Leuzzi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MELISSA LEUZZI,

Plaintiff,

v. Case No.: 2:25-cv-396-SPC-DNF

FAWCETT MEMORIAL

HOSPITAL, INC. d/b/a HCA

FLORIDA FAWCETT HOSPITAL,

Defendant.

OPINION AND ORDER

Before the Court is Defendant Fawcett Memorial Hospital’s Motion to

Dismiss Plaintiff’s Amended Complaint. (Doc. 17). Plaintiff Melissa Leuzzi

responded in opposition (Doc. 26), and Defendant replied (Doc. 32). For the

below reasons, the Court grants the motion.

Background1

On April 24, 2023, Plaintiff accepted an offer through a healthcare

staffing agency, Aya Healthcare Companies, to work as a registered nurse at

Defendant from May 31, 2023, through August 26, 2023. (Doc. 14 ¶ 7; id. at

35–38 (“Exhibit A”)). The offer included pre-approved days off so Plaintiff could

1 The Court accepts the well-pleaded facts in the First Amended Complaint (“FAC”) (Doc. 14)

as true and construes them in the light most favorable to Plaintiff. United States v. Jallali,

478 F. App’x 578, 579 (11th Cir. 2012).

attend classes, take exams, and go to a medical appointment. Additionally,

Defendant had a Non-Retaliation Policy (“NRP”). (Id. ¶ 13; id. at 39–41). The

NRP provided that “Protected Activity means communicating appropriately,

in good faith, about ethics or compliance concerns, reporting concerns or

inappropriate behavior, participating in an investigation, refusing to

participate in appropriate or wrongful activity and exercising rights protected

by law.” (Id. at 41).

Shortly after accepting the offer to work at Defendant, Plaintiff accepted

an offer to begin working at a Veterans Affairs (“VA”) hospital in New Mexico

in August 2023. She told Defendant that she was selling her residence in

Miami and relocating to New Mexico but confirmed she would fulfill her

contract.

Plaintiff attended orientation on May 31. Judy Elliott, nurse manager

and Plaintiff’s supervisor, provided her with a work schedule. Plaintiff notified

Elliott that the assigned days conflicted with her educational commitments

and asked for a schedule change. Elliott refused. June 1 was a scheduled

training day for Plaintiff. She advised Defendant’s director, Brandy Crabill, of

the scheduling conflict and asked for a schedule change to “accommodate her

protected disabilities,” her academic schedule, and commitments related to her

relocation. (Id. ¶ 25). Defendant refused. So on June 1, Plaintiff submitted

her two-weeks’ notice. (Id. ¶ 27; id. at 42 (“Exhibit C”)).

On June 4, Plaintiff began work and identified several problems at the

hospital. For instance, multiple patients had overdue IV infusion medication

orders. Plaintiff told the charge nurse and expressed concerns about her

patient assignments. Defendant incorrectly programmed Plaintiff’s phone, so

she could not call many doctors to assist a medically unstable patient. Plaintiff

describes additional issues with Defendant’s staff.

She submitted three incident reports through the risk management

portal, and the next day, she told the nurse manager that Defendant’s practices

violated the Nurse Practice Act and Nursing Code of Ethics. On June 5, she

asked to be removed from future work schedules. (Doc. 14 at 50 (“Exhibit E”)).

She texted the nurse manager and the director that her resignation was

effective immediately. In total, Plaintiff worked at Defendant Hospital for Aya

for one week.

On June 7, Aya advised Plaintiff that one of her patients said she did not

feel euphoria from her pain medication, and Defendant was investigating

potential diversion of pain medication. Defendant requested an in-person

meeting with Plaintiff about the issue on June 8. But that was one of Plaintiff’s

pre-approved days off, and she was in Miami. At first, Defendant agreed to a

phone meeting but then insisted Plaintiff attend in person. Plaintiff requested,

but was refused, a Zoom meeting or a different date.

