Zea v. City of Naples

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

HARRY ZEA, RHC LLC, HOLD ON! LLC,

1355 MARLIN DRIVE LLC, 1660 DOLPHIN

COURT LLC, 1501 BLUEFIN COURT LLC,

PINNACLE ASSET TRUST LLC, BAY CLUB

OF NAPLES I LLC, BAY CLUB OF NAPLES II

LLC, THE NAUTILUS NAPLES, LLC,

Plaintiffs,

v.

Case No.: 2:22-cv-690-JLB-NPM

CITY OF NAPLES, a Florida Municipal

Corporation, WILLIAM BARNETT,

individually and in his capacity as former

Mayor of the City of Naples, CRAIG MOLÉ,

individually and in his capacity as the

Chief Building Official of Naples,

Defendants.

_______________________________________/

ORDER

This matter comes before the Court on Defendants’ Joint Motion to Dismiss

Plaintiffs’ Amended Complaint (Doc. 29). Plaintiffs responded (Doc. 33), Defendants

filed a reply (Doc. 40), and Plaintiffs filed a sur-reply (Doc. 44). For the reasons set

forth below, the Motion to Dismiss is GRANTED in part and DENIED in part.

BACKGROUND1

Mr. Zea is a Naples real estate developer who develops properties worth

hundreds of millions of dollars throughout the United States. (Doc. 28 at ¶ 15). As

part of his real estate development business, Mr. Zea purchased two groups of

properties in Naples through companies he controlled: (1) the Bay Club properties

and (2) a group of single-family homes (the “Homes”) in the Royal Harbor

neighborhood. (Id. at ¶ 16).

Mr. Zea obtained permits to begin construction or repair on these properties

and met with Mayor William Barnett on several occasions. (Id. at ¶ 19). Mayor

Barnett expressed his excitement to work with Mr. Zea both publicly and privately.

(Id.) Plaintiffs allege that at some point, “Mayor Barnett began to make

disparaging comments, publicly and in email exchanges” about Mr. Zea and his

projects, “expressing an intent to actively work against him, with the intentional

effect of dissuading others to work with him in order to harm [Mr. Zea’s] businesses

and drive him out of Naples.” (Id. at ¶ 21). Plaintiffs also allege that other city

officials and employees “at all levels of city government” assisted Mayor Barnett in

his “campaign” against Mr. Zea. (Id. at ¶ 22). By way of example, Plaintiffs allege

that at a public function and fundraiser, the former City Manager “used an

expletive” referring to Mr. Zea and his companies and stated “we’re not doing

1 “At the motion to dismiss stage, all well-pleaded facts are accepted as true, and

the reasonable inferences therefrom are construed in the light most favorable to the

plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir. 1999)

(citation omitted). Accordingly, this background section relies on the facts recited in

the Amended Complaint. (See Doc. 28).

anything for him.” (Id. at ¶ 23). Plaintiffs allege that this became city policy and

that it “permeated all City government levels and influenced City decisions, and

actions in regard to [Mr. Zea] and his companies.” (Id. at ¶¶ 23–24). Plaintiffs

further allege that city officials made statements “ranging from false to outrageous,

with the purpose of harming Mr. Zea’s reputation with lenders and others in the

Naples financial community to harm, or eliminate, future business opportunities.”

(Id. at ¶ 25). Plaintiffs claim that Mr. Zea became “part of a class of developers

disfavored by the city and its body politic.” (Id. at ¶ 26).

Bay Club Properties

The Bay Club properties were a set of two existing structures to be converted

to mixed-use buildings in Naples’s commercial waterfront district. (Id. at ¶¶ 17,

28). Plaintiffs explain that permission to re-develop the Bay Club Properties took

years and great expense to obtain. (Id. at ¶ 29). In June 2016, via a City Council

resolution, the City approved a non-conformity petition for the project. (Id. at ¶ 30).

Plaintiffs explain that the non-conformity petition “allowed the building to be

grandfather[ed] under an old code provision permitting building heights greater

than 42 feet.” (Id. at ¶ 31). Plaintiff further explains that because of that non-

conformity, it was important that the building not be entirely demolished, and thus

subject to the new restriction. (Id.) Rather than demolishing an entire building,

Plaintiff instead proposed partially demolishing it and thereafter replacing portions

of that building so that it could retain its non-conforming status. (Id.) In all events,

the City issued permits for the project in April and June 2017. (Id. at ¶ 32).

On October 23, 2018, Chief Building Official Molé issued, without warning, a

stop-work order for Bay Club, explaining that the stop-order was issued to “bring

the Bay Club properties into compliance with Florida Building Code §§ 110.7 and

110.8 regarding shoring and inspections required for a threshold building.” (Id. at ¶

33). According to Plaintiffs, those issues were addressed the next day. (Id. at ¶ 34).

On October 25, 2018, Mr. Molé emailed another stop-work order which allegedly

“lacked any required documentation and, though unclear, apparently relat[ed] to

demolition.” (Id. at ¶ 35).

Two weeks later, a code enforcement notice of violation was issued for Bay

Club which stated yet another basis for violation. (Id. at ¶ 36). That notice “related

to building demolition, for which information had already been fully provided to the

City as early as March 2018” and was discussed with Mr. Molé. (Id.) The notice

alleged that no work had been done to address certain issues, but Plaintiffs allege

that fixing those issues would have been impossible because of the earlier stop-work

order. (Id. at ¶ 37). The issues cited in the original stop-work order were allegedly

corrected, but the stop-work order was not withdrawn, even though the City was

repeatedly advised that the issues had been corrected. (Id. at ¶ 38).

In what Plaintiffs call a “total departure from the City’s permitting rules and

practice,” the violation notice requires notice to re-obtain a demolition permit and

remove the remainder of the structure. (Id. at ¶ 39). Plaintiffs allege that this

departure treated Mr. Zea and the Bay Club properties differently than two other

commercial redevelopment projects in Naples, which they claim were similarly

situated to the Bay Club redevelopment project and the Bay Club properties in all

relevant respects. (Id. at ¶ 40).

