Petition for Writ of Certiorari — Fluid Dynamics, LLC, Petitioner v. JEA, fka Jacksonville Electric Authority

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Eleventh Circuit

(November 5, 2018). . . . . . . . . . . . App. 1

Appendix B Order and Final Judgment in the

United States District Court for the

Mi dd l e D i s t r i c t of F l ori da ,

Jacksonville Division

(February 20, 2018) . . . . . . . . . . . App. 8

Appendix C Order in the United States District

Court for the Middle District of

Florida, Jacksonville Division

(August 29, 2017) . . . . . . . . . . . . App. 11

Appendix D Order Denying Petition for Panel

Rehearing in the United States Court

of Appeals for the Ninth Circuit

(December 13, 2018) . . . . . . . . . . App. 26

Appendix E Florida Statutes §768.28 . . . . . . App. 28

Florida Rule of Appellate Procedure

9.150 . . . . . . . . . . . . . . . . . . . . . . App. 46

Appendix F Motion for Certification to the

Supreme Court of Florida in the

United States Court of Appeals for the

Eleventh Circuit

(June 11, 2018) . . . . . . . . . . . . . . App. 47

App. 1

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-11082

Non-Argument Calendar

D.C. Docket No. 3:14-cv-01454-TJC-MCR

[Filed November 5, 2018]

____________________________________________

FLUID DYNAMICS HOLDINGS, LLC,

)

a Delaware Limited Liability Company,

)

)

Plaintiff - Appellant,

)

)

versus

)

)

CITY OF JACKSONVILLE,

)

a Florida municipality,

)

JACKSONVILLE ELECTRIC AUTHORITY,

)

a body politic and corporate created by the

)

Charter of the City of Jacksonville, Florida,

)

)

Defendants - Appellees. )

____________________________________________ )

Appeal from the United States District Court

for the Middle District of Florida

(November 5, 2018)

App. 2

Before MARCUS, MARTIN, and ROSENBAUM,

Circuit Judges.

PER CURIAM:

Fluid Dynamics Holdings, LLC, appeals the entry of

summary judgment in favor of the Jacksonville Electric

Authority (“the JEA”), an agency of the City of

Jacksonville, Florida. The district court ruled on the

basis of sovereign immunity. After review, we affirm.

I.

Fluid Dynamics sued the City of Jacksonville (“the

City”) and the JEA under Florida law for tortious

interference and defamation. The complaint alleged the

City and the JEA interfered with an agreement Fluid

Dynamics had to install “Precision Flow Systems” on

water pipes at private apartment complexes in

Jacksonville. Concerned these devices might cause fire

safety issues, the City and the JEA required Fluid

Dynamics to remove some of them. The City and the

JEA also voiced concerns about the devices in a news

article published in First Coast News.

In response to the suit brought by Fluid Dynamics,

the City and the JEA both raised sovereign immunity

as an affirmative defense. Fluid Dynamics later

dismissed the City with prejudice.

The JEA moved for partial summary judgment,

asserting it is entitled to sovereign immunity except to

the extent waived by the Florida legislature in Florida

Statute § 768.28. Fluid Dynamics countered that

whether the JEA is entitled to sovereign immunity

turns on the level of control the City exerts over the

App. 3

JEA, which it contended is a question of fact. As

support, Fluid Dynamics cited Plancher v. UCF

Athletics Association, Inc., 175 So. 3d 724 (Fla. 2015),

in which the Florida Supreme Court held a private,

nonprofit corporation was entitled to sovereign

immunity because of the control a state university

exerted over it.

The district court held the JEA is a governmental

unit entitled to sovereign immunity as a matter of law

and thus granted the JEA’s motion. The district court

considered itself bound by the Florida First District

Court of Appeal’s decision in Jetton v. Jacksonville

Electric Authority, 399 So. 2d 396 (Fla. 1st DCA 1981),

which held that the JEA has sovereign immunity. Id.

at 396.

