Maletta v. Woodle

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANDREW C. MALETTA and POLLY

MALETTA,

Plaintiffs,

v. Case No: 2:20-cv-1004-JES-MRM

DAVID WOODLE and FREDERICK

J. LANGDON,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendants’

Motion to Dismiss or in the Alternative Motion for More Definiete

[sic] Statement and Motion to Strike Plaintiffs’ Amended Complaint

(Doc. #27) filed on March 29, 2021. Plaintiffs filed a Response

in Opposition (Doc. #29) on April 14, 2021. For the reasons set

forth below, the motion is granted in part and denied in part.

I.

Plaintiffs Andrew and Polly Maletta initiated this matter in

December 2020 and filed an Amended Complaint (Doc. #21) in March

2021 against defendants David Woodle and Frederick J. Langdon.

The Amended Complaint alleges the parties are all owners or tenants

of properties located in the RiverBend Motorcoach Resort

(RiverBend) in LaBelle, Florida. (Id. ¶¶ 8-10.) The Amended

Complaint further alleges that defendants authored and published

a document, the “Cancer on our Resort Letter,” in which defendants

accused Andrew Maletta of “ferment[ing] discord and dissent” in

1

the community. (Doc. #21, ¶¶ 22-24; Doc. #1-1, p. 1.) The

document also contains a list of twenty-one past instances of

“behavioral issues” by “the owner in question,” relating to

physical and legal threats, libelous statements, and accusations

against other RiverBend owners. (Doc. #1-1, pp. 1-2.) The letter

concludes as follows:

The owner in question is Andrew Maletta on lot 50. He

has been spoken to at length over the years by various

people over his continued disruptive behavior and its

effect on the community to no avail. The disharmony

caused by this behavior affects the appeal of the resort

and that in turn likely depresses our property values.

We trust most of us can look past his sponsorship of the

Margarita parties . . . three time [sic] a season as a

naked attempt to curry favor with the uninformed. We

will no longer be in this category and urge all to

consider this letter. Please assist the undersigned in

either no longer condoning this behavior or encouraging

him to move on to somewhere that it may be welcome. Each

of the undersigned is happy to discuss the contents of

this letter with anyone.

1

Plaintiffs filed an initial Complaint in December 2020 that

included the Cancer on our Resort Letter as an exhibit. (Doc. #1;

Doc. #1-1.) The Court dismissed the Complaint as a shotgun

pleading (Doc. #17), and plaintiffs subsequently filed the Amended

Complaint but failed to reattach the exhibit. Nonetheless, because

the Amended Complaint references the Cancer on out Resort Letter

repeatedly, the Court will consider the document incorporated by

reference. See Agostino v. City of Cape Coral, 2017 WL 6041772,

*1 (M.D. Fla. Dec. 6, 2017) (considering exhibits attached to

original complaint as incorporated by reference into amended

complaint).

(Id. p. 2.) The letter contains approximately a hundred

signatures, presumably all RiverBend owners or tenants. (Id. pp.

2-4.)

The Amended Complaint asserts five claims against both

defendants: (1) defamation; (2) defamation per se; (3) invasion of

privacy; (4) intentional infliction of emotion of distress (IIED);

and (5) civil conspiracy. (Doc. #21, pp. 6-13.) Defendants have

filed a motion seeking to dismiss each of the claims as

insufficiently pled or, alternatively, to strike plaintiffs’

2

request for punitive damages and attorney’s fees. (Doc. #27.)

The Court will address these arguments in turn.

II.

A. Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that a

complaint contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

2

While the title of defendants’ motion references a “More

Definiete [sic] Statement,” the body of the motion neither requests

such relief nor argues why it is necessary or appropriate. See

N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir.

1998) (“Issues raised in a perfunctory manner, without supporting

arguments and citation to authorities, are generally deemed to be

waived.”).

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555; see also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to the plaintiff, Erickson v.

Pardus, 551 U.S. 89, 94 (2007), but “[l]egal conclusions without

adequate factual support are entitled to no assumption of truth,”

Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations

omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678. Factual allegations that are merely

consistent with a defendant’s liability fall short of being

facially plausible. Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages

in a two-step approach: “When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679.

B. Application of Motion to Dismiss Principles

(1) Defamation

Count One alleges a claim of defamation, asserting defendants

authored and published false and defamatory statements in the

Cancer on our Resort Letter with either knowledge of their falsity

or with reckless disregard for the truth. (Doc. #21, ¶¶ 36, 41.)