Like the Bay Club properties, the two commercial projects identified by

Plaintiffs were also approved as non-conforming remodels but they were allowed to

maintain their non-conforming status despite one project removing and replacing

the entire original structure while the other project left only one wall from the

original building standing. (Id.) And neither of these other redevelopment projects

was stopped for demolition issues or faced potentially losing non-conforming status,

even though the developers in both redevelopment projects demolished “far more” of

the original structures than Mr. Zea demolished in the Bay Club redevelopment

project. (Id.)

Plaintiffs allege that Mr. Zea was thereafter advised by the City Attorney not

to appear at a November 2018 code enforcement proceeding regarding the Bay Club

properties code violation. (Id. at ¶ 41). At that hearing, Mr. Molé stated that he

had not reviewed the plans himself after demolition began and that he had never

previously reviewed the permits. (Id. at ¶ 42). He also stated that the project “may

have been permitted incorrectly and reviewed incorrectly by [the] private provider

inspection agency.” (Id.) The Code Enforcement Board imposed significant fines

under what Plaintiffs refer to as the “unprecedented threat” of tearing down the

structure, for which millions of dollars of work had already been completed. (Id. at

¶ 43). Then, Plaintiffs allege that Mayor Barnett and the City began to actively

work to impede Mr. Zea’s development and force a sale of the Bay Club project to

someone the City favored. (Id. at ¶ 44). According to Plaintiffs, “Mayor Barnett

went so far as to call the family member of a campaign supporter to discuss having

the family member buy the Bay Club properties even though it was not for sale.”

(Id.)

In September 2019, Mayor Barnett stated in a recorded interview that the

Bay Club properties had been foreclosed on and had been taken over by a company

that was “pretty easy to work with,” which statements Mayor Barnett allegedly

knew were false. (Id. at ¶ 45). He further stated that his “goal [was] to knock it

down,” and that he had “wanted it down since last April.” (Id.)

Due to the delay in construction, the Bay Club properties filed for bankruptcy

in June 2020 and Mr. Zea purchased the assets of the project through another

company, Nautilus Naples, LLC. (Id. at ¶¶ 46–47).

The Homes

The Homes were four lots on which Mr. Zea intended to construct and sell

single-family multi-million-dollar homes. (Id. at ¶¶ 18, 48). The Homes consist of

1501 Bluefin Court, 1355 Marlin Drive, 1800 Snook Drive, and 1660 Dolphin Court,

“all of which have now been built and sold to other owners.” (Id. at 18).

In July 2018, an individual not named in the Amended Complaint

complained to Mayor Barnett via email about Mr. Zea’s properties, stating, “This

has all the indications of a [P]onzi scheme getting ready to blow up.” (Id. at ¶ 49).

Mayor Barnett responded, “I don’t disagree with you.” (Id. at ¶ 50).

The Amended Complaint alleges that in November 2018, Mr. Molé stated

that he would not reissue a permit for 1501 Bluefin Court as long as Mr. Zea was

involved with the property. (Id. at ¶ 51). In line with Mr. Molé’s alleged prior

statement, Plaintiffs allege that Mr. Molé reissued the permit after the property

was sold to another entity and proof of new ownership was shown. (Id.) The

Amended Complaint alleges that the only change to the project was the change in

ownership. (Id. at ¶ 52).

In February 2019, the same individual who complained to Mayor Barnett in

July 2018 emailed a City Council member, a friend of that individual, complaining

about Mr. Zea’s projects and asking the City to look into them. (Id. at ¶ 53). When

the email was forwarded to Mayor Barnett, he responded, “I can assure you we are

all over this! I have been involved from the start. There are also many legal issues

going on with [Mr. Zea] as I write, and the City has taken and will continue to take

a strong stand against him.” (Id.)

And after he received an email from the same individual in August 2019,

Mayor Barnett responded: “We are in the middle of many lawsuits with Mr. Zea.

We are familiar with his every move and are moving as fast as possible to do

whatever necessary to put an end to the grief and anguish he is causing.” (Id. at ¶

56). Plaintiffs aver that Mayor Barnett’s statements were false because there were

no City lawsuits involving him at that time. (Id. at ¶ 57). Mayor Barnett’s email

was forwarded to a City Council member, stating: “It appears from what Bill

conveyed that the City is in the midst of getting Zea. This is good news.” (Id. at ¶

58). The City Council member responded, “I was very happy to hear that too!” (Id.

at ¶ 59).

In the same September 2019 interview referenced above, Mayor Barnett

stated that three of the Homes were foreclosed on in Royal Harbor and that “things

are moving along in that respect,” which statements the Amended Complaint

alleges were also false. (Id. at ¶ 60).

According to the Amended Complaint, in November 2019, Mr. Molé, on behalf

of the City of Naples building department, directed an individual to send a proposed

email to the Royal Harbor Homeowners Association. (Id. at ¶¶ 61–63). The email

copied Mayor Barnett, Mr. Molé, and other city personnel. (Id.) The proposed email

stated that the “City of Naples Building Department (Craig Molé) would like to

know if Royal Harbor residents are in favor of having the City of Naples condemn

the properties” and to ask residents to indicate whether they would like the City to

continue to reissue permits or refuse to reissue the permits to the builder and

require the buildings to be demolished. (Id. at ¶¶ 63–65). Mayor Barnett

responded, “Let me know what I can do to help in any way I can.” (Id. at ¶ 66). The

HOA representative responded that the HOA did not wish to be involved and that

the City should “use its regular methods to work through the process.” (Id. at ¶ 67).

Accordingly, no email was sent to Royal Harbor residents “to avoid inserting the

HOA in the process.” (Id.)

