# Hybrid Pharma LLC v. Knispel

> District Court, S.D. Florida · August 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10766550

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10766550

## How later opinions describe it (automated extraction)

- finding comparators were not similarly situated where the government’s investigation was instigated by anonymous complaint against the plaintiff, while other entities identified were not the subject of the same complaints
- finding comparators were not similarly situated where their projects were subject to different funding models
- finding that nurses were not similarly situated where, despite similar histories of problems with coworkers as compared to the plaintiff, the comparators had better records on job performance and tardiness
- finding comparators were not similarly situated where plaintiff’s suggested comparators were fully compliant with relevant city codes

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:22-cv-61136-LEIBOWITZ/AUGUSTIN-BIRCH

HYBRID PHARMA LLC,

Plaintiff,

v.

MATTHEW KNISPEL, MARK
WHITTEN and ROBERT DIFIORE,

Defendants.

______________________________________/
SEALED ORDER ADOPTING MAGISTRATE’S
REPORT AND RECOMMENDATION

THIS MATTER was referred to United States Magistrate Judge Panayotta Augustin-Birch
for a Report and Recommendation on Defendants’ Joint Motion for Summary Judgment (the
“Motion”) [ECF Nos. 127, 154]. Judge Augustin-Birch has issued her Report and
Recommendation (the “R&R”), recommending that the Court grant Defendants’ Motion. [ECF
No. 167]. Plaintiff Hybrid Pharma LLC (“Hybrid Pharma”) submitted objections to the R&R, and
Defendants Matthew Knispel, Mark Whitten, and Robert DiFiore (collectively, the “Defendants”)
submitted a Response to Plaintiff’s objections. [ECF Nos. 171, 176]. After careful review of the
filings, the applicable law, and the record, the Court adopts the R&R [ECF No. 167] in its entirety
and writes below to expand upon its reasoning.
PROCEDURAL BACKGROUND
Defendants moved this Court for Summary Judgment on January 29, 2024, arguing that
(1) Hybrid Pharma failed to state a cognizable “class of one” Equal Protection claim under 42
U.S.C. § 1983, for failure to prove it was intentionally treated differently by Defendants and
failure to identify a valid comparator; (2) Defendants are entitled to a qualified immunity
defense; and (3) sovereign immunity under the Eleventh Amendment bars Hybrid Pharma’s
official capacity claims. [Defendants’ Joint Mot. for Summary Judgment, ECF No. 127, at 4–

16]. Judge Augustin-Birch recommended to this Court that Summary Judgment be granted in
favor of the Defendants on the grounds that Hybrid Pharma failed to identify sufficient
comparators for a “class of one” claim, and therefore Hybrid Pharma is not entitled to relief on
any of its claims. [R&R at 11].
LEGAL STANDARDS
Adoption of a Report and Recommendation: “In order to challenge the findings and
recommendations of the magistrate judge, a party must file written objections which shall
specifically identify the portions of the proposed findings and recommendation to which objection
is made and the specific basis for objection.” Macort v. Prem, Inc., 208 F. App'x 781, 783 (11th
Cir. 2006) (cleaned up). The objections must also present “supporting legal authority.” L. Mag.

J.R. 4(b). Once a district court receives “objections meeting the specificity requirement set out
above,” it must “make a de novo determination of those portions of the report to which objection
is made and may accept, reject, or modify in whole or in part, the findings or recommendations
made by the magistrate judge.” Macort, 208 F. App'x at 783–84 (cleaned up). To the extent a
party fails to object to parts of the magistrate judge's report, those portions are reviewed for clear
error. Id. at 784 (cleaned up). The Court has reviewed de novo Hybrid Pharma’s objections to the
R&R and, for the reasons stated below, the Court finds the resolution of the issues as recommended
by Judge Augustin-Birch to be sound and well-reasoned. The Court therefore adopts the R&R in
its entirety and incorporates its findings herein.
Summary Judgment: A court “shall 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). The party moving for summary judgment “bears the initial
burden to show the district court, 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Those materials
may include, “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “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.
If the moving party meets its burden, the non-moving party is then required “to go beyond
the pleadings” and present competent evidence “showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324. Generally, “[t]he mere existence of a scintilla of evidence”

