Kessler v. City of Key West

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

KEW WEST DIVISION

Case Number: 19-10030-CIV-MARTINEZ

PAMELA and STUART KESSLER,

Husband and wife,

Plaintiffs,

CITY OF KEY WEST, ef al,

Defendants.

eee

OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT

AND MOTION TO STRIKE

THIS CAUSE comes before the Court on Defendants City of Key West (the “City”),

Ronald Ramsingh, George Wallace, James K. Scholl, Greg Veliz, Jim Young, Doug Bradshaw,

Karen Olson, and Mark Tait’s (the “Individual Defendants”) Motion for Summary Judgment

(“Defendants’ Motion”), (ECF No. 100); Plaintiffs’ Cross Motion for Summary Judgment (the

“Kesslers’ Cross Motion”), (ECF No. 106); and the City’s Motion to Strike, (ECF No. 108.) After

considering the relevant briefing, the record, and being otherwise advised in the premises, the

Court rules as follows.

I. FACTUAL BACKGROUND!

The following pertinent facts are undisputed unless otherwise noted. When the facts are in

dispute, they are taken in the light most favorable to the nonmovant. See Chapman v. Am.

The Court incorporates the background as set for in the Eleventh Circuit’s opinion on the

Court’s Order on Defendants’ Motion to Dismiss, (ECF No. 81). The Court adds citations to that

background and supplements it with additional allegations from the complaint and Defendants’

SMF as relevant on remand.

Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988). The Court notes that the Kesslers failed to

respond to Defendants’ Statement of Material Facts (“Defs.’ SMF”), (ECF No. 101.) Local Rule

56.1(c) provides that

fa]ll material facts in any party’s Statement of Material Facts may be deemed

admitted unless controverted by the other party’s Statement of Material Facts,

provided that: (i) the Court finds that the material fact at issue is supported by the

properly cited record evidence, and (ii) any exception under Fed. R. Civ. P. 56 does

not apply.

Because the Kesslers provided no response to Defendants’ SMF and by operation of the Local

Rules, this Court deems admitted—for the purpose of this Order only—those facts for which

Defendants provided sufficient evidentiary support. See Fed. R. Civ. P. 56(e)(3); S.D. Fla. L.R.

56.1(c); Rives v. Lahood, 605 F. App’x 815, 817-18 (11th Cir. 2015).

Between 2004 and 2017, the Kesslers’ primary residence was a floating home docked at a

marina operated by the City in a community of about 100 floating homes. (Second Amended

Complaint (“SAC”) 4 1, 54, ECF No. 51.) The Kesslers leased their spot at the marina—a “boat

slip”—from the City. (Defs.’ SMF § 2.) The marina is located on property conveyed to the City

from the State of Florida “in a deed which restricted the use to public purposes.” (SAC { 1 □□□□□

In addition to the lease, the Kesslers contend that “a series of interlocal agreements and prior Court

settlements protect[] the rights of Liveabroad Slip Lessees.” (/d.) The City disputes that it was a

party to any interlocal or settlement agreements. (Defs.’ SMF 4 11.) By 2018, however, the

Kesslers had lost their home, their boat slip, and much of their personal property. (SAC 42.)

The gist of their lawsuit is that the City unreasonably escalated a minor code violation relating to

their floating home, abused the legal process to terminate the lease and get rid of them, and

indirectly caused the loss of their home.

The alleged code violation arose in 2016, when a contractor hired by the City to replace

the pier where the Kesslers’ floating home was moored began the process of temporarily relocating

floating homes. (SAC §§ 11-13, 158-66; ECF No. 1 at 75.) During this process, the contractor

notified the City of safety concerns related to “numerous barrels loosely secured” to the underside

of the Kesslers’ floating home. (ECF No. 1 at 45.) The City determined that this setup violated §

14-185 of the City Code and, after informal attempts to resolve the matter with the Kesslers failed,

gave notice of an administrative hearing before a special magistrate in January 2017. (SAC {ff 19,

23; see also ECF No. 1 at 41.)

Instead of appearing at the hearing, which they believed would be futile, the Kesslers filed

a notice purporting to remove the proceedings to federal district court. (See ECF No. | at 49.) The

City ignored the notice of removal and proceeded with code-enforcement proceedings, which

resulted in a finding that the Kesslers’ floating home violated § 14-185. (SAC { 23.) The City

eventually responded in federal court in June 2017, at which time the district court “dismissed”

the case “with prejudice” for lack of subject-matter jurisdiction. (ECF No. | at 49-51.)

