Dulcio v. Environmental Protection Agency

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:22-CV-81908-ROSENBERG/REINHART

MARC M. DULCIO,

Plaintiff,

v.

U.S. ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Defendants.

_____________________________/

OMNIBUS ORDER GRANTING IN PART MOTIONS TO DISMISS

This cause is before the Court on (1) the Motion to Dismiss the Amended Complaint of

Plaintiff, Mark M. Dulcio, filed by Defendants Florida Department of Environmental Protection

(“FDEP”), Shawn Hamilton (“Hamilton”), Lateshee M. Daniels (“Daniels”), Florida Department

of Environmental Protection Waste Site Clean Up Section (“FDEP-Waste”), Theresa Pepe

(“Pepe”), Breck Dalton (“Dalton”), Aaron Cohen (“Cohen”), Florida Department of

Environmental Protection Office of General Counsel (“FDEP-Counsel”), Gary Ballard

(“Ballard”), Staci Kichler (“Kichler”), Florida Department of Environmental Protection of the

Southeast District (“FDEP-SE”), Jason Andreotta (“Andreotta”), Sirena Davila (“Davila”), Norva

Blandin (“Blandin”), Alannah Irwin (“Irwin”), and Romina Lancellotti (“Lancellotti”)

(collectively, “FDEP Defendants”), [DE 26]; (2) the Motion to Dismiss the Amended Complaint

filed by Defendant Justin Stark (“Stark”), [DE 54]; (3) the Motion to Dismiss Plaintiff’s Amended

Complaint filed by Defendant Arcadis, Inc. (“Arcadis”), [DE 57]; (4) the Motion to Dismiss filed

by Defendant Earth Tech Drilling, Inc. (“Earth Tech”), [DE 62]; and the Motion to Strike Request

for Punitive Damages filed by Arcadis. DE 58. Plaintiff filed Responses, [DE 42], [DE 68], [DE

70], and the FDEP Defendants and Arcadis filed Replies. DE 49, 71, 72.

For the reasons set forth below, the Motions to Dismiss are granted insofar as all claims in

the Amended Complaint are dismissed. However, because the FDEP Defendants and Stark’s

Motions, [DE 26] and [DE 54] seek dismissal of all claims with prejudice, and Arcadis and Earth

Tech’s Motions, [DE 57] and [DE 62], do not take a position on whether claims should be

dismissed with or without prejudice and the Court dismisses some claims with prejudice and some

claims without prejudice, the Motions are denied insofar as they seek dismissal of all claims with

prejudice. In addition, the Motion to Strike is granted.

I. FACTUAL ALLEGATIONS & BACKGROUND

Plaintiff, who is proceeding pro se, filed his original Complaint, [DE 1], on December 9,

2022, then filed his Amended Complaint on January 3, 2023. DE 7. Plaintiff asserts claims against

the FDEP Defendants as well as the United States Environmental Protection Agency (“EPA”),

Arcadis, U.S., Inc. (“Arcadis”), GPI Properties, Inc. d/b/a Groundwater Protection (“GPI”), and

Earth Tech Drilling, Inc. (“Earth Tech”).

The allegations below are taken from the Complaint and accepted as true for purposes of

the Motions. Plaintiff purchased a dry-cleaning business, Life Style Cleaners (“LSC”), and related

equipment on June 6, 2019, and entered into a lease agreement with the property owner to lease

the site for five years. DE 7 at ¶ 21. The property was to serve as the “plant” where the dry

cleaning would be performed, and is referenced in the Amended Complaint as the “LSC-Plant”.

Id. ¶¶ 21, 37. In April 2020, November 2020, and May 2021, Plaintiff purchased additional

properties to serve as drop-off locations for LSC. Id. ¶¶ 24, 27, 37.

Prior to Plaintiff’s purchase of LSC, from approximately December 2017 to May 2019, site

2

assessments and surveys were performed, reports were submitted to the FDEP, and modified air

and gas wells were installed on the property. Id. ¶¶ 10-20. Following Plaintiff’s purchase of LSC,

on or around July 25, 2019, FDEP employees performed a Compliance Evaluation Inspection of

LSC. Id. ¶ 22. Plaintiff completed necessary repairs and corrected any violations by November 1,

2019. Id. ¶ 23. On September 9, 2020, and September 10, 2020, Arcadis began drilling at LSC’s

property for additional wells and collected groundwater samples. Id. ¶¶ 25-26. From November

11, 2020, through January 8, 2021, Arcadis submitted site assessment reports to FDEP and

collected additional groundwater samples. Id. ¶¶ 28-30.

On March 25, 2021, Dalton submitted a memorandum to Pepe, noting “significant

contamination” at the site that warranted remediation. Id. ¶ 33. On April 13, 2021, an unknown

individual entered the LSC site and demanded to perform an inspection. Id. ¶ 34. Plaintiff was not

on the premises at the time and was unaware of the inspection, and requested that the inspection

be postponed or rescheduled until Plaintiff could speak with the building owner. Id. ¶ 34(ii)-(iii).

The unknown individual “became very irate,” threatened Plaintiff with fines and criminal charges,

and insulted Plaintiff. Id. ¶ 34(v)-(vi). Plaintiff later determined that the individual was an FDEP

employee, agreed that he would allow access, and apologized to FDEP, Irwin, and Lancellotti via

email. Id. ¶ 34(viii)-(x). Irwin “responded with additional threats of violations, fines, fees, and

civil liabilities.” Id. ¶ 34(xi).

On April 16, 2021, Lancellotti performed an inspection at the LSC and apparently

submitted a report that resulted in LSC being placed in “non-compliance” status and the property

owner threatening to evict Plaintiff if he failed to correct the violations. Id. ¶ 35. Prior to July 1,

2021, Plaintiff “completed all corrections requested by FDEP-SED” to regain compliance status

3

with FDEP. Id. ¶ 38. Plaintiff provided pictures to indicate that he complied with FDEP and

FDEP-SE’s demands, and Irwin notified Plaintiff that FDEP had 300 days to review Plaintiff’s

submission. Id. As a result, the property owner informed Plaintiff that because LSC was not in

compliance with applicable laws as required under the lease agreement, the owner must evict

Plaintiff. Id. Then, in July 2021, Plaintiff attempted to sell LSC but was unable to do so because

of his non-compliance status. Id. ¶ 39.

On September 1, 2021, Plaintiff, the property owner, Lancellotti, and Stark participated in

a conference call to address the outstanding violations. Id. ¶ 40. During the call, Plaintiff and the

property owner were advised that FDEP, FDEP-SE, and FDEP-Waste believed LSC and Plaintiff

had discharged perchloroethylene. Id. On November 1, 2021, Plaintiff was evicted from the LSC

site. Id. ¶ 41. As a result of the eviction, Plaintiff could not maintain LSC’s drop-off locations, was

forced to cease all operations, and lost various contracts. Id. ¶ 41.

Between November 1, 2021, and July 5, 2022, Plaintiff began working to determine the

cause of the spike in perchloroethylene at the LSC site, and reviewed the reports Arcadis submitted

to FDEP. Id. ¶ 42. Plaintiff called an Arcadis employee in an attempt to clarify the discrepancies

Plaintiff found within one of the reports, but the employee “appeared to become a bit agitated” and

made the following comment: “Those things don't matter, the real problem is they have a black

business owner that didn’t give them access. He’s basically digging his own grave.” Id. ¶ 42(i).

On December 1, 2021, FDEP issued Plaintiff an Official Notice of Potential New

Discharge, and on February 10, 2022, FDEP issued Plaintiff an Official Notice of Violation. Id. ¶¶

43-44. On May 4, 2022, Plaintiff was made aware of a criminal investigation FDEP had opened

against him stemming from Arcadis’ collection of samples in September 2020 and Arcadis’

4

consultation with FDEP. Id. ¶¶ 45-46. On May 18, 2022, FDEP acquired a search warrant with

Plaintiff’s name on it and searched LSC with ten police officers. Id. ¶ 47. On July 5, 2022, Plaintiff

notified the EPA, FDEP, FDEP-SE, and FDEP-Waste that the LSC site was a “Dense Non-

Aqueous Phase Liquid” (“DNAPL”) site and that because the LSC site was “misdiagnosed,” it was

then “mishandled” by Arcadis, Earth Tech, and GPI, which led to the chemical spike. Id. ¶ 48.

Plaintiff contracted with an independent firm to perform sampling of the site, and the contractor

determined that a new discharge by Plaintiff was “not possible given the evidence.” Id. ¶ 49.