supporting the non-movant’s case is insufficient to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If, in response, the non-
moving party does not sufficiently support an essential element of his case as to which he bears
the burden of proof, summary judgment is appropriate. Rice-Lamar v. City of Ft. Lauderdale,
Fla., 232 F.3d 836, 840 (11th Cir. 2000). A fact is “material” for these purposes if it “might affect
the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A dispute of fact is
“genuine” if, “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “In determining whether genuine issues of material fact exist, [the reviewing court]
resolve[s] all ambiguities and draw[s] all justifiable inferences in favor of the non-moving
party.” Rice-Lamar, 232 F.3d at 840 (citing Anderson, 477 U.S. at 255). However, when the
record “taken as a whole” could not support a reasonable finding for the non-movant, there is no
“genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).

DISCUSSION
“No State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV § 1. The Supreme Court has allowed equal protection claims
brought by a “class of one” where “the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see Chabad Chayil, Inc. v.
Sch. Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222, 1233 (11th Cir. 2022).
Judge Augustin-Birch found that Hybrid Pharma’s evidence that its two proffered
comparators, OPS and KRS, were similarly situated was insufficient, thus destroying the “class of
one” claim. R&R at 5–11. In its objections, Hybrid Pharma argued that OPS and KRS were

similarly situated because they both are “(i) located within the same regulatory jurisdiction as
Plaintiff; (ii) engaged in the same business as Plaintiff; (iii) hold or held the same state licenses
and federal registrations as Plaintiff; and (iv) have the same facility setups as Plaintiff.” [Pl.
Objections to the Sealed Report and Recommendation, ECF No. 171 at 8–9]. Hybrid Pharma
fundamentally misunderstands the Eleventh Circuit’s test for whether a comparator is similarly
situated. Thus, this Court will dispense with each of Hybrid Pharma’s arguments in turn.
The Griffin Standard and its Application
The Eleventh Circuit in Griffin Indus., Inc. v. Irvin, 496 F.3d 1189 (11th Cir. 2007) laid
out the standard for courts to determine whether a comparator is similarly situated in a “class of
one” claim. The Griffin Court grappled with the appropriate standard for comparators, warning
that “[t]oo broad a definition of ‘similarly situated’ could subject nearly all state regulatory
decisions to constitutional review in federal court and deny state regulators the critical discretion
they need to effectively perform their duties.” Id. at 1203. Understanding that government

regulators often face complex decisions, the Eleventh Circuit commanded district courts to
evaluate “class of one” claims “in light of the full variety of factors that an objectively reasonable
governmental decisionmaker would have found relevant in making the challenged decision.
Accordingly, when dissimilar governmental treatment is not the product of a one-dimensional
decision . . . the ‘similarly situated’ requirement will be more difficult to establish.” Id. at 1203–
04 (noting that courts can only analyze comparators at a high level of abstraction where challenged
governmental decisions are one-dimensional).
Specifically, comparators must be “very similar indeed[,]” as plaintiffs cannot “simply rely
on broad generalities in identifying a comparator.” Id. at 1204, 1205 (finding that nurses were not
similarly situated where, despite similar histories of problems with coworkers as compared to the

plaintiff, the comparators had better records on job performance and tardiness) (citing Knight v.
Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316–19 (11th Cir. 2003)). As such, a similarly
situated comparator must be “prima facie identical in all relevant respects.” Id. at 1204 (citing
Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006)). Simply put, “[d]ifferent
treatment of dissimilarly situated persons does not violate the equal protection clause.” Id. at 1207
(citing E & T Realty v. Strickland, 830 F.2d 1107, 1109 (11th Cir.1987)).
Applying the Griffin standard “with rigor[,]” as this Court is required to do, Hybrid Pharma
plainly fails to show that either OPS or KRS are similarly situated. Id.; see also Douglas Asphalt
Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir. 2008).
First, the standard Hybrid Pharma asks this Court to use to find OPS and KRS similarly
situated is a clear and obvious example of a “too broad” definition. If this Court were to use the
standard Hybrid Pharma sets out, supra at 4, it would encapsulate nearly all drug compounders
subject to the same regulations. Such a standard not only is too broad, but also wholly

misunderstands the purpose of the similarly situated test. The test exists so plaintiffs can show
that despite similar actions between them and a comparator, they were treated differently without
good reason. Hybrid Pharma’s proffered standard would not further the purpose of the test because
it would only show that a plaintiff was treated differently than a comparator in the same industry
regardless of whether the underlying actions were the same.
Next, under the Eleventh Circuit standard, Hybrid Pharma has offered insufficient evidence
to find that either OPS or KRS are similarly situated, as Judge Augustin-Birch concluded. Griffin
would suggest that Hybrid Pharma could show OPS or KRS were similarly situated if they, for
example, engaged in the same behavior that was deserving of deficiencies from the Florida
Department of Health (“FDOH”) regulators, but only Hybrid Pharma received deficiencies. Judge