Thereafter, the City filed a complaint in state court to evict the Kesslers based on the code

violation. (See generally ECF No. 1 at 53-69.) The Kesslers filed a motion to dismiss, arguing

that the code-enforcement proceedings were void due to the automatic stay upon removal to federal

court and that the federal court had “dismissed” the underlying code violation. (/d.) At a hearing

in January 2018, a state judge indicated he was inclined to grant the motion to dismiss. (SAC {

32.) Not long after, the City voluntarily dismissed its complaint. (Id. § 33; see also ECF No. | at

71.)

Meanwhile, in September 2017, the Lower Keys and Key West were struck by Hurricane

Irma. (SAC 50.) By that time, the Kesslers had voluntarily removed the loosely secured

2 The Kesslers incorporated the exhibits attached to their initial complaint into the operative

Second Amended Complaint, (see SAC at 3.) Accordingly, the Court considers those exhibits

when ruling on the Motions for Summary Judgment.

barrels—what they call “safety reserve floatation’—from under their home. (d { 49.)

Nevertheless, unlike many other floating homes at the marina, the Kesslers’ home survived the

storm with minimal damage. (/d. §§ 51-52.) But, on December 3, 2017, it was struck by a large

piece of floating debris, which punctured a “catastrophic hole” in one of the home’s four primary

integrated pontoons and caused it to sink. (id. 454; Defs.’ SMF 5.)

After dismissing the eviction case, the City gave notice on January 23, 2018, that it intended

to terminate the Kesslers’ lease. (SAC at 6; Defs.” SMF 4 6.) The 2007 lease agreement between

the City and the Kesslers was for a term of twelve months. (ECF No.101-1 § 1.) Under the

agreement, the Kesslers leased slip number “Sailfish 16” for a monthly rate. (/d. □□□ 1-2.)

According to the agreement, if the City decided “not to renew the tenancy, it shall provide [the

Kesslers] both thirty (30) days’ notice and the option of a hearing before the Port Advisory Board.”

(id. 8.) But the City advised Plaintiffs that any hearing they requested would be conducted by

the City Manager because the Port Advisory Board, which had consisted of citizen volunteers, had

been disbanded on January 9, 2009. (SAC at 6; Defs.’ SMF 4 4.) Nevertheless, the Kesslers

requested a hearing and attended. (SAC at 6; Defs.” SMF □□□ The City Manager issued a decision

terminating the lease effective March 1, 2018, because the Kesslers failed to remove the sunken

structure and related debris. (/d. at 7; Defs.’ SMF 8.) In September 2018, the City shut down

the Kesslers’ utility accounts for the boat slip, removed the Kesslers’ remaining personal property,

and gave the boat slip to a new tenant. (Id. § 42; Defs.; SMF if 8, 10.)

In February 2019, the Kesslers sued the City and various City officials, requesting a

permanent injunction to put the Kesslers in possession of their former boat slip (Count I); to obtain

damages under 42 U.S.C. § 1983 for the deprivation of property without procedural due process

(Count II), a taking of property for a public purpose without just compensation (Count If), a

deprivation of property in violation of substantive due process (Count IV) and equal protection

(Count V); and to obtain damages under § 1983 against City officials in their individual capacities.

(SAC §§ 58-170.) The City Defendants moved to dismiss the Complaint for failure to state a claim

on which relief can be granted. (ECF No. 58.) Specifically, Defendants moved to dismiss the

takings claims, (Count III & Count VID), for (1) failure to exhaust all remedies at the state level

and because (2) the Kesslers lacked a property interest in their slip, and any claims against the City

would be for breach of contract, not a taking. (/d. at 6).

Magistrate Judge Alicia Otazo-Reyes issued a Report and Recommendation (“R&R”),

recommending that the initial motion to dismiss be granted with prejudice. (ECF No. 63.)

Specifically, as to the takings claim, the R&R recommended that the claims be dismissed for

failure to exhaust state court remedies. (ECF No. 63 at 9-10.) The Court affirmed and adopted

the R&R. (ECF No. 67.) The Kesslers appealed. (ECF No. 69.)

The Eleventh Circuit affirmed in part and vacated and remanded in part. (ECF No. 81 at

16.) As to all claims except the Kesslers’ takings claims, (Counts III and VII), the Eleventh Circuit

affirmed. (d.) With respect to the takings claims, the Eleventh Circuit concluded that the Court

erred by dismissing the takings claim based on the failure to exhaust all remedies at the state level.

