Carfagna v. Fisher Island Club, Inc.

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-cv-22350-RAR

SHEBAH T. CARFAGNA,

Plaintiff,

v.

FISHER ISLAND CLUB, INC.,

Defendant.

______________________________________________/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court upon Defendant’s, Fisher Island Club, Inc., Motion

for Summary Judgment as to Count IV of the Amended Complaint (“Motion”), [ECF No. 46]. The

gravamen of this dispute is whether Plaintiff, Shebah T. Carfagna, who is not in contractual privity

with Defendant, may nevertheless bring an equal-benefit-clause claim under 28 U.S.C. § 1981.

Having considered the Motion, Plaintiff’s Response in Opposition, [ECF No. 54], Defendant’s

Reply, [ECF No. 58], as well as the Parties’ statements of material facts,1 the record, and applicable

law, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is

GRANTED as set forth herein.

BACKGROUND

Plaintiff is a fitness instructor and the sole owner and president of Panache Trading

Company d/b/a Panache Fitness (“Panache Fitness”). See DSOMF ¶ 3; PRSOMF ¶ 38.2

1 These include Defendant’s Statement of Material Facts (“DSOMF”), [ECF No. 45]; Plaintiff’s Response

and Counter-Statement of Material Facts (“PRSOMF”), [ECF No. 53]; and Defendant’s Reply Statement

of Material Facts (“DRSOMF”), [ECF No. 57].

2 Plaintiff’s Response and Counter-Statement of Material Facts begins re-numbering the facts contained

taught fitness classes at Defendant’s facilities pursuant to an independent contractor agreement

(“Contract”) between Panache Fitness and Defendant. See DSOMF ¶¶ 3–6; PRSOMF ¶¶ 3–6.

Plaintiff, as President, signed the Contract on behalf of Panache Fitness. See DSOMF ¶ 8;

PRSOMF ¶ 4. This litigation arises out of Defendant’s termination of the Contract with Panache

Fitness on April 22, 2024. DSOMF ¶ 37; PRSOMF ¶ 37. Plaintiff subsequently brought a variety

of claims under 42 U.S.C. § 1981, alleging that Defendant discriminated against Plaintiff and

ultimately terminated the Contract based on racial animus.3 See generally Am. Compl., [ECF

No. 21].

However, what began as a racial discrimination action has since devolved into a semantics

dispute about statutory interpretation. Defendant previously filed a Motion to Dismiss Plaintiff’s

Amended Complaint or, in the Alternative, Motion to Compel Arbitration and Stay the Action

(“Motion to Dismiss”), [ECF No. 23]. Essentially, the Motion to Dismiss argued that Plaintiff

failed to state a claim for discrimination under § 1981 because § 1981 protects the right to make

and enforce contracts and, since Plaintiff signed the Contract in her representative capacity,

Plaintiff was not a party to the Contract and thus lacked statutory recourse. See Mot. Dismiss at

15–16. The Court agreed, dismissing Counts I and II of the Amended Complaint for race

discrimination and retaliation, which Plaintiff brought in her personal capacity.4 See Order

Granting in Part and Den. in Part Mot. to Dismiss at 7, [ECF No. 33]. However, the Court allowed

references to these facts confusing and therefore the Court simply continues with the original numbering,

beginning at ¶ 38, rather than referring to re-numbered facts.

3 Specifically, Plaintiff’s claims include: race discrimination against Plaintiff, individually (Count I);

retaliation against Plaintiff, individually, for engaging in a protected activity (Count II); retaliation against

Panache Fitness for engaging in a protected activity (Count III); and violation of Plaintiff’s rights under the

equal-benefit clause of § 1981, individually (Count IV). See generally Am. Compl.

4 Count III, which is not relevant to the present Motion, was referred to arbitration. See Order Granting in

Part and Den. in Part Mot. to Dismiss at 13–15, [ECF No. 33].

Plaintiff’s individual rights under the equal-benefit clause of § 1981. Id. at 9–10. The Court did

so partly because Defendant’s Motion to Dismiss did not meaningfully engage with Count IV and

partly because Plaintiff identified authority, albeit from outside this District, holding that a plaintiff

who is not in contractual privity with a defendant could nevertheless bring an equal-benefit-clause

claim under § 1981. Id.