On June 9, Defendant conducted a meeting and created an investigation

report. (Doc. 14 at 43–49 (“Exhibit D”)). Under Pharmacy Findings, the report

explains that no discrepancies were found with medication documentation.

Plaintiff alleges that Defendant made “materially false and misleading

statements” in the report, which it submitted to the Florida Department of

Health (“DOH”) in a Health Care Provider Complaint Form on June 14, 2023.

Among other things, Plaintiff alleges:

the claim that the “Patient reported nurse was

stealing her medications” is contradicted by the words

that Fawcett alleged the patient to have stated, as

reflected on the Complaint form of the preceding page,

and is materially false;

the statement that Plaintiff “was scheduled to come in

June 8, 2023 and did not show” is false as Plaintiff had

resigned on June 5, 2023; she never agreed to meet in

person on June 8, 2023; that day, June 8, 2023, was a

preapproved day off; and Fawcett knew all that before

it wrote the Report;

“Melissa quit to nursing supervisor on June 6th when

questioned” is a material falsehood, as Fawcett did not

communicate with Plaintiff on June 6, 2023, and

Plaintiff had already resigned for cause the previous

day.

(Doc. 14 ¶ 54). Plaintiff alleges that because of the report, an investigation was

conducted that if resolved against her, would have subjected her to potential

or actual loss of her license as a registered nurse. She alleges that “Fawcett

basically alleged [she] committed federal crimes” and filed the report in

retaliation for her submission of the incident reports. (Id. ¶ 56).

As a result, Plaintiff alleges that she suffered severe emotional distress

that disrupted her employment with Defendant and afterward, leading to

periods of unemployment, unstable housing, debts, and other damages. She

had to hire a lawyer to defend herself against the allegations in the report. The

complaint was ultimately dismissed, and Plaintiff obtained her license as a

psychiatric mental health nurse practitioner. However, her plans to move to

New Mexico were delayed because she had to defend herself. Her severe

emotional distress resulted in physical manifestations and caused Plaintiff to

end her employment with the VA earlier than she would have but for the

emotional distress Defendant caused. Defendant allegedly caused her to suffer

lost wages from June 2023 to August 2023 and October 2023 to March 2024.

Her damages exceed $100,000.

Based on these facts, Plaintiff brings claims against Defendant for

breach of contract (count I), intentional infliction of emotional distress (“IIED”)

(count II), negligent infliction of emotional distress (“NIED”) (count III),

violation of Florida’s Whistleblower Act (“FWA”), Fla. Stat. §§ 448.101 et seq.

(count IV), and defamation (count V). (Doc. 14).

Legal Standard

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint

must allege “sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Bare

“labels and conclusions, and a formulaic recitation of the elements of a cause

of action,” do not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A district court should dismiss a claim when a party does not plead facts that

make the claim facially plausible. See id. at 570. A claim is facially plausible

when a court can draw a reasonable inference, based on the facts pled, that the

opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678.

This plausibility standard requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557

(internal quotation marks omitted)).

Analysis

Defendant moves to dismiss all claims. (Doc. 17). First, the Court

addresses whether Defendant is immune from suit arising from its disclosures

to the DOH. (Id. at 6). Based on the allegations in the FAC, the Court

concludes it is.

In regulating health professions, Florida law provides:

(11) A privilege against civil liability is hereby granted to

any complainant or any witness with regard to information

furnished with respect to any investigation or proceeding

pursuant to this section, unless the complainant or witness

acted in bad faith or with malice in providing such

information.

(12)(a) No person who reports in any capacity, whether or

not required by law, information to the department with

regard to the incompetence, impairment, or unprofessional

conduct of any health care provider licensed under chapter

458, chapter 459, chapter 460, chapter 461, chapter 462,

chapter 463, chapter 464, chapter 465, or chapter 466 shall

be held liable in any civil action for reporting against such

health care provider if such person acts without intentional

fraud or malice.