The JEA then moved for summary judgment,

asserting Fluid Dynamics did not provide pre-suit

notice required by § 768.28, such that the JEA retained

its sovereign immunity. Fluid Dynamics admitted it did

not provide the required notice. The district court

entered final judgment in the JEA’s favor. This appeal

followed.

App. 4

II.

Florida municipalities and municipal agencies enjoy

sovereign immunity.1 See Cauley v. City of

Jacksonville, 403 So. 2d 379, 384 (Fla. 1981); Jetton,

399 So. 2d at 398. However, the Florida legislature has

waived sovereign immunity from tort suits to the

extent set out in § 768.28. The waiver extends to any

state “agencies or subdivisions,” defined to include

“counties and municipalities” and “corporations

primarily acting as instrumentalities or agencies of . . .

municipalities.” Id. § 768.28(1), (2). We agree with the

district court’s ruling that the JEA has sovereign

immunity subject to the § 768.28 waiver.

As the district court explained, the Jacksonville

Charter defines the JEA as an “independent agenc[y]”

of the City. Jacksonville, Fla., Charter § 18.07. The

Florida legislature “created and established” the JEA

by statute as a “body politic and corporate” to exercise

“all powers with respect to electric, water, sewer,

natural gas and such other utilities which are now, in

future could be, or could have been but for this article,

exercised by the City of Jacksonville.” Id. § 21.01 (citing

statutes creating the JEA). As the Charter makes

plain, the JEA is a governmental entity created by the

Florida legislature, and it primarily acts as the City’s

agent in providing utility services.

What’s more, Florida courts have already

determined the JEA is entitled to sovereign immunity

1

We apply Florida substantive law, including Florida sovereign

immunity law, in this diversity case. Carlson v. FedEx Ground

Package Sys., Inc., 787 F.3d 1313, 1318 (11th Cir. 2015).

App. 5

and subject to the provisions of § 768.28. See Jetton,

399 So. 2d at 398.2 In Jetton, a man sued the JEA over

injuries he sustained when building materials he was

carrying touched a JEA electrical transmission line. Id.

at 396. The JEA asserted that its liability was limited

by § 768.28(5), which at the time limited recovery from

a municipal agency to $50,000. Id. at 397. The First

District Court of Appeal concluded the JEA “is a

governmental unit, an electric utility operated by the

City of Jacksonville.” Id. at 398. It held the damages

cap “clearly extends to units that, like JEA, are

‘primarily acting as instrumentalities or agencies of . . .

municipalities.’” Id. (quoting Fla. Stat. § 768.28(2))

Florida courts continue to follow Jetton’s sovereign

immunity holding. See Fluid Dynamics Holdings LLC

v. City of Jacksonville, Case No. 3:14-cv-1454-J32MCR, 2017 WL 3723367, at *3 n.5 (M.D. Fla. Aug.

29, 2017) (collecting cases). And the Second District

Court of Appeal cited Jetton in Sebring Utilities

Commission v. Sicher, 509 So. 2d 968, 970 (Fla. 2d

DCA 1987), in concluding another Florida municipal

agency has sovereign immunity.

Fluid Dynamics says the Florida Supreme Court’s

decision in Plancher called Jetton into question. 175 So.

3d at 724. Not so. In Plancher, the Florida Supreme

Court held the University of Central Florida Athletics

Association, a private non-profit corporation, is entitled

2

We are “bound to adhere to decisions of the state’s intermediate

appellate courts absent some persuasive indication that the state’s

highest court would decide the issue otherwise.” Winn-Dixie

Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir.

2014) (quotation marks omitted).

App. 6

to sovereign immunity because of the degree of control

the University of Central Florida exercises over it. Id.

at 729. Plancher looked to the athletic association’s

bylaws and to Florida statutes to determine the

university exercised sufficient control over the athletic

association to entitle the athletic association to

sovereign immunity. If we accept that Plancher’s

control test applies to governmental entities as well as

private corporations controlled by state agencies, the

test is met here. The City exercises control over the

JEA. The mayor appoints, and the municipal council

confirms, members of the JEA’s board. Jacksonville,

Fla., Charter § 21.03; cf. Plancher, 175 So. 3d at 728

(discussing UCF’s control over the athletic association

board). The mayor and the municipal council approve

the JEA’s budget and have unique powers over the

JEA’s revenues. Jacksonville, Fla., Charter § 21.07; cf.

