Cherdak v. Cottone

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ERIK BENJAMIN CHERDAK,

Plaintiff,

v. Case No.: 2:22-cv-634-SPC-NPM

VINCENT PAUL COTTONE and

LINDA MARIE COTTONE,

Defendants.

/

OPINION AND ORDER1

Before the Court is Defendants’ Renewed Motion to Dismiss (Doc. 13),

along with pro se Plaintiff Erik Cherdak’s Response (Doc. 16) and Plaintiff’s

Request for Oral Argument (Doc. 17). For the below reasons, the Court grants

Defendants’ Motion but denies Plaintiff’s Request.

BACKGROUND

This is a defamation case. It centers around two nearly identical

affidavits2 that Defendants signed (but may not have filed in) an ongoing state

1 Disclaimer: Papers hyperlinked to CM/ECF may be subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or their services or products, nor does it have any agreements with them. The Court is not

responsible for a hyperlink’s functionality, and a failed hyperlink does not affect this Order.

2 The differences in the affidavits are not substantive. They are things such as “my wife and

I” changed to “my husband and I” to reflect the different affiants—husband and wife Vincent

and Linda Cottone. The phrases which Cherdak alleges are defamatory are identical.

court action in the Family Court of the Ninth Judicial Circuit in Charleston,

South Carolina.3 The exact nature of the South Carolina action is disputed,

although it is likely a divorce or divorce-related family matter.4

In the affidavits, Defendants say that Cherdak “has abused my daughter

and grandsons. All of this now is, in my belief, merely an attempt to continue

to hurt my daughter and grandchildren.” (Doc. 1-2). Cherdak alleges that

Defendants “published” the affidavits to “notary publics in Florida (Mr. Danillo

[sic] Morales); Mr. Jonathan E.B. Lewis of Beaufort, South Carolina; Mrs.

Lauren Ann Cottone; and Mr. Christian St. Amour (an independent contractor

to Plaintiff in the legal services field).” (Doc. 1 at n.2). Based on the Complaint

and attached exhibits, Morales notarized both affidavits, Lewis represents

Cherdak’s wife in the South Carolina litigation, Lauren Cottone is Cherdak’s

wife and Defendants’ daughter, and St. Amour is an independent contractor

working for Cherdak.5 Cherdak thus sues Defendants for defamation per se,

3 The affidavits are styled with the following case caption: Lauren Ann Cottone v. Erik

Benjamin Cherdak, 2022-DR10-0519.

4 Defendants allege the South Carolina action is a divorce proceeding (Doc. 13 at 5). Cherdak,

however, refuses to characterize it as a divorce. He refers to the South Carolina action as

“divorce-type litigation” concerning “[Lauren Cottone’s] admitted adultery being the cause of

the couple’s marital breakdown.” (Doc. 1 at n.6, n.9). Cherdak also mentions a “motion for

sanctions to be heard in the Family Court in Charleston, South Carolina.” (Doc. 1 at 8).

5 Doc. 1 at 21 (characterizing Mr. St. Amour as a “business service provider to Plaintiff in

Plaintiff’s field of work in the legal profession and otherwise . . . Mr. St. Amour is attending

to an assignment by Plaintiff to retrieve all papers that may have been recently filed in South

Carolina Family Court in Charleston, South Carolina to begin to gather a [sic] understanding

defamation by implication, intentional infliction of emotional distress, and

conspiracy to harm under Florida law. (Doc. 1 at 17-38). Defendants now

move to dismiss the Complaint under Florida’s litigation privilege.

LEGAL STANDARD

A complaint must “give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). To survive a Rule 12(b)(6) motion, a complaint must allege

“sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Bare “labels

and conclusions, and a formulaic recitation of the elements of a cause of action,”

do not suffice. Twombly, 550 U.S. at 555. A district court should dismiss a

claim when a party does not plead facts that make the claim facially plausible.

See Twombly, 550 U.S. at 570. A claim is facially plausible when a court can

draw a reasonable inference, based on the facts pled, that the opposing party

is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This

plausibility standard requires “more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal

quotations omitted)).

of the full scope of publication”). It appears Cherdak is no longer a practicing attorney. (Doc.

1 at n.3; Doc. 1-2 at 7).

