardt, the Town attorney, argues that he is entitled to prosecutorial
immunity for his role in code enforcement proceedings. The Court agrees. Because
Denhardt advised the Town with respect to litigation in which the Town was
engaged, he was involved in the code enforcement proceedings, and was engaged in
the appellate proceedings, prosecutorial immunity will absolutely shield his actions
2 The current discovery disputes and pending motions for sanctions filed by both parties
only reaffirm this conclusion.
3 This count contains several alternative theories of liability, including that (1) the named
Defendants acted under the color of state law and in the scope of their employment to
directly violate Plaintiffs’ constitutional rights (Doc. 88 at ¶ 243); (2) Holmes, Adams,
Kapper, and Henderson had supervisory over Denhardt and were deliberately indifferent as
to whether the Town had lawful jurisdiction to prosecute the code enforcement against
Plaintiffs, and they are therefore vicariously liable for malicious prosecution (Id. at ¶ 244);
and (3) Denhardt, Palmer, Andrews, Holmes, Adams, Kapper, and Henderson, who all had
supervisory authority over Walker, failed to take remedial action and were deliberately
indifferent as to whether Walker’s unlawful conduct would violate Plaintiffs’ constitutional
rights, and they are therefore vicariously liable for his malicious prosecution (Id. at ¶ 246).
in initiating prosecution or presenting the Town’s case. See Sullivan v. City of New
Port Richey, No. 85-459-CIV-T-17, 1988 WL 156289, at *16 (M.D. Fla. Sept. 13,
1988). Consequently, Count V is dismissed with prejudice as to Denhardt.
Qualified Immunity
Even if Plaintiffs could state a claim for § 1983 malicious prosecution, they
would not be entitled to relief because Defendants Palmer, Andrews, Walker, Holmes,
Adams, Kapper, and Henderson are entitled to qualified immunity.
As a threshold, the Court finds that Defendants were acting in the scope of
their employment and discretionary authority at the relevant times. In their second
amended complaint, Plaintiffs actually allege that that the Defendants were acting
in the scope of their employment. See generally (Doc. 88 at ¶¶ 113-114; 234-235).
Because Defendants were working under the authority of the Town of Redington
Shores, and the imposition of a code enforcement lien is within the Town’s
discretionary authority,4 Plaintiffs must overcome Defendants’ right to claim
qualified immunity.5 See Cornett v. City of Lakeland, No. 8:06-cv-2386, 2008 WL
2740328, at *7 (M.D. Fla. July 10, 2008).
4 See Fla. Const. art. VIII, § 2(b); § 166.021(1) & (4), F.S.; 162.01-162.13, F.S.
5 The Court notes that Plaintiffs attempt to argue that the Defendants were not acting
within their discretionary authority because they did not have jurisdiction to pursue the
code enforcement action against Plaintiffs. However, in their responses in opposition,
Plaintiffs only cite to cases involving out-of-jurisdiction arrests to argue that Defendants
were acting outside the scope of their discretionary authority in this case. The Court does
not find these cited cases persuasive. The Court also notes that there has been no
determination that the Town did not have jurisdiction to enforce the City Code against the
Plaintiffs and the Pier.
“Qualified immunity is an immunity from suit rather than a mere defense to
liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (internal quotation
omitted). Consequently, it is important to resolve questions of immunity at the
“earliest possible stage in litigation.” Id. at 231. A qualified immunity defense may
be raised in a motion to dismiss and resolved prior to discovery. See, e.g., Siegert v.
Gilley, 500 U.S. 226, 232 (1991); Anderson v. Creighton, 483 U.S. 635, 646 n. 6
(1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Corbitt v. Vickers, 929 F.3d
1304, 1311 (11th Cir. 2019); Barbee v. Naphcare, Inc., 216 F. App’x 851, 853 (11th
Cir. 2007). Generally, it is appropriate to dismiss a complaint on qualified
immunity grounds “when the complaint fails to allege the violation of a clearly
established right.” Corbitt, 929 F.3d at 1311 (citing St. George v. Pinellas Cty., 285
F.3d 1334, 1337 (11th Cir. 2002)).