Further, at the hearing on the Motion to Dismiss, the Parties represented that Count IV,

Plaintiff’s sole remaining claim, poses a pure question of law. See [ECF No. 38]. As such, the

Parties stipulated on the record that there were no issues of material fact pertaining to this issue

and thus summary judgment would be appropriate. Id. Accordingly, the Court stayed discovery

in this matter and set a summary judgment briefing schedule. See [ECF No. 39]. As such, the

operative, undisputed facts in this matter are essentially those facts pled in the Amended Complaint

and reiterated nearly verbatim in the Parties’ statements of material facts, which the Court takes as

true. Accordingly, the facts and arguments relevant to the disposition of Count IV, that is, whether

Plaintiff may maintain an equal-benefit-clause claim under § 1981 when she is not in contractual

privity with Defendant, are as follows.

Defendant’s Motion for Summary Judgment argues that Plaintiff’s claim fails as a matter

of law for three reasons: (1) a § 1981 equal-benefit claim requires state action, but Defendant is a

private entity, Mot. at 6–12; (2) § 1981 only recognizes contract claims and Plaintiff is not in

contractual privity with Defendant, Mot. at 12–15; and (3) Plaintiff has not identified a specific

law of which Defendant deprived her of equal benefit, Mot. at 15–18.5 Plaintiff responds that

5 Defendant also includes a public policy argument, urging the Court to deny Plaintiff’s claim because it is

based on “racially motivated torts,” and such a claim impermissibly federalizes state tort law. Mot. at 18.

In support, Defendant cites multiple cases that are inapposite, such as Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938), for the broad proposition that “the Supreme Court has cautioned against federalizing state

matters without clear Congressional authorization, emphasizing judicial restraint to avoid expanding federal

13. Likewise, Plaintiff argues that the equal-benefit clause of § 1981 does not require a contractual

relationship. Id. at 13-17. Ultimately, there is no genuine dispute that Plaintiff is not a party to the

Contract between Panache Fitness and Defendant. See DSOMF ¶¶ 3–16; PRSOMF ¶¶ 3–16; see

also Order Granting in Part and Den. in Part Mot. to Dismiss at 7, [ECF No. 33], (holding that

pursuant to Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 480 (2006), Plaintiff is not a party

to the Contract). Nor do the Parties dispute that Defendant is a private actor. See DSOMF ¶ 1;

PRSOMF ¶ 1.

Finally, Plaintiff contends that Defendant deprived her of the equal benefit of tort law and

corporate law. Initially, Plaintiff alleges that Defendant and its staff engaged in a pattern of racially

motivated, discriminatory behavior that amounted to “racially motivated torts, including, but not

limited to, defamation of [Plaintiff], which seek to deprive [Plaintiff] of the equal protection of

laws or proceedings for the security of persons and property.” Am. Compl. ¶ 80. Notably, Plaintiff

does not specify which torts Defendant committed other than a generic reference to defamation.

The remaining factual counts do little to elaborate. For instance, Plaintiff alleges that Defendant

“directed [club] members away from [Plaintiff] by instructing desk attendants and other employees

to falsely inform members that she was unavailable when she was actually available.” See DSOMF

¶ 18 (citing Am. Compl. ¶ 23); PRSOMF ¶ 18. Additionally, Plaintiff complains that Defendant

“prevented [Plaintiff] from teaching certain classes by falsely claiming she was not certified to do

so.” See DSOMF ¶¶ 19, 20 (citing Am. Compl. ¶ 24); PRSOMF ¶¶ 19, 20. Further, Plaintiff

contends that two of Defendant’s employees “tried to harm Plaintiff’s reputation . . . ‘by defaming

her to others and misrepresenting her skills and the popularity of her classes.’” See DSOMF ¶ 27

statutes into state-law domains.” Mot. at 18. However, the Court need not wade into public policy

considerations because it decides the issue on the merits.

Opposition, for the first time, that Defendant deprived her of the equal benefit of “Florida corporate

law” by infringing on Plaintiff’s “protectable property interest . . . namely, her right to the income

she derived as the sole shareholder and employee of Panache Fitness.” Pl.’s Resp. in Opp’n at 18.

Given these undisputed facts, the Court is able to determine whether Plaintiff’s claim survives as

a matter of law.

LEGAL STANDARD

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). An issue of fact is “material” if it might affect the outcome of the case under the

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if

the evidence could lead a reasonable factfinder to find for the non-moving party. See id.;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the mere

existence of any factual dispute will not automatically necessitate denial of a motion for summary

judgment; rather, only factual disputes that are material preclude entry of summary judgment.

