# Myers v. City of Naples, Florida

> District Court, M.D. Florida · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10642947

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

GREGORY B. MYERS,

Plaintiff,

v. Case No: 2:24-cv-235-JES-KCD

CITY OF NAPLES, FLORIDA and
NAPLES PROPERTY HOLDING
COMPANY, LLC,

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Naples Property Holding Company’s Motion to Dismiss and Request to
Declare Plaintiff a Vexatious Litigant (Doc. #4) filed on May 24,
2024. Finding no timely response, the Court directed plaintiff to
file a response by July 19, 2024. (Doc. #16.) Plaintiff sought
an extension of time that was denied because “Plaintiff has been
afforded nearly two months to prepare a response, and this latest
request comes well after the Court issued a show cause order and
on the eve of the response deadline.” (Doc. #20.) A response was
due by July 29, 2024. Plaintiff filed a Preliminary Response in
Opposition to Motion (Doc. #22) on July 30, 2024, one day late and
along with the usual motion to accept the response as timely filed.
(Doc. #23.) The motion was granted, and the late response accepted
as timely filed as “the ends of justice are best served by …
considering this dispute on the merits.” (Doc. #24.)
Also pending is Naples Property Holding Company’s Motion for

Sanctions (Doc. #15) filed on July 8, 2024. Once again, no timely
response was filed and the Court directed plaintiff to file a
response by August 6, 2024, with no extensions to be granted.
(Doc. #21.) Plaintiff filed a late Amended Response in Opposition
(Doc. #36) on August 8, 2024.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a

complaint and amended complaint liberally. Jones v. Fla. Parole
Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).
II.
Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1331
(a federal question), 42 U.S.C. § 1983 (civil rights under color
of state law) and § 1985 (conspiracy to impede official duties,
obstructing justice, intimidation, and to deprive persons of
1
rights) , and 28 U.S.C. § 1367 for the supplemental state law
claims. Defendants are the City of Naples, Florida, and Naples
Property Holding Company, LLC (NPHC).
As asserted in the Complaint, on August 26, 1887, the “Plan
of Naples” was filed in Lee County, Florida, and filed on September
27, 1923, in Collier County after it was established. On or about
July 21, 1913, William B. Haldeman, Bruce Haldeman, and Isabel
Haldeman entered into an agreement with Naples Improvement
Company, which was recorded in 1925 (the 1913 Agreement). In 1925,
the City Council of the Town of Naples adopted ordinance #42 (the

1
As there are no conspiracy or civil rights claims based on
race stated in the Complaint, the Court declines to find that
federal jurisdiction is present under 42 U.S.C. § 1985.
1925 Plan) dividing the Town into business and residential
properties. Pursuant to a Warranty Deed recorded in 1926, Naples
Improvement Company conveyed certain property to Naples

Development Company (NDC). In 1930, NDC, a Florida Corporation,
and certain individuals transferred public streets, avenues, and
alleys to Lee County Bank & Trust Company as Trustee (LCBT). In
1930, the City of Naples “purportedly passed and adopted Ord#72”
but it was not recorded in Collier Count until 1944. In 1933,
LCBT transferred to NDC public rights of way, which appears to be
the same property NDC conveyed to the LCBT as Trustee.
A few months later, the “Map of Naples Golf and Beach Club
Tract” was recorded, after the golf course had already been built
and was in operation. In 1939, “Subdivision of Block 7, Naples
Golf and Beach Tract” was recorded. In 1956, a “Corrective Detail
South Golf Driveway Blocks 7, 8, 9, & 10” and the plat for “Golf

Drive Estates” were recorded.
In 2005, plaintiff acquired an entireties interest in the
property located at 700 Gulf Shore Boulevard North, Naples and
legally described as “Lot 10, Block 7, Naples Golf and Beach Club
Tract” and the chain of title includes the “1926 Deed”. In or
around February 2018, Naples Property Holding Company, LLC (NPHC),
entered into an option agreement with Naples Golf and Beach Club,
Inc. to purchase approximately 124.3 acres of property in the City
of Naples, including an 18-hole golf course. On or about January
7, 2019, NPHC through its attorney submitted to the City of Naples
an “Application for Comprehensive Plan Amendment” requesting

