Farwell v. City of Jacksonville

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JEFFREY M. FARWELL,

Plaintiff,

Case No. 3:20-cv-523-MMH-PDB

vs.

CITY OF JACKSONVILLE, KEVIN L.

JONES, and JAMES W. GROFF,

Defendants.

/

O R D E R

THIS CAUSE comes before the Court on Defendants’ motion to dismiss

filed on July 16, 2020. See Defendants’ Motion to Dismiss Amended Complaint

(Doc. 12; Motion). Plaintiff Jeffrey M. Farwell, proceeding pro se, filed a

response in opposition to the Motion on July 27, 2020. See Plaintiff’s Opposition

to Defendants’ Motion to Dismiss Amended Complaint (Doc. 15; Response).

Accordingly, the matter is ripe for review.

I. Standard of Review

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see

also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.

2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

the plaintiff must still meet some minimal pleading requirements. Jackson v.

Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations

omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the

plaintiff must allege “enough facts to state a claim that is plausible on its face.”

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S.

at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570). The Court’s consideration is limited to those facts

contained in the complaint and the attached exhibits. Griffin Indus., Inc. v.

Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007). Under Rule 10(c), Federal Rules of

Civil Procedure (Rule(s)), “attachments are considered part of the pleadings for

all purposes, including a Rule 12(b)(6) motion.” Solis-Ramirez v. U.S. Dep’t of

Justice, 758 F.2d 1426, 1430 (11th Cir. 1985); see also Rule 10(C) (providing that

the exhibits are part of the pleading “for all purposes”). Additionally, “when the

exhibits contradict the general and conclusory allegations of the pleading, the

exhibits govern.” Griffin Indus., 496 F.3d at 1206.

Determining whether a complaint states a plausible claim for relief is “a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. Moreover, when the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not “show[n]”—“that the

pleader is entitled to relief.” Id. And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998), “‘this leniency does not give the court a license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837,

839 (11th Cir. 2011)1 (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part

on other grounds as recognized in Randall, 610 F.3d at 706); see also Campbell

v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014).

II. Background2

In the instant action, Farwell alleges that Defendants intentionally made

misrepresentations and incorrect determinations that his property failed to

comply with certain provisions of the City of Jacksonville’s Code of Ordinances,

improperly imposed additional requirements on his property, and falsely

asserted that Farwell needed and failed to obtain a change of use permit. See

generally Amended Complaint and Demand For Jury Trial (Doc. 10; Amended

Complaint). Farwell maintains that as a result of these actions he suffered a

1 “Although an unpublished opinion is not binding. . ., it is persuasive authority.” United

States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App.

P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but

they may be cited as persuasive authority.”).

2 In considering the Motion, the Court must accept all factual allegations in Farwell’s

complaint as true, consider the allegations in the light most favorable to Farwell, and accept

all reasonable inferences that can be drawn from such allegations. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir.

1994). As such, the facts recited here are drawn from the Amended Complaint, and may well

differ from those that ultimately can be proved.

substantial delay in receiving approval for his property to be used for its

intended purpose as a daycare center. Id.

Farwell has been the landlord and “person in charge” of a piece of real

property located at 1740 Tracy Road, Jacksonville, Florida 32211 (the

“Property”). Id. at 3. In 1982, he obtained “all necessary permits and

permissions” to operate a daycare center at the Property. See id. at 5, Ex. 1

(Jacksonville Planning Commission Order). That same year, he opened his

“properly licensed” daycare center “providing childcare, preschool,

kindergarten, and/or elementary school services” and continued to operate the

center through 2012. Id. at 5. Farwell attaches various documents to the

Amended Complaint in support of his contention that the daycare center was

lawfully operated on the Property including city occupational licenses, various

tax records, and a letter from the Department of Health and Rehabilitative

Services. See id., Exs. 1, 3-8.

