Smith v. Boston Red Sox

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MICHELLE J. SMITH,

Plaintiff,

v. Case No: 2:23-cv-68-JES-NPM

BOSTON RED SOX,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of the Opposed

Partial Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #35)

filed by the Boston Red Sox (the Defendant or Red Sox) on July 21,

2023. Michelle J. Smith (the Plaintiff or Smith), acting pro se,

filed a Response in Opposition (Doc. #36) on August 4, 2023. With

permission from the Court, the Defendant filed a Reply (Doc. #40)

on September 1, 2023. For the reasons set forth, the motion is

granted, with leave to file a second amended complaint.

I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must 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) (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 plaintiff, Erickson v. Pardus,

551 U.S. 89 (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.

A pleading drafted by an unrepresented party is held to a

less stringent standard than one drafted by an attorney, and the

Court will construe the documents filed as a complaint and amended

complaint liberally. Jones v. Fla. Parole Comm'n, 787 F.3d 1105,

1107 (11th Cir. 2015).

II.

Plaintiff’s Amended Complaint (the AC) makes the following

factual allegations: Plaintiff began working for the Defendant on

January 4, 2020. (Doc. #33, ¶ 10.) In early September 2021,

Plaintiff informed her supervisor, Taryn Bratz (Bratz), that she

was not vaccinated against COVID-19. (Id., ¶¶ 12-13.) Defendant

was afterwards assigned a new supervisor, Kelsey Doherty

(Doherty). (Id., ¶ 17.) Doherty held a meeting and informed

everyone present that they were all vaccinated against COVID-19.

(Id., ¶ 19.) Plaintiff was not at this meeting.1 (Id.) Defendant

announced on November 1, 2021 that it was implementing a new policy

requiring all salaried and hourly non-union employees to be

vaccinated against COVID-19 by January 1, 2022, with exceptions as

required by law. (Id., ¶ 21.)

1 The Defendant asserts Plaintiff was present at the meeting.

However, “when ruling on a defendant's motion to dismiss, a judge

must accept as true all of the factual allegations contained in

the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The

Court will therefore accept the AC’s version of the facts over

Defendant’s objection.

Defendant then sent employees a survey asking if they were

vaccinated or planning to become vaccinated. (Id.) Those not

vaccinated were told to submit any requested exemptions by November

19, 2021. (Id.) Plaintiff answered that she was not vaccinated nor

was she planning on getting vaccinated and submitted her exemption

request. (Id., ¶¶ 22, 25.) Plaintiff’s exemption request sought to

“explain[] how the Catholic Church’s teachings have led individual

Catholics, including [her]self, to decline certain vaccines.”

(Doc. #33, Ex. 2, p. 1.)2 The request was accompanied by a letter

from Plaintiff’s pastor echoing her rationale. (See id., p. 3.) On

November, 19, 2021, Plaintiff alerted Human Resources Manager Ben

Coakley (Coakley) of the recently enacted Florida Statute

381.00317.3 (Doc. #33, ¶ 26.)

Executive Vice President of Human Resources Amy Waryas

(Waryas) emailed the Plaintiff about a month later, seeking a phone

call to “follow up on [the] vaccination exemption request.” (Id.,

2 “A district court can generally consider exhibits attached

to a complaint in ruling on a motion to dismiss, and if the

allegations of the complaint about a particular exhibit conflict

with the contents of the exhibit itself, the exhibit controls.”

Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016).

3 Titled “Private Employer COVID-19 Vaccination Mandates

Prohibited”, the new statute, which was enacted on November 18,

2021, “forbids employers from imposing COVID-19 vaccination

mandates on its employees without providing individual exemptions

based on, among other things, sincerely held religious beliefs.”

Leigh v. Artis-Naples, Inc., No. 2:22-CV-606-JLB-NPM, 2022 WL

18027780, at *2 (M.D. Fla. Dec. 30, 2022).

Ex. 3, p. 1.) In a subsequent conversation Waryas, Coakley, and

Plaintiff discussed the previous survey sent by the Red Sox to

employees in May 2021. (Id., ¶¶ 31-32.) That survey had asked one

question: are you vaccinated? (Id., ¶ 32.) The survey results

indicated that Plaintiff selected the “yes” box. (Id., ¶ 33.)

Plaintiff was surprised by this because she did not remember the

May survey, but “[d]ue to her belief in the integrity of the Red

Sox”, she assumed she accidently pressed the wrong box. (Id.)