Lofton v. Sec’y of Dept. of Child. and Fam. Servs., 358 F.3d 804, 809 (11th Cir. 2004) (emphasis

added). “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 v. City of Ft. Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000). And, 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., 475 U.S. at 587.

Moreover, at summary judgment, the moving party “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

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. As discussed supra, the Parties

previously stipulated on the record that there is no genuine dispute as to any material fact and the

Court may decide the remaining issue as a matter of law. Accordingly, the essential question of

whether Plaintiff may bring an equal-benefit-clause claim under § 1981—despite not being in

contractual privity with Defendant—is ripe for adjudication.

ANALYSIS

Congress enacted § 1981 to protect certain enumerated rights for all individuals regardless

of race. These include the right “to make and enforce contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.” 42 U.S.C. § 1981. In 1991, Congress

amended § 1981 in response to the continued deprivation of these rights, adding two new

subsections for clarity. Subsection (b) defines the “make and enforce contracts” clause to include

“the making, performance, modification, and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b).

Subsection (c) provides that “[t]he rights protected by this section are protected against impairment

by nongovernmental discrimination and impairment under color of State law.” Id. § 1981(c).

To state a claim under § 1981, Plaintiff must plead facts demonstrating that: (1) Plaintiff is

a racial minority; (2) Defendant intended to discriminate on the basis of race; and (3) the

discrimination concerned one or more of the activities enumerated in § 1981. Williams v.

Columbus Reg’ Healthcare Syst., Inc., 499 F. App’x 928, 929 (11th Cir. 2012). Here, Plaintiff

alleges that Defendant violated her right to the “full and equal benefit of all laws and proceedings

violation of § 1981’s equal-benefit clause, Plaintiff must also prove racial animus, “identify a

relevant law [ ] for the ‘security of persons and property,’” and persuade the Court that Defendant

deprived her of “the full and equal benefit” of that law. Phillip v. Univ. of Rochester, 316 F.3d

291, 298 (2d Cir. 2003).

Defendant argues that Count IV of Plaintiff’s Amended Complaint, alleging a violation of

§ 1981’s equal-benefit clause, fails as a matter of law for three reasons: (1) a § 1981 equal-benefit

claim requires state action, but Defendant is a private entity; (2) § 1981 only recognizes contract

claims and Plaintiff is not in contractual privity with Defendant; and (3) Plaintiff has not identified

a specific law of which the Defendant deprived her of equal benefit. Apparently, this is a matter

of first impression in this Circuit and there exists not only a dearth of case law in this arena but

also a circuit split. However, based on the clear language of § 1981 and the available case law,

the Court holds that § 1981 does not apply solely to state actors and that § 1981 does not apply

only to contract claims. Nevertheless, the Court is persuaded that § 1981’s equal-benefit clause

requires Plaintiff to identify a specific law that protects the security of her person or property.

Since Plaintiff cannot identify such a law, let alone illustrate how Defendant deprived her of the

equal benefit of that law, Plaintiff fails to show that Defendant violated the enumerated right at

issue and, accordingly, Plaintiff’s § 1981 claim fails.

I. As a matter of law, a § 1981 equal-benefit clause claim does not require state action.

Defendant argues that Count IV fails as a matter of law because an “[e]qual [b]enefit claim

requires state action; thus, purely private behavior, such as [Defendant]’s alleged conduct, does

not satisfy this requirement.” Motion at 5–6. In support, Defendant cites case law from the Third,

Fourth, and Eighth Circuits holding that “[b]ecause the state is the sole source of the law, it is only

the state that can deny the full and equal benefit of the law.” See, e.g., Youngblood v. Hy-Vee Food

Cir. 2001), rev’d en banc, 319 F.3d 825 (6th Cir. 2003); Jones v. Poindexter, 903 F.2d 1006, 1010

(4th Cir. 1990); Mahone v. Waddle, 564 F.2d 1018, 1029–30 (3d Cir. 1977).

The Eleventh Circuit has not yet addressed the issue. However, “[a]s in all cases involving

statutory construction, our starting point must be the language employed by Congress, and we

assume that the legislative purpose is expressed by the ordinary meaning of the words used.” Am.

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (internal quotation omitted). Moreover, where

“the statute’s language is plain, the sole function of the courts is to enforce it according to its

terms.” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 (1989) (internal quotation

omitted). Here, Congress added subsection (c) to § 1981 in 1991 and the clear language of the

statute now provides: “The rights protected by this section are protected against impairment by

nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c)

(emphasis added). Accordingly, the plain language of § 1981 following the 1991 amendment

clearly encompasses private actors as well as those acting under color of state law.