Having not operated the facility as an educational facility or daycare

center since 2013, in April of 2017 Farwell began the process of leasing the

Property to a third party to operate a daycare center. Id., Ex. 10 (Jones’ April

16, 2017 Email). Farwell maintains that despite having information that the

Property did in fact conform with state and local laws and regulations,

Defendants found that the Property was never properly converted, zoned,

licensed, inspected, or otherwise approved for use as a daycare center. Id. at 6.

Farwell sought relief from the Building Codes Adjustment Board (BCAB), the

entity to which he asserts property owners can appeal adverse decisions

stemming from enforcement of local building, zoning, and fire codes and

ordinances. Id. at 9. According to Farwell, he appeared before the BCAB on

numerous occasions and Defendant James W. Groff was also present. See id. at

9-12. Farwell alleges that he initially withdrew his request for a hearing before

the BCAB in July 2017, based on Defendant Kevin L. Jones’ agreement that a

change of use permit was unnecessary and that the Property was in fact an

existing daycare center that was properly converted from residential to

commercial use. Id. at 10. Farwell contends that despite reaching this

agreement, Jones later denied making these concessions and rescinded any such

agreement. Id.

Farwell again sought relief from the BCAB in August 2017. Id. at 10-11.

At this hearing, the BCAB unanimously approved Farwell’s variance petition.

Id. at 11. However, just four days later, Farwell contends Jones “personally

vacated the Board’s findings by falsely claiming the Board has not approved

‘childcare’” as a permitted use of the Property. Id. at 11. Farwell alleges that

Jones continued to impose demands on Farwell that the BCAB had deemed

unnecessary forcing Farwell to request yet another hearing in September 2017.

Id. At this hearing, the BCAB clarified that the Property was an existing

daycare that did not require a change of use permit and declined to address the

matter further. Id. Farwell alleges that as a result of the individual

Defendants’ intentional misconduct and Defendant City’s unconstitutional

policies and practices, he suffered significant monetary losses as well as

emotional distress. Id. at 13.

On May 26, 2020, Farwell initiated this action, pro se, by filing a six-count

Complaint and Demand for Jury Trial (Doc. 1; Initial Complaint) against

Defendants the City of Jacksonville, Kevin L. Jones, and James W. Groff. In

the Initial Complaint Farwell alleged a variety of claims including two federal

claims under 42 U.S.C. § 1983 (“§ 1983”). See generally Initial Complaint. The

City of Jacksonville filed a motion to dismiss on June 19, 2020, and Defendants

Groff and Jones filed a motion to dismiss on June 29, 2020. See City of

Jacksonville’s Motion to Dismiss (Doc. 8) and Defendants Jones and Groff’s

Motion to Dismiss (Doc. 9), (collectively, “Motions to Dismiss”). Farwell did not

respond to the Motions to Dismiss, and instead, on July 2, 2020, he filed the

Amended Complaint which is the operative pleading in this action.

In Counts I and II of the Amended Complaint, Farwell asserts federal

claims under § 1983 against all Defendants based upon alleged violations of his

constitutional right to be free from unreasonable search and seizures as well as

his constitutional right to substantive due process. See Amended Complaint at

14, 21. In Counts III and IV, Farwell raises state law claims against the City of

Jacksonville, specifically bringing causes of action for negligent supervision and

negligent retention. Id. at 22, 24. Last, in Counts V and VI, Farwell asserts

state law claims against all Defendants for official misconduct and misuse of

authority and negligent infliction of emotional distress. Id. at 25, 27. Farwell’s

filing of the Amended Complaint rendered Defendants’ Motions to Dismiss

moot, and the Court entered an order declaring them as such on July 7, 2020.

See Order (Doc. 11). On July 16, 2020, Defendants filed the instant Motion

seeking dismissal of the Amended Complaint in its entirety. See generally

Motion.