Plaintiff requested that the incorrect answer on the May

survey be corrected. (Id.) The Defendant did not do so. (Id.)

Instead, Plaintiff’s employment was terminated two days later.

(Id., ¶ 34.)

After her termination, Plaintiff noticed an email from

Coakley dated May 13, 2021, appear and disappear in her inbox

before she was cut off from the Red Sox server. (Id., ¶ 36.)

Plaintiff initiated a claim against the Defendant with the EEOC

and received a right to sue letter. (Id., ¶¶ 38-42.)

III.

Plaintiff’s AC (Doc. #33) is the operative pleading and

alleges the following four claims: violation of Title VII of the

Civil Rights Act of 1964 (Counts I and II); fraud, invasion of

privacy, and violation of privacy laws (Count III); and violation

of Florida’s Private Whistleblower’s Act (Count IV). Defendant now

moves to dismiss Count III with prejudice. Count III alleges that

Defendant manipulated the computer server to insert data and make

the surveys inconsistent — constituting fraud and violating the

Health Insurance Portability and Accountability Act of 1996

(HIPAA), the Federal Trade Commission Act (FTCA), the Electronic

Communications Privacy Act (ECPA), and the Stored Communications

Act (SCA). (Doc. #33, ¶ 57.) Count III further alleges that

“Defendant’s refusal to correct [the] data upon request of

Plaintiff . . . [was] a direct violation of HIPPA [sic].” (Id., ¶

60.) Additionally, Count III alleges that Defendant violated 18

U.S.C. § 1001 when it “portrayed [the Plaintiff] in a false light”

by “disseminating [the] false data . . . to the EEOC, the Florida

Attorney General, and this Court . . . .” (Id., ¶ 59.)

Defendant argues that Count III fails to state a common-law

fraud claim or to plead a fraud claim with sufficient specificity.

Additionally, Defendant argues Plaintiff has failed to state a

common-law invasion of privacy of claim. Lastly, Plaintiff argues

Florida no longer recognizes a false light claim, that HIPAA and

FTCA do not provide for a private cause of action, and that while

Plaintiff does not state which provision of the ECPA or SCA the

Red Sox violated, Count III fails to state a claim under any

provision. The Court will address the arguments in turn, beginning

with Plaintiff’s fraud claim.

A. Fraud

Defendant argues that the fraud claim must be dismissed

because not all of its elements are plead in the AC. (See Doc.

#35, p. 9-10.) And even if all the elements were pled, Defendant

argues that the AC “falls short of pleading fraud with

particularity as required by Fed. R. Civ. P. 9(b).” (Id. at p.

10.). Both arguments are correct.

“The essential elements of common-law fraud are: (1) a false

statement of fact; (2) known by the person making the statement to

be false at the time it was made; (3) made for the purpose of

inducing another to act in reliance thereon; (4) action by the

other person in reliance on the correctness of the statement; and

(5) resulting damage to the other person.” Gandy v. Trans World

Computer Tech. Grp., 787 So. 2d 116, 118 (Fla. 2d DCA 2001)

(citation omitted). Federal Rule of Civil Procedure 9(b) imposes

a heightened pleading requirement for a fraud claim. A plaintiff

“must state with particularity the circumstances constituting

fraud or mistake.” Fed. R. Civ. P. 9(b). That “means identifying

the who, what, when, where, and how of the fraud alleged.” Omnipol,

A.S. v. Multinational Def. Servs., LLC, 32 F.4th 1298, 1307 (11th

Cir. 2022)(citing Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237

(11th Cir. 2008)). More specifically, the complaint must allege:

“(1) the precise statements, documents, or misrepresentations

made; (2) the time and place of and person responsible for the

statement; (3) the content and manner in which the statements

misled the Plaintiffs; and (4) what the Defendants gained by the

alleged fraud.” Ambrosia Coal & Const. Co. v. Pages Morales, 482

F.3d 1309, 1316–17 (11th Cir. 2007) (citing Brooks v. Blue Cross

& Blue Shield of Florida, Inc., 116 F.3d 1364, 1380-81 (11th Cir.

1997)).