Fla. Stat. § 456.073(11), (12)(a). In Florida, a court may consider any

affirmative defense in resolving a motion to dismiss “when the complaint

affirmatively and clearly shows the conclusive applicability of the defense to

bar the action.” Meyer v. Fay Serv’g, LLC, 385 F. Supp. 3d 1235, 1242 (M.D.

Fla. 2019) (quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1277

(11th Cir. 2004)).

To overcome the privilege, a plaintiff must plead and prove “that the

defamatory statements were false and uttered with common law express

malice—i.e., that the defendant’s primary motive in making the statements

was the intent to injure the reputation of the plaintiff.”2 See Fridovich v.

Fridovich, 598 So. 2d 65, 69 (Fla. 1992); see also Nodar v. Galbreath, 462 So.

2d 803, 810 (Fla. 1984) (explaining that malice may not be inferred “from the

2 Plaintiff disputes that she must allege express malice, not statutory malice. (Doc. 26 at 5).

For support, she cites Florida Statute § 456.073(11) and (12)(a), which mentions but does not

define malice. She provides no alternative definition from case law or statutes. So the Court

applies the definition Defendant provides, citing Florida law.

mere fact that the statements are untrue” rather “there must be a showing

that the speaker used his privileged position to gratify his malevolence”)

(quotations omitted). Express malice means “ill will, hostility and an evil

intention to defame and injure.” Demby v. English, 667 So. 2d 350, 353 (Fla.

Dist. Ct. App. 1995) (citation omitted).

Defendant contends that Plaintiff’s allegations are insufficient to show

malice. (Doc. 17 at 7). In response, Plaintiff argues that Rule 9(b) allows her

to allege malice “generally,” so she has met the threshold to overcome the

privilege. (Doc. 26 at 4). But she still must satisfy Rule 8. See Iqbal, 556 U.S.

at 678. Plaintiff’s conclusory allegations miss the mark. She alleges that

Defendant filed the complaint and report, knowing it contained intentionally

false information, in bad faith, and with malicious intent, ill will, hostility, and

an evil intention to defame and injure Plaintiff in retaliation for her filing the

incident reports. (Doc. 14 ¶ 57; see also id. ¶¶ 86, 99, 113, 126). Plaintiff uses

the buzzwords for malice but does not support them with facts showing that

Defendant used a privileged position to gratify its malevolence. See Sirpal v.

Univ. of Miami, 684 F. Supp. 2d 1349, 1361 (S.D. Fla. 2010) (finding plaintiff

failed to state a defamation claim where he “alleges generally that Dr. Potter

maliciously made the statements in the March 12 memo, [but] he states no

facts that support this allegation”).

She also relies on allegations that statements in the report were

materially false and intended to injure her reputation. (Id. ¶ 54). But malice

cannot be inferred from the fact that the statements are allegedly untrue.

Nodar, 462 So. 2d at 810. Her allegations fail to overcome the statutory

privilege. Thus, to the extent Plaintiff’s claims in counts I, II, III, and V are

based on Defendant’s filing of the complaint and report with DOH, they are

dismissed without prejudice.

As for Plaintiff’s defamation claim (count V), it is entirely based on the

report and complaint to DOH. (Doc. 14 ¶¶ 127–37). So it is dismissed without

prejudice for the reasons stated above.3

The Court turns to Plaintiff’s emotional distress claims. Like her

defamation claim, Plaintiff’s intentional and negligent infliction of emotional

distress claims (counts II and III) are largely based on the report and complaint

to DOH. (Doc. 14 ¶¶ 87–98, 100–12). To that extent, they are dismissed

without prejudice for the reasons stated above. However, Plaintiff also alleges

other bases for these claims, so the Court addresses Defendant’s other

substantive arguments.

