Opinion

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

BRANDON RICARDO SMITH,

Plaintiff,

v. Case No.: 1:25cv213/RH/ZCB

DOLLAR GENERAL

CORPORATION,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff is a pro se litigant who has sued Defendant for defamation.

(Doc. 21). Defendant has moved to dismiss, and Plaintiff has responded

in opposition. (Docs. 28, 30). Plaintiff has also sought leave to file a third

amended complaint, which Defendant has opposed. (Docs. 31, 32, 34).

For the reasons below, Defendant’s motion to dismiss should be granted

in part and denied in part, and Plaintiff’s motion for leave to amend

should be denied.

I. Plaintiff’s Allegations

Plaintiff worked as a truck driver for Defendant Dollar General

Corporation. During his employment, Plaintiff received a final write-up

notice from one of Defendant’s managers, Dave Bunnell. (Doc. 21 at 7).

Plaintiff received this notice after Mr. Bunnell “falsely accused” Plaintiff

of “dropping his trailer” because he failed to check the fifth wheel. (Id.).

Following the notice, Plaintiff was suspended without pay. (Id. at 8).

In an email, Defendant’s fleet supervisor (Brittany Crane)

subsequently informed Defendant’s human resources manager (Jasmine

Gibbs) that Plaintiff had “high hooked” his trailer, as opposed to dropping

it. (Id.). Thereafter, Ms. Gibbs informed Plaintiff in an email that a

dropped trailer was not the matter at hand. (Id.). Additionally, Ms.

Gibbs allegedly stated that the human resources department knew the

trailer was “high hooked” and not dropped on the roadway. (Id.).

According to Plaintiff, these emails show that Mr. Bunnell drafted a false

write-up notice with knowledge of its falsity or reckless disregard as to

its truth or falsity. (Id. at 8-9).

During his suspension, Defendant began applying for jobs with

other trucking companies. Plaintiff claims that Mr. Bunnell informed

Plaintiff’s other prospective employers of the write-up notice during the

employment verification process. (Id. at 10). According to Plaintiff, Mr.

Bunnell published the allegedly false write-up notice to the following

specific prospective employers: Frey Miller, Prime Inc., Swift

Transportation, US Xpress, C.R. England, Marten Transport, Schneider,

and K&B Transportation. (Id.). As a result of Mr. Bunnell’s conduct,

Plaintiff claims he was not hired by any of those prospective employers.

(Id. at 11).

Plaintiff further claims that Defendant submitted the allegedly

false write-up notice to the Florida Commission on Human Relations

during its investigation of a complaint filed by Plaintiff. (Id. at 12).

According to Plaintiff, Defendant’s conduct regarding the false write-up

notice led to his resignation. (Id.). Following his resignation, Defendant

obtained employment with a local school system earning less than he

earned with Defendant. (Id. at 5).

In his second amended complaint, Plaintiff brings the following

claims against Defendant: (1) slander, and (2) libel. (Id. at 13-17). As for

relief, Plaintiff seeks $3,049,426 in damages. (Id. at 2).

II. Discussion

A. Defendant’s motion to dismiss

Defendant has moved to dismiss the second amended complaint for

failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. To survive dismissal under Rule 12(b)(6), “a complaint must

contain 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) (cleaned up). The plausibility standard is met only where the facts

alleged enable “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Id. at 679.

Here, Defendant argues that Plaintiff has failed to state a plausible

claim for several reasons. First, Defendant argues that the second

amended complaint is a shotgun pleading. Second, Defendant claims

that dismissal is warranted because the allegedly defamatory statements

are privileged under Florida law. And third, Defendant argues that

dismissal is warranted because the second amended complaint fails to

contain the information required to state a defamation claim.

1.

Defendant argues that the second amended complaint should be

dismissed because it is a shotgun pleading. A shotgun pleading is one

that violates Rules 8 and 10 of the Federal Rules of Civil Procedure.

Inform, Inc. v. Google LLC, No. 21-13289, 2022 WL 3703958, at * 4 (11th

Cir. Aug. 26, 2022). “The unifying characteristics of all types of shotgun

pleadings is that they fail to one degree or another, and in one way or

another, to give the defendants adequate notice of the claims against

them and the grounds upon which each claim rests.” Weiland v. Palm

Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015). A

complaint should be dismissed as a shotgun pleading “when it is virtually

impossible to know which allegations of fact are intended to support

which claims for relief.” Inform, Inc., 2022 WL 3703958, at * 4.

In this case, the second amended complaint is not a model of clarity.