In considering a motion to dismiss, courts must accept all factual

allegations in the complaint as true and draw all reasonable inferences in the

light most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282,

1284 (11th Cir. 2008). But acceptance of a complaint’s allegations is limited to

well-pled allegations. See La Grasta v. First Union Sec., Inc., 358 F.3d 840,

845 (11th Cir. 2004) (citations omitted). Courts must liberally construe pro se

filings and hold them to less stringent standards than papers drafted by

attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); but see Ray v. Hill,

No. 17-14266-CIV, 2017 WL 9988946, at *1 (S.D. Fla. Oct. 27, 2017) (“The fact

that [the pro se plaintiff] is an experienced attorney lessens the need for this

Court to give him the same degree of latitude usually given to pro se litigants

who lack legal training or experience”). Courts cannot act as counsel for

plaintiffs or rewrite pleadings. United States v. Cordero, 7 F.4th 1058, 1068

n.11 (11th Cir. 2021). And it is “not the Court’s duty to search through a

plaintiff’s filings to find or construct a pleading that satisfies Rule 8.” Navarro

v. City of Riviera Beach, 192 F. Supp. 3d 1353, 1360 (S.D. Fla. 2016) (quoting

Sanders v. United States, No. 1:08-CV-0190-JTC, 2009 WL 1241636, at *3

(N.D. Ga. Jan. 23, 2009)).

“A court considering a Rule 12(b)(6) motion is generally limited to the

facts contained in the complaint and attached exhibits.” Melford v. Kahane &

Assocs., No. 18-cv-60881, 2018 WL 5044601, at *2 (S.D. Fla. Oct. 17, 2018)

(citing Wilchombie v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009)).

But in some circumstances, affirmative defenses may be considered. Florida’s

litigation privilege, despite being an affirmative defense, “may be considered

in resolving a motion to dismiss when the complaint affirmatively and clearly

shows the conclusive applicability of the defense to bar the action.” Clarke v.

Phelan, No. 16-25217-Civ, 2017 WL 4326522, at *6 (S.D. Fla. Sept. 28, 2017)

(citing Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004));

see also James v. Leigh, 145 So. 3d 1006, 1007-1008 (Fla. Dist. Ct. App. 2014)

(finding that the applicability of Florida’s litigation privilege was shown on the

face of the complaint). “[T]he resolution of questions of litigation privilege at

an early stage of the litigation furthers the policies underlying the privilege.”

AGM Investors, LLC, v. Business Law Grp., P.A., 219 So. 3d 920, 926-27 (Fla.

Dist. Ct. App. 2017) (citing Levin, Middlebrooks, Mabie, Thomas, Mayes &

Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)).

DISCUSSION

Defendants have moved to dismiss on four grounds: (1) the entire

complaint violates Federal Rules of Civil Procedure 8 and 10, (2) litigation

privilege applies to Counts I-III (defamation per se, defamation by implication,

and intentional infliction of emotional distress), (3) Count III (intentional

infliction of emotional distress) is duplicative of Counts I and II, and (4) Count

IV (conspiracy to harm) is unsupported by an underlying tort. Defendants also

argue that Cherdak’s prayer for relief is variously excessive, unconstitutional,

and outside the authority of this Court to award. The Court will start with

shotgun pleading.

A. Shotgun Pleading

Together, Rules 8 and 10 establish minimum pleading requirements. A

complaint must recite “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). And each “party must

state its claims or defenses in numbered paragraphs, each limited as far as

practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b).

Shotgun pleadings violate Rule 8 because they “fail to . . . give the

defendants adequate notice of the claims against them and the grounds upon

which each claim rests.” Weiland v. Palm Beach Cty. Sheriff’s Off., 792 F.3d

1313, 1323 (11th Cir. 2015). Courts in the Eleventh Circuit have little

tolerance for shotgun pleadings. See generally Jackson v. Bank of Am., 898

F.3d 1348, 1357 (11th Cir. 2018) (detailing the “unacceptable consequences of

shotgun pleading”); Cramer v. Fla., 117 F.3d 1258, 1263 (11th Cir. 1997)

(“Shotgun pleadings . . . exact an intolerable toll on the trial court’s docket”).