Indeed, there is no question that § 1981 generally applies to private actors. See, e.g.,

Runyon v. McCrary, 427 U.S. 160, 174–175 (1976) (“There could hardly be a clearer indication

of congressional agreement with the view that § 1981 does reach private acts of racial

discrimination.”). Instead, Defendant grasps at a particular string of case law that isolates the

“equal benefit” and “like punishment” clauses of § 1981(a) and interprets subsection (c) as

applying only to the “make and enforce contracts” clause of § 1981(a). However, this case law is

grounded in jurisprudence that pre-dates Congress’s 1991 amendment, specifically, Mahone v.

Waddle, 564 F.2d 1018, 1029–30 (3d Cir. 1977).

Initially, Mahone became the touchstone case because it distinguishes between the “make

and enforce contracts” clause, where private actors are the quintessential contracting parties, and

power of government actors. Id. at 1228–29. Mahone reasons that:

The words “full and equal benefit of all laws and proceedings for

the security of persons and property” [] suggest a concern with

relations between the individual and the state, not between two

individuals. The state, not the individual, is the sole source of law,

and it is only the state acting through its agents, not the private

individual, which is capable of denying to blacks the full and equal

benefit of the law. Thus . . . the concept of state action is implicit in

the equal benefit clause.

Id. at 1229. Yet, Mahone was decided prior to § 1981’s amendment that specifically prohibits

“nongovernment discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c)

(emphasis added). Importantly, the previous version of § 1981 (which the Mahone Court

analyzed) simply listed the enumerated rights. It follows that the Mahone Court needed to parse

the statute’s applicability without subsection (c) to guide it, but such a distinction is now moot.

Accordingly, the Court finds that Mahone’s reasoning is now tenuous and is not persuaded by

Defendant’s cited cases which derive from Mahone and, in most instances, were also decided prior

to § 1981’s amendment. See, e.g., Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001)

(rejecting plaintiffs’ equal-benefit claims because they were not raised below and “even if we were

to consider them, [the] claims would fail in light of a substantial line of authority holding that only

state actors can be sued under the ‘full and equal benefit’ clause of § 1981” (citing Mahone, 564

F.2d at 1029)); Youngblood, 266 F.3d at 855 (citing Mahone for the proposition that a § 1981 suit

requires a state actor); Jones, 903 F.2d at 1010 (holding in 1990 that “[a] § 1981 ‘full and equal

benefit’ suit will not stand unless there was state action denying the plaintiff the full and equal

benefit of the law); Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 F. Supp. 1344,

1353 (E.D. Va. 1983), judgment aff’d, 742 F.2d 1448 (4th Cir. 1984).

Moreover, it appears that the Eighth Circuit adheres to this precedent simply out of respect

for stare decisis. Namely, the Eighth Circuit decided Youngblood according to Mahone and prior

under § 1981 requires state action. 266 F.3d at 855. However, the Eighth Circuit has recently

noted, somewhat skeptically, that “[i]t is a cardinal rule in [the Eighth Circuit] that one panel is

bound by the decision of a prior panel” and “[t]hus, we are bound by Youngblood’s state action

requirement.” Elmore v. Harbor Freight Tools USA, Inc., 844 F.3d 764, 766–67 (8th Cir. 2016).

Meanwhile, despite Defendant’s citations, the Sixth Circuit has since reversed itself and

abandoned Mahone following § 1981’s amendment, holding instead that § 1981’s equal-benefit

clause does not require state action. See Chapman v. Higbee Co., 319 F.3d 825, 829–30 (6th Cir.

2003) (holding that “§ 1981 is unambiguous” because “[a]ccording to subsection (c), the rights

protected by [§] 1981 are ‘protected against impairment by nongovernmental discrimination’”).

Thus, the Sixth Circuit has joined the Second Circuit in holding that an equal-benefit clause claim

under § 1981 does not require state action. See, e.g., Phillip, 316 F.3d at 295; Chapman, 319 F.3d

at 829–30. Both circuits compellingly criticize Mahone and its progeny’s fundamental assumption

that only state actors can deprive individuals of the equal benefit of the law. Phillip, 316 F.3d at

295 (“[T]he state is not the only actor that can deprive an individual of the benefit of laws or

proceedings for the security of persons or property.”). In sum, the Court is not persuaded by

Defendant’s line of cases and instead finds that, in light of the clear language of § 1981, an equal-

benefit-clause claim does not require state action. Thus, Defendant is not insulated from any

wrongdoing by virtue of being a private actor.