(Id. at 13-14; see also ECF No. 63 at 10.) Rather than determine whether dismissal was

appropriate based on Defendants’ additional arguments, the Eleventh Circuit “prefer[ed] the

district court address these issues in the first instance.” (ECF No. 81 at 14.) Following the

Eleventh Circuit’s mandate, the Defendants submitted their Amended Motion to Dismiss, (ECF

No. 82), renewing their argument that the Kesslers lacked a property interest in their lease, which

this Court denied. (ECF No. 90.) Now, both the Kesslers and Defendants move for summary

judgment as to the takings claims.

Il. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A movant may show that there is no genuine

dispute as to any material fact by “citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations .

or other materials .... Fed. R. Civ. P. 56(c)(1)(A). Rule 56 requires granting summary

judgment “after adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The movant is entitled to a judgment as a matter of law when the “nonmoving party has

failed to make a sufficient showing on an essential element of [their] case.” Jd.

“The moving party bears the initial burden to show, by reference to materials on file, that

there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991); accord Kol B’Seder, Inc. v. Certain Underwriters at

Lloyd’s of London Subscribing to Certificate No. 154766 Under Cont. No.

B0621MASRSWVISBND, 766 F. App’x 795, 798 (11th Cir. 2019). “Only when that burden has

been met does the burden shift to the non-moving party to demonstrate that there is indeed a

material issue of fact that precludes summary judgment.” Clark, 929 F.2d at 608.

When the moving party has carried its burden, the party opposing summary judgment must

do more than show that there is “metaphysical doubt” as to any material fact. Matsushita Elec.

Indus. Co. y. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, Rule 56 “requires the

nonmoving party to go beyond the pleadings and, by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis added)

(cleaned up). “[C]onclusory allegations without specific supporting facts have no probative

value.” Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013) (citing Evers v. Gen. Motors

Corp., 770 F.2d 984, 986 (11th Cir. 1985)).

WI. DISCUSSION

In their Motion for Summary Judgment, Defendants argue, among other things, that the

Kesslers’ claim is governed by contract law, not the just compensation law, and that the Kesslers

had no private property interest; that the Individual Defendants cannot be held liable for a Fifth

Amendment just compensation taking claim; and that the Individual Defendants are entitled to

qualified immunity. (See generally Defs.’ Mot.) In their Response to Defendants’ Motion, (ECF

No. 104), the Kesslers concede that they “do not oppose the dismissal of this matter against the

[I]ndividual Defendants.” (Resp. § 4.) Accordingly, summary judgment is GRANTED in favor of

the Individual Defendants. The Kesslers argue in their Cross Motion that there was no legally

sufficient termination of their property. (See generally Kesslers’ Cross Mot.) However, because of

their belated submission, the City moves to strike the Kesslers’ Cross Motion. This Court shall

first address the City’s Motion to Strike.

A. The City’s Motion to Strike

On December 22, 2022, this Court entered its Scheduling Order requiring the parties to file

their respective motions for summary judgment on or before May 15, 2023. (ECF No. 94 at 5.)

Defendants filed their Motion for Summary Judgment on May 15, 2023, (ECF No. 100), while the

Kesslers belatedly filed their Response to Defendants’ Motion for Summary Judgment, which also

included their Cross Motion for Summary Judgment, on June 12, 2023, almost a month after the

deadline. (ECF Nos. 104, 106.) The Court notes that the Kesslers never moved for an extension of

time or for leave to file an untimely motion for summary judgment. Additionally, the Kesslers did

not submit an opposing memorandum of law to the Motion to Strike as required by Rule 7.1 of the

Southern District of Florida. Local Rule 7.1(c) makes clear that the failure to respond to a motion

“may be deemed sufficient cause for granting the motion by default.” See Sauve v. Lamberti, 247

F.R.D. 703, 704 (S.D. Fla. 2008) (granting by default motion to dismiss and motion to strike for

failure to serve an opposing memorandum of law in violation of Local Rule 7.1(c)).

Accordingly, this Court GRANTS the City’s Motion to Strike, (ECF No. 108), and the

Kessler’s Motion for Summary Judgment, (ECF No. 106), is STRICKEN. See Destra v. Demings,

725 F. App’x 855, 859 (11th Cir. 2018) (holding that the district court did not abuse its discretion

when it struck the defendants’ motion for summary judgment as untimely, even though it was filed

only one day late).