The Amended Complaint further alleges that as a result of the false

and defamatory statements, plaintiffs “have suffered significant

reputational harm, been subject to scorn, ridicule and have been

shunned by resort community residents.” (Id. ¶ 43.)

Defendants argue that because “[m]any of the alleged

defamatory statements are nothing more than objective observation

and hyperbolic rhetoric, which cannot be reasonably stated as

stating actual facts,” the claim fails. (Doc. #27, p. 3.) The

Court disagrees.

3

Under Florida law, defamation has the following five

elements: “(1) publication; (2) falsity; (3) actor must act with

knowledge or reckless disregard as to the falsity on a matter

concerning a public official, or at least negligently on a matter

concerning a private person; (4) actual damages; and (5) statement

3

As a federal court sitting in diversity jurisdiction, the

Court applies the substantive law of the forum state, Florida,

alongside federal procedural law. Horowitch v. Diamond Aircraft

Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011).

must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d

1098, 1106 (Fla. 2008). Regarding this last element, Florida law

requires “that the statement at issue be reasonably capable of a

defamatory interpretation; this determination is to be made by the

trial judge in the first instance, prior to the jury’s evaluation

of whether the statement was in fact understood as defamatory.”

Keller v. Miami Herald Pub. Co., 778 F.2d 711, 714-15 (11th Cir.

1985).

Nonetheless, “a defamation claim may not be actionable when

the alleged defamatory statement is based on non-literal

assertions of ‘fact.’” Horsley v. Rivera, 292 F.3d 695, 701 (11th

Cir. 2002) (citations omitted). The Constitution also “provides

protection for ‘rhetorical hyperbole’ that ‘cannot reasonably be

interpreted as stating actual facts about an individual.’” Id.

(quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)).

“It is for the Court to decide, as a matter of law, whether the

complained of words are actionable expressions of fact or

nonactionable expressions of rhetorical hyperbole.” Murray v.

Pronto Installations, Inc., 2020 WL 6728812, *4 (M.D. Fla. Nov.

16, 2020) (citation omitted).

A statement is considered rhetorical hyperbole when the

language itself negates the impression that the writer

was seriously maintaining that the plaintiff committed

the particular act forming the basis of the defamation.

Although rhetorically hyperbolic statements may at first

blush appear to be factual, they cannot reasonably be

interpreted as stating actual facts about their target.

In determining whether an allegedly defamatory statement

is an expression of fact or an expression of rhetorical

hyperbole, context is paramount.

Id. at *5 (marks and citations omitted). “All of the circumstances

surrounding the publication must be considered, including the

medium by which it was disseminated and the audience to which it

was published.” Keller, 778 F.2d at 714 (citation omitted).

Turning to the Cancer on our Resort Letter, the document

contains a list of “behavioral issues” relating to Andrew Maletta,

which was compiled after “[a] careful review based on discussions

with owners, board members and others.” (Doc. #1-1, p. 1.) The

list contains twenty-one past incidents in which Andrew Maletta,

inter alia, made physical and legal threats, false statements and

accusations, and generally caused problems for the RiverBend

community. (Id. pp. 1-2.) The document concludes by (1) asserting

Andrew Maletta’s behavior has created disharmony affecting the

appeal of the resort and likely depressing property values, and

(2) recommending other owners consider the letter and assist

defendants “in either no longer condoning this behaviour or

encouraging him to move on to somewhere it may be welcome.” (Id.

p. 2.) Having considered the context in which the letter was

written and the audience to which it was disseminated, the Court

finds that the statements therein are not non-literal assertions

of fact or rhetorical hyperbole.

The Court also finds the statements in the document are

“reasonably capable of a defamatory interpretation.” Keller, 778

F.2d at 714; see also Bernath v. Seavey, 2017 WL 3268481, *7 (M.D.

Fla. May 18, 2017) (“A defamatory statement is one that tends to

harm someone’s reputation in the community or deters others from

associating with the person.”). Accordingly, Count One

sufficiently states a claim for defamation and the Court declines

to dismiss the claim as to plaintiff Andrew Maletta.

However, it is clear the Cancer on our Resort Letter contains

no references to Polly Maletta, let alone any defamatory statement

regarding her. The Court will therefore grant defendants’ motion

to dismiss Count One for failure to state a claim as to Polly

Maletta. (Doc. #27, p. 4.)