3 Although Plaintiff attempts to switch course and argue that the FAC alleges defamation

per se (a distinct claim from defamation) (Doc. 26 at 16), she cannot amend her pleading in

her response. See Eiras v. Florida, 239 F. Supp. 3d 1331, 1342 (M.D. Fla. 2017). Regardless,

the defamation per se allegation is still based on the DOH complaint and barred by the

privilege.

First, the IIED claim. The elements are: (1) extreme and outrageous

conduct; (2) an intent to cause, or reckless disregard to the probability of

causing, emotional distress; (3) severe emotional distress suffered by the

plaintiff; and (4) proof that the conduct caused the severe emotional distress.

Gonzalez-Jimenez de Ruiz v. United States, 231 F. Supp. 2d 1187, 1199 (M.D.

Fla. 2002), aff’d sub nom. Gonzalez-Jiminez de Ruiz v. United States, 378 F.3d

1229 (11th Cir. 2004). “Only in extremely rare circumstances will courts

uphold claims for intentional infliction of emotional distress.” Id. The alleged

action must be “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency” and be regarded as “atrocious and

utterly intolerable in a civilized community.” Id. Whether a plaintiff has

alleged conduct which meets the essential elements for a claim for IIED is a

matter of law to be decided by the Court. Id.

Regarding IIED, Plaintiff alleges that Defendant:

intentionally assigned Plaintiff an unreasonable acuity

and dangerous patient assignments that presented a risk

to patient safety and care after Plaintiff reported her

concerns about patient care at the hospital, which was

outrageous because Plaintiff barely had a few days of work

experience at the Hospital, her phone was improperly

programed such that she could not contact patients’

physicians, Fawcett generally was unwilling to help

Plaintiff administer care in any meaningful way, and

Fawcett knew all of that, but nevertheless intentionally

assigned Plaintiff a workload that caused her severe

emotional distress and physical exhaustion to a point of

near physical collapse, to handle based on her steadfast

desire to deliver top notch patient care.[4]

91. Moreover, it was outrageous for Fawcett to threaten to

report, and to actually report, Plaintiff to the Board of

Nursing if she did not travel three or more hours on next-

to-no notice for an in person meeting about a matter in

which Fawcett possessed actual evidence of no wrongdoing

by Plaintiff.

(Doc. 14 ¶¶ 90–91). This is not one of the “extremely rare” cases where

Defendant’s conduct was outrageous enough to sustain a claim for IIED.

The case Plaintiff relies on does not save her claim. For support, Plaintiff

cites McAlpin v. Sokolay, 596 So. 2d 1266 (Fla. Dist. Ct. App. 1992), where a

doctor verbally assaulted a plaintiff in an x-ray room about a debt she owed his

friend and his expectation that she would not pay her bill. The plaintiff feared

she had cancer and expected medical staff to treat her with concern and care.

Id. at 1267–68. When the doctor refused to give her an x-ray and threatened

to have security remove her from the hospital, the plaintiff tried to explain she

had a business dispute with his friend unrelated to medical billing. Id. at 1268.

But her throat constricted in panic, she became violently nauseous, could not

get words out, began sobbing, and ran from the room in a panic—nude except

for her hospital gown—through the hospital. Id. The court reversed the lower

court’s ruling that such conduct did not constitute IIED. Id. at 1270.

4 If Plaintiff amends her complaint, the Court cautions her against writing run-on sentences

like this one.

McAlpin is distinguishable. Here, Plaintiff alleges she was moving to

New Mexico and did not have stable housing, was obtaining a new job and was

thus unemployed after her contract with Defendant, and was about to apply to

governmental licensing authorities to continue her nursing career. (Doc. 26 at

13 (citing Doc. 14 ¶¶ 12–13, 26, 60–61, 67). And during that period, Defendant

submitted the report and complaint. Juxtaposing the two situations, the Court

disagrees that Defendant’s alleged conduct compares with the McAlpin

defendant’s—particularly given the McAlpin plaintiff’s fear that her symptoms

meant cancer and the vulnerable relationship between a patient and doctor.