II. Section 1981 does not apply solely to contract claims.

Defendant contends that since § 1981 explicitly protects the “right to make and enforce

contracts,” any § 1981 claim must be based in contract to be viable. Mot. at 12. Initially, this is

facially untenable simply because § 1981 includes five other enumerated rights. See 42 U.S.C.

§ 1981(a). In support, Defendant points to the Supreme Court’s decision in Domino’s Pizza, Inc.

contracts” clause of § 1981, the party must have rights under the contract at issue. 546 U.S. 470,

476–80 (2006). It is true that Domino’s includes sweeping language such as “[c]onsistent with our

prior case law, and as required by the plain text of the statute, we hold that a plaintiff cannot state

a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract

that he wishes ‘to make and enforce.’” Id. at 479–80.

However, Domino’s solely discussed the “make and enforce contracts” clause. Moreover,

nothing in the Domino’s opinion indicates that the Supreme Court’s decision operates to exclude

any of the other enumerated rights—the briefing simply presented a contract issue, and the

Supreme Court had no occasion to address any clauses other than those relevant to the issue at bar.

Accordingly, the Domino’s opinion controls only when a plaintiff’s claim is brought pursuant to

the “make and enforce contracts” clause—it does not impact every other clause in § 1981.

Defendant also cites several district court cases purportedly holding that § 1981 only

applies to contract claims. However, the Court does not find these cases persuasive in this instance

as they are factually inapposite, not binding, and effectively deferred the equal-benefit clause issue

due to the lack of Eleventh Circuit precedent. See Keith v. Agrella, No. 1:22-CV-418-ECM, 2024

WL 1349016, at *8 (M.D. Ala. Mar. 29, 2024) (holding that “without caselaw from this Circuit

supporting Keith’s argument,” Keith’s false arrest claims fall within the “equal benefit” clause

rather than the “make and enforce contracts” clause, and thus “the Court finds that Keith has failed

to allege a violation of a right protected by § 1981”); Lapread v. Buis, No. 8:23-CV-1385-SDM-

JSS, 2024 WL 916541, at *2 (M.D. Fla. Mar. 4, 2024) (stating, without elaborating, that “even if

[plaintiff] can plead facts sufficient to support a claim that some defendant violated [§] 1981,

[plaintiff] must assert the claim under [§] 1983”); Bartley v. Kim’s Enter. of Orlando, Inc., No.

610CV1180ORL35DAB, 2010 WL 11626849, at *4–5 (M.D. Fla. Dec. 20, 2010) (dismissing the

§ 1983); Jones v. Flathmann, No. CIV.A. 1:06-CV-585-W, 2008 WL 918702, at *3 n.4 (M.D. Ala.

Apr. 1, 2008) (holding plaintiff’s haphazard allegations that defendant’s infliction of “grievous

bodily harm” and “severe pain and emotional distress” violated § 1981 are more accurately

construed as § 1983 claims). Accordingly, the Court finds Defendant’s argument—that § 1981

applies only to contract claims—unavailing.

III. Plaintiff cannot establish that Defendant deprived her of the equal benefit of either

Florida’s tort laws or Florida’s corporate laws.

The equal-benefit clause refers to the right to the “full and equal benefit of all laws and

proceedings for the security of persons and property.” 42 U.S.C. § 1981(a). To prove a violation

of § 1981’s equal-benefit clause, Plaintiff must identify a relevant law that protects the “security

of persons and property” and illustrate that Defendant deprived her of “the full and equal benefit”

of that law based on racial animus. Phillip, 316 F.3d at 298. Plaintiff identifies two potential laws

that Defendant allegedly deprived her the equal benefit of: Florida tort law, specifically

defamation, and Florida corporate law. Defendant argues that neither Florida corporate law

generally nor defamation specifically are laws that protect the “security of persons or property,”

but rather dissuade generalized harms, and thus Plaintiff’s claim fails. Mot. at 16. The Court

agrees; because Plaintiff must point to some law which protects her person or property—and since

Plaintiff does not and cannot do so—her claim fails as a matter of law.

(a) Plaintiff fails to allege a defamation claim and thus cannot establish that

Defendant deprived her of the equal benefit of Florida’s tort laws.