B. The City’s Motion for Summary Judgment

The Takings Clause of Fifth Amendment, made applicable to the States through the

Fourteenth Amendment, provides that “private property” shall not be “taken for public use, without

just compensation.” U.S. Const. amend. V. “The Takings Clause protects private property; it does

not create it.” Givens v. Ala. Dep’t of Corr., 381 F.3d 1064, 1066 (11th Cir. 2004). To determine

whether a property interest is protected, the Court looks to “existing rules of understandings that

stem from an independent source such as state law.” Id. (quoting Phillips v. Washington Legal

Found, 524 U.S. 156, 163-64 (1988)). Notably, “[t]he existence of an enforceable contract with

a state or local government entity does not give rise to a constitutionally protected property

interest.” Key West Harbour Dev. Corp. v. Key West, 987 F.2d 723, 728 (11th Cir. 1993). But, as

noted in the Eleventh Circuit’s opinion on this matter, “‘a month-to-month tenancy at will is a

compensable property interest under Florida law,’ which may continue in certain circumstances

despite a state landlord giving ‘legally sufficient notice.’” (ECF No. 81 at 17) (quoting Ward v.

Downtown Dey. Authority, 786 F.2d 1526, 1528-29 (11th Cir. 1986)).

Although the 2007 lease was for a term of twelve months and thus expired well before the

alleged taking occurred, the Kesslers continued to pay monthly rent for the boat slip until the City

terminated their lease. (Defs.’ SMF § 3.) The lease therefore turned into a month-to-month

tenancy, which, as explained earlier, is a property interest under Florida law. See Ward, 786 F.2d

at 1526. In addressing this issue in its opinion on this matter, the Eleventh Circuit noted the

following:

In asserting that the City took their property interest in continuing to remain in the

boat slip or transferring the lease, the Kesslers point not only to their lease

agreement, which contemplated review of the City’s lease-termination decision by

a neutral board of citizens. But also they allege that the City collected 5% of private

lease transfers and that other “interlocal agreements” and court settlements

recognize and protect the lessees’ rights. These allegations lend some credence to

their claim that more than mere notice was required to terminate a lease at the

marina and that their property interest was grounded in more than just the lease

agreement. While the allegations ultimately may not be sufficient to state a

plausible takings claim—-we express and imply no opinion on the matter—we

cannot say that remand for the district court to address these issues in the first

instance would be futile.

First, the review of a lease-termination decision by a neutral board of citizens as set forth

in the 2007 lease agreement was in reference to the Key West Port Authority which was dissolved

in 2009, and therefore, as the City points out, “had not existed for almost a decade prior to the

termination of the Kesslers[’] month to month tenancy.” (Defs.’ Mot. at 11; Defs.” SMF 4 4.) The

City nonetheless gave the Kesslers’ timely notice and offered a hearing to be conducted by the

City Manager, which the Kesslers attended. (Defs.’ SMF {{ 6-7.) Next, the Kesslers allege that

their tenancy was protected by more the just the lease agreement. Although they allege that a

“series of interlocal agreements and prior Court settlements protect[] the rights of Liveaboard Slip

Lessees,” (SAC 9 1n.5), which the City denies, the Kesslers failed to produce any evidence that

supports such allegations nor did they refute the City’s assertion that it was never a party to such

interlocal agreements. (See Defs.’ Mot. at 11; Defs.’ Reply at 9, ECF No. 107; Defs.’ SMF 11.)

Accordingly, this Court holds that the Kesslers have failed to sufficiently allege that the City took

their slip without just compensation and summary judgment is therefore GRANTED in favor of

the City.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

Li Defendants’ Motion for Summary Judgment, (ECF No. 100), is GRANTED.

2. Defendant’s Motion to Strike, (ECF No. 108), is GRANTED.

Bs Plaintiffs’ Cross Motion for Summary Judgment, (ECF No. 106), is STRICKEN.

4, Final judgment in Defendants’ favor will be entered by separate order.

5. The Clerk is DIRECTED to CLOSE this case and DENY all pending motions as

MOOT.

DONE AND ORDERED in Chambers in Miami, Florida, this ae day of March 2024.

rapes —

UNITED STATES DISTRICT JUDGE

Copies provided to:

All counsel of record

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