As the United States Supreme Court has explained,
The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known. Qualified immunity balances two important
interests – the need to hold public officials accountable
when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability
when they perform their duties reasonably. The
protection of qualified immunity applies regardless of
whether the government official’s error is a mistake of
law, a mistake of fact, or a mistake based on mixed
questions of law and fact.
Pearson, 555 U.S. at 231 (internal quotations and citations omitted). To overcome a
qualified immunity defense, a plaintiff must establish (1) the allegations make out a
violation of a constitutional right; and (2) if so, the constitutional right was clearly
established at the time of the defendant’s alleged misconduct. Id. at 232 (citing
Saucier v. Katz, 533 U.S. 194 (2001)); Corbitt, 929 F.3d at 1311. However, courts
may exercise their discretion when deciding which of the two prongs should be
addressed first, depending upon the unique circumstances in each particular case.
Pearson, 555 U.S. at 236; Corbitt, 929 F.3d at 1311. In fact, a court “may grant
qualified immunity on the ground that a purported right was not ‘clearly
established’ by prior case law, without resolving the often more difficult question
whether the purported right exists at all.” See Reichle v. Howards, 566 U.S. 658,
665 (2012).
“For a right to be clearly established, ‘the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Corbitt, 929 F.3d at 1311 (quoting Anderson, 483 U.S. at 640).
After all, officials are not obligated “to be creative or imaginative in drawing
analogies from previously decided cases,” and a general “awareness of an abstract
right . . . does not equate to knowledge that [an official’s] conduct infringes the
right.” Id. at 1311-12 (quoting Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir.
2011)). A plaintiff may show that a constitutional right is clearly established by
showing: “(1) a ‘materially similar case’; (2) pointing to a ‘broader clearly
established principle’ that controls ‘the novel facts of the situation;’ (3) or
demonstrating that the conduct involved in the case ‘so obviously violates the
constitution that prior case law is unnecessary.’” Lindbloom v. Manatee County, No.
8:18-cv-2642-T-02AEP, 2019 WL 2503145, at *10 (M.D. Fla. June 17, 2019) (quoting
Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012)). “In this circuit, the law
can be ‘clearly established’ for qualified immunity purposes only by decisions of the
U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the
state where the case arose.” Shuford v. Conway, 666 F. App’x 811, 816-17 (11th Cir.
2016) (quoting Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4
(11th Cir. 1997)).
Because the Court is considering the qualified immunity issue at this stage of
the proceedings, the Court relies on the well-pleaded facts alleged by Plaintiffs in
their second amended complaint. Accepting Plaintiffs’ well-pleaded facts as true,
the Court finds that clearly established law does not show that the lien at issue in
this case violated the Constitution.
Although Plaintiffs generally allege that the code enforcement lien
constituted a violation of their Fourth Amendment rights, Plaintiffs have failed to
cite to any specific decision by the United States Supreme Court, Eleventh Circuit
Court of Appeals, or Supreme Court of Florida to support this argument. Instead,
Plaintiffs argue – in the abstract – that a lien may constitute an interest that
interferes with property rights, citing to Soldal v. Cook County, Ill., 506 U.S. 56
(1992). However, the facts of Soldal, which involved the actual physical seizure of a
mobile home and did not address liens, are easily distinguishable. Plaintiffs also
point to decisions concerning whether the imposition of tax liens or the freezing of
bank assets establish meaningful interference with a possessory right. However,
these cases were not decided by the United States Supreme Court, Eleventh Circuit
Court of Appeals, or Supreme Court of Florida, and the cases do not demonstrate
that the code enforcement lien at issue here constitutes a clear violation of a
constitutional right.
Defendants are not required to be creative by drawing analogies from a
previously decided case, and awareness of an abstract right does not establish
knowledge that the Defendants’ imposition of a code enforcement lien infringed on
Plaintiffs’ Fourth Amendment rights. See Corbitt, 929 F.3d at 1311-12. Moreover,
the only case that the Court has been able to find that appears to address this issue
concluded that a code enforcement inspection and resulting lien did not amount to a
Fourth Amendment search and seizure. See Bey v. City of Tampa Code
Enforcement, No. 8:14-cv-954-T-27AEP, 2014 WL 4629665, at *4 (M.D. Fla. July 25,
2014), affirmed in part, vacated in part, remanded by Bey v. City of Tampa Code
Enforcement, 607 F. App’x 892 (11th Cir. 2015).