Permitting issues continued into 2020 for the Homes, including the

revocation of, or not renewing, permits previously granted for properties that had

substantial work completed over a period of years, and which had at least 85

percent of work completed. (Id. at ¶ 68). Plaintiffs admit that the original permits

were issued under the fifth edition of the Florida Building Code and that the sixth

edition went into effect in 2017; but they clarify that extensions were granted until

2019 (two years after the new Florida Building Code went into effect) and because

of issues with a new contract, the City said that the latest extensions had expired,

but Mr. Zea resolved the contractor issues and requested that the permits be re-

issued in February 2020. (Id. at ¶¶ 69–72). The Amended Complaint also states

that “[i]n actuality, based on hurricane and other tolling, the permits were still

valid at that time.” (Id. at ¶ 73). Nevertheless, Mr. Molé stated that either the new

permits would need to meet the new Code standards or the building official would

be authorized to require that any work at the site must be removed. (Id. at ¶ 74).

The Amended Complaint further alleges that during a code enforcement

hearing, a building official provided a sworn statement that “the City has never

required a building to be demolished under such circumstances where the

properties had been substantially completed.” (Id. at ¶ 75). The Building

Department asked for a series of requirements that Mr. Zea never anticipated and

that the Amended Complaint alleges were not “customarily asked of new-

construction residences, including a mold inspection and spot surveys.” (Id. at ¶

76). Further, Plaintiffs state that “[n]othing had physically changed with the

properties, but the interference imposed by the City made clear [that] the City

wanted the Homes to go to a new developer.” (Id.)

Other actions alleged by the Amended Complaint

Plaintiffs claim that the City’s actions for each group reflected “an overall

and pervasive scheme to target [Mr. Zea] and his companies’ properties and force

him out of business in Naples.” (Id. at ¶ 77). Plaintiffs complain that Mr. Zea was

regularly unable to properly communicate with City personnel or bodies, which led

to delay and waste, and which reflected “a course of conduct at every level to

interfere with Mr. Zea’s projects and run him out of business, including by

threatening arrest on multiple occasions.” (Id. at ¶¶ 78–79).

For example, in 2020, Mr. Zea went to Mr. Molé’s office to drop off paperwork,

but Mr. Molé did not let him into the office and instead called the police, “falsely

accusing Zea of misconduct.” (Id. at ¶ 80). Mr. Zea was then pulled over by police

“for no lawful reason as he left.” (Id.) He was allegedly released when police

realized no law had been broken. (Id.) Moreover, as recently as February 2022, Mr.

Zea’s attorney was scheduled to have a meeting at City Hall and, when he indicated

that Mr. Zea would attend to answer any questions, the City Attorney informed the

attorney that the meeting could not take place at City Hall because Mr. Zea “would

be arrested for trespass” if he came there, “based on a policy in place only as to [Mr.

Zea] initiated by the former City Manager.” (Id. at ¶ 81). Mr. Molé stated that “his

hands were tied” regarding Mr. Zea’s property and that “everything happening was

being dictated by persons above him, referring to City officials, including Mayor

Barnett.” (Id. at ¶ 82).

The Amended Complaint alleges that the City actively sought to hurt Mr.

Zea’s reputation and dissuade lenders from doing business with him by telling bank

representatives that the City would not issue project permits if he was involved.

(Id. at ¶ 83). Mr. Zea eventually relocated his family to outside of Naples “to avoid

the repeated and unwarranted threats.” (Id. at ¶ 84).

Finally, the Amended Complaint alleges that as a result of Defendants’

actions, Plaintiffs have been damaged, “including by suffering lost profits related to

Bay Club and the Homes and by suffering significant improper fines and fees

related to the Defendants’ actions, including attorney’s fees and costs.” (Id. at ¶ 85).

On October 21, 2022, Plaintiffs filed their initial complaint. (See Doc. 1). On

December 16, 2022, Plaintiffs filed their Amended Complaint, which is the

operative complaint before the Court. (See Doc. 28). Defendants filed their Motion

to Dismiss on December 19, 2022. (See Doc. 29).

LEGAL STANDARD

Federal Rule of Civil Procedure 8 requires that a pleading contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). And Federal Rule of Civil Procedure 12(b)(6) allows a complaint

to be dismissed for failure to state a claim upon which relief can be granted. To

survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). This standard of plausibility is met when the

plaintiff pleads enough factual content “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

When reviewing a motion to dismiss, courts must accept all factual

allegations contained in the complaint as true and view the facts in the light most

favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). Legal

conclusions, however, “are not entitled to the assumption of truth.” Ashcroft, 556

U.S. at 664. “[C]onclusory allegations, unwarranted factual deductions or legal

conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air

Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

DISCUSSION

I. Counts I, II, and III: Equal protection claims.

The Amended Complaint’s equal protection claims are “class of one” claims

because they “allege not that [Plaintiffs] belong[] to a protected class, but that [they]

[are] the only entit[ies] being treated differently from all other similarly situated

entities.” Chabad Chayil, Inc. v. School Bd. of Miami-Dade Cnty, 48 F.4th 1222,

1223 (11th Cir. 2022). To prevail, Plaintiffs must show that they “ha[ve] been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Id. (citing PBT Real Est., LLC v.

Town of Palm Beach, 988 F.3d 1274, 1285 (11th Cir. 2021)).

The Eleventh Circuit applies the similarly situated requirement “with rigor.”

Id. (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1207 (11th Cir. 2007)). The

entities compared must be “prima facie identical in all relevant respects.” Id. (citing

PBT Real Est., LLC, 988 F.3d at 1285). “A plaintiff must ultimately show that it

and any comparators are similarly situated in light of all the factors that would be

relevant to an objectively reasonable governmental decisionmaker.” Id. (internal

quotation marks omitted) (quoting Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269,

1275 (11th Cir. 2008)); see also Griffin Indus., Inc., 496 F.3d at 1207 (“[W]hen

plaintiffs in class of one cases challenge the outcome of complex, multi-factored

government [decision-making] processes, similarly situated entities must be very

similar indeed.”).