A district court has the “inherent authority to control its docket and ensure the

prompt resolution of lawsuits,” which includes the ability to dismiss a

complaint on shotgun pleading grounds. Weiland, 792 F.3d at 1320.

There are two types of shotgun pleadings at issue. First is “a complaint

containing multiple counts where each count adopts the allegations of all

preceding counts, causing each successive count to carry all that came before

and the last count to be a combination of the entire complaint.” Weiland, 792

F.3d at 1321. Second is “a complaint that [is] . . . replete with conclusory,

vague, and immaterial facts not obviously connected to any particular cause of

action.” Weiland, 792 F.3d at 1322.

To start, Counts I, II, III, and IV all begin with the sentence, “Plaintiff

hereby incorporates by reference all of the allegations of all prior sections and

the points stated therein as if repeated now in their entirety.” (Doc. 1 at 17, 31,

34, 38). This violates the first category of shotgun pleading. Weiland, 792 F.3d

at 1321.

The Complaint is also repetitive, meandering, and conclusory. Although

this case overlaps with an emotional family law matter, the Complaint need

not describe all the misdeeds of Cherdak’s family members nor how Cherdak

feels those family members have wronged him. For instance, an academic

study of “parental alienation,” the death of Michael Lynch, “educational

misconduct,” “hospitalization and emergent mental health evaluations and

interventions . . . [involving] Defendants’ grandsons,” an incident between

Defendants involving a knife, and “false police reports” have no bearing on the

defamation claims before this Court. (Doc. 1 at 6-10). This is not family court.

See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (reaffirming the

“domestic relations exception” to federal diversity jurisdiction, which “divests

the federal courts of power to issue divorce, alimony, and child custody

decrees”).

The Complaint is also filled with arguments, case law, and footnotes,

which eviscerates the purpose of a pleading. Rule 8(a)(2) requires a complaint

to be a “short and plain statement of the claim[s].” This is in part because Fed.

R. Civ. P. 8(b)(1)(B) requires the responding party to “admit or deny the

allegations asserted against it by an opposing party.” The Complaint’s

“Introduction and Factual Background” section is drafted so that Defendants

cannot reasonably be expected to “admit or deny” the allegations. Paragraph

2, for instance, is about two pages long and avers “intentionally tortious

conduct and bad acts alone and in conspiratorial combination,” various harms

suffered by Cherdak, the definition of defamation, the importance of notaries,

and an argument that “[t]his case should stand a strong beacon to the citizens

of Florida that while defamation per se will not be tolerated, attempted

subversion of our legal systems through knowingly false and notarized

affidavits will be met with severe sanctions and punitive damages.” (Doc. 1 at

2-4). Defendants argue that they “cannot be expected to file an answer as to

such a complaint,” and the Court agrees. (Doc. 13 at 3).

The Court thus dismisses the Complaint as a shotgun pleading.

Although the Court could stop there, it moves next to the litigation privilege.

B. Defamation Claims

“The litigation privilege in Florida provides all persons involved in

judicial proceedings, including parties and counsel, an absolute privilege from

civil liability for acts taken in relation to those proceedings.”6 North Star Cap.

Acquisitions, LLC v. Krig, 611 F. Supp. 2d 1324, 1329 (M.D. Fla. 2009) (citing

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States

Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)).

The litigation privilege provides “absolute immunity . . . [for] any act

occurring during the course of a judicial proceeding, regardless of whether the

act involved a defamatory statement . . . so long as the act has some relation

to the [judicial] proceeding.” Levin, Middlebrooks, Mabie, Thomas, Mayes &

Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).

The privilege is premised on the idea that “participants in litigation must be

free to engage in unhindered communication.” Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A., 639 So. 2d at 608. The privilege attempts to

balance “the right of an individual to enjoy a reputation unimpaired by

6 The Court applies Florida litigation privilege because Cherdak brings his claims under

Florida law. But South Carolina and Maryland, where these affidavits may have been

introduced or will be introduced in court, have similar litigation privileges. See Crowell v.

Herring, 392 S.E.2d 464, 467-68 (S.C. Ct. App. 1990); Alfasigma USA, Inc. v. ExeGi Pharma,

LLC, No. 465781-V, 2020 WL 10964185, at *5-8 (Md. Cir. Ct. Aug. 20, 2020).

defamatory attacks versus the right of the public interest to a free and full

disclosure of facts in the conduct of judicial proceedings.” Id.