And, as Defendant points out, Florida courts have found allegations of

false statements insufficient to state a claim. (Doc. 17 at 15 (citing Valdes v.

GAB Robins N. Am., Inc., 924 So. 2d 862, 866 (Fla. Dist. Ct. App. 2006)

(investigating and then making false statements to state agency which lead to

plaintiff’s arrest was “not the type of conduct that is so outrageous in character

and extreme in degree as to go beyond the bounds of decency and be deemed

utterly intolerable in a civilized society”), review denied, 949 So. 2d 200 (Fla.

2007); Legrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. Dist. Ct. App. 2004)

(clergyman falsely branded a thief in front of parishioners failed to state claim

of IIED)). In the Court’s view, the defendant’s conduct in Valdes is arguably

even more concerning than Defendant’s here because it led to the plaintiff’s

arrest, yet the court still found it insufficient to state a claim. Because Plaintiff

has not alleged sufficiently outrageous conduct, her IIED claim is dismissed

without prejudice.

Turning to NIED. The elements are: “(1) the plaintiff must suffer a

physical injury; (2) the plaintiff’s physical injury must be caused by the

psychological trauma; (3) the plaintiff must be involved in some way in the

event causing the negligent injury to another; and (4) the plaintiff must have

a close personal relationship to the directly injured person.” Zell v. Meek, 665

So. 2d 1048, 1054 (Fla. 1995). “[T]he Florida Supreme Court held that

psychological trauma must cause a demonstrable physical injury such as

death, paralysis, muscular impairment, or similar objectively discernible

physical impairment before a cause of action may exist.” Corbin v. Prummell,

655 F. Supp. 3d 1143, 1167 (M.D. Fla. 2023) (quoting Brown v. Cadillac Motor

Car Div., 468 So. 2d 903, 904 (Fla. 1985)).

Defendant argues that Plaintiff has failed “to allege a discernable

physical injury.” (Doc. 17 at 16). On that score, Plaintiff alleges that she

“suffered physical manifestations from that emotional distress, including

without limitation by almost physical collapse at Fawcett due to the workload,

and stress and mental anguish resulting from the filing of the false and

materially misleading Report and Complaint causing pre-existing physical

conditions to exacerbate substantially, including resulting in surgery.” (Doc.

14 ¶ 112).

Again, Plaintiff’s allegations fall short. “Almost physical collapse” does

not suffice. Nor do “stress and mental anguish.” See Gonzalez-Jiminez de

Ruiz, 378 F.3d at 1231 (“While the children claim they suffered mental anguish

from the BOP’s actions, they failed to establish any major adverse physical

impact.”) (emphasis added). Plaintiff cites no cases to support as much.

Rather, she hangs her hat on unidentified pre-existing physical conditions

which required an unspecified surgery. (Doc. 26 at 14). She cites Zell to

support the proposition that “joint pain” is enough. (Id.). But she takes Zell

completely out of context. In that case, the plaintiff witnessed her father’s

death at the hands of an anonymous bomber at her father’s apartment. See

Zell, 665 So. 2d at 1049. The plaintiff did not suffer significant physical

injuries from the smoke or shattered glass that fell on her. But immediately

after witnessing her father’s death, the plaintiff began having insomnia,

experiencing depression, short-term memory losses, extreme fear of loud

noises, bad dreams, and an inability to stop reliving the event. She later began

experiencing physical impairment in her upper stomach. The pain in her rib

cage worsened. She became very ill, with pain spreading to her chest. She

took ulcer medication but then experienced a blockage in her esophagus, could

not swallow, and had difficulty breathing. She developed joint pain in her hips

and elbows.

In short, Zell could hardly be more distinguishable from Plaintiff’s

ambiguous allegation of pre-existing physical conditions that resulted in

surgery. What’s more, Defendant cites numerous cases in its reply supporting

the proposition that an exacerbated pre-existing condition fails to state a claim.