A. Count I: Bay Club properties

Plaintiffs allege that a violation “required notice to re-obtain a demolition

permit and remove the remainder of the structure.” (Doc. 28 at ¶ 39). They further

allege that this was a “departure” from the City’s permitting rules and practices

that “treated Zea and his Bay Club properties differently than two other commercial

redevelopment projects in Naples.” (Id. at ¶¶ 38–39). The Amended Complaint

alleges the following about the two other commercial redevelopment projects:

• “These two other commercial redevelopment projects were similarly situated

to the Bay Club redevelopment project and the Bay Club properties in all

relevant respects.” (Id. at ¶ 40).

• “Like the Bay Club project, both of these commercial projects were approved

as non-conforming remodels and allowed to maintain their non-conforming

status despite one project removing and replacing the entire original

structure while the other project only left standing one wall from the original

building.” (Id.)

• “Neither of these redevelopment projects were stopped for demolition issues

or faced potentially losing non-conforming status, even though the developers in

both redevelopment projects demolished far more of the original structures than

Zea demolished in the Bay Club redevelopment project.” (Id.)

The Amended Complaint further contains several allegations showing that

the difference in treatment between the two other commercial redevelopment

projects and the Bay Club redevelopment projects was irrational and arbitrary:

• “[Mr.] Molé stated that, despite multiple communications with him during

the construction process, he had not reviewed the plans himself after

demolition began, stated he had never previously reviewed the permits, and

that ‘it may have been permitted incorrectly and reviewed incorrectly by their

private provider inspection agency.’” (Id. at ¶ 42).

• “In September 2019, Mayor Barnett spoke in a recorded interview with two

local real estate agents . . . stat[ing] that, ‘speaking of eyesores,’ the Bay Club

properties had been foreclosed on and had been taken over by a company that

was ‘pretty easy to work with,’” which statements Plaintiffs allege were

untrue. He further stated that “[their] goal [was] to knock it down.” (Id. at ¶

45).

Defendants claim that the issues that impacted Plaintiffs’ development

projects “were not the product of a one-dimensional decision[] by the city” and that

Plaintiffs’ effort to establish the similarity of the two commercial development

properties to the Bay Club properties was not “meaningful” enough. (Doc. 29 at 6).

But the Court cannot consider these alleged facts on a motion to dismiss. See

Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (“A court is

generally limited to reviewing what is within the four corners of the complaint on a

motion to dismiss[,]” excepting documents referred to in the complaint that are

central to the plaintiff’s claim). In support of their argument, Defendants also cite

Greenbriar Village, LLC v. Mountain Brook, City, which states that “[t]he avoidance

of the harms attendant to half-completed construction is a constitutionally

permissible objective for a municipality when enforcing its building code.” 345 F.3d

1258, 1263 (11th Cir. 2003). But that case is inapposite at this juncture because the

Amended Complaint alleges that the similarly situated comparators were not

stopped for demolition issues and faced with losing non-confirming status. (Doc. 28

at ¶ 40). While any nondiscriminatory motivations would become relevant during

the summary judgment stage, it does not move the needle at this early stage of the

case when the only relevant facts and motives are those alleged in the Amended

Complaint.

Plaintiffs’ allegations are sufficient to survive a motion to dismiss because the

Amended Complaint contains more than naked assertions that do not afford the

City fair notice of the factual basis upon which the claim rests. See Twombly, 550

U.S. at 554–55 (explaining that Federal Rule of Civil Procedure 8(a)(2) exists to

“give the defendant fair notice of what the claim is and the grounds upon which it

rests”); compare Pillitieri v. City of Flagler Beach, No. 3:16-cv-1121-J-34PDB, 2017

WL 3840433, at *4 (M.D. Fla. Sept. 1, 2017) (granting motion to dismiss where

complaint “contain[ed] a single boilerplate reference to ‘similarly situated

applicants’” and “d[id] not identify a single comparator that was allegedly treated

more favorably or even any characteristics of a comparator or a comparator’s

property”), with Disser v. City of Tampa, No. 8:13-cv-885-T-24-EAJ, 2013 WL

3975759, at *10 (M.D. Fla. July 31, 2013) (motion to dismiss denied where a count

“identifie[d] other similar establishments located in the [same] [d]istrict that

received the same waivers sought by [p]laintiffs . . . and were approved for the

special use permit sought by [p]laintiffs” and where plaintiffs sufficiently alleged

that “the difference in treatment was wholly irrational and arbitrary”).

Accordingly, Defendants’ motion is denied as to Count I.

B. Count II: 1501 Bluefin property

With respect to the 1501 Bluefin property, Plaintiffs allege that “[i]n

November 2018, [Mr.] Molé stated that he would not reissue a permit for 1501

Bluefin Court as long as [Mr.] Zea was involved with the property.” (Doc. 28 at ¶

51). Indeed, after the property was sold to another entity and proof of ownership

was shown to Mr. Molé, he reissued the permit. (Id.) The Amended Complaint

alleges that “[t]here [was] no change to the project to support this reissue, only a

change in ownership.” (Id. at ¶ 52). In other words, the Amended Complaint

alleges that Mr. Molé refused to issue a permit for 1501 Bluefin because Mr. Zea

was involved but issued a permit to a new owner for the same, unchanged property.

Defendants aver that “[w]hile Plaintiffs alleged that no changes occurred to the

property, Plaintiffs omitted whether the other developer changed anything on the

permit request or application.” (Doc. 29 at 7). While the burden to establish a

similarly situated comparator is a high one (see Griffin Industries, Inc., 496 F.3d at

1204–05), the Court will not require Plaintiffs to foresee every possible difference

that Defendants may raise in response to their allegations. Again, to the extent

that Defendants had non-discriminatory reasons to deny and then issue the permit,

the appropriate time to bring that argument is at the summary judgment stage.