III. Summary of the Arguments

In support of their Motion, Defendants argue that Farwell has failed to “(1)

state a § 1983 claim under the Fourth Amendment; (2) state a violation of

substantive due process, (3) allege Monell3 liability against the City; and (4)

plead viable negligence claims.” Motion at 3. In addition, Defendants argue

that Jones and Groff are entitled to qualified immunity as well as state

sovereign immunity. See id. Specifically, as to Farwell’s § 1983 unreasonable

seizure claim under the Fourth Amendment, Defendants contend that there was

no “meaningful interference” with Farwell’s property to constitute a seizure.4

3 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693-94 (1978) (holding that a government

entity is liable under § 1983 for an official's constitutional violation only if the violation was

based on the government entity's policy, the actions of the official can be fairly deemed to

represent government policy, or if the violation was the result of a custom or practice

permitting such violation).

4 Defendants also assert that Farwell has failed to state a claim for an unreasonable

search because he had no expectation of privacy where he invited the search for purposes of

Id. at 5-6. As to Count II, Farwell’s § 1983 claim for a violation of his substantive

due process rights, Defendants argue that Farwell improperly seeks relief for

violation of his state-created property rights rather than a violation of his

federal constitutional rights. See id. at 7-10. As an alternative basis for

dismissal of the § 1983 claims against the City of Jacksonville, Defendants

argue that Farwell has failed to sufficiently allege § 1983 claims against a

municipality because Farwell has not “identif[ied] with factual specificity any

municipal custom, policy or practice” that caused any alleged violation of

Farwell’s constitutional rights. See id. at 10-12. Similarly, the individual

Defendants Jones and Groff argue that even if Farwell states plausible § 1983

claims against them, they are entitled to qualified immunity because there are

no allegations that either defendant “took action outside the scope of his

discretionary authority resulting in a constitutional violation.” Id. at 17. As to

the state law claims in Counts III, IV, and VI of the Amended Complaint,

Defendants argue that Jones and Groff are entitled to sovereign immunity. See

id. at 13-15. Defendants also maintain that the claims for “Official Misconduct

and Misuse of Authority” do not exist under Florida law. See id. at 14.

In his Response, Farwell addresses each of Defendants arguments in turn.

See generally Response. As to his § 1983 claim under the Fourth Amendment,

seeking a permit. Id. at 6. Defendants may have been overly cautious by raising an argument

regarding an unreasonable search, as no such claim is alleged in the Amended Complaint.

Thus, the Court need not address the argument.

Farwell argues that Defendants’ actions amounted to a constructive seizure of

the Property because Defendants prevented its use for its only “allowable

purposes.” Id. at 4. Regarding his substantive due process claim under § 1983,

Farwell makes narrow and specific distinctions between the cases cited by

Defendants and the present case and generally points out that “none of those

references cited deal with a city official ignoring a superior Governmental

Board’s ruling.” See id. at 6-9. As to the question of municipal liability, Farwell

contends that he has sufficiently plead facts that show the City of Jacksonville

has a custom, policy, or practice of violating citizen’s constitutional rights and

relies on prior cases filed against the City and specifically involving Defendant

Jones. See id. at 11-13. Last, with regards to his federal claims, Farwell argues

that Defendants Jones and Groff are not entitled to sovereign immunity or

qualified immunity because they were acting “outside their lawful authority.”

See id. at 13-15.

IV. Discussion

A. Count I: Unreasonable Search and Seizure

“[S]ection 1983 provides individuals with a federal remedy for the

deprivation of rights, privileges, or immunities protected by the Constitution or

the laws of the United States that are committed under color of state law.”

Brown v. City of Huntsville, Ala., 608 F.3d 724, 733 n.12 (11th Cir. 2010)

(citation omitted); see 42 U.S.C. § 1983. To state a claim for relief under § 1983,

a plaintiff must sufficiently allege that he or she was “‘deprived of a right

secured by the Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.’” See Focus on the Family

v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003)

(quotation omitted). “The Fourth Amendment, made applicable to the States by

the Fourteenth, provides in pertinent part that the ‘right of the people to be

secure in their persons, houses, papers and effects, against unreasonable

searches and seizures shall not be violated[.]’” Soldal v. Cook Cnty., 506 U.S.