Because the privilege’s purpose is to prevent chilled speech in litigation,

the privilege does not begin or end at the courtroom door. See Jackson v.

BellSouth Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004) (“Events taking

place outside the courtroom during discovery or settlement discussions are no

less an integral part of the judicial process, and thus deserving of the protection

of the [litigation] privilege, than in-court proceedings”); Stucchio v. Tincher,

726 So. 2d 372, 374 (Fla. Dist. Ct. App. 1999) (applying litigation privilege to

statements made during a witness interview in preparation for trial because

“the question is not whether the statement was compelled or under oath; the

question is merely whether the statement was made ‘in connection with’ or ‘in

the course of’ an existing judicial proceeding”).7

Defendants argue that Counts I and II (defamation and defamation by

implication) are barred by litigation privilege because the alleged defamatory

7 See also Ross v. Blank, 958 So. 2d 437, 441 (Fla. Dist. Ct. App. 2007) (applying litigation

privilege to statements made by a psychologist to the court-appointed custodial evaluator and

the guardian ad litem). But compare Delmonico v. Traynor, 116 So. 3d 1205, 1208 (Fla. 2013)

(applying only qualified immunity—not absolute immunity—to “alleged defamatory

statements the attorney makes during ex-parte, out-of-court questioning of a potential,

nonparty witness in the course of investigating a pending lawsuit”) with McCullough v.

Kubiak, 158 So. 3d 739, 740-41 (Fla. Dist. Ct. App. 2015) (distinguishing Delmonico and

applying absolute litigation privilege to statements made during the deposition of a non-party

witness).

statements were made in “affidavits related to Plaintiff’s divorce proceedings

in South Carolina.” (Doc. 13 at 3). The Court agrees.

Florida’s litigation privilege “may be considered in resolving a motion to

dismiss when the complaint affirmatively and clearly shows the conclusive

applicability of the defense to bar the action.” Clarke v. Phelan, No. 16-25217-

Civ, 2017 WL 4326522, at *6 (S.D. Fla. Sept. 28, 2017) (citing Jackson v.

BellSouth Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004)). Three aspects

of the Complaint clearly trigger the litigation privilege: (1) the email sent to

Cherdak from Jonathan Lewis, (2) the affidavits themselves, and (3) Cherdak’s

own words.

Exhibit 3 of the Complaint is an email sent to Cherdak by Jonathan

Lewis, counsel for Cherdak’s wife in Cottone v. Cherdak, No. 2022-DR-10-0519.

(Doc. 1-2 at 7). The subject line of the email references an ongoing case:

“Charleston Family Court Case No. 2022-DR-10-0519.” (Doc. 1-2 at 7). The

email attaches the affidavits now at issue and says, “please find affidavits not

yet provided to the Court in Maryland or Charleston from Paul and Linda

Cottone.” (Doc. 1-2 at 7). The affidavits themselves bear a case caption that

shows they were prepared for Cottone v. Cherdak, No. 2022-DR-10-0519 in the

Family Court of the Ninth Judicial Circuit in Charleston, South Carolina.

(Doc. 1-2 at 1-6).8 Thus, both the email through which Cherdak received the

affidavits and the affidavits themselves suggest that the affidavits and their

contents “ha[ve] some relation to the [judicial] proceeding.” Levin,

Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., 639 So. 2d at 608.

Even if it was unclear from the email and the affidavits themselves that

they were prepared for use in litigation, Cherdak acknowledges in the body of

the Complaint that the affidavits were drafted for this purpose. Cherdak

states, “an attorney acting in concert with the Defendants by the name of Mr.

Jonathan E. B. Lewis very likely prepared the actual affidavits signed by the

Defendants,” hinting that these affidavits and their contents have “some

relation to the [judicial] proceeding.” (Doc. 1 at 8, n.4; Doc. 1 at 36). But the

Complaint goes further. It accuses Defendants six times of attempting to “dupe

the courts” with their allegedly defamatory affidavits. (Doc. 1 at 15, 22, 33, 35,

36, 41).9 More explicitly, the Complaint states that “an attorney . . . wrote

Defendants’ affidavits intended for use in a family court in matters between

8 The complaint does not specifically state that the affidavits were filed, but it says that “Mr.

St. Amour is attending to an assignment by Plaintiff to retrieve all papers that may have

been recently filed in South Carolina Family Court in Charleston, South Carolina to begin to

gather a [sic] understanding of the full scope of publication.” (Doc. 1 at 21) (emphasis added).

