Harris v. Wingo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT DALE HARRIS,

Plaintiff,

v. Case No: 2:18-cv-17-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

KASEY P. WINGO,

individually, MICHAEL D.

CHAPMAN, individually, SCOTT

PEPIN, individually, and

ROSS ANTHONY, individually,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendant Scott Pepin’s

Motion for Reconsideration, or in the Alternative for § 1292(b)

Certification (Doc. #180), filed on November 6, 2019. Plaintiff

filed a Response in Opposition (Doc. #187) on November 7, 2019.

The Court allowed Defendant Pepin to file a Reply (Doc. #195) on

June 9, 2020. For the reasons set forth below, the Motion to

Reconsider is granted. Upon reconsideration, the Court grants the

Motion For Summary Judgment based upon the statutes of limitations.

The Court denies the Motion For Certification Of An Interlocutory

Appeal as moot.

I.

Plaintiff Robert Dale Harris (plaintiff or Harris) filed his

original Complaint (Doc. #1) on January 9, 2018. The Complaint

asserted claims for false arrest, excessive force, malicious

prosecution, negligence, assault and battery, negligent infliction

of emotional distress, conspiracy, and First Amendment retaliation

against Collier County Sheriff Kevin Rambosk in his official

capacity and Collier County Sheriff’s Office (CCSO) deputies Kasey

P. Wingo, Michael D. Chapman, and Brian Wiedel in their individual

capacities. The claims asserted in the Complaint arose out of two

arrests of plaintiff and several encounters between Plaintiff and

CCSO deputies. All claims were timely filed within the various

applicable statutes of limitations as to all named defendants.

Although he was mentioned by name in the recitation of facts as to

an April 4, 2014 arrest and the subsequent trespass warning, CCSO

Deputy Scott Pepin (Deputy Pepin) was not named as a defendant in

the Complaint.

On May 1, 2018, plaintiff filed an Unopposed Motion to Amend

Complaint. (Doc. #49.) Among other proposed changes, the amended

complaint would add “two additional defendants who, upon further

review of discovery and additional facts acquired by counsel after

the original Complaint was filed, played a key and significant

role in the Plaintiff’s claims for conspiracy, excessive use of

force, malicious prosecution, and violation of his first amendment

rights.” (Id. ¶ 3.)1 The Motion was granted the same day. (Doc.

#50.)

The Amended Complaint (Doc. #51) was filed on May 2, 2018.

Deputy Pepin was one of the two new defendants named in the Amended

Complaint. The Amended Complaint asserted claims against Deputy

Pepin for false arrest and excessive force under 42 U.S.C. § 1983

(Count VIII), malicious prosecution under § 1983 and state law

(Counts IX and X), assault and battery under state law (Count XI),

and First Amendment retaliation (Count XVI). The claims against

Deputy Pepin arose out of two encounters: (1) Plaintiff’s arrest

by CCSO deputies Chapman and Wingo on April 4, 2014, in which it

is alleged that Deputy Pepin assisted in the arrest, struck

Plaintiff’s back with a baton, and deployed a Taser into his back

(Id., ¶¶ 301-335); and (2) a trespass warning that Deputy Pepin

and three other deputies issued to Plaintiff on June 10, 2014.

(Id., ¶¶ 361-372.) A Summons was issued as to Deputy Pepin (Doc.

#52) on May 9, 2018.

Deputy Pepin was personally served with the Summons and

Amended Complaint on May 18, 2018. (Doc. #197.) On June 8, 2018,

Deputy Pepin, through the law firm of DeBevoise & Poulton, P.A.,

1 While the Motion to Amend Complaint was unopposed by the

defendants named in the original Complaint, Deputy Pepin would

later note that “[t]his assertion appears mistaken as Plaintiff

was clearly aware of Pepin’s conduct as of the timely-filed

original Complaint.” (Doc. #62, p. 10 n.1.)

filed a Motion to Dismiss Amended Complaint (Doc. #62) on statute

of limitations and qualified immunity grounds. Under Local Rule

2.03(a) of the Local Rules of the United States District Court for

the Middle District of Florida, this constituted a general

appearance by counsel on behalf of Deputy Pepin. The Court denied

the Motion to Dismiss on October 18, 2018. (Doc. #74.)