Even accepting all of Plaintiffs’ well-pleaded facts as true, the Court
concludes that the imposition of a lien based on an allegedly unlawful code
enforcement proceeding does not constitute a “clear violation” of the Fourth
Amendment. As such, the Court finds that Defendants are entitled to qualified
immunity as to Plaintiffs’ § 1983 malicious prosecution claim. Count V is therefore
dismissed with prejudice as to Defendants Palmer, Andrews, Walker, Holmes,
Adams, Kapper, and Henderson.
Count VII – Equal Protection Clause – Violation of 42 U.S.C. § 1983
Pursuant to the Fourteenth Amendment: Unlawful and Selective Code
Enforcement
In Count VII, Plaintiffs allege that Defendants Denhardt, Palmer, Andrews,
Walker, Holmes, Adams, Kapper, and Henderson violated their Fourteenth
Amendment rights through unlawful and selective code enforcement.6 Plaintiffs
proceed under a “class of one” theory and do not specifically identify any
comparator. Plaintiffs generally allege that Defendants acted with malice, with the
knowledge and intent that they would emotionally and financially injure Plaintiffs,
but they provide no specific facts to support this conclusory allegation.
As the Court explained in its prior Order, to sustain 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 Strickland v. Alderman, 74 F.3d 260, 264
(11th Cir. 1996). Under Eleventh Circuit precedent, a plaintiff is required to
identify a comparator to demonstrate discriminatory conduct and cannot rely “broad
generalities” when doing so. Eisenberg v. City of Miami Beach, 1 F. Supp. 3d 1327,
1340 (S.D. Fla. 2014)
The Court previously dismissed this claim as facially insufficient but gave
Plaintiffs leave to amend to cure identified defects. Here, Plaintiffs have again
failed to allege the existence of at least one similarly situated comparator, and they
have only generally alleged that the treatment they received was different from that
6 Plaintiffs again, in confusing fashion, lump multiple alternative theories of liability as
part of this distinct claim for relief, including direct liability and vicarious liability.
of others similarly situated.7 As such, the claim again fails to meet the requisite
Eleventh Circuit standard for equal protection claims.
In its prior Order, the Court acknowledged an exception to the general
comparator requirement used by the Seventh Circuit, which “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)). Although it did not appear that the Eleventh Circuit has addressed this
particular issue, the Court was willing to entertain whether Plaintiffs could meet
the Seventh Circuit’s standard for equal protection claims.
In this case, Plaintiffs have not pleaded “such obviously harassing or
malicious conduct on [Defendants’] part so that unequal treatment may be
inferred.” See id. at 1342. In Eisenberg, the court held that although the plaintiffs
alleged a pattern of pretextual regulation motivated by malice – including
numerous code violations – the citations and shutdowns by City officials did not
“sufficiently demonstrate an obvious campaign of malicious harassment . . .” Id. at
1342. In this case, Plaintiffs make similar allegations of a pattern of pretextual
regulation motivated by malice. Here, the Court finds that the malicious acts
7 The Court specifically notes that Plaintiffs do not actually allege that any other persons or
entities were in violation of the Town Code but not prosecuted. They only allege generally
that they were treated differently than other residents of the Town (Doc. 88 at ¶ 273), and
that they were “the only individuals in Town maliciously targeted by the Defendants for
years of harassing code enforcement litigation that was not based on the Town’s lawful
jurisdiction, and moreover, targeted for the execution of an unlawful Lien Order on their
property” (Id. at ¶ 275).
alleged – including one code enforcement proceeding and alleged interference with
contractual and business dealings – do not sufficiently demonstrate obvious
harassing or malicious conduct by Defendants. Furthermore, the conduct alleged is
not arbitrary or irrational where it had a “conceivable legitimate purpose – to obtain
compliance with the City Code and protect the health and safety of the public.” See
id. As a result, the Court finds that Plaintiffs have again failed to sufficiently state
a claim for violation of their Fourteenth Amendment rights.