56, 61 (1992) (internal citation omitted). Property is seized within the meaning

of the Fourth Amendment when “there is some meaningful interference with an

individual’s possessory interest in that property.” Id. (quoting United States v.

Jacobsen, 466 U.S. 109, 113 (1984)).

The Court first observes the paucity of authority addressing the contours

of property seizure claims in a civil context under the Fourth Amendment. See

Costas-Elena v. Mun. of San Juan, 714 F. Supp. 2d 263, 270 (D.P.R. 2010) In

considering such a claim, the Costas-Elena’s court noted that “the First Circuit

has not dealt directly with the reasonableness of a property seizure in a civil

context like the one before us – the dearth of such claims is but one indicator of

how ill-suited the Fourth Amendment is to the situation at bar.” Id. That court

ultimately did not determine whether the interference alleged – temporary

blockage of access to a portion of plaintiffs’ land by debris from city tree

trimming work – amounted to a seizure for purposes of stating a Fourth

Amendment claim because it concluded that any such “seizure was reasonable.”

Id. Thus, even if it was a seizure, it was not in violation of the Fourth

Amendment. Nevertheless, the Costa-Elena’s court’s discussion of the facts in

cases where courts did find that an interference with property rights constituted

a seizure highlights the significant nature of interference necessary for it to be

“meaningful” such that it amounts to a Fourth Amendment seizure. Id. Indeed,

as that court noted “the few cases [that court found] analyzing premises seizures

in a civil context” involved interference with “possessory interests far greater”

than the limited interference with possessory property rights complained of by

the plaintiffs. See id. And this Court similarly finds the interference with

possessory property rights in those cases is “far greater” than the limited

interference with Farwell’s possessory property rights alleged here.

The Costa-Elena’s court first cited Presley v. City of Charlottesville, 464

F.3d 480, 487 (4th Cir. 2006), in which the Fourth Circuit Court of Appeals

examined a mistake in a map produced by the government that resulted in

members of the public regularly hiking across plaintiff’s yard. The plaintiff

alleged she was deprived of the use of her property “due to the regular presence

of a veritable army of trespassers who freely and regularly traverse[d] her yard,

littering, making noise, damaging her land, and occasionally even camping

overnight.” Id. The court held that such a “constant physical occupation

certainly” amounted to a seizure. See id. The Costa-Elena’s court also cited a

decision in which the Fifth Circuit Court of Appeals found a “meaningful

interference” because the city destroyed a private property owner’s buildings.

Freeman v. City of Dallas, 242 F.3d 642, 658 (5th Cir. 2001); see also Philly

Auto, Inc. v. City of Philadelphia, 362 F. Supp. 3d 272, 279 (E.D. Pa. 2019)

(City’s demolition of property after a fire constituted a seizure under the Fourth

Amendment). In another case identified by this Court, a district court found a

“meaningful interference” sufficient to constitute a seizure had occurred where

the government asserted dominion or control by placing a tax lien on the

property such that it effectively amounted to taking constructive possession of

the property. See Andrews v. Crump, 984 F. Supp. 393, 410 (W.D.N.C. Oct. 16,

1996).

Certainly, these cases recognize that an individual need not be completely

or physically deprived of their possessory interests in order to establish a

meaningful interference that rises to the level of a seizure of real property under

the Fourth Amendment. However, the relevant authority plainly suggests that

the interference must be substantially more meaningful than that alleged by

Farwell. In contrast to the significant interference found to constitute a seizure