Viewing the facts alleged in the Amended Complaint as true, as the Court

must at this stage, Plaintiffs adequately allege that they were treated differently

from an applicant who was similarly situated in all relevant respects—the same

building, but with a different owner—without a reason. Accordingly, Defendants’

motion is denied as to Count II.

C. Count III: 1355 Marlin, 1660 Dolphin, and 1800 Snook

properties

As to 1355 Marlin, 1660 Dolphin, and 1800 Snook, the Amended Complaint

states that “[a]s part of the permitting process, the Building Department asked for a

series of requirements never anticipated or customarily asked of new-construction

residence, including a mold inspection and spot surveys.” (Doc. 28 at ¶ 76). The

Amended Complaint alleges that these demands were based on “personal animus

towards Plaintiffs, not any legitimate government purpose” and that Defendants

“treated Plaintiffs and these properties differently than all other new-construction

residences.” (Id. at ¶ 114).

The Court cannot find that these allegations are sufficient as pleaded because

“all other new-construction residences” is not specific enough to meet the burden of

a sufficiently similar comparator. See Grider v. City of Auburn, Ala., 618 F.3d 1240,

1264 (11th Cir. 2010) (“To be similarly situated, the comparators must be prima

facie identical in all relevant respects”) (citations and internal quotation marks

omitted); see also Manseau v. City or Miramar, 395 F. App’x 642, 646 (11th Cir.

2010) (“Bare allegations that other applicants, even all other applicants, were

treated differently do not state an equal protection claim; a complaint must attempt

to show in some fashion that these other applicants were similarly situated to

plaintiff.”).

Accordingly, the Motion to Dismiss is granted as to Count III.

II. Count IV: Substantive due process claim.

“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.” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Palko v.

Conn., 302 U.S. 319, 324 (1937)). “Fundamental rights are those rights created by

the Constitution.” Greenbriar Village, L.L.C., 345 F.3d at 1262 (citing DeKalb

Stone, Inc. v. County of DeKalb, Ga., 106 F.3d 956, 959 n.6 (11th Cir. 1997)). The

scope of substantive due process is quite narrow, and federal appellate courts have

“cautioned against the open-ended judicial expansion of other unenumerated rights”

in substantive due process jurisprudence. Dacosta v. Nwachukwa, 304 F.3d 1045,

1048 (11th Cir. 2002).

“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 of state law.” Id. (quoting

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). Accordingly, to

the extent that Plaintiffs predicate their substantive due process claim directly on

the denial of their property rights in the Bay Club properties and the Homes, no

substantive due process claim is viable. See id. (citing McKinney, 20 F.3d at 1560).

Rather than base their argument specifically on denial of their property

rights, Plaintiffs claim that Defendants’ actions violate substantive due process by

shocking the conscience. (Doc. 33 at 8). Indeed, the Eleventh Circuit previously

found:

Conduct by a government actor that would amount to an

intentional tort under state law would only rise to the level

of a substantive due process violation if it “shocks the

conscience” or interferes with rights “implicit in the

concept of ordered liberty” –in other words, only if it affects

individual rights guaranteed, explicitly or implicitly, by the

Constitution itself.

Dacosta, 304 F.3d at 1048.

“[T]he due process guarantee does not entail a body of constitutional law

imposing liability whenever someone cloaked with state authority causes harm.”

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). And “the Constitution does

not guarantee due care on the part of state officials; liability for negligently inflicted

harm is categorically beneath the threshold of constitutional due process.” Id.

“[C]onduct intended to injure in some way unjustifiable by any government interest

is the sort of official action most likely to rise to the conscience-shocking level.”

Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1074 (11th Cir. 2000).

For example, in Rochin v. California, 342 U.S. 165, 172–73 (1952), the Supreme

Court “found the forced pumping of a suspect’s stomach enough to offend due

process as conduct that shocks the conscience and violates the decencies of civilized

conduct.” Cnty. of Sacramento, 523 U.S. at 846–47 (citing Rochin, 342 U.S. at 172–

73).

The Eleventh Circuit has applied this concept sparingly. For example, in

Kessler v. City of Key West, plaintiffs filed a lawsuit stating that the City of Key

West “unreasonably escalated a minor code violation relating to their floating home,

abused the legal process to terminate the lease and get rid of them, and indirectly

caused the loss of their home.” No. 21-11069, 2022 WL 590892, at *1 (11th Cir. Feb.

28, 2022). The Eleventh Circuit affirmed the district court’s dismissal of the claim,

finding that the City’s conduct in “pursuing code enforcement, eviction, and then

termination of the lease” did not plausibly meet the “shocks the conscience”

standard. Id. at *4.

Plaintiffs argue that “Barnett’s attempt to sell Zea’s property to a family

member of a campaign supporter, his attempts to privately dissuade banks from

loaning to Zea, Defendants’ defamatory statements about Zea and his properties,

their policy banning Zea from City buildings, and their threats of arrest and false

police calls” shock the conscience. (Doc. 44 at 2–3). The Court agrees that the

behavior alleged is disturbing, particularly for public officials.

Notwithstanding, the Court finds that, even reviewing the complaint in the light

most favorable to Plaintiffs, Defendants’ alleged conduct is not so outrageous as to

“shock the conscience” and state a substantive due process claim. Accordingly, the

Motion to Dismiss is granted as to Count IV.

III. Count V: Conspiracy claim

The elements of a cause of action under 42 U.S.C. § 1985(3) are:

(1) a conspiracy, (2) for the purpose of depriving, either

directly or indirectly, any person or class or persons of the

equal protections of the laws, or of equal privileges and

immunities under the laws; and (3) an act in furtherance

of the conspiracy, (4) whereby a person is either injured in

his person or property or deprived of any right or privilege

of a citizen of the United States.

Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146–47 (11th Cir. 1996) (citing

Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir. 1992)). “The second

element requires a showing of some ‘racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’ action.’” Id. at 1147

(quoting Lucero, 954 F.2d at 528). “Section 1985(3) provides no substantive rights

itself; it merely provides a remedy for violation of the rights it designates.” Great

Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372 (1979).