The Amended Complaint asserts the following 13 claims:

• Count I: Declaratory Relief against FDEP, FDEP-SE, FDEP-Waste, DSCP,1 and

Arcadis;

• Count II: Declaratory Relief against FDEP, FDEP-SE, FDEP-Counsel, Irwin, and

Lancellotti;

• Count III: Negligence Per Se against Arcadis and GPI;

• Count IV: Violation of Florida Statutes § 376.30-376.317 against Arcadis, GPI, and

Earth Tech;

• Count V: Deprivation of Rights Under 42 U.S.C. §§ 1983 & 1985 against

Lancellotti and Stark;

• Count VI: Defamation (Libel) Per Se against Andreotta, Irwin, and Lancellotti;

• Count VII: Fraudulent Concealment against Arcadis;

• Count VIII: Conspiracy to Interfere with Civil Rights against Davila, Irwin,

Lancellotti, Stark, and Kichler;

• Count IX:2 Action for Neglect to Prevent, 42 U.S.C. § 1986 against Blandin,

Hamilton, Kichler, Ballard, Dalton, Cohen, Pepe, and Daniels;

• Count X: Deprivation of Rights Under 42 U.S.C. § 1983 against Andreotta, Davila,

1 DSCP is not a named Defendant in the Amended Complaint, but is merely referenced as the “Drycleaner Solvent

Cleanup Program” affiliated with FDEP-Waste. DE 7 ¶¶ 5, 40. Accordingly, the Court construes DSCP as FDEP-

Waste.

2 This count is misnumbered at Count VIV in the Amended Complaint.

5

Irwin, Lancellotti, and Kichler;

• Count XI: Florida RICO against Arcadis, GPI, Earth Tech, Andreotta, Davila,

Irwin, Lancellotti, and Kichler;

• Count XII: Violations of 18 U.S.C. § 1962, 18 U.S.C. § 1964 against Arcadis, GPI,

and Earth Tech;

• Count XIII: Action for Corrective Action and Administrative Penalty Assessment

under 33 U.S.C. § 1321(g) against EPA and FDEP.

II. STANDARD OF REVIEW

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this

Court must accept all factual allegations in a complaint as true and take them in the light most

favorable to the plaintiff; however, a plaintiff is still obligated to provide grounds of his or her

entitlement to relief which requires more than labels, conclusions and a formulaic recitation of the

elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563 (2007).

Unwarranted deductions of fact in a complaint cannot be admitted as true for the purposes of

testing the sufficiency of the allegations. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d

1242, 1248 (11th Cir. 2005). The facts as pled must state a claim for relief that is plausible on the

face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009).

III. ANALYSIS

The FDEP Defendants argue that the Amended Complaint must be dismissed for a number

of reasons, including that (1) it is a shotgun pleading; (2) FDEP is entitled to immunity under the

Eleventh Amendment to the U.S. Constitution; (3) the individual FDEP Defendants are entitled to

qualified immunity; (4) Counts V and X fail to allege facts to state a claim under 42 U.S.C. § 1983;

(5) Plaintiff lacks standing to pursue his claims for declaratory and injunctive relief; (6) Count VI

is barred by sovereign immunity and otherwise fails to state a claim for relief; (7) the Amended

6

Complaint fails to state a claim as to Counts VIII and IX; and (9) Plaintiff’s claim for punitive

damages must be stricken.

Stark, a former FDEP employee, argues that the claims against him should be dismissed

because (1) the Amended Complaint is a shotgun pleading; (2) Plaintiff fails to state a claim as to

Counts V and VIII; and (3) Stark is entitled to qualified immunity. Stark also contends that

Plaintiff’s request for punitive damages must be stricken.

Arcadis argues that the Amended Complaint must be dismissed because (1) Arcadis was

acting as an agent of the State and is therefore entitled to Eleventh Amendment immunity on all

claims; (2) Plaintiff lacks standing to pursue his claims against Arcadis because the Amended

Complaint alleges they were assigned to him by his company; (3) Plaintiff does not have standing

to pursue a claim for declaratory relief; (4) the Amended Complaint is an impermissible shotgun

pleading; and (5) Counts III, IV, VII, XI, and XII fail to state claims.

Earth Tech argues that the counts against it in the Amended Complaint must be dismissed

because (1) the Amended Complaint is an impermissible shotgun pleading; (2) Count IV fails to

allege a duty owed by Earth Tech and how the duty was breached; and (3) Plaintiff does not have

standing or the authority required to assert claims under the Florida RICO statute, and fails to

allege any facts that Earth Tech was involved in any racketeering activity or a criminal enterprise

as required to state a claim under Florida or Federal RICO.

A. Shotgun Pleading.

A shotgun pleading violates the requirement in Rule 8 of the Federal Rules of Civil

Procedure that a pleading contain a short and plain statement of the claim showing that the pleader

is entitled to relief. Vibe Micro Inc. v. Shabanets, 878 F.3d 1291, 1294-95 (11th Cir. 2018);

7

see Fed. R. Civ. P. 8(a)(2). A shotgun pleading fails to some degree to give the defendants

adequate notice of the claims against them and the grounds on which each claim rests. Vibe Micro,

878 F.3d at 1295.

There are four basic categories of shotgun pleadings. Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). First, a shotgun pleading contains “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.”

Id. Second, a pleading is shotgun if it is “replete with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action.” Id. at 1322. Third, a pleading is shotgun

if it does not separate each cause of action or claim for relief into a different count. Id. at 1323.

Fourth and finally, a pleading is shotgun if it asserts “multiple claims against multiple defendants

without specifying which of the defendants are responsible for which acts or omissions, or which

of the defendants the claim is brought against.” Id.

The Eleventh Circuit has criticized shotgun pleadings as wasting scarce judicial resources,

inexorably broadening the scope of discovery, wreaking havoc on appellate court dockets, and

undermining the public’s respect for the courts. See Vibe Micro, 878 F.3d at 1295; see also Wagner

v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (“Shotgun pleadings wreak

havoc on the judicial system. Such pleadings divert already stretched judicial resources into

disputes that are not structurally prepared to use those resources efficiently.” (alteration and

quotation marks omitted)). Thus, the Eleventh Circuit has said that, even in cases where the parties

do not raise a shotgun pleading issue, courts have a “supervisory obligation” to address shotgun

pleading problems sua sponte. Wagner, 464 F.3d at 1275 (“Given the district court's proper

8

conclusions that the complaint was a shotgun pleading and that plaintiffs failed to connect their

causes of action to the facts alleged, the proper remedy was to order repleading sua sponte.”); see

also Vibe Micro, 878 F.3d at 1295 (“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.” (quotation marks omitted)).

Among other deficiencies, the Amended Complaint is replete with conclusory, vague, and

immaterial facts. DE 7 at 26-71.3 The Amended Complaint contains 50 paragraphs, many with

numerous subparagraphs, that purport to be factual allegations and total approximately 20 pages.

Each Count incorporates all of these factual allegations without any effort to separate which

allegations relate to a particular count. See Barmapov v. Amuial, 986 F.3d 1321, 1325 (11th Cir.

2021) (failure to connect or separate which of numerous factual allegations related to particular

counts resulted in “factual allegations that are immaterial to the underlying causes of action” and

constituted a shotgun pleading); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th

Cir. 1997) (four counts that incorporated all 43 paragraphs of factual allegations, when the

allegations appeared to relate to only some, if any, counts, was an “all-too-typical shotgun

pleading.”). As a result, it is “virtually impossible to know which allegations of fact are intended

to support which claim(s) for relief.” Strategic Income Fund, LLC v. Spear, Leeds & Kellogg

Corp., 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (quoting Anderson v. Dist. Bd. of Trustees of

Cent. Fla. Comm. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).

In addition, under several counts, it is difficult to determine exactly what relief Plaintiff

seeks, and the vague and conclusory allegations often do not fit the cause of action. For example,

3 All references to pagination follow the page numbers generated by the CM/ECF system and stamped at the top of

each page.

9

in Count I for declaratory relief, Plaintiff seeks “an exoneration for [Plaintiff] or the benefits of

limitation of liability of future action brought against the LSC-Plant site as a result of the new

discharge or other condition of pollution, along with expert witness fees, on the grounds that such

an award is in the public interest.” Id. at 27. As another example, in Count X, Plaintiff asserts a

claim under 42 U.S.C. § 1983 alleging deprivation of his rights under the Eighth Amendment and

Fourteenth Amendment by various FDEP Defendants based on Notices of Violation that assessed

fines against him, placement of Plaintiff “in non-compliance status,” and initiation of a criminal

investigation into Plaintiff. Id. at 52-55. However, he alleges no facts to explain how these actions

deprived him of any constitutional or statutory rights, simply setting forth vague and conclusory

allegations such as the following: “Count10Defendants violated his 8th amendment rights by

subjecting him to ‘cruel and unusual punishment’ when they initiated an administrative proceeding

against [Plaintiff], and in furtherance of the ‘cruel and unusual punishment’ Count10Defendants

‘impose excessive fines’ on [Plaintiff].” Id. ¶ 172 (emphasis in original). As a further example, the

Amended Complaint alleges that various Defendants conspired to keep Plaintiff “in non-

compliance status” in order to punish him with a criminal investigation and interfere with his

rights, but alleges no facts about any communications, agreements, or acts performed in

furtherance of any kind of conspiracy. Id. at e.g. ¶¶ 111, 129-33. See Barmapov, 986 F.3d at 1325-

26 (vague and conclusory allegations that leave a “a defendant who reads the complaint . . . hard-

pressed to understand ‘the grounds upon which each claim [against him] rests’” result in an

impermissible shotgun pleading) (quoting Weiland, 792 F.3d at 1322-23).