Augustin-Birch identified numerous FDOH violations of Hybrid Pharma’s facility, and Hybrid
Pharma has pointed to no evidence that OPS or KRS had the same, or even similar, violations but
did not receive deficiencies. [R&R at 6–8].
Hybrid Pharma argues that they and OPS are similarly situated because an FDOH
inspection of both entities’ documents regarding an uncertified anteroom showed that they
received deficiencies and OPS did not. [Pl. Objections to the Sealed Report and Recommendation
at 10]. Glaringly absent from this argument are any facts in the summary judgment record to
establish that either both Hybrid Pharma and OPS were deserving of deficiencies, or that neither
were. It is entirely conceivable that Hybrid Pharma received a deficiency and OPS did not because
FDOH’s investigation found that Hybrid Pharma’s anteroom did not meet regulatory standards
while OPS’s anteroom did, even if both produced the same type of documents. Hybrid Pharma
offers no evidence its anteroom and OPS’s anteroom were substantively the same; thus this
argument is meritless.

Hybrid Pharma’s remaining objections to the R&R all hang their hat on the same issue –
that OPS and KRS are similarly situated because they were similar companies subject to the same
regulations. As discussed, such an understanding of “class of one” jurisprudence is misguided
(and borders on frivolous) because it glosses over Judge Augustin-Birch’s finding that FDOH
treated Hybrid Pharma differently than OPS and KRS because Hybrid Pharma engaged in worse
conduct than OPS and KRS.
Hybrid Pharma cited just one clearly distinguishable case to argue that its standard is the
correct one – Mad Room, LLC v. City of Miami, No. 21-CV-23485, 2023 WL 8598151 (S.D. Fla.
Dec. 12, 2023), discussed infra. Beyond Mad Room, Hybrid Pharma presented this Court with no
case that would support its definition of “similarly situated.” After an extensive review of cases

in the Eleventh Circuit, this Court is convinced that surface level similarities are insufficient for a
comparator to be considered “similarly situated” when the comparator’s underlying actions are
dissimilar. See, e.g. Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222,
1234 (11th Cir. 2022) (finding comparators were not similarly situated where the government’s
investigation was instigated by anonymous complaint against the plaintiff, while other entities
identified were not the subject of the same complaints); Palm Beach Polo, Inc. v. Vill. of
Wellington, No. 21-12054, 2022 WL 17998533, at *3 (11th Cir. Dec. 30, 2022) (finding plaintiff
was not similarly situated to a comparator where plaintiff had more violations than the proffered
comparator); PBT Real Est., LLC v. Town of Palm Beach, 988 F.3d 1274, 1285-86 (11th Cir. 2021)
(finding comparators were not similarly situated where their projects were subject to different
funding models); Grider v. City of Auburn, Ala., 618 F.3d 1240, 1265 (11th Cir. 2010) (finding
comparators were not similarly situated where plaintiff’s suggested comparators were fully
compliant with relevant city codes); Safety Harbor Powersports, LLC v. City of Safety Harbor,

Fla., No. 8:23-CV-2399-VMC-UAM, 2024 WL 3400278, at *5 (M.D. Fla. July 12, 2024) (finding
comparator that was close in geographic proximity and notified of code violations was not
similarly situated because it did not face the same code violations as the Plaintiff); VTS
Transportation, Inc. v. Palm Beach Cnty., No. 9:15-CV-80560, 2016 WL 4250683, at *4 (S.D.
Fla. Feb. 4, 2016) (“The Court finds Plaintiffs’ allegation that both they and Rasier are performing
VFH services to be overly broad and insufficient to show that they are ‘similarly situated’ for
purposes of an equal protection claim.”); Decker v. Citrus Cnty., No. 5:15-CV-24-OC-30PRL,
2015 WL 6956545, at *5 (M.D. Fla. Nov. 10, 2015) (dismissing “class of one” claim because
“[t]he only fact Plaintiff relies upon to demonstrate that [the plaintiff's property] was similarly
situated to [the alleged comparators is] that the developments are commercial waterfront properties