in the cases described above, where a plaintiff has alleged interference similar

to that identified by Farwell, courts have found the interference not to be

sufficiently meaningful to rise to the level of a Fourth Amendment seizure. For

example in Marcavage v. Borough of Lansdowne, Pa., a district court found no

meaningful interference for Fourth Amendment purposes where the defendant

code enforcement officer notified the plaintiff that he would be violating an

ordinance if he continued to operate his rental properties without a rental

license. See 826 F.Supp.2d 732, 747 (E.D. Pa. 2011), aff'd 493 F. App'x 301 (3d

Cir. 2012). The court noted that a seizure of property could occur for example if

a person was evicted as a means to ensure compliance with regulations, but

merely informing a property owner that it would be unlawful for him to use his

property as he intends until he meets existing requirements does not constitute

a seizure of property. See id. at 745. The district court in Enclave Arlington

Assocs. Ltd. P'ship v. City of Arlington, Tex., reached a similar conclusion noting

that the plaintiff identified no authority supporting a finding that the mere

‘interference with the “use and enjoyment” of property amounted to a

“meaningful interference with possessory interests.” 669 F. Supp. 2d 735, 742

(N.D. Tex. 2009). In Enclave, the court acknowledged that the defendant city’s

traffic management plan for stadium events was “disruptive or inconvenient” to

the nearby owner of a 348-unit apartment complex, nevertheless this disruption

was not sufficient to constitute a Fourth Amendment seizure. See id. Another

court has found that a plaintiff failed to allege a meaningful interference with

possessory property rights where the plaintiff sought to stop a utility from

entering onto its property to conduct a property survey. See Klemic v. Dominion

Transmission, Inc., 138 F. Supp. 3d 673, 696 (W.D. Va. 2015). And in Nikolas

v. City of Omaha, the Eighth Circuit Court of Appeals found that city code

inspector’s placarding garages as unfit for occupancy bore “no resemblance to

the condemnation and physical destruction of buildings” found to be sufficient

to support a Fourth Amendment seizure claim in other cases. See 605 F.3d 539,

547 (8th Cir. 2010).

The Court finds the Eleventh Circuit’s decision in Foley v. Orange Cnty.

instructive as to the sufficiency of Farwell’s Fourth Amendment seizure claim.

See 638 F. App'x 941, 945 (11th Cir. 2016). In Foley, county officials

investigated a citizen complaint that the plaintiffs had “accessory buildings on

their property without the necessary permits.” Id. at 942. The plaintiffs sought

a determination regarding whether the applicable ordinance was interpreted

properly from the county zoning manager. Id. at 945. After several appeals at

the local and state level, the county affirmed the decision that the ordinance

required plaintiffs to obtain permits for their accessory buildings. Id. The

plaintiffs then filed an action in federal court. Id. Among other claims, plaintiffs

asserted a claim under § 1983 arguing that by upholding the zoning manager’s

interpretation of the ordinance the county violated their constitutional right to

be free from an unreasonable search and seizure. See id. at 945. The Eleventh

Circuit rejected that contention, holding that a “voluntary request for a

determination from the zoning manager, subsequent fees paid to appeal that

decision, and a potential application for a special exception . . . plainly [did] not

amount to a seizure under the Fourth Amendment.” Id. Not only did the court

find that the allegations failed to state a plausible claim for relief, the court went

so far as to find that the plaintiffs’ federal unreasonable search and seizure

claim, had “no plausible foundation” such that the allegations were not even

sufficient to invoke the federal-question jurisdiction of the court. Id. at 945-46.