On November 1, 2018, Deputy Pepin filed his Answer and

Affirmative Defenses. (Doc. #76.) Deputy Pepin denied the

allegations of wrongdoing, and his Fourth Affirmative Defense

asserted that Counts VIII-XI were barred by the four-year statutes

of limitations.

On June 10, 2019, Deputy Pepin moved for summary judgment on

Counts VIII, IX, X, and XI. (Doc. #113.)2 Deputy Pepin argued in

part that the claims based on the April 4, 2014 arrest were time-

barred because the four-year statutes of limitations began to run

on April 4, 2014, and Plaintiff filed the Amended Complaint adding

Deputy Pepin as a new defendant on May 2, 2018 – more than four

years later.

On November 5, 2019, the Court entered its Opinion and Order

(Doc. #175) granting in part and denying in part Deputy Pepin’s

2 Although not relevant here, Deputy Pepin also moved for

summary judgment on the merits of Plaintiff’s First Amendment

retaliation claim in Count XVI. The Court granted Deputy Pepin’s

motion as to that claim. (Doc. #175, p. 26.) Count XVI was the

only count against Deputy Pepin relating to the June 10, 2014

trespass events.

motion for summary judgment. The Court agreed that Counts VIII,

IX, X, and XI all appeared to be untimely (Id., pp. 8-10), and

rejected plaintiff’s arguments that equitable estoppel applied.

(Id., pp. 10-12.) The Court found, however, that such claims were

not time-barred because they related back to the timely-filed

claims set forth in the January 9, 2018 original Complaint. (Id.,

pp. 12.) Specifically, the Court found that the claims against

Deputy Pepin related back to the original Complaint under Rule

15(c)(1)(B) of the Federal Rules of Civil Procedure. (Id., pp.

13-14.) The Court then proceeded with the merits of the summary

judgment motion as to these counts, ultimately denying summary

judgment. (Id., pp. 14-26.)

Deputy Pepin now seeks reconsideration of the Court’s

determination that the Amended Complaint related back to the

original Complaint. Alternatively, Deputy Pepin requests that the

Court certify the issue for interlocutory appellate review under

28 U.S.C. § 1292(b). In his Response in Opposition (Doc. #187),

plaintiff argued that even if the Amended Complaint does not relate

back under Rule 15(c)(1)(B), it related back under Rule

15(c)(1)(A). Deputy Pepin was allowed to file a Reply (Doc. #195)

as to this issue.

II.

The issue in this case is whether the Amended Complaint adding

Deputy Pepin as a new defendant relates back to the timely-filed

original Complaint. If it does, the claims against Deputy Pepin

are not barred by any of the applicable statutes of limitations,

and the claims may proceed (subject, of course, to the current

appeal on the qualified immunity issue.) If it does not, all

pending claims against Deputy Pepin are untimely (regardless of

the outcome of the qualified immunity issue.)

Rule 15(c) of the Federal Rules of Civil Procedure Rule

governs the relation back effect of amendments to federal

pleadings. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541

(2010); Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131

(11th Cir. 2004). The effect of allowing relation back is that

the amended pleading is permitted to adopt the earlier pleading’s

filing date and is not time-barred by statutes of limitations or

similar provisions, even if otherwise untimely. Makro Cap. of Am.,

Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008). Rule

15(c)(1) “mandates relation back once the Rule's requirements are

satisfied; it does not leave the decision whether to grant relation

back to the district court's equitable discretion.” Krupski, 560

U.S. at 553.

Under Rule 15(c)(1), an amended pleading relates back to the

date of an original pleading when:

(A) the law that provides the applicable statute of

limitations allows relation back;

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out-

-or attempted to be set out--in the original pleading;

or

(C) the amendment changes the party or the naming of the

party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will

not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would

have been brought against it, but for a mistake

concerning the proper party's identity.

Fed. R. Civ. P. 15(c)(1)(A)-(C). Thus, Rule 15(c) establishes two

ways in which an amended pleading can relate back to an earlier

pleading.

First, relation back is permitted when the law

imposing the statute of limitations itself

permits relation back. See Fed. R. Civ. P.

