Opinion

JERMC LTD. v. Town of Redington Shores

Court
District Court, M.D. Florida
Filed
Jul 23, 2020
Cited by
0 cases
Authority
More cited than 19.7%

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

Page 19 of 19

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