Plancher, 175 So. 3d at 728-29 (discussing UCF’s power

over the athletic association budget).

And the

municipal council has the power to amend the article of

the charter that delineates the JEA’s powers.

Jacksonville, Fla., Charter § 21.11. The Florida

Supreme Court found a similar level of control

sufficient to make the University of Central Florida

Athletic Association an instrumentality of the

University of Central Florida. See Plancher, 175 So. 3d

at 728–729. So too the City’s control over the JEA

makes it an instrumentality or agency of the

municipality.

The bottom line is the JEA is entitled to sovereign

immunity. The Florida legislature waived the JEA’s

immunity from tort liability in § 768.28. However,

Fluid Dynamics has conceded that it did not satisfy the

App. 7

pre-suit notice requirements set out in § 768.28(6).

Failure to provide the required notice is “fatal” to a tort

suit against an entity with sovereign immunity.

Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89, 91

(Fla. 1988). Judgment in the JEA’s favor was proper for

that reason.

We therefore AFFIRM the district court’s judgment.

We DENY AS MOOT Fluid Dynamics’ motion to certify

a question to the Florida Supreme Court.

App. 8

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

Case No. 3:14-cv-1454-J-32MCR

[Filed February 20, 2018]

______________________________________

FLUID DYNAMICS HOLDINGS, LLC, )

a Delaware Limited Liability Company, )

)

Plaintiff,

)

v.

)

)

CITY OF JACKSONVILLE, a Florida

)

municipality and JACKSONVILLE

)

ELECTRIC AUTHORITY, a body

)

politic and corporate created by the

)

Charter of the City of Jacksonville,

)

Florida,

)

)

Defendants.

)

______________________________________ )

ORDER AND FINAL JUDGMENT

This case is before the Court on Defendant

Jacksonville Electric Authority’s (“JEA”) Motion for

Summary Final Judgment. (Doc. 68). Plaintiff Fluid

Dynamics Holdings, LLC filed a response. (Doc. 69).

App. 9

On August 29, 2017, the Court found as a matter of

law that JEA is entitled to sovereign immunity in this

action because it is a “governmental unit acting as an

instrumentality of the City of Jacksonville.” (Doc. 63 at

14). Under Florida law, a plaintiff must provide presuit notice to the Florida Department of Financial

Services in addition to presenting pre-suit notice to the

relevant agency. Fla. Stat. § 768.28(6)(a). Fluid

Dynamics concedes that it did not provide pre-suit

notice to the Department of Financial Services. (Doc. 69

at 5). However, if, contrary to the Court’s Order, JEA

is not entitled to sovereign immunity, Fluid Dynamics

was not required to provide pre-suit notice to the

Department of Financial Services.

JEA now requests that the Court enter summary

judgment in its favor on all counts due to Fluid

Dynamics’s failure to provide pre-suit notice. (Doc. 68

at 6). Fluid Dynamics also requests that the Court

enter a final judgment in JEA’s favor so it may appeal

the Order finding that JEA is entitled to sovereign

immunity. (Doc. 69 at 5).

Accordingly, it is ORDERED AND ADJUDGED

that:

1. Defendant Jacksonville Electric Authority’s

Motion for Summary Final Judgment (Doc. 68) is

GRANTED.

2. Judgment is entered in favor of Defendant

Jacksonville Electric Authority and against Plaintiff

Fluid Dynamics Holdings, LLC.

3. The stay imposed on December 11, 2017 is lifted.

App. 10

4. All deadlines and motions are terminated, and

the Clerk should close the file.

DONE AND ORDERED in Jacksonville, Florida

the 20th day of February, 2018.

s/_____________________________

TIMOTHY J. CORRIGAN

United States District Judge

sj

Copies:

Counsel of record

App. 11

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

Case No. 3:14-cv-1454-J-32MCR

[Filed August 29, 2017]

______________________________________

FLUID DYNAMICS HOLDINGS LLC,

)

A Delaware Limited Liability Company, )

)

Plaintiff,

)

v.