The Amended Complaint also asserts claims against multiple defendants in every count,

and in many cases fails to specify which Defendant is responsible for what conduct. For example,

10

in Count I, Plaintiff alleges that five different Defendants could be responsible for discharging

contaminants, but does not specify how each Defendant contributed to any alleged contamination

or any actions any Defendant took, or did not take. DE 7 at 26-27. Each count also lumps multiple

Defendants under such categories as “Count5Defendants,” fails to distinguish among these

Defendants, and refers to them by such titles as “Inspector1” and “Employee1” rather than their

names, making it extremely difficult to ascertain which allegations correspond to which

Defendants. DE 7 at 26-70. In Counts VIII, IX, and XI, Plaintiff asserts claims against as many as

eight different Defendants, references the titles he created for those Defendants, and discusses

communications he had with various individuals but fails to allege facts regarding what any

individual Defendant said or did. Id. at 49-51. As another example, Plaintiff asserts Count XI

against “Count4Defendants” and “Count10Defendants,” then asserts Count XII against

“Count4Defendants” with no factual allegations at all for any particular Defendant. Id. at 56-63.

Similar examples exist for the rest of the counts. These counts and allegations fall squarely within

the definition of a shotgun pleading under Weiland, “asserting multiple claims against multiple

defendants without specifying which of the defendants are responsible for which acts or omissions,

or which of the defendants the claim is brought against.” Weiland, 792 F.3d at 1323.

As a result, all Counts of the Amended Complaint are dismissed against all Defendants as

a shotgun pleading, with limited leave to amend. In addition to the Amended Complaint

constituting a shotgun pleading, each Count falls short of federal pleading standards and fails to

state a claim, as described below.

11

B. Eleventh Amendment Immunity

1. FDEP Immunity

“The Eleventh Amendment prohibits federal courts from exercising subject matter

jurisdiction in suits brought against a state by a citizen of that state.” Schopler v. Bliss, 903 F.2d

1373, 1378 (11th Cir.1990). The resulting immunity from suit in federal court extends to state

agencies acting under the state's control. Id.; Williams v. Dist. Bd. of Trs. Of Edison Cmty. Coll.,

421 F.3d 1190, 1192 (11th Cir. 2005) (“The law is ‘well-settled that Eleventh Amendment

immunity bars suits brought in federal court when an arm of the State is sued.’”) (quoting Manders

v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144 (1993). This immunity also bars both federal and state law claims against

the agency. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Eleventh

Amendment immunity may be lost only if Congress abrogates a state’s immunity or the state

waives immunity for a certain type of suit. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54-56

(1995); Hill v. Dep’t of Corrections, State of Fla., 513 So. 2d 129, 131 (Fla. 1987).

To determine whether an entity is an arm of the state for Eleventh Amendment purposes,

courts consider how the state defines the entity, what degree of control the state maintains over the

entity, where the entity derives its funds, and who is responsible for judgment against the entity.

Williams, 421 F.3d at 1192.

FDEP, which includes FDEP-Waste, FDEP-Counsel, and FDEP-SE, is clearly a Florida

agency that functions as an arm of the State of Florida, as it is defined as an agency under Florida

law; has the statutory power and duty to control and prohibit water and air pollution including

promulgating regulations; has the authority to conduct studies, investigations, and research relating

12

to pollution; is required by the state to implement programs to reduce and eliminate environmental

contamination; must enforce violations of Florida statutes and address prevention and removal of

pollutants, among other powers and responsibilities; and derives its funding from the state. Fla.

Stat. §§ 20.03(11), 403.061, 403.121, 376.051. See also Clark v. Ashland, Inc., No. 2:13-cv-794,

2017 WL 468213, at *12 (M.D. Fla. Feb. 3, 2017) (FDEP entitled to Eleventh Amendment

immunity as a state agency); Marshall v. Dep’t of Env. Protection, No. 06-cv-22391, 2007 WL

9706001, at * 2 (S.D. Fla. Mar. 5, 2007) (same).

Congress has not abrogated FDEP’s immunity for the types of claims Plaintiff asserts, and

the state has not waived immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-67

(1989) (term “person” in § 1983 did not include the state, and statute did not abrogate immunity);

Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266, 1277-78 (11th Cir.

2021) (summarizing Supreme Court decisions regarding § 1983 claims against states); Palm Beach

Cnty. Env’t Coal. v. Fla., 651 F. Supp. 2d 1328, 1338 (S.D. Fla. 2009) (RICO claims and Florida

statutory claims against state barred by sovereign immunity); Clark, 2017 WL 468213, at *13 (“It

is clearly established that section 1983 has not waived Florida’s Eleventh Amendment immunity”

and FDEP was immune) (citing Cross v. Ala. State Dep’t of Mental Health & Mental Retardation,

49 F.3d 1490, 1502 (11th Cir. 1995)).

The individual FDEP Defendants argue that Plaintiff sues them in their official capacities

and, therefore, they are entitled to sovereign immunity. DE 26 at 8. Sovereign immunity generally

applies in a suit against state officials in their official capacity. Harbert Int’l v. James, 157 F.3d

1271, 1277 (11th Cir. 1998) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)). However,

the Amended Complaint alleges that each individual FDEP Defendant is sued in his or her

13

individual capacity, and the Eleventh Amendment does not shield state employees from liability

in their individual capacities. See Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1575-76 (11th

Cir. 1994); Taylor v. Fla. Highway Safety, 816 F. App’x 372, 374 (11th Cir. 2020).

Accordingly, Count XIII against FDEP, FDEP-Waste, FDEP-Counsel, and FDEP-SE is

barred by the Eleventh Amendment and dismissed with prejudice.

2. Arcadis’ Immunity

Arcadis argues that it was acting as an agent of the State of Florida and is therefore entitled

to Eleventh Amendment immunity. Eleventh Amendment immunity may extend to an official or

entity when it acts as “an arm of the state.” Lake v. Skelton, 840 F.3d 1334, 1337 (11th Cir. 2016).

When determining whether an entity is acting as an arm of the state, courts consider “(1) how state

law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the

entity derives its funds; and (4) who is responsible for judgments against the entity.” Id. (quoting

Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)). While officials such as law enforcement

officers have been considered arms of the state, the Supreme Court has not addressed whether a

private entity may fall into that category. The Eleventh Circuit once concluded that a private entity

was an arm of the state but has since abrogated the test applied in that case. Shands Teaching Hosp.

& Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308 (11th Cir. 2000); Lake, 840 F.3d at 1337.

Arcadis argues that it is an arm of the state because (1) it carries out functions that FDEP

is statutorily required to perform, such as site assessments and cleanup of dry cleaning facilities;

(2) FDEP exercises control over Arcadis through the applicable contract; (3) Arcadis receives

payment for its services from the State; and (4) FDEP could potentially be found liable for a

judgment based on Arcadis’ actions under the contract. DE 57 at 5-7. Arcadis cites Lovelace v.

14

G4S Secure Solutions (USA), Inc., 320 So.3d 178 (Fla. 4th Dist. Ct. App. 2021) in which the court

determined that a company that contracted with Broward County, Florida to provide security at

various county facilities was an agent of the county and state when the county exercised control

over the company and created an agency relationship. DE 7. However, (1) Lovelace does not

discuss the factors required by the Eleventh Circuit and (2) the factual record in this case is not

sufficiently developed to determine whether Arcadis could be acting as an arm of the state for

Eleventh Amendment immunity purposes.4 See S.K. v. Lutheran Servs. Fla., Inc., 2018 WL

2100122 (M.D. Fla. May 7, 2018) (determining that at the pleading stage, defendant community-

based agency to which State outsourced foster care services had not shown it was an arm of the

state). Thus, the Court declines to find that Arcadis is acting as an arm of the state at this time.

C. Qualified Immunity for FDEP Individual Defendants (Counts V, VIII-XI)

The defense of qualified immunity protects government officials who are performing

discretionary functions from suit unless the officials’ conduct violates “clearly established

statutory or constitutional rights of which a reasonable person would have known.” Hope v. Pelzer,

536 U.S. 730, 739 (2002). The purpose of qualified immunity “is to allow government officials

to carry out their discretionary duties without the fear of personal liability or harassing litigation,

protecting from suit all but the plainly incompetent or one who is knowingly violating the federal

law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). It protects from suit “all but the plainly

4 Arcadis attaches (1) the Declaration of Douglas McGlone, a Project Manager and Principal Scientist for Arcadis,

and (2) a copy of the contract between FDEP and Arcadis in support of Arcadis’ contention that it is an arm of the

state. However, on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court does not generally

consider matters outside the complaint. See Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1266

n.11 (11th Cir. 1997). A court may consider a document attached to a motion to dismiss without converting the motion

into a motion for summary judgment “only if the attached document is: (1) central to the plaintiff's claim; and (2)

undisputed,” meaning “the authenticity of the document is not challenged.” Horsley v. Feldt, 304 F.3d 1125, 1134

(11th Cir. 2002). At this stage, the Court will not make determinations as to the materiality or authenticity of the

attachments to Arcadis’ Motion to Dismiss.

15

incompetent or one who is knowingly violating the federal law.” Because qualified immunity is

“an entitlement not to stand trial or face the other burdens of litigation,” it should be resolved “at

the earliest possible stage in litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Hunter v.