The AC alleges that the May 2021 survey had been doctored to

falsely state the Plaintiff was vaccinated. (See Doc. #33, ¶¶ 32,

37, 57.) The AC identifies Coakley as the person who “manipulate[d]

the survey data to make [Plaintiff]’s surveys false and

inconsistent.” (Id., ¶ 37.) Exhibit 5, attached to the AC,

allegedly “shows how” Coakley, as a “brand ambassador,” had “the

ability to erase, input, and access survey data.” (Id.) (Exhibit

5 is a webpage from a software survey company’s website stating

that a “survey response may be edited if the user has the

appropriate account permission . . . which is controlled by Brand

Administrators.”) The AC asserts this was all done “knowingly.”

(Id., ¶ 58.)

Missing from the AC, however, is any mention that Defendant

sought to induce Plaintiff’s reliance on the false information or

what action was undertaken by the Plaintiff in reliance on the

correctness of the allegedly false statement. See Gandy, 787 So.

2d at 118. “Indeed, to prove fraud, a plaintiff must establish

that the defendant made a deliberate and knowing misrepresentation

designed to cause, and actually causing detrimental reliance by

the plaintiff.” First Interstate Dev. Corp. v. Ablanedo, 511 So.

2d 536, 539 (Fla. 1987). Because the AC alleges no reliance, it

fails to allege specific elements of a fraud claim. A “plaintiff's

‘[f]ailure to allege a specific element of fraud in a complaint is

fatal when challenged by a motion to dismiss.’” Infante v. Bank of

America Corp., 468 F. App'x 918, 920 (11th Cir. 2012)4(alteration

in original)(quoting Strack v. Fred Rawn Constr., Inc., 908 So.2d

563, 565 (Fla. 4th DCA 2005)). The fraud claim in Count III will

be dismissed without prejudice.

B. Invasion of Privacy

Count III also alleges an invasion of privacy. (See Doc. #33,

p. 9.) There are four types of invasion of privacy, only two of

which could possibly apply to the facts alleged in this case: “(3)

public disclosure of private facts—the dissemination of truthful

private information which a reasonable person would find

objectionable; and (4) false light in the public eye—publication

of facts which place a person in a false light even though the

facts themselves may not be defamatory.” Allstate Ins. Co. v.

Ginsberg, 351 F.3d 473, 482 (11th Cir. 2003) (citing Agency for

4 “Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla

v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.

2007).

Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d

1239, 1252 n.20 (Fla. 1996)). Count III fails to satisfy the

federal pleading standard for either type of potential invasion of

privacy claim.

(1) Public Disclosure of Private Facts

The elements of a claim of public disclosure of private facts

are: 1) the publication, 2) of private facts, 3) that are

offensive, and 4) are not of public concern. Spilfogel v. Fox

Broad. Co., 433 F. App'x 724, 725 (11th Cir. 2011) (citation

omitted). Defendant argues that the AC “does not allege any

publication” (Doc. #35, p. 11) and that Plaintiff “has no

reasonable expectation of privacy in her COVID-19 vaccination

status, the only arguable private fact that is referenced in the

[AC].” Id. at p. 12.

The AC does not allege that there was a publication of an

allegedly private fact, so dismissal is warranted. See Muhammad v.

Muhammad, 654 F. App'x 455, 457 (11th Cir. 2016)(per

curiam)(acknowledging that “[a]lthough we give liberal

construction to the pleadings of pro se litigants,” they must still

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

grounds upon which it rests.” (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555(2007))).

Plaintiff states in her brief that the allegedly wrongful

publication was the “disclosing [of] Plaintiff’s vaccination

status, and her Religious Vaccine Exemption Request, to a third

party (Kelsey Doherty) . . . .” (Doc. #36, p. 12.) There are two

problems with this argument. First, no such allegation is set forth

in the AC. Second, such an allegation would be insufficient because

disclosure to Plaintiff’s direct supervisor is not a disclosure to

the public, as required to establish the claim. Publication

“requires that a matter be ‘made public, by communicating it to

the public at large, or to so many persons that the matter must be

regarded as substantially certain to become one of public

knowledge.’” Hunstein v. Preferred Collection & Mgmt. Servs.,

Inc., 48 F.4th 1236 (11th Cir. 2022)(quoting Restatement (Second)

of Torts § 652D (Am. L. Inst. 1977)). The ultimate inquiry is

“whether the disclosed information ‘reaches, or is sure to reach,

the public.’” Id. at 1247. As a result, the minimum requirement

for a public disclosure pleading is “not met where the plaintiff

ma[kes] ‘no allegation’ that the defendant ‘could have expected

public disclosure to arise’ from his communication.” Id. at 1246

n. 6 (quoting Fernandez-Wells v. Beauvais, 983 P.2d 1006, 1009

(N.M. Ct. App. 1999)).