15(c)(1)(A). Second, a pleading would relate

back if it “asserts a claim or defense that

arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—

in the original pleading.” Fed. R. Civ. P.

15(c)(1)(B). However, Rule 15 imposes an

additional requirement for pleadings in this

second group that also involve a change in the

party against whom the claim is asserted. See

Fed. R. Civ. P. 15(c)(1)(C). In order for

pleadings in that subgroup to relate back, the

party being added must have “(i) received such

notice of the action that it will not be

prejudiced in defending on the merits ... and

(ii) knew or should have known that the action

would have been brought against it, but for a

mistake concerning the proper party's

identity.” Id. Such pleadings also still must

meet the common transaction or occurrence test

of Rule 15(c)(1)(B). See id.

Makro Cap., 543 F.3d at 1258 (footnote omitted.) “Although the

statute of limitations is an affirmative defense that must be

established by the defendant, when relation back is required to

satisfy the statute of limitations, the burden is on the plaintiff

to prove that Rule 15(c) is satisfied.” Covey v. Assessor of Ohio

Cnty., 666 F. App’x 245, 248 (4th Cir. 2016)(citations omitted.)

A. Relation Back Pursuant To Rule 15(c)(1)(B)-(C)

The general rule is set forth in Fed. R. Civ. P. 15(c)(1)(B).

An amendment of a complaint relates back to the date of the

original complaint if the claim asserted in the amended pleading

“arose out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading.” Cliff, 363

F.3d at 1131, quoting Rule 15(c)(1)(B).

The Court’s original Opinion and Order (Doc. #175) applied

the Rule 15(c)(1)(B) general rule. The Court determined that the

Amended Complaint related back to the date of the original

Complaint because the claims against Deputy Pepin arose out of the

same conduct described in the original Complaint as to the April

4, 2014 arrest. (Doc. #175, pp. 12-14.) This was the end of the

Court’s analysis, but it should not have been. See Makro Cap.,

543 F.3d at 1258.

“[W]hen an amendment seeks to change a party against whom a

claim is asserted, as opposed to changing merely the allegations

set forth in the pleading, the relation back rule is more

stringent.” Cliff, 363 F.3d at 1131. Thus,

[a]n amended complaint that adds a party or

changes the name of a party relates back where

(1) the claim “arose out of the same conduct,

transaction or occurrence set out—or attempted

to be set out—in the original pleading;” (2)

the new party “received such notice of the

action that it will not be prejudiced in

defending on the merits;” (3) the party being

added received such notice within the time

period of Rule 4(m), 120 days; and (4) the

party being added “knew or should have known

[within the Rule 4(m) time period] that the

action would have been brought against it, but

for a mistake concerning the proper party's

identity.”

Lindley v. City of Birmingham, Ala., 515 F. App’x 813, 815 (11th

Cir. 2013). See also Ceara v. Deacon, 916 F.3d 208, 211 (2d Cir.

2019).

Because the Court’s original Opinion and Order failed to

complete the analysis required when a new defendant is added by

amendment, the Court grants Deputy Pepin’s motion to reconsider.

The Reconsideration is set forth below.

(1) Timely Original Complaint

The original Complaint must have been timely filed, or else

determination of relation back is a pointless exercise. See

Krupski, 560 U.S. at 541. Both parties agree that the original

Complaint in this case was timely filed as to all claims. The

Court also agrees.

(2) Arose Out of Conduct Set Forth In Original Complaint

The amended pleading must meet the common transaction or

occurrence test of Rule 15(c)(1)(B). Makro Cap., 543 F.3d at 1258.

The Court continues to be of the view that the Amended Complaint

satisfies Rule 15(c)(1)(B) because “the amendment asserts a claim

or defense that arose out of the conduct, transaction, or

occurrence set out--or attempted to be set out--in the original

pleading.” A substantial portion of the claims in the original

Complaint involved the April 4, 2014 arrest, as do all the relevant

claims against Deputy Pepin in the Amended Complaint.

Accordingly, Plaintiff has established that Rule 15(c)(1)(B) is

satisfied.