Here, similar to Foley, Farwell alleges that a seizure of his Property

occurred when Defendants required him to obtain a change of use permit before

the Property could be used as a daycare center. See Response at 15. Farwell’s

voluntary request to use the Property as a daycare center, his subsequent

appeals, and petition for an exemption and delay in his ability to use the

Property as desired – whether viewed independently or combined – do not

amount to a seizure under the Fourth Amendment. The Court finds no

authority to support a conclusion that requiring a property owner to meet

building, zoning, or fire codes before the property can be voluntarily used as

desired by the owner amounts to a “meaningful interference” with a person’s

“possessory interests” such that it would constitute a seizure of constitutional

proportions. Importantly, Defendants did not evict Farwell or constructively

deprive him of possession of the Property, nor did they permit the Property to

be damaged or physically occupied. In the Amended Complaint and its

attachments, Farwell merely alleges that Defendants took administrative

actions to impose permit requirements and enforce compliance with fire codes

before a daycare center could begin operations. Although Farwell disagrees

with Defendants interpretation of the relevant ordinances, accepting the

allegations of the Amended Complaint as true, the Court finds that Farwell has

not described a seizure under the Fourth Amendment. Accordingly, he has faied

to state a claim for a Fourth Amendment violation, and Count I of Farwell’s

Amended Complaint is due to be dismissed.

B. Count II: Substantive Due Process

In their Motion, Defendants maintain that Farwell’s substantive due

process claim should be dismissed because the facts he alleges in the Amended

Complaint concern state-law created property rights, not rights created by the

Constitution. See Motion at 9-10. The Court agrees. The Eleventh Circuit has

instructed

The substantive component of the Due Process Clause protects

those rights that are ‘fundamental,’ that is, rights that are ‘implicit

in the concept of ordered liberty.’ Fundamental rights are those

rights created by the Constitution. Property interests, of course, are

not created by the Constitution. Rather they are created and their

dimensions are defined by existing rules or understandings that

stem from an independent source such as state law.

Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir.

2003) (internal citations and quotations omitted). The basis of Farwell’s

substantive due process claim is an interference with his state-created property

rights by the imposition of “new construction” and “change of use” requirements

that Farwell alleges had been determined to be unnecessary. Amended

Complaint at 11. Because Farwell’s claim is based on his state-created property

right in operating the Property as a daycare center and not a right arising from

the United States Constitution, he presents no viable substantive due process

claim.

Further, enforcement of a zoning ordinance constitutes an executive act,

“which is not subject to substantive due process protections.” Foley, 638 F. App'x

at 945 (citing DeKalb Stone, Inc. v. Cnty. of DeKalb, 106 F.3d 956, 959-60 (11th

Cir. 1997)); see also Bee's Auto, Inc. v. City of Clermont, 927 F. Supp. 2d 1318,

1333 (M.D. Fla. 2013) (City’s enforcement of existing zoning regulations and

“Conditional Use Permit” process were executive actions not subject to a

substantive due process claim). As such, in Count II of the Amended Complaint

Farwell has failed to allege facts stating a plausible substantive due process

claim. Count II of his Amended Complaint is due to be dismissed.

C. Counts III – VI: State Law Claims

Having determined that Farwell’s claims under § 1983 are due to be

dismissed, the Court next considers whether to continue to exercise

supplemental jurisdiction over the remaining state law claims. In Counts III

through VI of the Amended Complaint, Farwell asserts claims for relief under

Florida state law. See Amended Complaint at 22-30. “The decision to exercise

supplemental jurisdiction over pend[e]nt state claims rests within the discretion

of the district court.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th

Cir. 2004). Pursuant to 28 U.S.C. § 1367(c), the Court may decline to exercise

jurisdiction over a state claim if:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has

original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

28 U.S.C. § 1367(c). Notably, “[a]ny one of the section 1367(c) factors is

sufficient to give the district court discretion to dismiss a case's supplemental

state law claims.” Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743

(11th Cir. 2006). However, upon determining that it has the discretion under §

1367(c) to decline jurisdiction, “[a district court] should consider the traditional

rationales for pendent jurisdiction, including judicial economy and convenience

in deciding whether or not to exercise that jurisdiction.” Palmer v. Hosp. Auth.

of Randolph Cnty., 22 F.3d 1559, 1569 (11th Cir. 1994). Upon due consideration,

the Court finds that judicial economy and convenience would not be served by

retaining jurisdiction over Farwell’s state law claims. Thus, the Court declines

to exercise supplemental jurisdiction over these claims.