But it is not “virtually impossible” to ascertain what claims are being

raised and what factual allegations support those claims. Thus, the

second amended complaint should not be dismissed as a shotgun

pleading.

2.

Plaintiff’s second amended complaint claims Defendant engaged in

slander (Count One) and libel (Count Two). Both slander and libel fall

under the umbrella of defamation. Mac Isaac v. Twitter, Inc., 557 F.

Supp.3d 1251, 1257 (S.D. Fla. 2021). A defamation claim in Florida

requires the following: “(1) publication; (2) falsity; (3) 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) statement must be defamatory.” Id.

(cleaned up). A statement is defamatory if it “tend[s] to subject one to

hatred, distrust, ridicule, contempt, disgrace or tend[s] to injure one in

one’s business or profession.” Am. Airlines, Inc. v. Geddes, 960 So. 2d

830, 833 (Fla. Dist. Ct. App. 2007). “To survive a motion to dismiss in a

defamation case, a plaintiff must allege certain facts, such as the identity

of the speaker, a description of the statement, and provide a time frame

within which the publication occurred.” de Cortes v. Brickell Inv. Realty,

LLC, 546 F. Supp. 3d 1332, 1346 (S.D. Fla. 2021) (cleaned up).

Looking at the second amended complaint, Plaintiff has plausibly

alleged the elements of a defamation claim. He has alleged that a

managerial employee of Defendant, Mr. Bunnell, falsely stated that

Plaintiff dropped his trailer on the roadway because he failed to check

the fifth wheel. Plaintiff has alleged that during a particular time period

Mr. Bunnell published the statement in a write-up notice that was

provided to others, including prospective employers who sought to verify

Plaintiff’s employment with Defendant. According to Plaintiff’s

allegations, Mr. Bunnell knew that the statement regarding Plaintiff

dropping his trailer on the roadway was false. Plaintiff points to emails

between other employees of Defendant, which he says demonstrate the

falsity of Mr. Bunnell’s statement. Plaintiff alleges damages in the form

of lost wages. Finally, Plaintiff has alleged a statement that is

defamatory because a truck driver dropping a trailer on a roadway is

something that would tend to injure such driver in his business or

profession.

Because Plaintiff has alleged the required elements of a defamation

claim, there is no merit to Defendant’s argument that Plaintiff has failed

to plausibly allege a defamation claim. In an attempt to avoid this

conclusion, Defendant has cited Woodhull v. Mascarella, No. 1:08cv151,

2009 WL 1790383 (N.D. Fla. June 24, 2009) and Morrison v. Univ. of

Miami, No. 1:15cv23856 (M.D. Fla. Mar. 21, 2016). But both of those

cases are distinguishable. In Woodhull, the plaintiff’s defamation claim

failed because she neither identified the person to whom the statements

were made nor provided a time frame during which the statements were

made. Woodhull, 2009 WL 1790383, at *3. And in Morrison, the plaintiff

failed to identify the false statements. Morrison, 2016 WL 3128604, at

*7. Here, on the other hand, Plaintiff has sufficiently identified the false

statements, has identified who the statements were made to, and has

provided the time frame when the statements were made. (See Doc. 21

at 10, 17). Thus, Morrison and Woodhull do not support Defendant’s

argument that Plaintiff has failed to state a defamation claim.

3.

Under Florida law, a person who has published a defamatory

statement is not liable for defamation if the statement was privileged.

Am. Airlines, Inc., 960 So.2d at 833. Florida recognizes an absolute

privilege for some statements, and a qualified privilege for others. Here,

Defendant argues that the statements allegedly published to Plaintiff’s

prospective employers are subject to qualified privilege. And Defendant

further argues that statements made to the Florida Commission on

Human Relations are absolutely privileged. The Court will address each

argument below.

a.

An employer in Florida “has a qualified privilege when the

employer discloses information about a current or former employee to a

prospective employee.” Bush v. Raytheon Co., 373 F. App’x 936, 941 (11th

Cir. 2010). The qualified privilege was initially recognized by the

common law. Linafelt v. Beverly Enterps.-Fla., Inc., 745 So.2d 386, 388

(Fla. 1st DCA 1999). It was, however, subsequently codified by the

Florida legislature in Fla. Stat. § 768.095. Id.; see also Mastaw v. W. Fla.

Med. Ctr. Clinic, PA, No. 22-12202, 2023 WL 5426757, at *5 (11th Cir.

Aug. 23, 2023) (“[W]hether a former employer’s communication related

to the [employee’s] job performance was privileged [is] governed by [Fla.