Count V of the Amended Complaint alleges that “Defendants entered into a

conspiracy with certain other city officials and private parties to punish Plaintiffs as

a ‘class of one’ and drive them into bankruptcy.” (Doc. 28 at ¶ 128). It also alleges

that the conspiracy “intended to deprive Plaintiffs of their right to equal treatment

under the Equal Protection Clause of the 14th Amendment and their right to be free

from arbitrary executive action under the Substantive Due Process Clause through

the actions alleged herein.” (Id.) The Court has already found that some of

Plaintiffs’ claims under the Equal Protection Clause will survive the motion to

dismiss while others will not (see supra, § I) and that the substantive due process

claims will not survive the motion to dismiss (see supra, § II).

Aside from the arguments about the alleged violation of Plaintiffs’ rights,

Defendants set forth two arguments in support of dismissal of this claim. First,

Defendants argue that the Eleventh Circuit has declined to extend § 1985(3) to

apply in non-racial contexts. (Doc. 29 at 16). Second, Defendants argue that under

the intracorporate conspiracy doctrine, it is impossible for a legal entity consisting

of the corporation (here, presumably, the County) and its agents (presumably Mr.

Molé and Mayor Barnett) to conspire amongst each other. (Id. at 16–17).

As an initial matter, the Supreme Court has held that section 1985

conspiracy claims do not reach conspiracies motivated by economic or commercial

animus, which the Amended Complaint could be construed to allege here. See

United Bhd. Of Carpenters, Local 610 v. Scott, 463 U.S. 825, 837–39 (1983). But

even if other motivations were at play in this case, the Amended Complaint does not

sufficiently allege that Plaintiffs were a member of a class of individuals falling

within the plain meaning of section 1985(3).

Plaintiffs point the Court to Lyes v. City of Riviera Beach, 166 F.3d 1332,

1336–40 (11th Cir. 1999), where the Eleventh Circuit considered whether women

were a qualifying class under § 1985(3). The Eleventh Circuit looked to the

language of the statute, which stated that it applied to, among others, conspiracies

depriving “any person or class of persons of the equal protection of the laws.” Lyes,

155 F.3d at 1336 (quoting 42 U.S.C. § 1985(3)). The Eleventh Circuit did not

consider the outer limits of section 1985(3) coverage, but decided the limited

question of “whether § 1985(3) protects women as a class of persons from sex-based

conspiracies against them where the conspirators were acting under color of state

law.” Id. at 1336–37. After finding that women are within the plain meaning of

“any . . . class of persons,” the Lyes court noted that its “enthusiasm for applying the

plain meaning canon to § 1985(3) [was] tempered” by certain of the Supreme Court’s

decisions. Id. at 1337. Specifically, the Eleventh Circuit reasoned that in Griffin v.

Breckenridge, 403 U.S. 88 (1971), the Court “glossed the statutory language with a

caution against reading § 1985(3) so broadly (literally) as to turn it into ‘a general

federal tort law’ that would ‘apply to all tortious, conspiratorial interferences with

the rights of others.’” Lyes, 166 F.3d at 1337 (quoting Griffin, 403 U.S. at 101–02).

Expounding upon the Court’s reasoning in Griffin, the Eleventh Circuit explained

that the Supreme Court held the statute prohibits only conspiracies motivated by

“some racial, or perhaps otherwise class-based invidiously discriminatory animus.”

Id. (quoting Griffin, 403 U.S. at 102). The Lyes court observed that in United

Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825 (1983), the Supreme

Court held that § 1985(3) does not reach “conspiracies motivated by bias towards

others on account of their economic views, status, or activities.” Id. (quoting Scott,

463 U.S. at 837). In both cases, the Supreme Court withheld judgment on whether

§ 1985(3) extends beyond “its central concern” or combating conspiracies driven by

race-based animus. Id. (citations omitted).

The Eleventh Circuit ultimately held that “if Griffin’s ‘perhaps otherwise

class-based, invidiously discriminatory animus’ means anything at all—and we

think it does—it includes sex-based animus against women.” Id. The Lyes court

pointed to the fact that sex-based classifications receive heightened scrutiny under

the Equal Protection Clause. Id. The Lyes court also considered legislative history,

finding that it was not manifestly inconsistent with the court’s holding because “at

least some members of Congress believed actionable conspiracies would include

those ‘against a person because he was a Democrat . . . or because he was a

Catholic, or because he was a Methodist, or because he was a Vermonter . . . .” Id.

at 1338 (quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993)

(Souter J., concurring in part and dissenting in part) (discussing remarks of Senator

Edmunds, who managed the bill on the Senate floor)). The court ultimately held

that although many legislators who voted for the statute were not concerned about

affording legal protection to women as a class “[g]iven prevailing attitudes at the

time § 1985(3) was enacted,” it confirmed the plain meaning of the statute because

“statutory prohibitions often go beyond the principal evil to cover reasonably

comparable evils, and it is ultimately the provisions of our laws rather than the

principal concerns of our legislators by which we are governed” (id. (quoting Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 (1998))) and “[a]ny conclusion

that women are not a protected class under § 1985(3) would run into a solid wall of

contrary precedent.” Id.

But the Court declines to stretch the outer limits of Lyes’s holding, which this

Court readily reads as confined to including all women as a class protected within

the meaning of section 1985(3), to the prototypical “class of one” the operative

complaint describes here. Plaintiffs neither cite, nor has the Court found, any

binding precedent compelling the conclusion that a class of one can maintain a

section 1985 conspiracy claim.

In fact, several circuit Courts have held that a class of one is not covered

under section 1985(3). See, e.g., Jackson v. Gordon, 145 F. App’x 774, 778 (3d Cir.