Bryant, 502 U.S. 224, 227 (1991). It is therefore appropriate for a district court to grant a motion

to dismiss on qualified immunity grounds if the complaint “fails to allege the violation of a clearly

established constitutional right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019).

A government official acts within his or her discretionary authority if the actions were “(1)

undertaken pursuant to the performance of his duties; and (2) within the scope of his authority.”

Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1144 (11th Cir. 2017). Courts “look to the general

nature of the defendant’s action,” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266

(11th Cir. 2004), in determining whether the defendant is acting within discretionary authority and

asks “whether the act complained of, if done for a proper purpose, would be within, or reasonably

related to, the outer perimeter of an official's discretionary duties.” Mikko, 857 F.3d at 1144.

The allegations against the individual FDEP Defendants (Hamilton, Daniels, Pepe, Dalton,

Cohen, Ballard, Kichler, Andreotta, Davila, Blandin, Irwin, Stark, and Lancellotti) indicate that

their actions were undertaken as part of their respective duties within the FDEP and within the

scope of their authority. The Amended Complaint identifies the individual FDEP Defendants’

positions and duties within FDEP, describes actions undertaken with respect to those duties, and

alleges that the individual FDEP Defendants acted “under color of law.” DE 7 at 7-10. For

example, the Amended Complaint alleges that Dalton is an FDEP geologist who submitted a

memorandum to Pepe, an FDEP contract manager, regarding contamination at the LSC site that

required remediation; that Lancellotti, an FDEP inspector and environmental specialist, performed

16

an inspection of the LSC site and submitted a report; that Irwin, an environmental manager,

notified Plaintiff that FDEP had 300 days to review his submission; and that Lancellotti and Stark,

an environmental specialist, advised Plaintiff during a conference call that FDEP believed LSC

had discharged perchloroethylene, among other similar allegations. DE 7 ¶¶ 33, 35, 38, 40. All of

these actions clearly fall within the individual FDEP Defendants’ job duties and scope of authority.

Next, a Plaintiff must allege facts to show that the individual FDEP Defendants violated a

constitutional right that was clearly established at the time of their conduct:

A plaintiff can show that “a right is ‘clearly established’ for qualified immunity

purposes in three ways: (1) pointing to a ‘materially similar case’ decided by the

Supreme Court, the Eleventh Circuit, or the Florida Supreme Court that clearly

establishes the statutory right; (2) showing that ‘a broad statement of principle

within the Constitution, statute, or case law ... clearly establishes [the]

constitutional right’; and (3) demonstrating that the defendants engaged in “conduct

so egregious that a constitutional right was clearly violated, even in the total

absence of case law.”

Wilson v. Sec’y, Dep’t of Corrections, 54 F.4th 652, 660 (11th Cir. 2022) (citing Hill v. Cundiff,

797 F.3d 948, 979 (11th Cir. 2015)) (internal citations omitted). While the Amended Complaint

contains various references to the U.S. Constitution, it fails to allege any facts that could underpin

FDEP Defendants’ violation of a clearly established right. For example, in Count V, Plaintiff

brings a claim for “Deprivation of Rights Under the Color of Law” pursuant to 42 U.S.C. § 1983

against Lancellotti and Stark and complains that the Defendants prevented him from recording

their inspection of the LSC property in violation of Plaintiff’s First Amendment rights. DE 7 ¶¶

17

89-98. However, the Court is unaware of a clearly established right to take video recordings of an

agency’s inspection of a business, and Plaintiff’s Response provides none.5

As another example, in Count VIII, Plaintiff asserts a claim for “Conspiracy to Interfere

With Civil Rights” under 42 U.S.C. § 1985 and citing the Fifth, Thirteenth, and Fourteenth

Amendments to the U.S. Constitution along with various federal statutes. Id. ¶¶ 126-52. Plaintiff

alleges that five of the FDEP Defendants conspired to compel him to perform a site assessment

and confirmatory sampling, telling Plaintiff that FDEP would issue a formal notice of violation if

Plaintiff did not cooperate. Id. ¶¶ 132-52. Plainly, it is within the individual FDEP Defendants’

roles to require Plaintiff to conduct a site assessment and sampling in order to avoid environmental

contamination, and the Court is unaware of any clearly established right for Plaintiff to evade

FDEP requirements.

Plaintiff’s remaining claims against the individual FDEP Defendants fare no better, as the

Amended Complaint alleges no facts to show these Defendants acted outside the scope of their

discretionary duties, nor any facts to indicate that these Defendants violated a clearly established

right. Further, because the Amended Complaint fails to allege those facts, it also fails to state a

claim under § 1983. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,

1276-77 (11th Cir. 2003) (“To state a claim for relief in an action brought under § 1983, [plaintiffs]

must establish that they were deprived of a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under color of state law.”) (quoting Am.

5 The Amended Complaint cites Blackston v. State of Ala., 30 F.3d 117, 120 (11th Cir. 1994) for the proposition that

he has the right under the First Amendment to record FDEP’s inspection of the LSC premises. DE 7 ¶ 96. However,

the Blackson court simply determined that an alleged prohibition on recording an open, public meeting of the Alabama

Supreme Court Advisory Committee on Child Support Guidelines should proceed beyond the pleading stage.

Blackson, 30 F. 3d at 120.

18

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Accordingly, Counts VIII-IX against

Defendants Hamilton, Daniels, Pepe, Dalton, Cohen, Ballard, Kichler, Andreotta, Davila, Blandin,

Irwin, Stark, and Lancellotti are dismissed with leave to amend. Should Plaintiff choose to amend

these claims against these Defendants, he must identify the specific constitutional right that was

violated, facts that support the violation, which Defendant committed the violation and in what

specific manner, and how the violation fell outside the scope of the Defendant’s duties.

D. Defamation Claim (Count VI) Against Andreotti, Irwin, and Lancellotti

In Count VI, Plaintiff asserts a claim for defamation per se against Andreotti, Irwin, and

Lancellotti. Plaintiff alleges that Irwin and Lancellotti performed an inspection of the LSC

property and issued a series of violations that were known to be false, without further explanation

as to the content of the violations or how anyone knew they were inaccurate. DE 7 ¶ 103. Plaintiff

resolved some of the violations, but Irwin and Lancellotti later returned, re-issued the violations,

and issued two additional violations. Id. ¶ 105. Plaintiff then received an official warning letter

from FDEP “outlining the same meritless violations.” Id. ¶ 108. Plaintiff also was apparently

classified by FDEP as a “Significant Non-Complier” in the “FDEP/EPA database.” Id. ¶ 109.

Without providing underlying facts, Plaintiff alleges that his race and personal animus motivated

this classification. Id.

Count VI fails to state a claim because Andreotti, Irwin, and Lancellotti are protected by

immunity for any statements made in connection with the performance of their official duties.

“Absolute immunity expansively protects statements made by public officials ‘in connection with

the performance of the duties and responsibilities of their office.’” Diaz v. Miami-Dade County,

424 F.Supp.3d 1345, 1365 (S.D. Fla. 2019) (quoting McNayr v. Kelly, 184 So. 2d 428, 433 (Fla.

19

1966)); see also Alfino v. Dep’t of Health and Rehab. Servs., 676 So.2d 447, 449 (Fla. 5th Dist.

Ct. App. 1996) (public employees are absolutely immune from actions for defamation for

communications made in the scope of duties). Conduct is within the scope of employment “if it is

the type of conduct which the employee is hired to perform, the conduct occurs substantially within

the time and space limits authorized or required by the work to be performed, and the conduct is

activated at least in part by a purpose to serve the employer.” Id. (citing Craft v. John Sirounis &

Sons, Inc., 575 So. 2d 795 (Fla. 4th Dist. Ct. App. 1991)). All of the alleged communications were

clearly within the scope of Defendants’ employment, as they concern the inspection of the LSC

property, issuance of violations, and record-keeping in government databases, exactly the type of

work Defendants were hired to perform by their employer. The communications also occurred

during the time and space limits for Defendants’ work to be performed, and the communications

were made to serve Defendants’ employer. Accordingly, Count VI is dismissed with prejudice.

E. Civil Rights Claims Against Individual FDEP Defendants (Counts V, VIII-X)

In Counts VIII-X, Plaintiff alleges that various FDEP Defendants conspired to interfere

with his civil rights and violated his rights pursuant to a multitude of constitutional amendments

and statutes, including the Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the United

States Constitution, 42 U.S.C. § 1985(c), 42 U.S.C. § 1986, 18 U.S.C. § 241, 18 U.S.C. § 242, 22

U.S.C. § 7102, and Fla. Stat. § 376.3078(3)(a). These counts fail to state a claim for various

reasons explained below.

1. Count V – Deprivation of Rights Under 42 U.S.C. §§ 1983, 1985

In Count V, Plaintiff alleges that his First Amendment rights were violated when Stark and

Lancellotti told Plaintiff’s employee to stop recording the site inspection and warned him that if

20

he continued recording, he would be deemed obstructing or hindering the inspection. DE 7 ¶¶ 93-

95. As described above, there does not appear to be any right to record a site inspection performed

by a state agency. Further, in determining “whether particular conduct possesses sufficient

communicative elements to bring the First Amendment into play,” courts consider whether “[a]n

intent to convey a particularized message was present, and [whether] the likelihood was great that

the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404

(1989) (quoting Spence v. State of Wash., 418 U.S. 405, 410-11 (1974)); Burns v. Town of Palm

Beach, 999 F.3d 1317, 1335-36 (11th Cir. 2021). Courts have held that the First Amendment

protects recording public matters on public property such as town council meetings or police

conduct; however, recording an inspection of private property does not fall within this category.