Because the AC fails to allege that any private facts were

made public or were likely to be made public, it must be dismissed.

See Hunstein, 48 F.4th 1236; see also Leach v. Dist. Bd. of

Trustees of Palm Beach, 244 F. Supp. 3d 1334, 1341 (S.D. Fla.

2017)(dismissing a Florida public disclosure claim because “there

[was] no allegation that Plaintiff’s [private fact] was revealed

to persons from ‘whom the information predictably goes to

many.’”(quoting Williams v. City of Minneola, 575 So. 2d 683, 689

(Fla. Dist. Ct. App. 1991))). Even if the AC pled what Plaintiff

asserts in her brief—that the company shared Plaintiff’s

vaccination information with Plaintiff’s direct supervisor—that

would also be insufficient, partly because “under basic agency

principles, the acts of a corporation's agents are considered to

be those of a single legal actor.” McAndrew v. Lockheed Martin

Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)(citing Dussouy v. Gulf

Coast Inv. Corp., 660 F.2d 594, 603 (5th Cir.1981)). And “[a]s the

Restatement says, ‘it is not an invasion of the right of privacy’

to ‘communicate a fact concerning the plaintiff's private life to

a single person or even to a small group of persons.’” Hunstein,

48 F.4th at 1249. Therefore, this portion of Count III is dismissed

without prejudice.

(2) Florida does not recognize a false light claim

Count III also claims that “Defendant[‘]s conduct . . . caused

Plaintiff to be portrayed in a false light . . . .” (Doc. #33, ¶

58.) Defendant argues that any false light claim against it must

be dismissed because “[t]he State of Florida no longer recognizes

such a claim.” (Doc. #35, p. 12.) The Court agrees. See Jews for

Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)(“[W]e

decline to recognize a cause of action for false light invasion of

privacy.”); Dowbenko v. Google Inc., 582 F. App'x 801, 804 (11th

Cir. 2014)(“[Plaintiff]’s false light invasion of privacy claim

fails because Florida law does not recognize such a cause of

action.”); Maletta v. Woodle, No. 2:20-CV-1004-JES-MRM, 2021 WL

1894023, at *2 (M.D. Fla. May 11, 2021)(dismissing a false light

claim since it is not recognized under Florida law). Count III is

dismissed with prejudice as to the false light portion of the

claim.

(3) There is no private right of action under 18 U.S.C.

§ 1001, HIPAA, or FTCA.

Defendant also challenges whether the other statutes

Plaintiff relies upon in Count III provide for a private cause of

action. (See Doc. #35, p. 13.) The mere existence of a statute

does not establish a private cause of action, even if the statute

has been violated. Touche Ross & Co. v. Redington, 442 U.S. 560,

568 (1979)(explaining that merely because “a federal statute has

been violated and some person harmed does not automatically give

rise to a private cause of action in favor of that person.”

(quoting Cannon v. University of Chicago, 441 U.S. 677, 688

(1979))); Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1294 (11th

Cir. 2015)(“A statute may, but does not necessarily, create a cause

of action either expressly or by implication.”). “[T]he ultimate

issue is whether Congress intended to create a private right of

action.” California v. Sierra Club, 451 U.S. 287, 293 (1981).

Congress did not intend to create a private right of action under

18 U.S.C. § 1001, HIPAA, or FTCA.

The law in this Circuit and District is clear: 18 U.S.C. §

1001 is a criminal statute which created no private right of

action. Blankenship v. Gulf Power Co., 551 F. App'x 468, 471 (11th

Cir. 2013)(per curiam)(finding that 18 U.S.C. § 1001 and other

statutes did not “provide[] a cause of action for [defendant’s]

alleged wrongful conduct.”); Lichtenberg v. Sec'y of the Navy, 627

F. App'x 916, 917 (11th Cir. 2015)(per curiam)(“Section 1001 of

Title 18 of the U.S.Code is a criminal statute. . . . It does not

provide a civil cause of action.”); Thomas v. Franklin, No. 8:19-

CV-179-T-33TGW, 2019 WL 1281174, at *2 (M.D. Fla. Mar. 20,

2019)(“Again, as previously explained, 18 U.S.C. § 1001, which

makes it a crime to make false statements or use false documents

in a matter within federal jurisdiction, is a criminal statute

that does not create a private cause of action.”). Therefore, the

portion of Count III which relies upon § 1001 is dismissed with

prejudice.