)

)

CITY OF JACKSONVILLE, et. al.,

)

)

Defendants.

)

______________________________________ )

ORDER

Is JEA, the City of Jacksonville’s independent

electric authority, entitled to sovereign immunity such

that Florida Statute § 768.28, which governs tort

claims against governmental entities, applies to tort

actions against JEA? The answer is yes.

This case is before the Court on Defendant JEA’s

Motion for Partial Summary Judgment on the

Affirmative Defense of Sovereign Immunity (Doc. 53),

to which Plaintiff Fluid Dynamics Holdings LLC has

responded (Doc. 56). With the Court’s permission, JEA

App. 12

filed a reply (Doc. 59), and Fluid Dynamics filed a surreply (Doc. 60). On January 3, 2017, the Court held a

hearing on this issue, (See Docs. 46, 47, 54), the record

of which is incorporated by reference.

I. BACKGROUND

According to its Complaint, Fluid Dynamics

manufactured the “Precision Flow System,” a product

engineered to “[conserve] water and substantially

[reduce] water bills.” (Doc. 1 ¶ 13). Mid-America

Apartment Communities, Inc. (“MAA”) entered into an

agreement with Fluid Dynamics to place Precision

Flow System valves on some of MAA’s properties. (Id.

¶¶ 16-17). Under this agreement, Fluid Dynamics

installed Precision Flow System valves on eight MAA

properties in Jacksonville, Florida. (Id. ¶ 17). Both the

City of Jacksonville and JEA knew that Fluid

Dynamics installed these valves at MAA properties.

(Id. ¶ 18).

In November 2012, JEA discovered that Fluid

Dynamics installed two Precision Flow Systems on fire

lines at MAA properties. (Id. ¶ 21). On December 3,

2012, representatives of JEA, Fluid Dynamics, and

MAA met to discuss what to do about the Precision

Flow System valves installed on fire lines, and Fluid

Dynamics “agreed to remove its installations from the

two fire lines.” (Id. ¶¶ 22-25).

The next day, First Coast News, a Jacksonville

news outlet, published a negative story about MAA,

Fluid Dynamics, and the Precision Flow System. (Id.

¶ 26). The story was titled “Apartment Company’s

Efforts to Trim Water Bills could be Putting

App. 13

Jacksonville Tenants in Danger.” (Id.). In the story,

JEA accused Fluid Dynamics of “meter tampering” and

stated that the Precision Flow System “can be a safety

issue in the case of a fire.” (Id. ¶¶ 28-29).

The news story damaged Fluid Dynamics’ business

relationship with MAA. (Id. ¶¶ 37-41). After it aired,

MAA terminated its contract with Fluid Dynamics and

removed all previously installed Precision Flow System

valves from MAA’s properties in Jacksonville. (Id.

¶ 37). Shortly thereafter, the City of Jacksonville

provided a multimillion dollar incentive and subsidy

package to MAA. (Id. ¶¶ 39-40).

Fluid Dynamics also alleges that JEA interfered

with Fluid Dynamics’ business relationship with Saint

John’s County, Florida. (See id. ¶¶ 87-94). In January

2013, Fluid Dynamics agreed to sell the Precision Flow

System to St. John’s County. (Id. ¶¶ 87-94). Fluid

Dynamics alleges that when JEA learned of this

relationship, JEA “threatened to remove municipal and

utility cooperation and assistance from St. John’s

County if St. John’s County continued its business

relationship with” Fluid Dynamics. (Id. ¶ 61)

Fluid Dynamics alleges that JEA made defamatory

statements about Fluid Dynamics and the Precision

Flow System (Count I); that JEA tortiously interfered

with Fluid Dynamics’ contractual relationship with

MAA (Count II); and that JEA intentionally interfered

with Fluid Dynamics’ business relationship with St.