See McDonough v. Rundle, No. 15-cv-20038, 2015 WL 13594407, at *2-3 (S.D. Fla. Feb. 10,

2015) (audio recording of public officials discussing official business was protected); Glik v.

Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“The filming of government officials engaged in their

duties in a public place, including police officers performing their responsibilities, fits comfortably

within these principles.”); Sheets v. City of Punta Gorda, Fla., 415 F. Supp. 3d 1115, 1123 (M.D.

Fla. 2019) (explaining that ordinance that prohibited recording a person without consent in city

hall was reasonable); Cornelius v. NAACP Legal Def. & Edu. Fund, Inc., 473 U.S. 788, 809 (1985)

(restricting activities in nonpublic or limited public forum need only be reasonable). Thus,

prohibiting Plaintiff from recording the inspection does not violate Plaintiff’s First Amendment

rights; Count V is dismissed with prejudice.

21

2. Count VIII – Conspiracy Under 42 U.S.C. § 1985

In Count VIII, Plaintiff asserts a claim for conspiracy to interfere with his civil rights under

42 U.S.C. § 1985(c),6 alleging that five different individuals conspired to deprive Plaintiff of his

rights under Fifth, Thirteenth, and Fourteenth Amendments as well as various statutes. DE 7 ¶¶

126-52. To state a claim under § 1985(3), a plaintiff must allege (1) a conspiracy; (2) for the

purpose of depriving any person of the equal protection of the laws; (3) an act in furtherance of

the conspiracy; and (4) harm the conspiracy caused. Trawinski v. United Tech., 313 F.3d 1295,

1299 (11th Cir. 2002). The plaintiff must also allege that the conspiracy was “motivated by ‘some

racial, or perhaps otherwise class-based, invidiously discriminatory animus.’” Tilton v.

Richardson, 6 F.3d 683, 686 (10th Cir.1993) (quoting Griffin v. Breckenridge, 403 U.S. 33, 101-

02 (1971)).

Plaintiff alleges that Defendants required Plaintiff to perform a site assessment against his

will, issued meritless violations against Plaintiff, kept Plaintiff’s business in a “perpetual state of

non-compliance,” forced Plaintiff to perform confirmatory sampling at the LSC site, and informed

Plaintiff that if he failed to perform the confirmatory sampling, FDEP would issue a formal notice

of violation. DE 7 at ¶¶ 126-52. Plaintiff contends that these actions violated his rights to freedom

from involuntary servitude under the Thirteenth Amendment and his rights to due process under

the Fifth and Fourteenth Amendments, and also constituted “abuse of law or legal process.” Id.

129-30. However, Plaintiff alleges no facts as to how this conduct could constitute a violation of

any of his rights or meet any of the elements for a conspiracy, nor does Plaintiff allege that the

conduct involved invidious discriminatory intent as required under § 1985, and appears to concede

6 The Amended Complaint cites § 1985(c), which the Court construes as § 1985(3).

22

in his Response that his civil rights claims are inadequately pled.7 DE 42 at 10. Because Plaintiff

fails to allege sufficient facts to state a claim under § 1985, Count VIII is dismissed without

prejudice. Should Plaintiff replead a claim under § 1985, he must allege specific facts regarding

specific Defendants in support of each element of his claim under laws that apply to the claim,

including specific facts showing the formation of a conspiracy, that the conspiracy’s purpose was

to deprive him of equal protection of the laws, how the conspiracy deprived him of such protection,

specific acts in furtherance of the conspiracy, harm the conspiracy caused, and precisely how the

conspiracy was motivated by a discriminatory animus.

2. Count IX – 42 U.S.C. § 1986

In Count IX, Plaintiff asserts a claim for “Neglect to Prevent” under 42 U.S.C. § 1986

against eight different FDEP Defendants. DE 7 ¶¶ 153-63. Plaintiff alleges that he “communicated

his frustrations” regarding FDEP’s actions to these Defendants and hoped that two of them would

intervene to end the “undeserved punishment” Plaintiff faced. DE 7 ¶ 158. Plaintiff responded to

the “EmailChain” that included all of the Defendants and sought assistance as to why he was being

subjected to “punishment,” but “no one would acknowledge [his] plight” or “come to [his] aid or

rescue from the tyranny of the FDEP.” Id. ¶¶ 160-62.

7 In addition, the Thirteenth Amendment, which prohibits involuntary servitude, does not apply in this case. Plaintiff

appears to rely on a theory that FDEP and some of the FDEP Individual Defendants forced him to perform a site

assessment. When a plaintiff relief on a theory that his “involuntary servitude was accomplished through legal

coercion, the plaintiff must show that [he] ‘had no available choice but to work or be subject to legal sanction.’” Cadet

v. Alliance Nursing Staff of N.Y., Inc., --- F. Supp. 3d ----, 2022 WL 4584246 (S.D.N.Y. Sept. 29, 2022) (individual

threatened with prosecution under state laws if she did not remain on her job assignment was not subject to involuntary

servitude). Plaintiff does not allege he was held against his will, forcibly coerced to do anything, or had no available

choices. See United States v. Kozminski, 487 U.S. 931, 943 (1988) (“[I]n every case in which this Court has found a

condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction.”).

The Court does not see how the Thirteenth Amendment could be implicated under these circumstances, and dismisses

with prejudice any claim based on this Amendment.

23

Section 1986 provides, in relevant part, “Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be

committed, and having power to prevent or aid in preventing the commission of the same, neglects

or refuses so to do, if such wrongful act be committed, shall be liable to the party injured . . . .” 42

U.S.C. § 1986. A section 1986 action “is predicated on a successful conspiracy action under §

1985.” Moore v. Potter, 141 F. App’x 803, 806-07 (11th Cir. 2005) (quoting Morast v. Lance, 807

F.2d 926, 930 (11th Cir. 1987)); Farese v. Sherer, 342 F.3d 1223, 1232 n.12 (11th Cir. 2003)

(where there is no underlying conspiracy under § 1985, the derivative § 1986 claim also fails).

Because the Amended Complaint fails to state a claim for conspiracy under section 1985, it also

fails to state a claim under section 1986. Count IX is dismissed without prejudice. Should Plaintiff

replead a claim under § 1986, he must allege specific facts regarding specific Defendants,

including the specific rights Plaintiff alleges were violated, and precisely how each Defendant

knew of the violation and neglected or refused to stop the violation.

3. Count X – 42 U.S.C. § 1983

In Count X, Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 against five FDEP

Defendants, alleging violation of his rights under the Eighth and Fourteenth Amendments as well

as Florida Statutes § 376.3078(3)(a). DE 7 ¶¶ 164-73. Plaintiff alleges he was subjected to cruel

and unusual punishment as well as excessive fines because Defendants deliberately classified him

as non-compliant, initiated a criminal investigation against him without performing a proper

investigation, initiated an administrative proceeding against him, and assessed administrative

penalties pursuant to Florida Statutes § 403.727(3)(a) against him totaling $81,460. Id. ¶¶ 168-69,

171-72.

24

The Eighth Amendment’s prohibition of cruel and unusual punishment is applicable only

to individuals who have been convicted of crimes. See Ingraham v. Wright, 430 U.S. 651, 671 n.40

(1971) (“the State does not acquire the power to punish with which the Eighth Amendment is

concerned until after it has secured a formal adjudication of guilt in accordance with due process

of law.”). However, “[t]he Excessive Fines Clause limits the government's power to extract

payments, whether in cash or in kind, as punishment for some offense” and can apply to cases in

which a government imposes a fine or penalty. Yates v. Pinellas Hematology & Oncology, P.A.,

21 F.4th 1288, 1308 (11th Cir. 2021) (analyzing monetary awards in False Claims Act cases under

the Eighth Amendment); Austin v. United States, 509 U.S. 602, 609 (1993). There is a “strong

presumption of constitutionality” for fines imposed within the range prescribed by the legislature,

particularly if they fall below the maximum for a given offense. United States v. 817 Ne. 29th

Drive, Wilton Manors, 175 F.3d 1304, 1309 (11th Cir. 1999); see also Gonzalez v. U.S. Dep’t of

Commerce Nat’l Oceanic & Atmospheric Admin., 420 F. App’x 364, 370 (5th Cir. 2011) (fines

imposed do not violate Eighth Amendment if they do not exceed the limits prescribed by statute)

(quoting Newell Recycling Co. v. E.P.A., 231 F.3d 204, 210 (5th Cir. 2010)).

Regarding excessive fines, the allegations as pled do not support Plaintiff’s claim. Florida

Statute § 403.727(3)(a) provides that “[a]ny person who violates this act, the rules or orders of the

department, or the conditions of a permit is liable to the state for any damages specified in s.