(2) Defamation Per Se

Count Two alleges that the statements contained in the Cancer

on our Resort Letter constitute defamation per se. (Doc. #21, ¶¶

47-48.) “Per se defamatory statements are ‘so obviously

defamatory’ and damaging to [one’s] reputation’ that they ‘give[]

rise to an absolute presumption both of malice and damage.’”

Bernath, 2017 WL 3268481, *7 (quoting Wolfson v. Kirk, 273 So. 2d

774, 776 (Fla. 4th DCA 1973)).

“A claim for defamation per se may proceed under a theory of

libel per se or slander per se depending on the facts of the case.”

Id. Defendants argue the statements contained in the Cancer on

our Resort Letter do not constitute slander per se. (Doc. #27, p.

5.) However, as the statements at issue were written, slander per

se does not apply to the facts of this case. See My Energy Monster,

Inc. v. Gawrych, 2020 WL 8224616, *12 (M.D. Fla. Dec. 18, 2020)

(“Defamation encompasses both libel and slander. Slander is

ordinarily confined to defamatory spoken words, whereas libel

pertains to defamatory written statements.”). Having reviewed the

statements contained in the Cancer on our Resort Letter, the Court

finds Count Two sufficiently states a claim for defamation per se.

See Bernath, 2017 WL 3268481, *7 (noting that a published statement

is libelous per se if, inter alia, “it tends to subject one to

hatred, distrust, ridicule, contempt, or disgrace”); Colbert v.

Anheuser-Busch, Inc., 2013 WL 12145017, *2 (M.D. Fla. Mar. 5, 2013)

(noting that under Florida law, “[f]alse statements which suggest

that someone has committed a dishonest or illegal act are

defamatory per se”). Accordingly, the Court declines defendants’

request to dismiss Count Two as to plaintiff Andrew Maletta, but

will dismiss the claim as to Polly Maletta for the same reason

discussed above as to Count One.

(3) Invasion of Privacy

Count Three alleges the statements in the Cancer on our Resort

Letter “have given publicity to matters concerning Plaintiffs that

unreasonably place them in a false light before residents and

tenants of the RiverBend community.” (Doc. #21, ¶ 50.) The

Amended Complaint further alleges that “[t]he false light in which

Plaintiffs have been placed by Defendants would be highly offensive

to a reasonable person,” and that plaintiffs have been harmed “[a]s

a direct and proximate result of the false light in which

Plaintiffs have been placed by Defendants.” (Id. ¶¶ 52, 56.)

Defendants seek to dismiss the invasion of privacy claim

because it fails to allege defendants published private and

offensive facts about plaintiffs. (Doc. #27, p. 5.) However, the

Court will dismiss the claim for a more straightforward reason:

such a cause of action is not recognized under Florida law. See

Jews for Jesus, 997 So. 2d at 1114 (“[W]e decline to recognize a

cause of action for false light invasion of privacy.”); see also

Dowbenko v. Google Inc., 582 F. App’x 801, 804 (11th Cir. 2014)

(“Mr. Dowbenko’s false light invasion of privacy claim fails

because Florida law does not recognize such a cause of action.”).

Accordingly, Count Three will be dismissed with prejudice as to

both plaintiffs.

(4) Intentional Infliction of Emotional Distress

Count Four alleges defendants’ “conduct in authoring,

publishing, soliciting for signatures and republishing the false

and defamatory statements in the Cancer on our Resort document was

both intentional and outrageous,” and that such conduct caused

plaintiffs to suffer damages. (Doc. #21, ¶¶ 58-59.) Defendants

argue the claim is insufficiently pled and should be dismissed.

(Doc. #27, p. 6.)

As to Polly Maletta, the Court finds Count Four fails because

it relies upon conduct not directed at her. To state an IIED claim

under Florida law, a plaintiff must allege, inter alia, outrageous

conduct. Tillman v. Orange Cnty., Fla., 519 F. App’x 632, 636

(11th Cir. 2013). Not only must such conduct be “so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community,” id. (citation omitted), it “must be directed at the

plaintiff and in her presence,” Dunkel v. Hedman, 2016 WL 4870502,

*10 (M.D. Fla. Aug. 17, 2016). Here, the IIED claim is premised

upon the allegedly false and defamatory statements contained in

the Cancer on our Resort Letter. (Doc. #1, ¶ 58.) Because those

statements do not even reference Polly Maletta, they cannot

constitute “outrageous conduct” for purposes of her IIED claim.