A district court must generally permit a plaintiff at least one opportunity to
cure deficiencies before dismissing a claim or complaint with prejudice. See Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). “Implicit in such a
repleading order is the notion that if the plaintiff fails to comply with the court’s
order – by filing a repleader with the same deficiency – the court should strike his
pleading or, depending on the circumstances, dismiss his case and consider the
imposition of monetary sanctions.” Jackson v. Bank of America, N.A., 898 F.3d
1348, 1358 (11th Cir. 2018) (internal quotations and citation omitted). Because the
Court has already given Plaintiffs an opportunity to cure these deficiencies but they
have failed to do so, Count VII is dismissed with prejudice.
Count IX – Negligent Retention of Walker: Violation of 42 U.S.C. § 1983
Pursuant to the Fourth Amendment
In Count IX, Plaintiffs allege that Defendant Town of Redington Shores
violated their Fourth Amendment rights by negligently retaining Walker, who they
allege conducted unlicensed inspections in violation of Chapter 468, F.S., including
inspections at the Pier. Although the parties have been litigating this particular
lawsuit since March 20, 2019, this claim was raised, for the first time, in Plaintiffs’
second amended complaint, filed on May 12, 2020.
To state a claim under § 1983, a litigant must allege a deprivation of a federal
right by a person acting under color of state law. Hansel v. All Gone Towing Co.,
132 F. App’x 308, 309 (11th Cir. 2005). A municipality or local government is liable
for civil rights violations committed by an individual acting “under color of any
statute, ordinance, regulation, [or] custom.” See Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 690 (1978). However, a municipality cannot be held
liable based on a theory of respondeat superior. Id. at 691. Instead, a municipality
is only liable for injury caused by an employee when a “policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.” Id. at 694. To establish liability, these
policies and customs must be “so permanent and well settled” so as to have “the
force of law.” Id. at 691. Additionally, “a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the deprivation of federal
rights.” Bd. Of Cty. Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397 (1997).
Negligent retention occurs when, “during the course of employment, the
employer [became] aware or should have become aware of problems with an
employee that indicated his unfitness, and the employer fail[ed] to take further
action such as investigating, discharge, or reassignment.” Groover v. Polk County
Bd. Of Cty. Comm’rs, No. 8:18-cv-2454-T-02TGW, 2020 WL 2307558, at *5 (M.D.
Fla. May 8, 2020) (citing Degitz v. S. Mgmt. Servs., Inc., 996 F. Supp. 1451, 1461
(M.D. Fla. 1998)). Plaintiffs allege that Redington Shores did not sufficiently
investigate or supervise Walker, a Town employee, which allowed him to conduct
hundreds of unlicensed building inspections, including the inspection at the Pier
that resulted in a code enforcement lien.
Redington Shores first argues that the June 23, 2015, code enforcement
hearing before a special master is governed by Chapter 162, F.S. rather than
Chapter 468, F.S. The text of the statutes appears to support this argument –
Chapter 468 addresses building code administration and inspections conducted
pursuant to permits, while Chapter 162 authorizes the imposition of administrative
fines to enforce codes and ordinances. See §§ 468.601; 162.02, F.S. Importantly,
Chapter 162 does not require a license to conduct code enforcement inspections; it
only requires authorization by the local authority. If true, Plaintiffs would not be
able to plausibly state a claim for relief for negligent retention against the Town
since they could not sufficiently allege any duty, breach, or causal connection
between the conduct and injury.
The Court need not make this determination, however, because even in the
context of Chapter 468, the Court finds that Plaintiffs have failed to plausibly state
a claim for relief for negligent supervision under § 1983. “A person injured by a
government actor in the course of enforcing the laws for the general protection of
the public ordinarily has no claim, because the actor owes no actionable common-
law duty of care to the general public.” Vaden v. Campbell, No. 4:09cv12-RH/WCS,
2009 WL 1919474, at *3 (N.D. Fla. July 2, 2009). Rather, an individual injured by a
government actor only has a claim “if the government actor owes the person a
special duty of care.” Id.