2005) (affirming the dismissal of a section 1985 conspiracy claim in which an

inmate sued various entities for denying him a therapeutic diet, finding that the

inmate “did not allege race- or class-based animus sufficient to state a claim under

42 U.S.C. § 1985(3)); C&H Co. v. Richardson, 78 F. App’x 894, 898–901 (4th Cir.

2003) (holding that although the Equal Protection Clause prohibits intentional

discrimination even against a “class of one,” the district court properly granted

summary judgment on plaintiff’s § 1985(3) claims where plaintiff did not allege that

the complained-of discrimination resulted from its membership in any qualifying

class); Underfer v. University of Toledo, 36 F. App’x 831, 834 (6th Cir. 2002) (holding

that although the Supreme Court “affirmed the existence of a ‘class of one’ under an

egregious set of circumstances in the equal protection context,” it did not read that

decision to “alter the text or legislative aims of the relevant sections of Title 42” and

therefore, the plaintiff there did not allege that he was entitled to protections

afforded by § 1985(3)).

The Court further finds that such a broad interpretation would be

inconsistent with the Supreme Court’s mandate that courts give full effect to the

statute’s congressional purpose by “requiring, as an element of the cause of action,

the kind of invidiously discriminatory motivation stressed by the sponsors of the

limiting amendment” and its explanation for that mandate, that a conspiracy “must

aim at a deprivation of the equal enjoyment of rights secured by the law to all.” See

Griffin, 403 U.S. at 102. Because the Court finds that Plaintiffs have not

adequately pleaded a § 1985(3) conspiracy claim, the Court declines to reach

Defendants’ intracorporate conspiracy argument.

Accordingly, the Motion to Dismiss is granted as to Count V.

IV. Claims against specific entities.

A. Whether municipal liability attaches to the City of Naples.

Generally, as a municipality, the City of Naples cannot be held vicariously

liable under section 1983 for constitutional violations committed by its officers. See

Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (citing Monell v.

Dep’t of Social Servs., 436 U.S. 658, 693–94 (1978)). Plaintiffs must ultimately

“prove that the City had a policy, custom, or practice that caused the deprivation.”

Id. (citations omitted).

Monell limits section 1983 liability “to acts which the municipality has

officially sanctioned or ordered.” Id. A municipality causes a violation where (1) it

acts via “an official policy enacted by its legislative body (e.g., an ordinance or

resolution passed by a city council)”; (2) “final policymakers have acquiesced in a

longstanding practice that constitutes the entity’s standard operating procedure”; or

(3) “on the basis of ratification when a subordinate public official make an

unconstitutional decision and when that decision is then adopted by someone who

does have final policymaking authority.” Id.

Plaintiffs appear to argue that municipal liability attaches under the second

and third avenues. (Doc. 33 at 15).

With respect to the final policymaker avenue, “[m]unicipalities are generally

only liable for a single decision made by a municipal official when the official is the

final policymaker for the municipality with respect to the subject matter in

question.” Ratlieff v. City of Fort Lauderdale, Fla., No. 22-CV-61029-RAR, 2023 WL

3750581, at *15 (S.D. Fla. June 1, 2023) (quoting Mandel v. Doe, 888 F.2d 783, 791

(11th Cir. 1989)). But “identifying and proving that a final policymaker acted on

behalf of a municipality is ‘an evidentiary standard, and not a pleading

requirement.’” Id. (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)).

Although Plaintiffs may ultimately have to identify (and provide proof concerning) a

single final policymaker to survive summary judgment or prevail at trial, Plaintiffs

do not have to name that person in their complaint to survive a Rule 12(b)(6)

motion. Hoefling, 811 F.3d at 1279. Instead, to survive a Rule 12(b)(6) motion,

Plaintiffs are only required to “allege a policy, practice, or custom of the City” which

caused the constitutional violation. See id. “A custom is a practice that is so settled

and permanent that it takes on the force of law.” Sewell v. Town of Lake Hamilton,

117 F.3d 488, 489 (11th Cir. 1997). A custom does not need to receive “formal

approval from the municipality,” but “random acts or isolated incidents are

insufficient to establish a custom or policy.” George’s Place, LLC v. Smith, No. 3:11-

cv-1096-J-37JBT, 2012 WL 360161, at *9 (M.D. Fla. Feb. 2, 2012) (quoting Depew v.

City of St. Mary’s Ga., 787 F.2d 1496, 1499 (11th Cir. 1986)).

As to the third avenue, “ratification exists when a subordinate public official

makes an unconstitutional decision and when that decision is then adopted by

someone who does have final policy making authority.” Matthews v. Columbia Cty,

294 F.3d 1294, 1297 (11th Cir. 2002). The final policymaker must ratify “not only

the decision itself, but also the unconstitutional basis for it.” Id. “[L]ocal

government policymakers had [to have] an opportunity to review the subordinate’s

decision and agreed with both decision and the decision’s basis.” Garvie v. City of

Ft. Walton Beach, 366 F.3d 1186, 1189 (11th Cir. 2004) (emphasis added) (citations

omitted). For example, “[a] well-intentioned lawmaker who votes for [] legislation—

even when he votes in the knowledge that others are voting for it for an

unconstitutional reason and even when his unconstitutionally motivated colleague

influences his vote—does not automatically ratify or endorse the unconstitutional

motive.” Matthews, 294 F.3d at 1297.

The Amended Complaint alleges that (1) Mayor Barnett made disparaging

statements about Mr. Zea and his projects, expressing an intent to actively work

against him (Doc. 28 at ¶ 21); (2) other city officials and employees at all levels of

city government began assisting Mayor Barnett in his campaign against Mr. Zea

(id. at ¶ 22); (3) the City Manager stated “we’re not doing anything for him”

regarding Mr. Zea, and that this became city policy (id. at ¶ 23); and (4) Mr. Zea

became part of a class of developers disfavored by the city and its body politic (id. at

¶ 26). For the purposes of a motion to dismiss, and assessing the allegations in the

light most favorable to Plaintiffs, these statements, taken together, sufficiently

allege that the City of Naples had a policy or practice of treating Zea differently that

caused the alleged constitutional violation. Accordingly, the municipal liability

portion of the Motion to Dismiss is denied as to the City of Naples.