approval to change the future land use designation of 10 acres to
allow for redevelopment of the Naples Golf and Beach Club (Petition
19-CPA1). On February 13, 2019, NPHC appeared before the City of
Naples Planning Advisory Board, and on May 1, 2109, the City of
Naples City Council voted to adopt Ordinance 2019-14328. Plaintiff
alleges that pursuant to Fla. Stat. § 163.3184(11) defendants were
required to publish an advertisement before the adoption hearing
containing a geographic location map but did not do so.
Plaintiff asserts a breach of contract in Count I as a third-
party beneficiary of the 1913 Agreement and a breach of contract
in Count II as a third-party beneficiary of the 1925 Plan. In
Count III, plaintiff alleges a legal interest in the 10 acres of

property subject to a comprehensive plan amendment Petition 19-
CPA1. Plaintiff alleges a violation of his procedural due process
rights in Count III because “Defendants”, acting under the color
of law, failed to publish an advertisement before the adoption
hearing for Ordinance 2019-14328. Plaintiff alleges a violation
of his substantive due process rights in Count IV for the same
reasons articulated in Count III. Plaintiff alleges a Fifth
Amendment taking because he has “vested rights” in the Plan of
Naples, the 1913 Agreement, the 1925 Plan, the Naples Golf & Beach
Club Tract, and 10 acres subject of the comprehensive plan
amendment. In Count VI, plaintiff asserts a violation of 11 U.S.C.

§ 362(k) based on his Chapter 13 filing in the Bankruptcy Court
for the District of Delaware and defendants’ action to change the
future land use designation during the automatic stay.
III.
Starting with the federal claims, Section 1983 provides a
private cause of action against any person who, under color of
state law, deprives a person of “any rights, privileges, or
immunities secured by the Constitution and laws” of the United
States. 42 U.S.C. § 1983. “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. Like the state-action requirement of the
Fourteenth Amendment, the under-color-of-state-law element of §
1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” Focus on the Family v. Pinellas
Suncoast Transit Auth., 344 F.3d 1263, 1276–77 (11th Cir. 2003)
(citation omitted). “A constitutional claim brought pursuant to
§ 1983 must begin with the identification of a specific
constitutional right that has allegedly been infringed.”
DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1288 (11th Cir.
2019) (quoting Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir.
2019)).

Plaintiff’s federal question claims are based on a lack of
procedural due process, substantive due process, and an
unconstitutional taking. The Court notes that the Complaint is a
shotgun pleading.
“A complaint is a shotgun pleading if it contains pervasive
conclusory and immaterial facts not obviously connected to a
specific claim or asserts multiple claims without specifying who
is responsible or which persons the claim is brought against. []
A shotgun pleading makes it virtually impossible to know which
allegations of fact are intended to support which claims for
relief.” Brown v. Columbus Police Dep’t, No. 23-11896, 2024 WL
3451862, at *6 (11th Cir. July 18, 2024). “Shotgun pleadings,

whether filed by plaintiffs or defendants, exact an intolerable
toll on the trial court's docket, lead to unnecessary and
unchannelled discovery, and impose unwarranted expense on the
litigants, the court and the court's parajudicial personnel and
resources. Moreover, justice is delayed for the litigants who are
‘standing in line,’ waiting for their cases to be heard.” Cramer
v. State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997).
There are four types of shotgun pleadings: (1) a complaint
with multiple counts where each count adopts 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”; (2)
“a complaint that … is guilty of the venial sin of being replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) a complaint that
fails to separate into separate counts each claim for relief; and
(4) “there is the relatively rare sin of 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 v. Palm
Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1321–23 (11th Cir.
2015).
In this case, plaintiff has committed the venial sin of filing

a Complaint replete with conclusory and vague allegations with no
clear connection to the facts and the rare sin of lumping
defendants together without specifying how the count applies to
each defendant separately and individually. This is an important
distinction necessary to plaintiff’s claims where one defendant is
a municipality while the other is a private entity that must be
alleged to have acted under color of state law. For these reasons
alone, the motion to dismiss will be granted.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #4) is GRANTED and the
Complaint is dismissed without prejudice to filing an Amended
Complaint within FOURTEEN (14) DAYS of this Opinion and Order.
The Request to Declare Plaintiff a Vexatious Litigant (Doc. #4) is
deferred pending the filing of an Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this 12th day of
September 2024.

VAY ee DH
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642947. Public record. Not legal advice.