Moreover, the injury must be based on an injury resulting from a common-
law tort recognized in Florida. See, e.g., Wheeler v. Blackbear Two, LLC, No. 6:12-
cv-583-Orl-37TBS, 2012 WL 3596128, at *2 (M.D. Fla. Aug. 21, 2012); Jones v.
Spherion Atl. Enter., LLC, No. 6:10-cv-833-Orl-31GJK, 2010 WL 11626722, at *4
(M.D. Fla. Sept. 29, 2010); Gutman v. Quest Diagnostics Clinical Lab., Inc., 707 F.
Supp. 2d 1327, 1331-32 (S.D. Fla. 2010); Atmore v. City of Lake Wales, No. 8:08-cv-
2320-T-27EAJ, 2009 WL 10670908, at *3 (M.D. Fla. Dec. 1, 2009); Hernandez v.
Manatee County, No. 8:05-cv-1434-T-30EAJ, 2006 WL 8440095, at *1 (M.D. Fla.
Oct. 23, 2006); Freese v. Wuesthoff Health Sys., Inc., No. 6:06-cv-175-Orl-31JGG,
2006 WL 1382111, at *8 (M.D. Fla. May 19, 2006); Scelta v. Delicatessen Support
Servs., Inc., 57 F. Supp. 2d 1327, 1248 (M.D. Fla. 1999).
Upon review, the Court finds that Plaintiffs have failed to state a § 1983
negligent supervision claim. First, Plaintiffs have failed to sufficiently plead a
policy or custom that was the moving force behind a constitutional violation. They
do not actually allege that the code enforcement violations, proceedings, or resulting
lien were caused by the Town’s “custom” of conducting unlicensed inspections or
even by Walker’s lack of a license. Moreover, as the Court noted in its analysis of
Count V, it is not clear whether a code enforcement lien constitutes a seizure under
the Fourth Amendment, and the only case the Court is aware of concludes that a
code enforcement lien is not a Fourth Amendment violation.
As to the elements of negligent supervision, Plaintiffs do not allege the
existence of a recognized special duty of care. Instead, they only allege the
existence of a general duty of care to enforce the licensure requirements of the
building code and a duty to ensure that inspectors are properly licensed. A duty of
care to the general public cannot support a negligent supervision claim.
Additionally, Plaintiffs have failed to allege that Walker committed a
common-law tort against them. Instead, Plaintiffs only appear to allege that
Walker violated Florida statutes and/or their Fourth Amendment rights by
conducting inspections without the appropriate license. Plaintiffs also do not
sufficiently allege that the alleged breach of duty here – the retention of an
unlicensed inspector – caused their injury.
Finally, the Court notes that nothing in Chapter 468 demonstrates any
legislative intent to give private citizens a right of recovery based on a
municipality’s negligent inspection of their property. It appears that the licensure
requirement is intended to protect the health and safety of the public, not the
personal or property interests of private citizens, and the chapter only provides for
disciplinary measures against any persons in violation.
Normally, the Court would dismiss this claim without prejudice and permit
Plaintiffs the opportunity to amend. However, the Court has already dismissed claims
without prejudice, and Plaintiffs have previously failed to correct pleading deficiencies
identified by this Court. Therefore, Count IX is dismissed with prejudice. See PNC
Bank, N.A. v. M.D.K. Holdings, LLC, No. 6:14-cv-598-Orl-41TBS, 2014 WL 12685922,
at *2 (citing Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.
2002)).
Counts I, II, III, IV, VI, and VIII
In light of the Court’s dismissal with prejudice of the federal claims in Counts
V, VII, and IX, and in the interest of judicial economy and convenience, the Court
declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) over
Plaintiffs’ claims arising under state law. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th
Cir. 2004); Martelli v. Knight, No. 8:19-cv-441-T-02SPF, 2020 WL 3440582, at *8-9
(M.D. Fla. June 23, 2020). Consequently, Counts I, II, III, IV, VI, and VIII are
hereby dismissed without prejudice. As to these state law claims, the Court tolls the
statute of limitations for sixty days.