403.141 and for a civil penalty of not more than $75,000 for each day of continued violation.” Fla.

Stat. § 403.727(3)(a). Plaintiff alleges that Defendants—without specifying which Defendant—

imposed fines under Florida Statute § 403.727(3)(a) for five separate violations as follows: (1)

$4,250 for failure to allow site access for inspection; (2) $710 for failure to keep records onsite

25

and readily available for inspection; (3) $500 for failure to provide secondary containment for dry-

cleaning solvents; (4) $37,500 for failure to comply with departmental standards for discharges of

pollutants; and (5) $37,500 for failure to properly treat or dispose of hazardous waste. DE 7 ¶ 168.

But Plaintiff does not explain how these fines are excessive, and they are well within the limits of

the statute Plaintiff cites. Indeed, the fines could have been significantly higher and still fallen

within the amounts the statute provides. Accordingly, Plaintiff’s Eighth Amendment claim fails as

a matter of law and is dismissed with prejudice.

Plaintiff also appears to allege he was denied equal protection under the law in violation of

the Fifth and Fourteenth Amendments, but provides no further information or facts to support this

claim. Plaintiff’s claim that he was denied equal protection under the law must be brought under

the Fourteenth Amendment, not the Fifth Amendment. See U.S. Const. amend. V, XIV. Thus,

Count X also fails for this reason. Accordingly, Count X is dismissed without prejudice as to

Plaintiff’s claim under the Fourteenth Amendment and dismissed with prejudice as to the claims

under the Fifth and Eighth Amendments.

F. Florida and Federal RICO Claims (Counts XI-XII)

The Amended Complaint asserts Count XI under Florida’s criminal RICO statute, Fla. Stat.

§ 895.05(6), and Count XII under the Federal RICO statute, 18 U.S.C. §§ 1962, 1964(c).

To state a Florida RICO claim, a plaintiff must allege facts to show (1) conduct or

participation in an enterprise through (2) a pattern of racketeering activity. Lugo v. State, 845 So.2d

74, 97 (Fla. 2003). Regarding the “enterprise” element, a plaintiff must also allege the following

subelements: (1) an ongoing organization, formal or informal, with a common purpose of engaging

in a course of conduct, which (2) functions as a continuing unit. Id.; Horace-Manasse v. Wells

26

Fargo Bank, N.A., 521 F. App’x 782, 784 (11th Cir. 2013). The elements of a federal civil RICO

claim are “(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity.”

Palm Beach Cnty. Env. Coalition v. Fla., 651 F. Supp. 2d 1328, 1348-49 (S.D. Fla. 2009) (quoting

Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1311 (11th Cir.2000). “[T]o survive a motion to

dismiss, a plaintiff must allege facts sufficient to support each of the statutory elements for at least

two of the pleaded predicate acts.” Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119

F.3d 935, 949 (11th Cir.1997); Rogers v. Nacchio, 241 F. App’x 602, 607 (11th Cir. 2007). A

plaintiff must also allege that “each defendant participated in the affairs of the enterprise through

a ‘pattern of racketeering activity,’ which requires ‘at least two acts of racketeering activity.’”

Colombian Air Force Purchasing Agency (ACOFA) v. Union Temporal OVL CVRA Helicopteros

2018 LLC, No. 21-cv-62516, 2022 WL 18463418, at *3 (Dec. 27, 2022) (quoting Cisneros v.

Petland, Inc., 972 F.3d 1204, 1215 (11th Cir. 2020)).

To successfully allege a pattern of racketeering activity, a plaintiff must plead facts

showing that the defendants committed two or more predicate acts that were related to each other

and demonstrated criminal conduct of a continuing nature. Hyundai Motor Am. Corp. v. EFN W.

Palm Motor Sales, LLC, 2022 WL 16968426, at *7 (S.D. Fla. Nov. 16, 2022) (citing Jackson v.

BellSouth Telecomm., 372 F.3d 1250, 1264 (11th Cir. 2004)); see also Cisneros, 972 F.3d at 1215

(predicate act “includes any of a long list of state and federal crimes).

Because “Florida courts often look to the Federal RICO decisions for guidance in

interpreting and applying the act[,]” the analysis of federal RICO claims is equally applicable to

their state RICO claims.” Jackson, 372 F.3d at 1263-64 (citing Fla. Software Sys., Inc. v.

Columbia/HCA Healthcare Corp., 46 F.Supp.2d 1276, 1284 (M.D.Fla.1999) and All Care Nursing

27

Serv., Inc. v. High Tech Staffing Servs., Inc., 135 F.3d 740, 745 (11th Cir.1998) (“Florida’s RICO

statutes have consistently been interpreted using federal RICO claim cases.”)).

Plaintiff alleges no facts in support of his RICO claims; rather, he states legal conclusions

and incorporates by reference allegations from other counts for his Florida RICO claim that do not

support his claims, and he alleges no facts at all with respect to his federal RICO claim. DE 7 ¶¶

185, 189-96. Further, the Amended Complaint’s allegations come nowhere near what could be

considered racketeering activity, as no crimes are alleged, no facts regarding any kind of ongoing

conspiracy or pattern of criminal activity are alleged, and no other facts that could satisfy any

elements of RICO are contained in the Amended Complaint. As a result, Counts XI-XII are

dismissed with prejudice.8

G. Negligence Per Se Claim (Count III)

Count III alleges negligence per se under Florida Statutes § 556.106(2)(a), which provides,

“If a person violates s. 556.105(1) or (6), and subsequently, whether by himself or herself or

through the person's employees, contractors, subcontractors, or agents, performs an excavation or

demolition that damages an underground facility of a member operator, it is rebuttably presumed

that the person was negligent.” Fla. Stat. § 556.106(2)(a). An “excavation” is defined as “any

manmade cut, cavity, trench, or depression in the earth's surface, formed by removal of earth,

intended to change the grade or level of land, or intended to penetrate or disturb the surface of the

earth . . . .” Fla. Stat. § 556.102(7). A “member-operator” is defined as “any person who furnishes

or transports materials or services by means of an underground facility.” Id. § 556.102(10). An

8 The Court notes that Plaintiff, in his Motion for Leave to Amend Complaint, [DE 73] appears to recognize that the

Amended Complaint fails to state a claim and would have been dismissed, as he does not include it in his proposed

Second Amended Complaint.

28

“underground facility” is defined as “any public or private personal property which is buried,

placed below ground, or submerged on any member operator's right-of-way, easement, or

permitted use which is being used or will be used in connection with the storage or conveyance of

water; sewage; electronic, telephonic, or telegraphic communication; electric energy; oil;

petroleum products; natural gas; optical signals; or other substances, and includes, but is not

limited to, pipelines, pipes, sewers, conduits, cables, valves, and lines.” Id. § 556.102(16).

Plaintiff alleges that he is a “member operator” under the statute, that the LSC site’s septic

tank is an “underground facility,” and that the surveying and drilling work performed by Arcadis

and GPI damaged the septic tank as well as pipes leading to and from the tank. DE 7 ¶¶ 70-73. He

further alleges that the Defendants caused the discharges at issue, which in turn caused damage to

Plaintiff. Id. ¶¶ 73-76.

Arcadis argues that Florida Statute § 556.106 does not apply to the circumstances in this

case because (1) Plaintiff is not a “person who furnishes or transports materials or services by

means of an underground facility” and therefore not a “member operator” who may impose

liability under the statute; and (2) a septic tank is not an “underground facility” for purposes of this

statute. DE 57 at 14-15. Arcadis further argues that this statute was intended to govern underground

pipes, wiring, waterlines, and similar utilities that allow transport and flow of materials or

communications. The Court agrees. Section 556.101, which provides the legislative intent for the

entire chapter, makes it clear that this chapter was designed to prevent damage to utility systems,

underground pipelines, and large facilities during underground excavations. See Fla. Stat. §

556.101(3)(a) (explaining that a purpose of this chapter is to “[a]id the public by preventing injury

to persons or property and the interruption of services resulting from damage to an underground

29

facility caused by excavation or demolition operations.”); Peoples Gas Sys. v. Posen Constr., Inc.,

931 F.3d 1337, 1338 (11th Cir. 2019) (“The Act permits utilities to recover damages when

construction workers negligently damage utility lines”); Martin v. Fla. Power & Light Co., 909

So.2d 555, 556 (Fla. 4th Dist. Ct. App. 2005) (statute “creates uniform statewide procedures for

determining the existence of underground utilities prior to excavation”). Clearly, section 556.106

was not designed to apply to damage caused to an individual septic tank, nor does Plaintiff meet

the definition for a member-operator. Even if it were meant to apply to Plaintiff’s property,

Plaintiff still fails to allege facts regarding specifically what the Defendants did to cause damage,

which Defendant caused damage, what kind of damage was caused, and how the statute is

implicated. Accordingly, Plaintiff’s claim for negligence per se under Florida Statutes § 556.106

is dismissed with prejudice.