that are water dependent. This is simply too broad a criteria to fulfill the similarly-situated
requirement.”).
Hybrid Pharma does not come close to meeting the Griffin standard and fails to convince
this Court that OPS and KRS are similarly situated. Judge Augustin-Birch’s R&R is correct to
grant summary judgment in favor of the Defendants.
Mad Room is Distinguishable
Hybrid Pharma claims that Mad Room is highly instructive and that Judge Augustin-Birch
“refused to acknowledge and apply the standard set forth in this decision.” [Pl. Objections to the
Sealed Report and Recommendation at 8]. In fact, Hybrid Pharma’s reliance on Mad Room is
unsound. The case at hand and Mad Room are dissimilar in multiple relevant respects.
First, the Court in Mad Room dealt with a motion to dismiss, and therefore a lower standard
than at summary judgment, where the Plaintiff alleged the City of Miami was irrationally

discriminating against them after the Plaintiff’s owner supported the Commissioner’s political
opponents. Mad Room, LLC, 2023 WL 8598151, at *1. The Plaintiff alleged that the City harassed
them through “constant inspections and ‘walk-throughs,’ that appeared as a drug bust to the larger
public due to the sheer amount of officers attending each raid— usually including 10 or more
officers wearing bulletproof vests and often fully armed.” Id. Plus, the inspections allegedly
escalated to “include multiple code enforcement raids, comprised of dozens of police officers, fire
department officials, code enforcement officials and inspectors with the Division of Alcohol
Beverages and Tobacco, Bureau of Law Enforcement,” during the busiest nights of the week. Id.
The Plaintiff identified three City policies which they said were passed to discriminate and
disproportionately enforced against supporters of the Commissioner’s political opponent,

including the Plaintiff. Id. at *2.
To support its “class of one” claim, the plaintiff in Mad Room identified numerous
comparators it claimed were similarly situated. Id. at *8–9. First, the Plaintiff identified three
businesses close in geographic proximity to the Plaintiff that had their certificates of use revoked
for “life safety issues” but were implicitly allowed to operate in violation of the law by the City,
unlike the Plaintiff (the “Life Safety Comparators”). Id. at *8. Next, the Plaintiff identified one
establishment which was permitted to operate as a liquor store while Plaintiff was denied an
Outdoor Dining Warrant because it would be selling alcohol within three-hundred feet of a
religious facility even though the liquor store was in the same building as that religious facility.
Id. The Plaintiff also identified thirteen other establishments within three-hundred feet of a
religious facility that could sell alcohol (the “Outdoor Dining Comparators”). Id. In other words,
the Plaintiff identified fourteen businesses that were engaged in the same underlying activity
(selling alcohol near a religious facility), yet the Plaintiff was the only business forbidden from

selling alcohol. Finally, the Plaintiff also alleged that it was subject to an extensive process to
obtain an alcohol warrant while its competitor was granted “concession after concession from the
City,” in their effort to serve alcohol (the “Alcohol Warrant Comparator”). Id. at *9. The Mad
Room Plaintiff emphasized that the competitor was close in geographic proximity, engaged in the
same business and had the same license from the city, was granted the same alcohol warrant, and
served food and alcohol outside, just as the Plaintiff did. Id. The Mad Room Plaintiff offered the
Court no evidence that it, unlike its comparators, engaged in any behavior that justified the City to
take corrective action against it. Id.
Hybrid Pharma claims that the Mad Room Court “held that the plaintiff had established a
‘similarly situated’ comparator with only the following: (i) the comparator’s name and location in