See Baker v. Fitzgerald, 573 So. 2d 873 (Fla. 3d DCA 1990)

(“Appellant’s claim for intentional infliction of emotional

distress fails because there was no showing of outrageous conduct

directed at appellant herself.”); M.M. v. M.P.S., 556 So. 2d 1140,

1141 (Fla. 3d DCA 1989) (“Appellants were not present when the

alleged mistreatment of their daughter took place and may not claim

emotional distress for her injurious or offensive treatment.”).

Accordingly, the claim will be dismissed with prejudice as to Polly

Maletta. See Kantrow v. Celebrity Cruises, Inc., 2020 WL 9065878,

*10-12 (S.D. Fla. Dec. 29, 2020) (dismissing IIED claim with

prejudice for failing to sufficiently allege outrageous conduct).

As to Andrew Maletta, the Court agrees with defendants that

he “cannot transform a defamation action into a claim for

intentional infliction of emotional distress.” (Doc. #27, p. 6

(quoting Fridovich v. Fridovich, 598 So. 2d 65, 70 (Fla. 1992)).

“Florida courts have held that the outrageous conduct supporting

a claim for IIED must be separate from, or independent of, the

alleged defamation.” Porter v. Sanchez, 2017 WL 5157898, *4 (M.D.

Fla. Nov. 7, 2017). Accordingly, “[a]n attempt to state a claim

for intentional infliction of emotional distress based on the same

publication as the defamation count must fail.” Ortega Trujillo

v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1340, 1343 (S.D. Fla.

1998). Instead, “[t]he claim for intentional infliction of

emotional distress must stem from outrageous conduct separate from

the defamation and not merely ‘[re]describe the tort of libel while

characterising it as outrageous conduct.’” Id. (marks and citation

omitted).

As noted, the IIED claim is premised entirely on the

defendants’ conduct in authoring and publishing the Cancer on our

Resort Letter, and therefore is based on the same publication as

Andrew Maletta’s defamation and defamation per se claims.

Accordingly, Count Four will also be dismissed with prejudice as

Andrew Maletta. See Rubinson v. Rubinson, 474 F. Supp. 3d 1270,

1279 (S.D. Fla. 2020) (dismissing IIED claim with prejudice

because, inter alia, it was based entirely on conduct described in

defamation per se claim); Ortega, 17 F. Supp. 2d at 1343

(dismissing IIED claim with prejudice because it arose from the

same publication at issue in defamation claim).

(5) Civil Conspiracy

Count Five asserts a claim of civil conspiracy. (Doc. #21,

p. 12.) “Florida law does not recognize an independent cause of

action for civil conspiracy; rather, a valid claim must allege an

underlying illegal act or tort on which the conspiracy is based.”

Merchant One, Inc. v. TLO, Inc., 2020 WL 248608, *8 (S.D. Fla.

Jan. 16, 2020). Accordingly, under Florida law, the elements of

civil conspiracy are

(a) an agreement between two or more parties, (b) to do

an unlawful act or to do a lawful act by unlawful means,

(c) the doing of some overt act in pursuance of the

conspiracy, and (d) damage to plaintiff as a result of

the acts done under the conspiracy.

HRCC, Ltd. v. Hard Rock Cafe Int’l (USA), Inc., 302 F. Supp. 3d

1319, 1324-25 (M.D. Fla. 2016) (quoting United Techs. Corp. v.

Mazer, 556 F.3d 1260, 1271 (11th Cir. 2009)).

The Amended Complaint alleges defendants (1) conspired and

agreed to author and publish false and defamatory statements, and

(2) engaged in a campaign to suppress comments opposing or

correcting the statements and to suppress plaintiffs’ ability to

defend themselves. (Doc. #21, ¶¶ 61-65.) The Amended Complaint

further alleges that defendants intended to drive plaintiffs from

RiverBend and their actions caused plaintiffs to suffer damages.

(Id. ¶¶ 66-67.)

Defendants seek to dismiss the civil conspiracy claim because

plaintiffs “allege no unlawful act nor doing a lawful act by

4

unlawful means in this count.” (Doc. #27, p. 7.) The Court

agrees in part. The civil conspiracy claim fails to the extent it

relies on defendants’ alleged suppression of plaintiffs’ speech as

the underlying unlawful act. See Manhattan Cmty. Access Corp. v.

Halleck, 139 S.Ct. 1921, 1928 (2019) (“[T]he Free Speech Clause

[of the First Amendment] prohibits only governmental abridgment of

speech. The Free Speech Clause does not prohibit private

abridgment of speech.”).