Stat. § 768.095]. . . because the Florida legislature has codified the

common law.”).

According to the statute, the privilege can be overcome if it is shown

“by clear and convincing evidence that the information disclosed by the .

. . employer was knowingly false or violated any civil right of the . . .

employee protected under” the Florida Civil Rights Act. Fla. Stat. §

768.095. Additionally, “the qualified privilege may be destroyed upon a

showing of express malice.” Bush, 373 F. App’x at 941; see also Thomas

v. Tampa Bay Downs, Inc., 761 So.2d 401, 404 (Fla. 2d DCA 2000)

(stating that once the defendant has established the qualified privilege,

the plaintiff bears the burden of showing that the privilege does not apply

because the statement was made “with express malice”). Express malice

exists “where the primary motive for the statement is shown to be an

intention to injure the plaintiff.” Thomas, 761 So.2d at 404 (cleaned up).

The qualified privilege “is an affirmative defense that a plaintiff is

not required to negate in a complaint.” Newman v. Crom Corp., No.

1:12cv126, 2012 WL 3536548, at *1 (N.D. Fla. Aug. 15, 2012) (refusing to

dismiss complaint based on the qualified privilege). Thus, the qualified

privilege will not ordinarily serve as the basis for dismissing a complaint.

Linafelt v. Bev, Inc., 662 So.2d 986, 990 (Fla. 1st DCA 1995) (finding trial

court erred by dismissing complaint based on the qualified privilege).

There are, however, “exceptional cases in which the facts giving

application to the defense are clearly apparent on the face of the

complaint, in which case the defense may be raised by motion to dismiss.”

Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004). In such

exceptional cases, the plaintiff must “plead express malice to proceed

with his claim.” Jarzynka v. St. Thomas Univ. Sch. of Law, 310 F.

Supp.2d 1256, 1268 (S.D. Fla. 2004); see also 50 Am. Jur. 2d Libel and

Slander § 433 (explaining that a qualified privilege may be overcome “at

the pleading stage by alleging the statement was made with actual

malice . . . .”).

Applying all of that here, the Court concludes that dismissal is

unwarranted based on the qualified privilege codified in Fla. Stat. §

768.095. Because Plaintiff is complaining of a statement made by his

employer to prospective employers about Plaintiff’s job performance, this

appears to be a case where the facts giving rise to the qualified privilege

are present on the face of the complaint. And that means Defendant can

raise the qualified privilege affirmative defense in a motion to dismiss.

The problem for Defendant, however, is that Plaintiff has pleaded

express malice in the second amended complaint. See Prestige Ins. Group

v. Allstate Ins. Co., No. 21-60515-CIV, 2022 WL 1091825, at *4 (S.D. Fla.

Apr. 12, 2022) (“Given that the statements were privileged, Plaintiffs

must plead express malice to proceed with their defamation claim.”).

More specifically, Plaintiff has alleged that the statements were made

“with actual malice and bad motives” (Doc. 21 at 10), “with knowledge of

their falsity,” and with the “expectation and intent” to injure Plaintiff.

(Id. at 14-15).1 Because Plaintiff has sufficiently pleaded (especially

1“[E]xpress malice sufficient to overcome the presumption exists where

the primary motive for the statement is shown to be an intention to injure

the plaintiff.” Thomas, 761 So.2d at 405.

considering his pro se status)2 express malice, the affirmative defense of

qualified privilege does not require dismissal of Plaintiff’s claim involving

the allegedly defamatory statements made by Defendant to Plaintiff’s

prospective employers.

b.

Defendant further argues in its motion to dismiss that the

publication of statements to the Florida Commission on Human

Relations (FCHR) are absolutely privileged.3 Under Florida law,

“defamatory words published during the course of a judicial or quasi-

judicial proceeding are absolutely privileged if they are connected with,

or relevant or material to, the cause at hand or subject of inquiry.” Gandy

v. Trans World Computer Tech. Grp., 787 So.2d 116, 119 (Fla. 2d DCA

2 “A document filed pro se is to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (cleaned up).

3 Plaintiff’s second amended complaint discusses the alleged publication

of a false statement to the FCHR. (Doc. 21 at 12). It does not appear that

Plaintiff has brought a specific claim involving such a statement. (Id. at

13-17). But Defendant’s motion to dismiss and Plaintiff’s response both

discuss whether the absolute privilege applies to the allegedly false

statement Defendant made to the FCHR. (Doc. 28 at 14-15; Doc. 30 at

13). The Court, therefore, assumes that such a claim has been raised and

will analyze it accordingly.