the same jurisdiction; (ii) the comparator was engaged in the same business; (iii) the comparator
held the same license; and (iv) the comparator has a similar facility setup.” [Pl. Objections to the
Sealed Report and Recommendation at 8 (emphasis in original)]. Hybrid Pharma appears to be
referring to the Alcohol Warrant Comparator in its argument. While Hybrid Pharma is correct that
the Mad Room Court found the Alcohol Warrant Comparator to be similar to the Plaintiff, it omits
an important distinguishing fact: There was no evidence in Mad Room that the Plaintiff was
undeserving of the alcohol warrant, while here, Hybrid Pharma (unlike OPS and KRS) received
numerous deficiencies which explain the increased number of FDOH citations against Hybrid
Pharma – arguably the most relevant respect to Hybrid Pharma’s “class of one” claim.1 This fact
alone distinguishes Mad Room, where there was no allegation that the Plaintiff had been found to
be violating any regulations at a rate higher than the comparators.
Hybrid Pharma continues the comparison with Mad Room, arguing that OPS and KRS are

similarly situated because they are similar types of businesses that held the same licenses, were
subject to the same regulations, and had the same facility setups. [Pl. Objections to the Sealed
Report and Recommendation at 8–9]. This argument continues to ignore the fact that Hybrid
Pharma, unlike OPS and KRS, was found to have deficiencies by FDOH regulators after multiple
inspections. Id. Meanwhile, the Life Safety Comparators in Mad Room were found to be similarly
situated (at the Motion to Dismiss phase) because they all were cited for “life safety issues,” just
as the Plaintiff. Mad Room, LLC, 2023 WL 8598151, at *8. Hybrid Pharma admits that OPS did
not receive any deficiencies after inspections, which may explain why the FDOH took action
against Hybrid Pharma and not OPS. [Pl. Objections to the Sealed Report and Recommendation
at 9–10].

1 Additionally, Hybrid Pharma claims that “the [Mad Room] Court found the alleged
comparator was ‘identical’ in ‘all respects relevant[.]’” [Pl. Objections to the Sealed Report and
Recommendation at 8]. The only two times the Court used the phrase “all respects relevant” is
when it cited the Plaintiff’s language in its amended complaint:

Cubaocho is thus identical to Ball & Chain in all respects relevant to compliance with
the service of alcoholic beverages yet was treated differently. [Amended Complaint] ¶ 75
n.3.

See, e.g., Amended Complaint ¶ 75 n.3 (“Cubaocho . . . . is thus identical to Ball &
Chain in all respects relevant to compliance with the service of alcoholic beverages yet
was treated differently.”)

Mad Room, LLC, 2023 WL 8598151, at *9 (emphasis added).
Lastly, the Mad Room Plaintiff and the Outdoor Dining Comparators all were in violation
the same regulation – serving alcohol near a religious facility. Mad Room, 2023 WL 8598151, at
*8. Here again, there is no evidence that OPS or KRS engaged in the same actions that led to
Hybrid Pharma receiving deficiencies and citations. Hybrid Pharma’s argument that it is similarly

situated to OPS because “both Plaintiff and OPS were inspected on the same identical inspection
issues and produced the same documents regarding training and anteroom certification; yet,
Plaintiff received deficiencies and OPS did not,” is unavailing for this reason. [Pl. Objections to
the Sealed Report and Recommendation, ECF No. 171 at 10]. Hybrid Pharma does not offer any
evidence that it and OPS engaged in the same violation conduct and thus both deserved
deficiencies, but only it (Hybrid Pharma) received a deficiency, which would be analogous to Mad
Room. Thus, a review of the Outdoor Dining Comparators affirms this Court’s view that OPS and
KRS are not similarly situated to Hybrid Pharma.
Hybrid Pharma has failed to meet its burden to establish that OPS and KRS are similarly
situated and incorrectly rely on a clearly distinguishable case. Therefore, summary judgment must

be granted in favor of the Defendants.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Magistrate Judge Augustin-Birch’s Report and Recommendation [ECF No. 167] is
AFFIRMED AND ADOPTED.
2. Defendant’s Joint Motion for Summary Judgment [ECF No. 127] is GRANTED.
3. The parties shall submit briefing on whether any of the sealed docket entries [ECF Nos.
65, 70, 72, 73, 96, 138, 155, 159, 167, 171], including this Order, shall remain sealed,
with citations to applicable law, no later than September 13, 2024. This Court will
then direct the Clerk of Court to close this case. Failure to submit briefing as to each
docket entry will result in this Court unsealing all sealed docket entries.
DONE AND ORDERED in the Southern District of Florida on August 30, 2024.
e 6
DAVID 8, LEIBOWITZ
UNITED STATES DISTRICT JUDGE

ce: counsel of record

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10766550. Public record. Not legal advice.