(3) Sufficient and Timely Notice to Defendant

If Rule 15(c)(1)(B) is satisfied, Rule 15(c)(1)(C)(i)

requires that within 90 days of the filing of the original

Complaint the new party “received such notice of the action that

it will not be prejudiced in defending on the merits.” Fed. R.

Civ. P. 15(c)(1)(C)(i). The Supreme Court has re-iterated that

Rule 15(c)(1) “asks what the prospective defendant knew or should

have known during the Rule 4(m) period, not what the plaintiff

knew or should have known at the time of filing her original

complaint.” Krupski, 560 U.S. at 548.

Here, the record clearly establishes that both before and

after the filing of the original Complaint Deputy Pepin had notice

of the claims such that he would not be prejudiced in defending on

the merits. Harris had filed two Notices of Intent to File a

lawsuit against the Sheriff’s Office, one on September 28, 2016

and the other on January 24, 2017. The Sheriff’s Office opened

an internal administrative investigation which included Deputy

Pepin’s conduct at the April 4, 2014 arrest as potentially conduct

unbecoming of a law enforcement officer. (Doc. #116, pp. 25-26.)

Deputy Pepin had provided a Sworn Statement to investigators on

July 3, 2017 (Doc. #113), and he affirmed the truthfulness of his

statement in a deposition after the filing of the Amended

Complaint. (Doc. #116, pp. 27-28.) In both the Sworn Statement and

the deposition, Deputy Pepin described his conduct in assisting in

the arrest, striking Harris with a baton, and tasing him with a

taser. (Doc. # 113-2, pp. 68-72; Doc. #116, pp. 33-34.)

The original Complaint described Deputy Pepin’s actions in

the April 4, 2014 arrest of plaintiff as a responding deputy who

“used his baton on HARRIS’S back, striking him several times.”

(Doc. #1, ¶ 66.) This occurred after Harris was “subdued on the

ground, these officers join in on the assault and battery against

HARRIS by continuing to taser and beat him, including Cpl. Pepin

who uses his baton to strike HARRIS on his back several times.”

(Id. at ¶ 52.) This resulted in Harris being “on the ground and

incapacitated from the beating . . .” (Id. at ¶ 53.)

Deputy Pepin has never asserted any prejudice, and the record

establishes that none existed in his defense of the allegations.

See Fed. R. Civ. P. 15(c)(1)(C)(i). Plaintiff has thus established

this requirement for relation back.

(4) Defendant’s Timely Knowledge of Mistake

Rule 15(c)(1) also requires that within the same 90-day period

defendant “knew or should have known that the action would have

been brought against it, but for a mistake concerning the proper

party's identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii). The correct

inquiry focuses on what Deputy Pepin “reasonably should have

understood about [plaintiff’]s intent in filing the original

complaint against” the Sheriff and three deputies. Krupski, 560

U.S. at 553-54. That is, would Deputy Pepin reasonably have

understood that Harris intended to file claims against him in the

original Complaint but for a mistake. See Krupski, 560 U.S. at

548-49 (the Supreme Court discusses the concept of “mistake” in

Rule 15(c)).

Assuming there was a “mistake” within the meaning of Rule

15(c)(1)(C)(ii), the record establishes that Deputy Pepin did not

know and should not reasonably have known that plaintiff intended

to sue him as well as the other defendants in the original

Complaint but for a mistake. There was no mistake as to a party’s

identity in this case, since Deputy Pepin and all the other parties

were well-known from virtually the beginning of the events.

Plaintiff filed an 82-page, 479-paragraph, 21-count, fact-

intensive original Complaint (Doc. #1). As summarized above, the

original Complaint described Deputy Pepin’s actions in the April

4, 2014 arrest as assisting the other officers in arresting

plaintiff, striking Harris several times on his back with a baton

after Harris had been subdued on the ground. (Doc. #1, ¶ 66.)

After Harris was “subdued on the ground,” the arriving officers

“join in on the assault and battery against HARRIS by continuing

to taser and beat him, including Cpl. Pepin who uses his baton to

strike HARRIS on his back several times.” (Id. at ¶ 52.) This

resulted in Harris being “on the ground and incapacitated from the

beating . . .” (Id. at ¶ 53.) Plaintiff alleged that about 59

CCSO deputies and personnel conducted 76 searches of plaintiff,

which included searches by Pepin. (Id. at ¶ 149.) Like Deputy

Pepin, most of the more than 59 CCSO deputies and other personnel

who were identified by name were never named as a defendant.