It does not matter whether the affidavits were filed; documents prepared for litigation that

was anticipated in good faith are also covered by the privilege. See AGM Investors, LLC, v.

Business Law Grp., P.A., 219 So. 3d 920, 925-26 (Fla. Dist. Ct. App. 2017).

9 Cherdak refers to “duping courts” six times, but also makes similar allegations, e.g.,

“making out knowingly false affidavits intended to be filed to intentionally mislead courts”

throughout his complaint. (Doc. 1 at 3, 4).

Plaintiff and Defendant’s [sic] daughter, Lauren Ann Cottone.” (Doc. 1 at 36)

(emphasis added). This was not an accidental misspeak, as the Complaint

later says, “Exhibits 1 and 2 are affidavits that were signed, sworn, and

notarized and, as such, are intended by Defendants to be used by their daughter,

Lauren Ann Cottone, in a family Court matter now pending in South Carolina

between Plaintiff and Lauren Ann Cottone.” (Doc. 1 at 37, n.9) (emphasis

added).

Cherdak tries to walk back his statements in his response to Defendants’

Motion to Dismiss, saying that the Complaint “does not support Defendants’

unfounded assertions . . . that Defendants’ affidavits were allegedly prepared

for use as testimony.” (Doc. 16 at 20). Yet he twice acknowledges in the

Complaint that the affidavits were intended for use in litigation. (Doc. 1 at 36,

37, n.9). To the extent that Cherdak’s Response contradicts the Complaint, the

Court considers the pleading to rule. See Clarke v. Phelan, No. 16-25217-Civ,

2017 WL 4326522, at *6 (S.D. Fla. Sept. 28, 2017) (citing Jackson v. BellSouth

Telecomms., 372 F.3d 1250, 1276 (11th Cir. 2004)). It is evident from the face

of the Complaint that the affidavits were prepared for use in the case of Cottone

v. Cherdak, No. 2022-DR-10-0519 in the Family Court of the Ninth Judicial

Circuit in Charleston, South Carolina. To find otherwise would be to ignore

Cherdak’s own statements, the affidavits, and the email showing Cherdak’s

receipt of the affidavits in context.

The purpose of the litigation privilege is to “protect testifying witnesses

against defamation suits premised on statements they made.” Sun Life Assur.

Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d 1197, 1218 (11th Cir.

2018) (citing Myers v. Hodges, 44 So. 357, 361-92 (Fla. 1907)). This case is

exactly what the litigation privilege was designed to prevent—a party like

Cherdak suing witnesses against him for defamation based on the witnesses’

testimony against him during litigation. If Cherdak wishes to challenge the

veracity of Defendants’ statements about him, he can do so before the courts

hearing the cases in which these affidavits are filed. Delmonico v. Traynor,

116 So. 3d 1205, 1217 (Fla. 2013). He cannot do so here. The litigation

privilege disposes of Counts I and II.

C. Intentional Infliction of Emotional Distress

Litigation privilege also disposes of Count III. Litigation privilege

immunizes acts done (or statements made) in connection with litigation from

tort suits. Accordingly, this privilege extends beyond defamation claims to

other tort claims, including intentional infliction of emotional distress.

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 383

(Fla. 2007) (citing Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell,

P.A., 639 So. 2d at 608) (“[In Levin] we extended the litigation privilege to all

torts, finding that ‘absolute immunity must be afforded to an act occurring

during the course of a judicial proceeding, regardless of whether the act

involves a defamatory statement or other tortious behavior’”). Regardless of

whether Cherdak attempts to place Defendants’ statements in the bucket of

“defamation” or the bucket of “intentional infliction of emotional distress,”

they are still the same privileged statements, immune from suit. Fridovich v.

Fridovich, 598 So. 2d 65, 69 (Fla. 1992) (“[T]he successful invocation of a

defamation privilege will preclude a cause of action for intentional infliction

of emotional distress if the sole basis for the latter cause of action is the

defamatory publication”).