Count IV of Plaintiff’s Amended Complaint contends that Defendant committed racially

motivated torts against Plaintiff, specifically defamation: “[Defendant’s] actions complained of

herein constitute racially motivated torts, including, but not limited to, defamation of [Plaintiff],

which seek to deprive [Plaintiff] of the equal protection of laws or proceedings for the security of

summary judgment; indeed, Plaintiff’s Response in Opposition does not mention a tortious act at

all. See Pl.’s Resp. in Opp’n at 17–19. However, as stipulated on the record and as evidenced by

the Parties’ statements of undisputed facts, the Parties accept as true the allegations contained in

the Amended Complaint for purposes of the Motion. As such, the Court analyzes whether

Defendant’s purported defamatory comments amount to a violation of § 1981’s equal-benefit

clause based on the Amended Complaint’s allegations.

To state a claim for defamation under Florida law, Plaintiff must plead the following

elements: “(1) publication; (2) falsity; (3) [the] actor must act with knowledge or reckless disregard

as to the falsity on a matter concerning a public official, or at least negligently on a matter

concerning a private person; (4) actual damages; and (5) [the] statement must be defamatory.”

Briseus v. JPMorgan Chase Bank, N.A., No. 18-80671, 2018 WL 3586140, at *3 (S.D. Fla. July

26, 2018) (quoting Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)). “A statement

is defamatory if it ‘tends to harm the reputation of another by lowering him or her in the estimation

of the community or, more broadly stated, . . . exposes a plaintiff to hatred, ridicule, or contempt

or injures his business or reputation or occupation.’” Parekh v. CBS Corp., 820 F. App’x 827, 833

(11th Cir. 2020) (quoting Jews for Jesus, Inc., 997 So. 2d at 1109). “Whether a statement is

susceptible to defamatory interpretation is a question of law left to the Court.” Bongino v. Daily

Beast Co., LLC, 477 F. Supp. 3d 1310, 1317 (S.D. Fla. 2020). “‘In determining the basic question

of whether certain language is defamatory . . . the words used are not to be construed or taken in

their mildest or most grievous sense, but . . . should be construed as the common mind would

understand it.’” Markle v. Markle, No. 8:22-CV-511-CEH-TGW, 2023 WL 2711341, at *8 (M.D.

Fla. Mar. 30, 2023) (quoting Loeb v. Geronemus, 66 So. 2d 241, 245 (Fla. 1953)).

members away from [Plaintiff] by instructing desk attendants and other employees to falsely

inform members that she was unavailable when she was actually available,” DSOMF ¶ 18 (citing

Am. Compl. ¶ 23); PRSOMF ¶ 18; (2) Defendant “prevented [Plaintiff] from teaching certain

classes by falsely claiming she was not certified to do so,” DSOMF ¶¶ 19, 20 (citing Am. Compl.

¶ 24); PRSOMF ¶¶ 19, 20; and (3) “[a co-worker] falsely reported to [another co-worker] . . .

[Plaintiff]’s class had only 1 attendee when, in truth, other Club members were in attendance,”

DSOMF ¶¶ 27, 28 (citing Am. Compl. ¶¶ 31, 32); PRSOMF ¶¶ 27, 28.

But these allegations cannot amount to defamation because they do not expose Plaintiff “to

hatred, ridicule, or contempt or injure[] [her] business or reputation or occupation.” Parekh, 820

F. App’x at 833. A reasonable listener—relying on the “common mind” and not assuming “the

most grievous sense”—would not construe these statements regarding Plaintiff’s availability,

certification, and class attendance as defamatory. Markle, 2023 WL 2711341, at *8.

Moreover, whether a statement is defamatory “turns on the ‘gist’ of the alleged defamatory

statement and the context in which that statement was made.” Bongino, 477 F. Supp. 3d at 1317

(quoting Jews for Jesus, Inc., 997 So. 2d at 1107–08 & n.12). Here, context makes it clear that the

statements at issue are not defamatory in nature because they are aimed at taking away Plaintiff’s

clientele—not harming her personal reputation. See, e.g., Sandshaker Lounge & Package Store

LLC v. RKR Beverage Inc, No. 317CV00686MCRCJK, 2018 WL 7351689, at *8 n.20 (N.D. Fla.

Sept. 27, 2018) (explaining that “defamation normally concerns the personal reputation of the

injured party, while injurious falsehood concerns protection of the injured party’s economic

interests” (citing Callaway Land & Cattle Co. v. Banyon Lakes C. Corp., 831 So. 2d 204, 209 (Fla.