Motions for Sanctions
Defendants have also filed several motions for sanctions against Plaintiffs,
arguing that neither Plaintiffs nor counsel undertook a sufficient pre-suit
investigation to discover whether a reasonable factual basis existed for their claims,
and that making and maintaining these claims constitutes bad faith. (Docs. 137;
138; 139; 140). Upon review, the Court finds that Plaintiffs’ federal claims do not
appear frivolous or made in bad faith. The motions for sanctions are therefore
denied as to the federal claims. The Court declines to address any sanctions
requests related to the state law claims since the Court has determined that it will
not exercise supplemental jurisdiction over the state law claims. As a result, the
motions for sanctions as to the state law claims are dismissed without prejudice.
It is therefore
ORDERED, ADJUDGED, and DECREED:
(1) “Town of Redington Shores’ Dispositive Motion to Dismiss Plaintiffs’
Second Amended Complaint and Incorporated Memorandum of Law”
(Doc. 92) is GRANTED IN PART. The Court GRANTS the motion to
the extent that it finds that Plaintiffs have failed to sufficiently allege
a § 1983 negligent retention claim in Count IX, and this count is
dismissed with prejudice. The Court DECLINES to address the other
arguments raised by Redington Shores in its motion.
(2) “Defendant James Denhardt’s Dispositive Motion to Dismiss First
Amended Complaint and Incorporated Memorandum of Law” (Doc. 94)
is GRANTED IN PART. The Court GRANTS the motion to the
extent that it finds that Defendant James Denhardt is entitled to
absolute immunity as to Count V, so this count against him is
dismissed with prejudice. The Court also GRANTS the motion to the
extent that it finds that Plaintiffs have failed to state an equal
protection claim in Count VII, so this count is also dismissed with
prejudice as to Denhardt. The Court DECLINES to address the other
arguments raised by Denhardt in his motion.
(3) “Defendants Bertram Adams, Steven Andrews, Marybeth Henderson,
Leland Holmes, Thomas Kapper, Mary Palmer, and Joseph Walker’s
Dispositive Motion to Dismiss the Second Amended Complaint and
Motion to Dismiss-Motion for Summary Judgment as to Counts V and
VII and Incorporated Memorandum of Law” (Doc. 95) is GRANTED
IN PART. The Court GRANTS the motion to the extent that it finds
that Defendants Adams, Andrews, Henderson, Holmes, Kapper,
Palmer and Walker are entitled to qualified immunity as to Count V,
so this count is dismissed with prejudice as to these Defendants. The
Court also GRANTS the motion to the extent that it finds that
Plaintiffs have failed to state an equal protection claim in Count VII,
so this count is dismissed with prejudice as to these Defendants. The
Court DECLINES to address the other arguments raised by these
Defendants in their motions.
(4) Counts V, VII, and IX are hereby DISMISSED WITH PREJUDICE.
(5) In light of the Court’s dismissal with prejudice of Counts V, VII, and
IX, the Court DECLINES to exercise supplemental jurisdiction under
28 U.S.C. § 1367(c) over Plaintiffs’ claims arising under state law.
Consequently, Counts I, II, III, IV, VI, and VIII are hereby
DISMISSED WITHOUT PREJUDICE. Pursuant to 28 U.S.C. §
1367(d), the period of limitations for Plaintiffs’ state law claims shall
be tolled for 60 days after dismissal unless state law provides for a
longer tolling period.
(6) Defendants’ motions for sanctions (Docs. 137, 138, 139, and 140) are
DENIED as to the federal law claims. The Court DECLINES to
address any requests for sanctions as to the state law claims, so these
requests for sanctions are DISMISSED WITHOUT PREJUDICE.
(7) The Clerk is directed to terminate any pending motions and deadlines,
and thereafter close this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this 23rd day of
July, 2020.
vf 4 )) ii f
TF Lad. hee □□
TOM BARBER
UNITED STATES DISTRICT JUDGE
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