(Doc. 32 at 4 (citing Trocano v. Vivaldi, 720 F. Supp. 3d 1231, 1242 (M.D. Fla.

2024); Elliott v. Elliott, 58 So. 3d 878, 882 (Fla. Dist. Ct. App. 2011) (a pre-

existing condition that is exacerbated is insufficient) (collecting cases);

LeGrande, 889 So. 2d at 995 (finding that memory loss and the exacerbation of

a preexisting condition were insufficient); Gonzalez–Jimenez de Ruiz, 231 F.

Supp. 2d at 1201–02 (concluding that aggravation of pre-existing conditions is

insufficient to satisfy impact rule)). Accordingly, Plaintiff’s claim of NIED is

dismissed without prejudice.

Moving to Plaintiff’s breach of contract claim (count I). The elements are

a valid contract, a material breach, and damages. See Beck v. Lazard Freres &

Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citation omitted). To prove the

existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3)

consideration; and (4) sufficient specification of the essential terms. St. Joe

Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004).

Plaintiff alleges that by filing the report and complaint with DOH and

taking other retaliatory actions, Defendant “breached the dependent, material

terms of the NRP relating to Protected Activity and non-retaliation, which

survived her separation.” (Doc. 14 ¶ 83). Defendant moves to dismiss the

claim, arguing that it is not party to the contract, and even if it was, the NRP

is not a contract. The Court agrees with both points.

First, the employment contract is between Aya and Plaintiff. (Doc. 35–

38). Plaintiff does not address Defendant’s contention that it is not party to

the contract. See Negreanu v. Starbucks Corp., No: 8:22-cv-2421-CEH-SPF,

2024 WL 810857, at *2 (M.D. Fla. Feb. 27, 2024) (“Generally, the failure

to respond to the merits of a request for dismissal of a Plaintiff’s claims would

serve as a concession that the request is due to be granted.”). The contract

extends an offer to join the “Aya Healthcare Companies[], a healthcare staffing

agency.” (Doc. 14 at 35). The “Facility” where Plaintiff would work is “Fawcett

Memorial Hospital,” but Defendant is not a party to the contract. (Id.).

Nevertheless, Defendant’s initial argument is somewhat beside the

point. The true bone of contention is whether the NRP is a binding contract

that Defendant could have allegedly breached. For these reasons, the Court

finds that it is not.

Both Florida courts and federal courts interpreting Florida law have

recognized that:

[i]t is well established Florida law that policy statements

contained in employment manuals do not give rise to

enforceable contract rights in Florida unless they contain

specific language which expresses the parties’ explicit

mutual agreement that the manual constitutes a separate

employment contract.

Freese v. Wuesthoff Health Sys., Inc., No. 6:06CV175-ORL-31JGG, 2006 WL

1382111, at *8 (M.D. Fla. May 19, 2006) (quoting Quaker Oats Co. v. Jewell,

818 So.2d 574, 576–77 (Fla. Dist. Ct. App. 2002)). Plaintiff does not—and

cannot—argue that the NRP contains language expressing the parties’ mutual

agreement that it is a separate employment contract. There is no such

language in the NRP. Instead, she argues that the NRP does not contain any

express language disclaiming that it is a contract. (Doc. 26 at 8). She cites no

binding authority for support. And the only case that conceivably supports her

argument is distinguishable.

In Centennial Bank v. Servisfirst Bank Inc., the court denied a motion to

dismiss a breach of contract claim, reasoning that certain ethics codes could be

contracts. No. 8:16-CV-88-T-36JSS, 2017 WL 11632487, at *10 (M.D. Fla.