H. Fraudulent Concealment Claim Against Arcadis (Count VII)

To state a claim for fraudulent concealment under Florida law, Plaintiff must allege: (1)

the defendant concealed or failed to disclose a material fact; (2) the defendant knew or should have

known that the material fact should be disclosed; (3) the defendant knew its concealment of the

fact would induce the plaintiff to act; (4) the defendant had a duty to disclose the material fact; and

(5) the plaintiff relied on the misrepresentation to his or her detriment. Koski v. Carrier Corp., 347

F. Supp. 3d 1185, 1196 (S.D. Fla. 2017).

“A defendant's knowing concealment or non-disclosure of a material fact may only support

an action for fraud where there is a duty to disclose.” TransPetrol, Ltd. v. Radulovic, 764 So.2d

878, 879-80 (Fla. 4th Dist. Ct. App. 2000) (citing Don Slack Ins., Inc. v. Fidelity & Cas. Co. of

N.Y., 385 So.2d 1061 (Fla. 5th DCA 1980)). “[S]uch duty arises when one party has information

30

that the other party has a right to know because of a fiduciary or other relation of trust or confidence

between them.” Id. (quoting State v. Mark Marks, P.A., 654 So.2d 1184, 1189 (Fla. 4th DCA

1995)), approved by, 698 So.2d 533 (Fla. 1997) (citation omitted); see also Solar Eclipse Inv.

Fund VII, LLC v. T-Mobile USA, Inc., 2021 WL 4067911, at *4-5 (S.D. Fla. Aug. 16, 2021).

Plaintiff alleges that Arcadis “had a duty to disclose their current and previous suspensions

of free product” and had a duty to report to FDEP that Defendant GPI damaged a pipeline at the

LSC site, but fails to identify the source of this duty.9 DE 7 ¶¶ 114, 118. Plaintiff then alleges that

Arcadis breached its duty when it failed to report to FDEP that GPI damaged the septic pipeline at

the LSC site, failed to mention “previous suspensions of free product,” and failed to disclose that

GPI had been negligent in the past regarding underground drilling and causing contamination. Id.

¶¶ 119-21. However, Plaintiff does not allege any facts to show Arcadis had a fiduciary or other

relation of trust between them, as Plaintiff merely alleges that Arcadis was a contractor that failed

to disclose alleged negligence on the part of another contractor. Id. As a result, Count VII fails to

state a claim and is dismissed without prejudice. In any amendment, Plaintiff must provide specific

facts to identify the nature of any duty he alleges, describe the nature of the duty, how the duty is

important, how a relationship of confidence or trust existed between Plaintiff and each Defendant,

and how each Defendant breached the duty.

I. Claims for Declaratory Relief (Counts I-II)

In Count I, Plaintiff alleges that he does not know who is responsible for the discharge or

other pollution and seeks (1) a declaration that Defendants FDEP, FDEP-SE, FDEP-Waste

9 Plaintiff also appears to rely on various inapplicable statutes, including Fla. Stat. § 376.302, which provides for

liability to the state and civil penalties for damage caused by pollution; 18 U.S.C. § 1519, which imposes criminal

liability; and Fla. Stat. § 556.105, which the Court has already ruled does not apply to this case.

31

“and/or” Arcadis are the responsible parties, (2) exoneration of Plaintiff as the responsible party,

and (3) limited liability against any future action brought against the LSC site. DE 7 ¶¶ 51-58. In

Count II, Plaintiff asks the Court to enter a judgment declaring which violations issued against him

were accurate and which were false. DE 7 ¶¶ 59-66.

To demonstrate standing, a plaintiff must allege facts showing that he suffered an injury-

in-fact that is “(a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or

hypothetical”; that the injury is “fairly traceable to the challenged action of the defendant”; and

that it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal

citations omitted). When a plaintiff seeks declaratory relief, “the injury-in-fact requirement insists

that a plaintiff ‘allege facts from which it appears there is a substantial likelihood that he will suffer

injury in the future.’” Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (quoting

Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)). “Additionally,

the continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and

immediate, and create a definite, rather than speculative threat of future injury.” Malowney, 193

F.3d at 1347.

The FDEP Defendants and Arcadis argue that Plaintiff does not have standing to assert

claims for declaratory relief because the Amended Complaint fails to allege facts showing ongoing

harm or future injury, and there is no requisite “case or controversy.” DE 26 at 15-16; DE 57 at 9-

10. The Court agrees. Plaintiff does not allege facts to show and immediate or definite threat of

future injury. Plaintiff seeks declarations regarding who was responsible for the pollutants present

at the LSC site and which notices of violations were appropriate, which all involve past actions

32

and alleged injuries. DE 7 ¶¶ 51-66. Plaintiff does request a declaration providing him with “the

benefits of limitation of liability of future action brought against the LSC-Plant site as a result of

the new discharge or other condition of pollution.” DE 7 ¶ 58. However, this speculative and vague

assertion is more “conjectural, hypothetical, or contingent” rather than “real and immediate” as

required by the Eleventh Circuit. See Strickland, 772 F.3d at 883; Malowney, 193 F.3d at 1346-

47. While Plaintiff alleges he received violations in the past, there are no allegations that FDEP

intends to issue additional violations or otherwise cause harm to Plaintiff in the future. Further, the

facts alleged indicate that Plaintiff was evicted from the LSC site and no longer operates his dry-

cleaning business. DE 7 ¶¶ 38-41. Thus, potential for future harm is remote and speculative, and

Counts I-II are dismissed with prejudice.

J. Count XIII

In Count XIII, Plaintiff seeks an injunction against FDEP for “the immediate remediation”

of the LSC site and for “improved policies and procedures for identifying free product”; injunctive

relief requiring the EPA “to properly assess and fine the FDEP” approximately $96,000,000; and

“a temporary block on all memorandum of understanding and/or memorandum of agreements

between the EPA and the FDEP until a comprehensive training can take place.” DE 7 ¶¶ 214, 228.

Count XIII fails for multiple reasons. First, the Court has already determined that FDEP is

entitled to Eleventh Amendment immunity. Second, the Amended Complaint alleges no facts

whatsoever regarding the EPA and, even if it did, Plaintiff is barred from suing the EPA, as the

United States has not expressly waived its sovereign immunity for this type of lawsuit and Plaintiff

identifies no statute authorizing such a suit. See Preserve Endangered Areas of Cobb’s History,

Inc. v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1249 (11th Cir. 1996); United States v. Idaho ex

33

rel. Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 6 (1993) (U.S. must expressly and unambiguously

waive its sovereign immunity before it can be sued). Plaintiff appears to cite the Clean Water Act

(“CWA”), 33 U.S.C. § 1365(a), which allows a citizen to commence a civil action in certain

circumstances, such as when a person violates the CWA or the EPA Administrator fails to perform

a nondiscretionary duty. However, again, the Amended Complaint contains no allegations that the

EPA violated the Act or failed to perform a nondiscretionary duty and, even if it did, the CWA

requires a plaintiff to provide pre-suit notice of the alleged violation, which Plaintiff does not

allege. 33 U.S.C. § 1365(b). As a result, Count XIII is dismissed with prejudice.

K. Count IV (Violation of Fla. Stat. Chapter 376)

In Count IV, Plaintiff alleges that Arcadis, GPI, and Earth Tech were negligent in handling

the LSC site and caused pollution and contamination, and asserts a private cause of action under

Florida Statutes § 376.313. DE 7 ¶¶ 82, 85-88. To state a claim under § 376.313, a plaintiff must

allege that a prohibited discharge or other pollutive condition occurred and damages from the

discharge or pollution. Irizarry v. Orlando Util. Comm’n, 393 F. Supp. 3d 1110, 1116 (M.D. Fla.

2019); Clark v. Ashland, No. 2:13-CV-794, 2015 WL 1470657, at *3 (M.D. Fla. Mar. 31, 2015).

Plaintiff does allege that there was pollution or contamination, but fails to allege facts regarding

how Defendants that caused the pollution and which Defendant is responsible for which act or

omission that caused the pollution, in violation of Federal Rule of Civil Procedure 8(a).

Accordingly, Count IV is dismissed without prejudice.

L. Punitive Damages

The FDEP Defendants and Arcadis argue that Plaintiff’s claim for punitive damages should

be stricken, as Plaintiff fails to allege facts that could support punitive damages and therefore fails

34

to meet pleading standards. DE 26, DE 58. Arcadis filed a Motion to Strike under Federal Rule of

Civil Procedure 12(f), and, while the FDEP Defendants included their arguments in their Motion

to Dismiss, the Court construes those arguments under the Rule 12(f) standard. Rule 12(f) provides

that “the Court may strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A motion to strike is a drastic remedy

disfavored by courts, but “[a] request for punitive damages must be stricken from the complaint if

the allegations therein do not present a factual basis supporting the recovery of punitive damages,

in other words, factual allegations showing wanton, willful or outrageous conduct.” Simmons v.

Royal Caribbean Cruises, Ltd., 423 F. Supp. 3d 1350, 1352 (S.D. Fla. 2019).