4th DCA 2002)). A review of the agreed-upon material facts, see DSOMF ¶¶ 17–34; PRSOMF

¶¶ 17–34, coupled with Plaintiff’s allegations, see Am. Compl. ¶ 22, makes clear that Plaintiff’s

obtain Fisher Island members as new clients. Defendant’s actions thus fail to satisfy the elements

of defamation.

Further, the second statement suffers from an additional flaw given the absence of any

allegations that Defendant published the statement to a third party. To prove defamation, “[a]

plaintiff must show the defendant initially published the statement.” Klayman v. Jud. Watch, Inc.,

22 F. Supp. 3d 1240, 1251 (S.D. Fla. 2014), aff’d (Feb. 17, 2015) (citing Five for Entm’t S.A. v.

Rodriguez, No. 11-24142, 2013 WL 4433420, at *6 (S.D. Fla. Aug. 15, 2013)). And the element

of publication requires the “dissemination of a false statement to a person other than the defamed

person.” Id. (citing Doe v. Am. Online, Inc., 783 So. 2d 1010, 1016 (Fla. 2001)) (emphasis added).

Here, not only does Plaintiff fail to allege that Defendant made this statement to a third party, but

the Court interprets the allegation as suggesting that Defendant informed Plaintiff herself that she

was not qualified to teach certain classes. Making an allegedly defamatory statement to the

defamed person is not actionable. Accordingly, even a generous reading of Plaintiff’s allegations

does not amount to a defamation claim and, consequently, Plaintiff’s claim that Defendant

deprived her of the equal benefit of Florida’s tort laws necessarily fails.

(b) Plaintiff fails to establish a protected property interest under Florida

corporate law.

Perhaps sensing the precarious nature of her defamation theory, Plaintiff contends, for the

first time in her Response, that Defendant deprived her of the equal benefit of “Florida’s

corporation laws.” Pl.’s Resp. in Opp’n at 18. More specifically, Plaintiff appears to argue that

she has a “property interest” in the income she derives as the sole shareholder of Panache Fitness

and, therefore, Defendant’s termination of its contract with Panache Fitness adversely impacted

Plaintiff by depriving her “of her rights as a shareholder to the distributions she would have

received but for the discrimination.” Id. Presumably, Plaintiff means that she has not received

applies, Plaintiff cannot show that Florida’s corporate laws secure her a protectable property

interest—nor can Plaintiff illustrate how Defendant deprived Plaintiff of the equal benefit of

Florida’s corporate laws.6

Defendant’s Motion argues that Plaintiff does not have a property interest in her continued

employment and, in support, cites several cases which, though not entirely analogous, are

instructive here. For instance, in Williams v. Columbus Regional Healthcare Systems, Inc., the

Eleventh Circuit held that a doctor’s § 1981 equal-benefit-clause claim failed because “physicians

do not have a broad property interest in continuing to practice medicine.” 499 F. App’x 928, 929–

30 (11th Cir. 2012). Likewise, in Jimenez v. Wellstar Health Systems, the Eleventh Circuit held

that a physician with staff privileges at a hospital is not in contractual privity with that hospital

and, therefore, cannot bring a § 1981 retaliation claim. 596 F.3d 1304, 1309 (11th Cir. 2010).

While distinguishable, these cases nevertheless provide a compelling parallel to the instant

case.7 Just as the physician in Jimenez worked at the hospital based on staff privileges rather than

an employment agreement, id. at 1307–08, Plaintiff worked at Defendant’s fitness center based on

her relationship with Panache Fitness—not an employment contract with Defendant. DSOMF ¶¶

2–6; PRSOMF ¶¶ 2–6. And, just as the Eleventh Circuit held that the physician in Jimenez was

not in contractual privity with the hospital based on his staff privileges, id. at 1309–10, it is

6 To the extent that Plaintiff argues that Defendant wrongfully breached the Contract with Panache Fitness

and this breach negatively impacted Plaintiff, such an argument sounds in the “make and enforce contracts”

clause, rather than the equal-benefit clause. And, since it is undisputed that Plaintiff is not a party to the

Contract, DSOMF ¶¶ 3–16; PRSOMF ¶¶ 3–16, Plaintiff’s claim would nevertheless fail under Domino’s,

546 U.S. at 476–80. See Order Granting in Part and Den. in Part Mot. to Dismiss at 7, [ECF No. 33].

7 Plaintiff’s citation to Moore v. Grady Memorial Hospital Corp., 834 F.3d 1168, 1173 (11th Cir. 2016)

does not alter this analysis. In Moore, Dr. Moore’s § 1981 “make and enforce contracts” claim prevailed

because Dr. Moore had an employment contract with a third party, and Dr. Moore adequately alleged that

the hospital’s suspension of his privileges impacted his ability to complete his contractual obligations with

that third party. Id. Plaintiff makes no such allegations here.