While defamation may be considered an unlawful underlying act

for purposes of a civil conspiracy claim, the Court nonetheless

finds Count Five must be dismissed for a separate reason: it

violates Florida’s single publication/single action rule. “In

Florida, a single publication gives rise to a single cause of

4

Defendants also note generally that plaintiffs “reference

‘Non-Parties,’” and that such individuals “are indispensable

parties to [plaintiffs’] claim of civil conspiracy.” (Doc. #27,

p. 7.) However, because defendants have moved for dismissal of

Count Five only for failure to state a claim, and not for failure

to join a required party, the Court will not address this issue.

action. The various injuries resulting from it are merely items

of damage arising from the same wrong.” Callaway Land & Cattle

Co. v. Banyon Lakes C. Corp., 831 So. 2d 204, 208 (Fla. 4th DCA

2002) (citation omitted). The single publication/single action

rule “is designed to prevent plaintiffs from circumventing a valid

defense to defamation by recasting essentially the same facts into

several causes of action all meant to compensate for the same

harm.” Id. (citation omitted). Accordingly, “[w]hen claims are

based on analogous underlying facts and the causes of action are

intended to compensate for the same alleged harm, a plaintiff may

not proceed on multiple counts for what is essentially the same

defamatory publication or event.” Klayman v. Jud. Watch, Inc., 22

F. Supp. 3d 1240, 1256 (S.D. Fla. 2014).

Here, the Amended Complaint alleges defendants “conspired and

agreed among themselves to author and publish false and defamatory

statements, including those appearing in the Cancer in Our Resort

document, concerning Plaintiffs.” (Doc. #21, ¶¶ 61, 62.) However,

the allegedly defamatory statements in the Cancer in our Resort

Letter cannot form the basis for the conspiracy claim because they

also form the basis for the defamation and defamation per se

5

claims. Accordingly, the civil conspiracy claim violates

5

The Court recognizes that the conspiracy claim alleges

defendants published defamatory statements, “including those

appearing in the Cancer in Our Resort document.” (Doc. #21, ¶¶

61-63.) While this implies there may have been additional

Florida’s single action rule and Count Five will be dismissed as

to each plaintiff. See Ortega, 17 F. Supp. 2d at 1339 (finding

invasion of privacy claim precluded because “it is based on the

same facts giving rise to the claim for defamation”); Thomas v.

Patton, 2005 WL 3048033, *4 (Fla. Cir. Ct. Oct. 21, 2005) (granting

summary judgment on conspiracy to defame claim because, inter alia,

it was based upon the same broadcasts as separate defamation claim

and, therefore, the single publication/single action rule

6

applied).

statements besides those in the Cancer in our Resort Letter,

plaintiffs fail to identify these alleged statements and therefore

fail to allege defamation based on them. See Ground & Pipe Techs.,

LLC v. Firstliner Techs., Inc., 2005 WL 8163041, *2 (N.D. Fla.

Oct. 5, 2005) (“In order to provide the defendant fair notice of

a defamation claim, federal courts have also required a claimant

to set out the substance of the allegedly defamatory statements.”).

Without a properly pled underlying tort, the civil conspiracy claim

would fail regardless. See In re Palm Beach Fin. Partners, L.P.,

488 B.R. 758, 777 (S.D. Fla. 2013) (“[T]he Plaintiffs [sic] claim

for conspiracy to commit fraud must be dismissed because the

Plaintiff fails to properly plead his underlying fraud claims.”);

Walters v. Blankenship, 931 So. 2d 137, 140 (Fla. 5th DCA 2006)

(“Generally an actionable conspiracy requires an actionable

underlying tort or wrong.”).

6

The Court recognizes “that some Florida decisions contain

language suggesting that the single action rule bars non-

defamation torts only when they are associated with a failed

defamation claim.” Kinsman v. Winston, 2015 WL 12839267, *5 (M.D.

Fla. Sept. 15, 2015) (emphasis added). However, this Court and

others have previously found that the rule applies to bar “non-

defamation tort claims based on a defamatory statement . . .

regardless of whether the defamation claim fails.” Id.; see also

Tobinick v. Novella, 2015 WL 328236, *11 n.17 (S.D. Fla. Jan. 23,

2015); Klayman, 22 F. Supp. 3d at 1257.

C. Motion to Strike

Each of the five claims in the Amended Complaint requests,

inter alia, an award of “punitive damages where available” and

attorney’s fees. (Doc. #21, pp. 8-9, 11-12, 13.) Defendants seek

to strike the request for punitive damages because “there are no

specific acts plead that justify punitive damages,” and the request

for attorney’s fees because plaintiffs “plead[] no basis” for such

fees. (Doc. #27, p. 7.) As to Counts Three, Four, and Five, this

issue is moot because the Court has dismissed those claims. As to

the remaining claims, the Court declines to strike the requested

damages and fees.