2001). Numerous courts have determined that investigations conducted

by the Equal Employment Opportunity Commission (EEOC) are quasi-

judicial proceedings covered by the absolute privilege. Id.; see also Foster

v. Select Med. Corp., Inc., No. 6:11cv1234, 2013 WL 764780, at *7 (M.D.

Fla. Feb. 28, 2013) (applying Florida’s absolute privilege to statements

made during an EEOC and OSHA investigation). The absolute privilege

“may be considered in resolving a motion to dismiss when the complaint

affirmatively and clearly shows the conclusive applicability of the defense

to bar the action.” Cherdak v. Cottone, No. 2:22-CV-634, 2023 WL

2044608, at *5 (M.D. Fla. Feb. 16, 2023).

In this case, Plaintiff alleges that the FCHR was conducting an

employment investigation. The alleged defamatory statement was made

to the FCHR by Defendant during that investigation. The FHCR is a

state agency that performs the same type of employment-related

investigations as the EEOC. See generally Huenefeld v. Nat’l Bev. Corp.,

No. 16-62881, 2017 WL 4838786, at *3 (S.D. Fla. Oct. 24, 2017)

(explaining that there is a worksharing arrangement between the EEOC

and FHCR regarding the investigation of employment-related

complaints). There is no logical reason to distinguish an EEOC

investigation from an FHCR investigation for purposes of the absolute

privilege. Accordingly, to the extent Plaintiff has brought a defamation

claim against Defendant based on statements made to the FHCR, such a

claim should be dismissed under Florida’s absolute privilege for

statements made during quasi-judicial proceedings.

B. Plaintiff’s motion for leave to amend

After Defendant filed its motion to dismiss his second amended

complaint, Plaintiff moved for leave to file a third amended complaint.

(Doc. 31). Defendant has opposed granting leave to amend. (Doc. 34).

For the reasons below, leave to amend should be denied.

Under Rule 15(a)(1), a party may amend its complaint once as a

matter of right within twenty-one days after service of a motion under

Rules 12(b), (e), or (f). Fed. R. Civ. P. 15. “In all other cases, a party may

amend its pleading only with the opposing party’s written consent or the

court’s leave[,and] the court should freely give leave when justice so

requires.” Id. A court may, however, deny leave if amendment would be

futile. L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir.

2020) (cleaned up). And amendment would be futile where the new

claims asserted in the proposed amended complaint would be subject to

dismissal. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.

2004).

In the proposed third amended complaint, Plaintiff names the same

Defendant and includes substantially the same factual allegations and

legal claims as the second amended complaint. What the third amended

complaint appears to do is add allegations of defamation arising from

statements allegedly made by Mr. Bunnell (a manager) to Ms. Gibbs (a

human resources manager). (See Doc. 31 at 6-7; Doc. 32 at 4-12).

Unfortunately for Plaintiff, “Florida courts have found no publication

where a corporation is sued for defamation and the defamatory statement

was made by one managerial employee of the corporation to another.”

Hoch v. Loren, 273 So.3d 56, 58 (Fla. 4th DCA 2019). That is so because

“[a]ll communication between . . . executive/managerial employees are

considered to be the corporation talking to itself . . . .” Am. Airlines, 960

So.2d at 834. Because the new defamation allegations Plaintiff seeks to

add by way of his proposed third amended complaint would be subject to

dismissal, leave to amend should be denied as futile. See Chase v. Arbor

Props. Dev. Inc., No. 5:24-CV-158, 2026 WL 195433, at *4 (N.D. Fla. Jan.

9, 2026) (dismissing defamation claim because plaintiff failed to plausibly

allege publication to a third party where a corporation’s manager

allegedly made defamatory remarks about the plaintiff to an assistant

manager).

III. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. Defendant’s motion to dismiss (Doc. 28) be GRANTED in

part to the extent that Plaintiff’s defamation claims based on statements

made to the Florida Commission on Human Relations be dismissed and

DENIED in part to the extent that Plaintiff’s defamation claims based

on statements made to prospective employers be allowed to proceed.

2. Plaintiff’s motion for leave to file a third amended complaint

(Doc. 31) be DENIED.

3. This matter be recommitted to the undersigned for further

proceedings.

At Pensacola, Florida, this 4th day of August 2026.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to the proposed findings and recommendations set forth

above must be filed within fourteen days of the date of this Report and

Recommendation. Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. An objecting party must serve a copy of the objections on all

other parties. A party who fails to object to the magistrate judge’s

findings or recommendations contained in a report and recommendation

waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28

U.S.C. § 636.