(e.g., Id. ¶¶ 67-124, 128-35, 137, 139-42, 144-48.)

The original Complaint was exceptionally detailed and fact-

specific, and Deputy Pepin clearly would have understood that the

naming of defendants had been given considerable thought. Nothing

would have caused Deputy Pepin to believe he had escaped being a

named-defendant due to the mistake or accident of plaintiff or his

attorney. Rather, until being served with the Amended Complaint

on May 18, 2018, Deputy Pepin would have reasonably understood

that he was not an intended defendant. May 18, 2018, is 129 days

after the original Complaint was filed, and is therefore outside

the 90-day period set forth in Rule 15(c)(1). Because plaintiff

has not established timely knowledge by Deputy Pepin, he has not

established that the Amended Complaint relates back to the filing

of the original Complaint.

B. Relation Back Under Rule 15(c)(1)(A)

Plaintiff also relies on Fed. R. Civ. P. 15(c)(1)(A), which

provides that an amended pleading relates back to an earlier

pleading where “the law that provides the applicable statute of

limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A).

This provision of Rule 15

incorporates the relation-back rules of the law of a

state when that state's law provides the applicable

statute of limitations. As a result, if an amendment

relates back under the law that provides the applicable

statute of limitations, that amendment relates back

under Rule 15(c)(1)[(A)] even if the amendment would not

relate back under the federal law rules.

Saxton v. ACF Indus., Inc., 254 F.3d 959, 962–63 (11th Cir. 2001).

Thus, where state “law affords a more forgiving principle of

relation back than the one provided in [Rule 15(c)(1)(B)-(C)], it

should be available to save the claim.” Id. at 962 (citation and

quotation omitted). See also Presnell v. Paulding Cnty., 454 F.

App’x 763, 767 (11th Cir. 2011)(in citing to Saxton, the court

found that because Georgia law applied to the statute of

limitations for a § 1983 claim, Georgia law controlled regarding

relation back of an amendment, even if federal law would not permit

it.)

Deputy Pepin argues that Saxton was based on diversity

jurisdiction, and the Eleventh Circuit has yet to expressly

confront whether federal courts borrow state law on relation back

in federal question jurisdiction cases. See e.g., King v. Bencie,

806 F. App’x 873 (11th Cir. 2020); Menedez v. Jarden Corp., 503 F.

App’x 930 (11th Cir. 2013). This is true, but there is nothing

in Rule 15(c)(1)(A) which indicates the application of the Rule

depends on the source of the federal court’s subject matter

jurisdiction. The Court finds that Rule 15(c)(1)(A) applies to a

case such as this, where subject matter jurisdiction is premised

on federal question jurisdiction and supplemental jurisdiction.

Deputy Pepin further contends that even if Florida relation

back law applies, it would not permit the addition of a new party

after the statute of limitations has run. The Court agrees.

Florida Rule of Civil Procedure 1.190(c) governs amended

pleadings and defines the relation back doctrine as follows:

(c) Relation Back of Amendments. When the

claim or defense asserted in the amended

pleading arose out of the conduct, transaction

or occurrence set forth or attempted to be set

forth in the original pleading, the amendment

shall relate back to the date of the original

pleading.

Fla. R. Civ. P. 1.190. Generally, Florida has a judicial policy of

freely permitting amendments to the pleadings so that cases may be

resolved on the merits, as long as the amendments do not prejudice

or disadvantage the opposing party. Caduceus Props., LLC v. Graney,

137 So. 3d 987, 991–92 (Fla. 2014).

The relation back doctrine, however, usually does not apply

when an amendment seeks to add an entirely new party to the action

after the statute of limitations has expired. Caduceus Props., 137

So. 3d at 993-94 (“Our holding here also does not disturb the

precedent that, generally, the relation-back doctrine does not

apply when an amendment seeks to bring in an entirely new party

defendant to the suit after the statute of limitations period has

expired.”)(citations omitted). See also Castro v. Linfante, 45

Fla. L. Weekly D1774 (Fla. 3d DCA July 22, 2020).