Sept. 15, 2017). Like the NRP here, the ethics codes contained no disclaimer

that they were contracts. Id., at *10. But unlike the NRP, at least one of the

ethics codes specified that compliance with its provisions was a condition of

employment and that the obligations survive termination. Id. Further, the

defendants in Centennial Bank signed forms acknowledging that they

understood the provisions and agreed to comply with the ethics code. Id.

The NRP contains no provisions stating it is a condition of employment

or that its obligations survive termination. (Doc. 14 at 39–41). It contains no

signatures of Defendant’s acknowledgement. Accordingly, it is distinguishable

from Centennial Bank—which is merely persuasive authority. Under these

circumstances, Plaintiff’s breach of contract claim is dismissed with prejudice.

Finally, Plaintiff’s whistleblower claim (count IV). “An employer may

not take any retaliatory personnel action against an employee because the

employee has: . . . [o]bjected to, or refused to participate in, any activity, policy,

or practice of the employer which is in violation of a law, rule, or regulation.”

Fla. Stat. § 448.102(3). Plaintiff alleges:

While an employee of Fawcett, Plaintiff objected to and

refused to participate in the activities, policies, or practices

that Fawcett was utilizing for Fawcett’s provision of

healthcare services to patients, as well as the work

environment Fawcett provided for nurses to render

healthcare services to patients, which Plaintiff identified to

Fawcett as being violative of the Nurse Practice Act, F.S.

464.001 et seq., and the rules and regulations applicable to

the Nursing Code of Ethics, which are “[l]aw[s], rule[s], or

regulation[s]” as that term is defined in F.S. § 448.101(4).

(Doc. 14 ¶ 117).

To state a claim under the FWA, a plaintiff must allege that (1) plaintiff

engaged in a protected activity, (2) plaintiff suffered a materially adverse

employment action, and (3) the adverse action was causally connected to the

protected activity. Vuolo v. MHM Health Pros., LLC, No. 22-12059, 2023 WL

2669827, at *2 (11th Cir. Mar. 29, 2023). To allege a violation of a law, rule,

or regulation under § 448.102(3), Plaintiff must plead facts to establish that:

(1) there is a rule or regulation that prohibits the complained of conduct; (2) an

actual violation occurred versus just a “good faith” hunch about a violation;

and (3) the conduct is attributable to the employer. Colon v. Total Renal Care,

Inc., No. 8:07-CV-151-T26MAP, 2007 WL 4145940, at *2 (M.D. Fla. Nov. 19,

2007).

Defendant moves to dismiss Plaintiff’s FWA claim, arguing that

although she makes many general allegations regarding other nurses’ conduct,

she fails to allege a violation of any specific law, rule, or regulation. (Doc. 17

at 17 (citing Doc. 14 ¶ 118)). Specifically, Plaintiff does not identify what

particular provision of the Nurse Practice Act Defendant allegedly violated,

and her general reference to the whole statute is not enough to state a claim.

(Id.).

In her response, Plaintiff dodges the issue. Instead, she references

paragraph 117 of the FAC, which contains the general reference to the Nurse

Practice Act Defendant highlights. (Doc. 26 at 15). She then argues that she

also alleged Defendant’s hospital is not a safe environment for patients. (Id.

(citing Exhibit E)). Curiously, she then states that Defendant’s failure to

manage risk and its personnel subjects it to statutory violations—particularly

Florida Statute § 766.110(a). (Id.) But Plaintiff pleads no violation of that

section in the FAC, and there is no allegation she complained to Defendant of

any violation under this section. As the Court has already explained, Plaintiff

cannot amend her pleading through her response. On this basis, her FWA

claim is dismissed without prejudice.>

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 17) is GRANTED, as explained

above.

2. If Plaintiff chooses to file an amended complaint, she must do so by

October 30, 2025.

DONE and ORDERED in Fort Myers, Florida on October 16, 2025.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

5 Defendant raises additional arguments for dismissal of this claim. But the Court need not

reach them at this time. Defendant is free to raise these arguments again in subsequent

motion practice, if appropriate.

20