For the reasons set forth above, the Court has determined that the federal

claims in Counts I and II of the Amended Complaint, over which the Court has

original jurisdiction, are due to be dismissed. What remains are uniquely state

law claims that are best addressed by the state courts. This case has not been

pending for an extended period of time, and Farwell’s time in federal court has

not moved beyond determining whether his Amended Complaint states a federal

claim upon which relief can be granted. The Court has not issued any

dispositive rulings pertaining to the state law claims, and the discovery deadline

has not yet passed. See Order (Doc. 17). Thus, the procedural posture of the

case weighs in favor of declining jurisdiction to allow the case to proceed fully in

state court. Moreover, when, as here, the federal claims are dismissed prior to

trial, the Eleventh Circuit Court of Appeals has “encouraged district courts to

dismiss any remaining state claims.” Raney, 370 F.3d at 1089; Busse v. Lee

Cnty., 317 F. App’x 968, 973-74 (11th Cir. 2009) (“Since the district court ‘had

dismissed all claims over which it has original jurisdiction,' it therefore had the

discretion not to exercise supplemental jurisdiction over [Appellant's] state law

claims. 28 U.S.C. § 1367(c)(3). Furthermore, we expressly encourage district

courts to take such action when all federal claims have been dismissed

pretrial.”). See also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988) (“[I]n the usual case in which all federal-law claims are eliminated before

trial, the balance of factors to be considered under the pendent jurisdiction

doctrine- judicial economy, convenience, fairness, and comity- will point toward

declining to exercise jurisdiction over the remaining state-law claims.”).

Upon consideration of the § 1367 factors and the “traditional rationales

for pendent jurisdiction, including judicial economy and convenience,” see

Palmer, 22 F.3d at 1569, the Court declines to exercise supplemental

jurisdiction over Farwell’s remaining state law claims. Accordingly, Counts III

through VI of the Amended Complaint are due to be dismissed without prejudice

to Farwell refiling these claims in the appropriate state court.5

In light of the foregoing, it is

ORDERED:

1. Defendants’ Motion to Dismiss Amended Complaint (Doc. 12) is

GRANTED to the extent set forth below.

2. Counts I and II of Plaintiff’s Amended Complaint are DISMISSED.

5 The Court notes that Farwell will suffer no harm from the Court’s decision to decline

supplemental jurisdiction because federal law provides for the tolling of the state limitations

period while a state claim is pending in federal court. Specifically, 28 U.S.C. § 1367(d) provides

that:

[t]he period of limitations for any claim asserted under subsection (a), and for

any other claim in the same action that is voluntarily dismissed at the same

time as or after the dismissal of the claim under subsection (a), shall be tolled

while the claim is pending and for a period of 30 days after it is dismissed unless

State law provides for a longer tolling period.

As such, even if the statute of limitations has otherwise run on Farwell’s state law claims,

Farwell has at least thirty days to refile his claims in state court. See Dukes v. Georgia, 212

F. App’x 916, 917-18 (11th Cir. 2006); Dusek v. JPMorgan Chase & Co., 132 F. Supp. 3d 1330,

1354 n.18 (M.D. Fla. 2015).

3. Counts III - VI of Plaintiffs Amended Complaint are DISMISSED,

without prejudice to refiling in the appropriate state court. As set

forth in 28 U.S.C. § 1367(d), the period of limitations for this claim is

tolled “for a period of 30 days after it is dismissed unless State law

provides for a longer tolling period.”

4. The Clerk of the Court is directed to enter Judgment in favor of

Defendants City of Jacksonville, Kevin L. Jones, and James W. Groff

on Counts I and II of the Amended Complaint.

5. The Clerk of the Court is further directed to terminate all pending

motions and deadlines as moot and close the file.

DONE AND ORDERED in Jacksonville, Florida this 11th day of March,

2021.

United States District Judge

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Copies to:

Counsel of Record

Pro Se Parties

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