Plaintiff worked at Defendant’s facilities by virtue of being the sole employee of Panache Fitness.

DSOMF ¶¶ 5–9; PRSOMF ¶¶ 5–9. Moreover, the Court concurs with the Eleventh Circuit’s

reasoning in Williams and finds that Plaintiff does not have a continued right to employment,

especially given that Plaintiff was not employed by Defendant nor was she terminated by

Defendant. Plaintiff is the sole employee of Panache Fitness and her relationship with Defendant

ended by virtue of Defendant’s termination of the Contract with Panache Fitness. DSOMF ¶¶ 10,

37; PRSOMF ¶¶ 10, 37.

Plaintiff’s Response in Opposition fails to rebut Defendant’s arguments. Plaintiff asserts

that she has a property interest in her continued employment, but this argument fails because any

such right would belong to Panache Fitness under the Contract, not Plaintiff. See DSOMF ¶¶ 3–

16; PRSOMF ¶¶ 3–16. Moreover, Florida law is clear that “an ‘at-will’ employee has no property

right in his or her continued employment” and thus even if Plaintiff, rather than Panache Fitness,

was employed by Defendant, Plaintiff still could not assert that she has a protectable property right

to continue to teach classes at Defendant’s facilities. Laney v. Hosp. Bd. of Dirs. of Lee Cnty., No.

2:09-CV-678-FTM-29SPC, 2010 WL 5161367, at *3 (M.D. Fla. Dec. 14, 2010).

Even assuming, arguendo, that Plaintiff has a property interest in either distributions or

income as an employee of Panache Fitness—of which she has been denied because Panache

Fitness has suffered financially following the Contract’s termination—again, Plaintiff is the sole

employee of Panache Fitness, not Defendant. DSOMF ¶¶ 10, 37; PRSOMF ¶¶ 10, 37. Thus, any

recourse would concern litigation between Plaintiff and Panache Fitness, not Plaintiff and

Defendant. Plaintiff fails to cite a single case allowing a cause of action against a third party based

solely on the fact that the third party’s termination of the plaintiff’s employer had the unfortunate

effect of disrupting the plaintiff’s income. See generally Pl.’s Resp. in Opp’n. As such, Plaintiff

fails to illustrate how Florida’s corporate laws confer a protected property interest and, therefore,

cannot establish that Defendant deprived her of the equal benefit of a law enacted for the protection

of her person or property.

Finally, while not artfully articulated, Plaintiff seems to suggest that Panache Fitness’s

future business relationships were hindered by Defendant’s actions. See Pl.’s Resp. in Opp’n at

19. However, such losses are not only insufficiently pled but also speculative and therefore not a

cognizable injury. See Jimenez, 596 F.3d at 1310 (rejecting speculative harm to future contracts

as insufficient under § 1981); Dr. R.C. Samanta Roy Inst. of Sci. & Tech. v. J. Broad. Grp., Inc.,

No. 05-C-0423, 2005 WL 2657149, at *2 (E.D. Wis. Oct. 18, 2005) (holding that any defamatory

statements that plaintiff alleges “severely and adversely affect[ed] and interfere[ed] with the

[plaintiff's business relationships ... are not the kind of losses § 1981 is intended to protect”).

Accordingly, Plaintiff can neither illustrate that Florida’s corporate laws provide her with a

protectable property interest, nor show that Defendant deprived her of the equal benefit of that

interest.

In sum, since neither Florida tort law nor Florida corporate law provide a basis for

Plaintiff's § 1981 equal-benefit-clause claim, Plaintiffs claim fails as a matter of law.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant’s

Motion for Summary Judgment, [ECF No. 46], is GRANTED. Partial final judgment as to Count

IV will be entered via separate order pursuant to Federal Rule of Civil Procedure 58.

DONE AND ORDERED in Miami, Florida, this 11th day of August, 2025.

UNITED STATES DISTRICT JUDGE

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