Nevertheless, courts have recognized an exception to this

rule “for separate parties with a sufficient ‘identity of interest’

such that the ‘addition will not prejudice the new party.’” Rayner

v. Aircraft Spruce Advantage, Inc., 38 So. 3d 817, 820 (Fla. 5th

DCA 2010) (quoting Arnwine v. Huntington Nat’l Bank, N.A., 818 So.

2d 621, 624 (Fla. 2d DCA 2002). “The gist of the exception is that

the relation-back doctrine applies when the new defendant is

essentially one in the same as the existing defendant.”3 Russ v.

3 Cases in which the “identity of interest” exception has been

applied often involve “the substitution of one corporate entity

for another.” Russ, 159 So. 3d at 410; see e.g., Stiman v. Michael

Graves Design Grp., Inc., 983 So. 2d 626 (Fla. 3d DCA 2008);

Williams v. Avery Dev. Co.-Boca Raton, 910 So. 2d 851 (Fla. 4th

DCA 2005); Darden v. Beverly Health & Rehab., 763 So. 2d 542 (Fla.

Williams, 159 So. 3d 408, 411 (Fla. 1st DCA 2015). The exception

will apply when the new defendant “knew or should have known that

the plaintiff had made a mistake . . . as concerns the correct

identity of the defendant so that the added party was deemed to

have suffered no prejudice by being tardily brought in or

substituted as a party.” Rayner, 38 So. 3d at 820 (quoting Arnwine,

818 So. 2d 624).

Here, plaintiff added Deputy Pepin as an entirely new party.

While Deputy Pepin was employed by CCSO, the claims against Deputy

Pepin were in his individual capacity, seeking damages from his

pocketbook, not that of the Sheriff’s Office. Kentucky v. Graham,

473 U.S. 159, 166 (1985)(“while an award of damages against an

official in his personal capacity can be executed only against the

officials assets, a plaintiff seeking to recover on a damages

judgment in an official-capacity suit must look to the government

entity itself.”) This is not an instance where Deputy Pepin is

“one in the same as the existing defendant[s]” such that there is

an “identity of interest” between Pepin and the previously named

defendants.4 Rayner, 38 So. 3d at 820; Russ, 159 So. 3d at 411.

5th DCA 2000).

4 Plaintiff argues the Court’s previous finding that

Plaintiff’s civil conspiracy claim was barred by the intra-

corporate immunity doctrine lends support to a finding that Deputy

Pepin shares an “identity of interest” with the named defendants.

(Doc. #187, p. 3). The Court does not find that resolution of one

issue is persuasive as to resolution of the other.

Further, as discussed above, Deputy Pepin neither knew nor should

have known that the plaintiff had made a mistake in previously

deciding he should not be a named defendant. Deputy Pepin did not

mislead plaintiff as to his identity and was “under no obligation

to advise plaintiff who to sue.” Russ, 159 So. 3d at 411 (quoting

Gray v. Exec. Drywall, Inc., 520 So. 2d 619, 621 (Fla. 2d DCA

1998)). Accordingly, plaintiff has not established that the

Amended Complaint relates back to the original complaint under

Fed. R. Civ. P. 15(c)(1)(A).

III.

In the alternative, Deputy Pepin seeks certification under 28

U.S.C. § 1292(b) of the relation back and statute of limitations

defense. Because the Court has granted Deputy Pepin’s Motion for

Reconsideration and would grant his Motion for Summary Judgment as

to the statute of limitations issue, his request is denied as moot.

Accordingly, it is hereby

ORDERED:

1. Defendant’s Motion for Reconsideration, or in the

Alternative for § 1292(b) Certification (Doc. #180) is

GRANTED as to reconsideration. Upon reconsideration, the

Motion For Summary Judgment (Doc. # 113) is GRANTED as to

statute of limitations issue. The Clerk shall withhold

entry of judgment until after the case is returned from

the Eleventh Circuit.

2. Defendant’s alternative Motion for Certification (Doc.

#180) is DENIED as moot.

DONE and ORDERED at Fort Myers, Florida, this 5th day of

November, 2020.

-— at 2

MW &

JQH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record

Eleventh Circuit