Regarding punitive damages, such damages “for defamation are

compensable upon a showing that the defendants’ ‘primary purpose’

in engaging in the defamatory act ‘was to indulge ill will,

hostility, and an intent to harm.’” Coton v. Televised Visual X-

Ography, Inc., 740 F. Supp. 2d 1299, 1315 (M.D. Fla. 2010) (quoting

Florida Standard Jury Instructions). Additionally, “punitive

damages may be the primary relief in a cause of action for

defamation per se.” Roca Labs, Inc. v. Randazza, 2015 WL 248762,

*3 (M.D. Fla. Jan. 20, 2015).

While Florida law provides that “no claim for punitive damages

shall be permitted unless there is a reasonable showing by evidence

in the record or proffered by the claimant which would provide a

reasonable basis for recovery of such damages,” § 768.72(1), Fla.

Stat., the Eleventh Circuit has held that this provision conflicts

with Federal Rule of Civil Procedure 8(a)(3), and therefore is

inapplicable in federal diversity cases. Cohen v. Office Depot,

Inc., 184 F.3d 1292, 1299 (11th Cir. 1999), vacated in part on

other grounds, 204 F.3d 1069 (11th Cir. 2000). Nonetheless,

“merely setting forth conclusory allegations in the complaint is

insufficient to entitle a claimant to recover punitive damages.

Instead, a plaintiff must plead specific acts committed by a

defendant.” Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1341

(11th Cir. 2001) (citations omitted).

The Court finds plaintiffs have met this requirement by

pleading defendants published the alleged defamatory statements

with the intent “to marshal the residents of the resort community

to disassociate from Plaintiffs, cause Plaintiffs to permanently

leave the resort and to rob them of their use and enjoyment of

their property within the resort.” (Doc. #21, ¶ 42.) This

allegation is supported by the Cancer on our Resort Letter, which

specifically urges other property owners to “encourage[e] [Andrew

Maletta] to move on” from RiverBend. (Doc. #1-1, p. 2.)

Accordingly, because the punitive damages requested in the Amended

Complaint are sufficiently pled under Rule 8(a)(3), the Court

declines defendants’ request to strike. See Paylan v. Teitelbaum,

2016 WL 7974824, *4 n.5 (N.D. Fla. Dec. 22, 2016) (“[T]he fact

that Plaintiff’s request for punitive damages is sufficient to

survive a motion to strike does not mean that Plaintiff is

necessarily entitled to receive punitive damages nor does it mean

that Plaintiff’s claim for punitive damages will survive summary

judgment.”).

As to the motion’s request to strike the Amended Complaint’s

demand for attorney’s fees, the Court finds it premature and will

deny it without prejudice. See Caballero v. AAA Diversified

Servs., Inc., 2010 WL 3222108, *1 (M.D. Fla. July 27, 2010)

(“Because Defendants’ ability to prove a set of facts demonstrating

their entitlement to attorney’s fees cannot be determined at this

time, it would be premature to strike their request for attorney’s

fees.”); Woods v. Deangelo Marine Exhaust, Inc., 2009 WL 10667032,

*1 (S.D. Fla. Apr. 20, 2009) (“Plaintiffs’ motion to strike

defendant’s prayer for attorney’s fees is premature. The

entitlement to attorney’s fees is more efficiently litigated after

the merits of the underlying dispute have been determined.”).

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss or in the Alternative Motion

for More Definiete [sic] Statement and Motion to Strike

Plaintiffs’ Amended Complaint (Doc. #27) is GRANTED in part

and DENIED in part as follows:

a. Counts Three and Four of the Amended Complaint are

dismissed with prejudice as to both plaintiffs.

b. Count Five is dismissed without prejudice as to both

plaintiffs and may be re-pled if plaintiffs can plead

an actionable underlying tort.

ec. Counts One and Two are dismissed with prejudice as to

plaintiff Polly Maletta.

d. The motion is otherwise denied.

2. A Second Amended Complaint shall be filed within SEVEN (7)

DAYS to conform with this Opinion and Order. Defendants

shall respond within FOURTEEN (14) DAYS thereafter.

DONE AND ORDERED at Fort Myers, Florida, this 1lith day of

May, 2021.

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SHNIOR UNITED STATES DISTRICT JUDGE

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