B. Whether Mayor Barnett and Mr. Molé are protected by

qualified immunity.

“A complaint is subject to dismissal under Rule 12(b)(6) when its factual

allegations, on their face, establish an affirmative defense that bars recovery.”

Myrick v. Fulton Cnty., Ga., 69 F.4th 1277, 1297 (11th Cir. 2023) (citing Ingram v.

Kubik, 30 F.4th 1241, 1250 (11th Cir. 2022)). “That means that if a defendant

raises the affirmative defense of qualified immunity, the district court must dismiss

any claims that do not allege a violation of clearly established law.” Id. (citing

Ingram, 30 F.4th at 1250).

Qualified immunity “shields a government official from liability unless he

violates ‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Id. (quoting Piazza v. Jefferson Cnty., 923 F.3d 947,

951 (11th Cir. 2019)). Qualified immunity balances two public interests: “the need

to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Baker v. City of Madison, Alabama, 67 F.4th

1268, 1278 (11th Cir. 2023) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

First, the defendant asserting the qualified immunity defense bears the

initial burden of showing that he or she was acting within his or her discretionary

authority. Myrick, 69 F.4th at 1297 (citing Piazza, 923 F.3d at 951); see also Storck

v. City of Coral Springs, 354 F.3d 1307, 1314 (2003) (“Under qualified immunity

analysis, the public official must first prove that he was acting within the scope of

his discretionary authority when the allegedly unconstitutional acts took place.”).

Only after the defendant makes that showing does “the burden shift to the plaintiff

to show that qualified immunity is not appropriate.” Myrick, 69 F.4th at 1297

(citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). To determine whether

a defendant acted within his or her discretionary authority, courts in the Eleventh

Circuit “assess whether they are of a type that fell within the employee’s job

responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th

Cir. 2004). The inquiry is two-fold. First, courts ask whether the government

employee was “performing a legitimate job-related function (that is, pursuing a job-

related goal).” Id. Second, courts ask whether the employee was performing that

function “through means that were within his power to utilize.” Id. at 1265–66.

The inquiry is not whether it was within the defendant’s authority to violate

someone’s constitutional rights, but rather courts “look to the general nature of the

defendant’s action, temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.

Mayor Barnett and Mr. Molé have met their burden as to certain of the

actions alleged. For example, the Court agrees with Defendants that “deciding

whether to issue, extend, and revoke building permits; issuing stop-work orders;

ensuring compliance with the Building Code; and issuing violation notices were all

within Molé’s discretionary authority as Chief Building Official. (Doc. 40 at 13–14).

The Court also agrees with Mayor Barnett that it is “within a mayor’s discretionary

authority to communicate with members of the public about a real estate

development in the mayor’s city.” (Id. at 14). But Defendants have not argued that

Mr. Molé’s direction to an individual to send an email to Royal Harbor residents

asking whether they supported condemnation of certain properties was within his

discretionary authority. (See Doc. 28 at ¶¶ 62–64). Nor do Defendants argue that

Mr. Molé’s decision to call the police and falsely accuse a citizen of misconduct was

within his discretionary authority. (See id. at ¶ 80). And, with respect to Mayor

Barnett, Defendants have not argued that Mayor Barnett’s call to a family member

of a campaign supporter to discussing having that family member buy the Bay Club

properties (which were not for sale) was discretionary. (See id. at ¶ 44). While it is

possible that these allegations will not prove particularly relevant later in the case

or that discovery will not support them, at this early stage of the case, the Court

cannot dismiss this action against Mayor Barnett and Mr. Molé without, at the very

least, specific arguments as to whether each alleged action was discretionary .

Accordingly, the Motion to Dismiss is denied without prejudice to the extent

it seeks dismissal of the claims against Mayor Barnett and Mr. Molé because

Defendants have not argued that all of their alleged actions against Plaintiffs were

discretionary. They may reassert qualified immunity at the summary judgment

stage. To the extent that a second amended complaint is filed and government

actors are named, the Court will consider further arguments regarding qualified

immunity.

C. Duplicate official capacity claims.

Finally, Defendants argue that the Court should dismiss Plaintiffs’ claims

against Mayor Barnett and Mr. Molé in their official capacities “because they are

needlessly redundant of Plaintiffs’ claims against the City.” (Doc. 29 at 19–20).

Notably, although they had two opportunities to do so, Plaintiffs never meaningfully

responded to this argument. (See Doc. 33; Doc. 44). “Because suits against a

municipal officer sued in his official capacity and direct suits against municipalities

are functionally equivalent, there no longer exists a need to bring official-capacity

actions against local government officials, because local government units can be

sued directly.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); see also

Harris by and through Davis v. Autry, No. 20-13480, 2022 WL 392169, at *6 (11th

Cir. Feb. 9, 2022) (quoting Busby, 941 F.2d at 776). Accordingly, the Court grants

the Motion to Dismiss the official-capacity claims against Mayor Barnett and Mr.

Molé.

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CONCLUSION

For the reasons set forth above, it is ORDERED:

1. The Motion to Dismiss (Doc. 29) is GRANTED in part and DENIED

in part.

2. The Motion to Dismiss is GRANTED to the extent that (i) Counts III,

IV, and V are dismissed without prejudice and (ii) all counts alleging that Mayor

Barnett and Mr. Molé are liable in their official capacities are dismissed without

prejudice. The Motion to Dismiss is otherwise DENIED.

3. Plaintiffs shall file a second amended complaint no later than

September 26, 2023. Failure to do so within that time frame may result in

dismissal without further notice from the Court.

ORDERED in Fort Myers, Florida on September 5, 2023.

ff 1

wt A Mnoflhere, Lt

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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