“Likewise, we agree that no private right of action exists

under the Health Insurance Portability and Accountability Act.”

Crawford v. City of Tampa, 397 F. App'x 621, 623 (11th Cir. 2010)

(per curiam); see also Laster v. CareConnect Health Inc., 852 F.

App'x 476, 477 (11th Cir. 2021)(per curiam)(“Here, the district

court correctly dismissed [plaintiff]’s claims under Title 18, the

Public Health Service Act, and HIPAA because these statutes do not

create private rights of action.”)

The same is true for the FTCA. Smith v. JP Morgan Chase, 837

F. App'x 769, 769–70 (11th Cir. 2021)(per curiam)(“A private right

of action does not exist under the FTCA, meaning [plaintiff]'s

allegation . . . is futile because she can bring no action under

the FTCA.”); Lingo v. City of Albany Dep't of Cmty. & Econ. Dev.,

195 F. App'x 891, 894 (11th Cir. 2006)(citing Roberts v. Cameron-

Brown Co., 556 F.2d 356, 361 n.6 (5th Cir. 1977)). The portion of

Count III relying on HIPAA and the FTCA is dismissed with

prejudice.

(4) The ECPA & SCA claims are not sufficiently pled

Unlike the aforementioned statutes, “[t]he ECPA [does]

authorize[] an aggrieved party to file a civil action . . . .”

United States v. Cray, 450 F. App'x 923, 930 (11th Cir.

2012)(citing 18 U.S.C. § 2707(a)). The ECPA consists of three

statutes: the Wiretap Act, the Pen Register statute, and the SCA.

See Vista Mktg., LLC v. Burkett, 812 F.3d 954, 967 (11th Cir.

2016). The Wiretap Act and the Pen Register statute concern

interception of wire, oral, and electronic communications, while

the SCA concerns “access to stored communications and records.”

United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003).

Count III asserts that the alleged altering of the surveys

violates “15 U.S. Code sec. 45, The Electronic Communications

Privacy Act (ECPA) [and] 18 U.S. Code Chapter 119, the Stored

Communications Act (SCA).” (Doc. #33, ¶ 57.) The Defendant contends

those charges must be dismissed because the “[Plaintiff] does not

state which provision of the ECPA or the SCA the [Defendant] has

allegedly violated.” (Doc. #35, p. 15.) Because the Court agrees,

both are dismissed without prejudice.

The AC does cite to 15 U.S.C § 45 and 18 U.S.C Chapter 119.

But the latter houses multiple ECPA provisions (see 18 U.S.C.

§2510-§2523) while the former is the FTCA which, as already

discussed, has no private cause of action. As a result, it is

unclear whether the Defendant is accused of illegally intercepting

communications, storing communications, both, or neither.5 These

references to entire chapters renders Count III improperly vague

as to this aspect of the claim. See Muhammad, 654 F. App'x at

457; Snow v. DirecTV, Inc., 450 F.3d 1314, 1321 (11th Cir. 2006)

(“[A] valid civil complaint under the SCA must allege a violation

of one of its provisions.”). Count III fails to allege sufficient

plausible facts to support either claim, and the ECPA/SCA claims

are dismissed without prejudice.

Accordingly, it is now

5 If the AC is attempting to allege any impropriety under the

ECPA as to the surveys between the parties, that theory would

appear to be improper “because the Act simply does not apply to

parties to the transmission.” United States v. Diaz-Lizaraza, 981

F.2d 1216, 1220 n.1 (11th Cir. 1993).

ORDERED :

1. Defendant’s Motion to Dismiss for Failure to State a Claim

(Doc. #35) is GRANTED to the extent that Count III of the

Amended Complaint is dismissed without prejudice as to the

fraud, invasion of privacy, ECPA/SCA portions of the claim,

and is dismissed with prejudice as to the false light, §

1001, HIPAA, and FTCA portions of the claim.

2. If Plaintiff wishes to pursue any of the claims of Count

III which have been dismissed without prejudice, Plaintiff

may file an Amended Complaint within FOURTEEN (14) DAYS of

this Opinion and Order setting forth her original claims

in the other counts as well as the amended version of Count

Til.

DONE AND ORDERED at Fort Myers, Florida, this 29th day

of September, 2023.

ox

off le hy ) A Kook

JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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