The FDEP Defendants and Arcadis argue that for Plaintiff’s state-law tort claims (Counts

III, VI-VII), Florida’s waiver of sovereign immunity does not include punitive damages and,

therefore, Plaintiff cannot obtain punitive damages on those claims. Id. In Florida, a state agency

may be liable for tort claims, “but liability shall not include punitive damages or interest for the

period before judgment.” Plancher v. UCF Athletics Ass’n, Inc., 175 So.3d 724, 726 (Fla. 2015)

(quoting Fla. Stat. 768.28(5)). Accordingly, Plaintiff cannot obtain punitive damages against

FDEP for this reason. Because Arcadis is not a state agency, its argument for immunity from

punitive damages fails, but the Amended Complaint fails to include factual allegations “showing

wanton, willful or outrageous conduct.” Simmons, 423 F. Supp. 3d at 1352; ADT LLC v. Safe Home

Sec. Inc., 2022 WL 2805252, at *6 (S.D. Fla. May 18, 2022) (“conduct required to allege punitive

conduct reaches beyond simple negligence[ ] ‘but must be based on behavior which indicates a

wanton disregard for the rights of others.’” (quoting Valladares v. Bank of Am. Corp., 197 So. 3d

1, 11 (Fla. 2016)). Because the Court is dismissing all claims in the Amended Complaint,

35

Plaintiff’s request for punitive damages is necessarily stricken. The Court warns Plaintiff that if he

files a Second Amended Complaint and seeks punitive damages, he may not seek them against

FDEP and must include factual allegations that meet the standard for punitive damages.

M. Plaintiff’s Motion for Leave to Amend Complaint

The Court notes that Plaintiff recently filed a Motion for Leave to Amend Complaint along

with the proposed Second Amended Complaint (“SAC”) DE 73; the Court has reviewed the SAC.

The proposed SAC appears to eliminate some of the deficiencies identified in the Amended

Complaint but fails to cure numerous others and maintains claims that the Court is dismissing with

prejudice from the Amended Complaint in this Order. For example, each count in the proposed

SAC no longer incorporates all previous allegations but identifies specific paragraphs that apply

to the particular count, and Plaintiff attempts to attribute specific conduct to specific Defendants

in some instances. However, the proposed SAC still fails to allege specific facts relating to claims

against particular Defendants in many instances. For example, the proposed SAC asserts some

claims against “All [21] Defendants” and others against as many as eight different Defendants

without specifying each Defendant’s conduct as it relates to those claims. In addition, the proposed

SAC names numerous individuals including Ballard, Kichler, Pepe, Dalton, Cohen, Andreotta,

Davila, Hamilton, and Daniels, but alleges few, if any, specific facts attributable to them. This is

not to say that Plaintiff’s claims in the proposed SAC are sufficient to state claims against other

Defendants. The Court merely points out that Plaintiff cannot simply name every FDEP employee

he came into contact with and accuse them of wrongdoing in a lawsuit; he must allege specific

facts explaining what each individual did or said that supports a valid claim for relief.

36

The proposed SAC also asserts claims that this Court dismisses with prejudice in this

Order. For instance, the proposed SAC includes a claim alleging that Plaintiff’s First Amendment

rights were violated when he was told to stop recording the inspection of the LSC premises, but

the Court concludes in this Order that this claim fails as a matter of law and is dismissed with

prejudice. As another example, Plaintiff asserts defamation claims against FDEP employees when

the Court is dismissing the defamation claim in the current Amended Complaint with prejudice.

Plaintiff also continues to maintain a claim for negligence per se under statutory provisions the

Court concludes do not apply to him. As a result, the Court denies Plaintiff’s Motion for Leave to

File Second Amended Complaint as moot, but will allow Plaintiff to amend his complaint

consistent with this Order, as described below.

IV. CONCLUSION

Based on the foregoing, the Amended Complaint is dismissed in its entirety, with limited

leave to amend. For ease of reference and understanding, below is a visual summary of which

claims have been dismissed with prejudice and which claims Plaintiff may amend in accordance

with the directives in this Order.

Count Defendant(s) Result

I: Declaratory Relief FDEP, FDEP-SE, FDEP- Dismissed with prejudice.

Waste, DSCP, Arcadis

II: Declaratory Relief FDEP, FDEP-SE, FDEP- Dismissed with prejudice.

Counsel, Irwin, Lancellotti

III: Negligence Per Se Arcadis, GPI Dismissed with prejudice.

IV: Violation of Fla. Stat. §§ Arcadis, GPI, Earth Tech Dismissed without prejudice.

376.30-376.317

V: 42 U.S.C. §§ 1983 & 1985 Lancellotti, Stark Dismissed with prejudice.

VI: Defamation Andreotta, Irwin, Lancellotti Dismissed with prejudice.

VII: Fraudulent Concealment Arcadis Dismissed without prejudice.

VIII: Conspiracy to Interfere Davila, Irwin, Lancellotti, Dismissed without prejudice.

with Civil Rights Stark, Kichler

37

IX: 42 U.S.C. § 1986 Blandin, Hamilton, Kichler, Dismissed without prejudice.

Ballard, Dalton, Cohen, Pepe,

Daniels

X: 42 U.S.C. § 1983 Andreotta, Davila, Irwin, Fifth and Eighth Amendment

Lancellotti, Kichler claims dismissed with

prejudice; Fourteenth

Amendment claim dismissed

without prejudice.

XI: Florida RICO Arcadis, GPI, Earth Tech, Dismissed with prejudice.

Andreotta, Davila, Irwin,

Lancellotti, Kichler

XII: Federal RICO Arcadis, GPI, Earth Tech Dismissed with prejudice.

XIII: Action for Corrective EPA, FDEP Dismissed with prejudice.

Action

In addition, Plaintiff must allege specific facts as to each Defendant’s acts and omissions

that support each claim, and include only the Defendants against whom he has a legitimate, legally

cognizable claim. All claims against FDEP, FDEP-Waste, FDEP-Counsel, FDEP-SE, and EPA

are dismissed with prejudice, so Plaintiff may not assert any future claims against those

Defendants. Of the claims that are dismissed without prejudice as to any individual FDEP

Defendants, Plaintiff must allege specific facts that identify the specific constitutional right that

was violated, facts that support the violation, which Defendant committed the violation and in what

specific manner, and how the violation fell outside the scope of the Defendant’s duties.

While the Court must treat a pro se plaintiff’s pleadings liberally, Plaintiff has already had

one opportunity to amend his complaint, has received detailed analysis from the Court (and from

the Defendants’ arguments in their Motions to Dismiss) regarding his Amended Complaint, and

now has the benefit of the Court’s review of his proposed SAC. Plaintiff is reminded that, as a pro

se party, he is still bound by the Federal Rules of Civil Procedure and expected to adhere to them.

In particular, the Court directs Plaintiff to Federal Rule of Civil Procedure 11(b) and warns Plaintiff

38

that by filing a second amended complaint, he is certifying to the Court that “the claims, defenses,

and other legal contentions are warranted by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law or for establishing new law” and “the factual

contentions have evidentiary support or, if specifically so identified, will likely have evidentiary

support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P.

11(b)(2)-(3).

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. The FDEP Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, [DE

26], is GRANTED IN PART AND DENIED IN PART. The Motion is

GRANTED insofar as all claims against the FDEP Defendants are dismissed, but

DENIED insofar as some claims are dismissed with prejudice and some claims are

dismissed without prejudice.

2. Defendant Stark’s Motion to Dismiss Plaintiff’s Amended Complaint, [DE 54], is

GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED

insofar as all claims against Defendant Stark are dismissed, but DENIED insofar

as some claims are dismissed with prejudice and some claims are dismissed without

prejudice.

3. Arcadis’ Motion to Dismiss Plaintiff’s Amended Complaint, [DE 57], is

GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED

insofar as all claims against Defendant Arcadis are dismissed, but DENIED insofar

as some claims are dismissed with prejudice and some claims are dismissed without

prejudice.

4. Earth Tech’s Motion to Dismiss Plaintiff’s Amended Complaint, [DE 62], is

GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED

insofar as all claims against Defendant Earth Tech are dismissed, but DENIED

insofar as some claims are dismissed with prejudice and some claims are dismissed

without prejudice.

5. Counts I, II, III, V, VI, XI, XII, and XIII are DISMISSED WITH PREJUDICE.

6. All claims asserted in the Amended Complaint against The Florida Department of

Environmental Protection, the Florida Department of Environmental Protection

Waste Site Clean Up Section, the Florida Department of Environmental Protection

Office of General Counsel, and the Florida Department of Environmental

Protection of the Southeast District are DISMISSED WITH PREJUDICE.

39

7. All remaining claims in the Amended Complaint are DISMISSED WITHOUT

PREJUDICE for Plaintiff to file a second amended complaint. Plaintiff shall file

his second amended complaint within 14 days of the date of this Order, and

Defendants shall file a responsive pleading or motion within 14 days of the filing

of the second amended complaint.

8. Arcadis’ Motion to Strike, [DE 58], is GRANTED.

9. Plaintiff's Motion for Extension to Respond to the Motions to Dismiss, [DE 67], is

DENIED AS MOOT, as Plaintiff already filed his Response, [DE 68], and the

Court has considered it.

10. Plaintiff's Motion for Leave to Amend His Amended Complaint, [DE 73], 1s

DENIED AS MOOT.

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 17th day of May,

2023.

\'

0 A APL,

ROBIN L. ROSENBERG

UNITED STATES DISTRICT JUD

Copies furnished to Counsel of Record

40