Cherdak’s intentional infliction of emotional distress claim also fails on

a second ground—he cannot simply reframe “defamation” as “intentional

infliction of emotional distress.” Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla.

1992) (citing Boyles v. Mid-Florida Television Corp., 431 So. 2d 627, 636 (Fla.

Dist. Ct. App. 1983)) (“[A] plaintiff cannot transform a defamation action into

a claim for intentional infliction of emotional distress simply by characterizing

the alleged defamatory statements as ‘outrageous’”). So even in the absence of

litigation privilege, Cherdak’s intentional infliction of emotional distress claim

would still be improper because it is merely a restatement of his defamation

claim. Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1340, 1343

(S.D. Fla. 1998) (“An attempt to state a claim for intentional infliction of

emotional distress based on the same publication as the defamation count must

fail. The claim for intentional infliction of emotional distress must stem from

outrageous conduct separate from the defamation and not merely ‘redescribe

the tort of libel while characterizing it as ‘outrageous conduct’”).

The Court thus grants the motion to dismiss as to Count III.

D. Civil Conspiracy

Count IV alleges a civil conspiracy. But “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, at *8 (S.D. Fla. Jan. 16,

2020) (citations omitted). Cherdak does not clearly allege an underlying tort

in the Complaint. To the extent the Complaint relies on defamation as the

underlying tort, it cannot do so.10

First, as previously explained, litigation privilege extends beyond

defamation claims to other tort claims, which would include civil conspiracy.

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 383

(Fla. 2007). Cherdak cannot rely on defamation as the underlying tort for his

civil conspiracy claim because the allegedly defamatory statements are

protected by litigation privilege. These statements are privileged no matter

10 While not expressly stated, it appears Cherdak relies on defamation: “Plaintiff specifically

incorporates the descriptions and allegations of the wrongs committed by and corresponding

harms caused by the Defendants as asserted in Plaintiff’s aforementioned claims for

Defamation per se, Defamation by Implication, and Intentional Infliction of Emotional

Distress under Florida law . . . Both of the Defendants acted to do unlawful acts as explained

in detail in connection with Plaintiff’s claim for defamation per se.” (Doc. 1 at 40-41).

how Cherdak frames the tort—defamation, intentional infliction of emotional

distress, or civil conspiracy.

Second, Cherdak cannot bring a civil conspiracy action based on

defamation while also bringing a defamation claim. Doing so violates Florida’s

single publication/single action rule. “In Florida, a single publication gives rise

to a single cause of 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. Dist. Ct. 2002) (internal

citation omitted).

Because Cherdak’s defamation claims fail on litigation privilege (and the

single publication/single action additionally bars his claim), Cherdak’s

“conspiracy to harm” claim must fail. Callaway Land & Cattle Co. v. Banyon

Lakes C. Corp., 831 So. 2d 204, 208 (Fla. Dist. Ct. 2002) (citing Fridovich v.

Fridovich, 598 So.2d 65, 70 (Fla. 1992)) (“The other counts based on the same

publication must fail as well because the same privileges and defenses apply”);

Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1256 (S.D. Fla. 2014)

(“courts dismiss concurrent counts for related torts based on the same

publication and underlying facts as the failed defamation count”). This

disposes of Count IV.

KE. Leave to Amend

Courts should “freely” give leave to amend a pleading under Fed. R. Civ.

P. 15(a)(2), but a claim should be dismissed with prejudice “if a more carefully

drafted complaint could not state a claim.” Ziemba v. Cascade Intl, Inc., 256

F.3d 1194, 1213 (11th Cir. 2001) (quoting Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir. 1991)). Because Florida’s litigation privilege applies to the allegedly

defamatory statements made by Defendants, Cherdak could not state a viable

claim even if given an opportunity to file an amended complaint.

Accordingly, it is now

ORDERED:

1. Defendants’ Renewed Motion to Dismiss (Doc. 13) is GRANTED.

2. The Complaint is DISMISSED with prejudice.

3. Plaintiff's Request for Oral Argument (Doc. 17) is DENIED as moot.

4. The Clerk is DIRECTED to enter judgment, terminate any

deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on February 16, 2028.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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