John’s County (Count III). (Id.). On January 2, 2017,

after the Court set a hearing on JEA’s Motion for

App. 14

Protective Order (Doc. 46),1 JEA moved for partial

summary judgment on the affirmative defense of

sovereign immunity. (Doc. 53). JEA seeks a dispositive

ruling to determine whether it “is immune from tort

liability except to the extent that it is waived in Fla.

Stat. § 768.28.” (Id. at 2).

II. ANALYSIS

A. Sovereign Immunity and Florida Law

Sovereign immunity is a common law doctrine that

developed in medieval England. Cauley v. City of

Jacksonville, 403 So. 2d 379, 381 (Fla. 1981). The

doctrine comes “from the concept that one could not sue

the king in his own courts; hence the phrase ‘the king

can do no wrong.’” Id. In the United States, both the

states and the federal government “fully embraced the

sovereign immunity theory.” Id. (citing Restatement

(Second) of Torts § 895B, comment a at 400 (1979)).

Thus, at common law, “state governments, their

agencies, and their subdivisions could not be sued in

state courts without state consent.”2 Id.

1

In that motion, JEA sought to prevent Fluid Dynamics from

taking a deposition of JEA’s CEO. That motion remains under

advisement pending the outcome of JEA’s Motion for Partial

Summary Judgment.

2

This federal court sitting in diversity is applying Florida law,

including state sovereign immunity law. See, e.g., Cook ex rel.

Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092,

1117–19 (11th Cir. 2005) (concluding under supplemental

jurisdiction that a state law claim for negligent training and

supervision was barred by Florida state law sovereign immunity).

App. 15

In 1973, the Florida legislature enacted section

768.28, Florida Statutes, waiving “sovereign immunity

for liability for torts.” Fla. Stat. § 768.28(1). The

statute’s waiver specifically applies to “the state or any

of its agencies or subdivisions.” Id. The statute provides

that “state agencies or subdivisions include . . .

independent establishments of the state, including . . .

counties and municipalities; and corporations acting

primarily as instrumentalities or agencies of the state,

counties, or municipalities.” Id. § 768.28(2).3

However, Florida’s waiver of sovereign immunity is

limited. See id. § 768.28(5). Tort liability for the state,

its agencies, or its subdivisions “shall not include

punitive damages or interest for the period before

judgment.” Id. Neither will the state, its agencies, nor

its subdivisions “be liable to pay a claim or a judgment

by any one person which exceeds the sum of $200,000.”

Id.4 Therefore, a plaintiff who pursues a tort claim

3

Because the statute uses the language “including,” section

768.28’s list of “independent establishments of the state” is not

exhaustive. See United States v. Hastie, 854 F.3d 1298, 1304 (11th

Cir. 2017) (“[T]he word ‘including’ in a statute signifies

enlargement not limitation.” (citations omitted)). Thus, an entity

need not be explicitly described in section 768.28 for the statute to

apply.

4

In pertinent part, section 768.28(5) provides:

Neither the state nor its agencies or subdivisions shall be

liable to pay a claim or a judgment by any one person

which exceeds the sum of $200,000 or any claim or

judgment, or portions thereof, which, when totaled with all

other claims or judgments paid by the state or its agencies

or subdivisions arising out of the same incident or

occurrence, exceeds the sum of $300,000. However, a

App. 16

against Florida or one of Florida’s agencies or

subdivisions cannot recover more than $200,000

(absent a claims bill passed by the Legislature and

signed by the Governor into law).

JEA argues that section 768.28 limits the amount

Fluid Dynamics can recover. However, Fluid Dynamics

argues that section 768.28 is inapplicable to JEA. Thus,

it is necessary to analyze whether sovereign immunity,

as applied through section 768.28, applies to JEA.

B. JEA’s Status Under Section 768.28

JEA, formerly known as the Jacksonville Electric

Authority, is listed in the city charter as an

“independent agency” of the City of Jacksonville.

Charter of the City of Jacksonville § 18.07(d); see also

Ch. 78-538, § 1, Laws of Fla. (same); Ch. 80-515, § 1,

Laws of Fla. (same); Ch. 92-341, § 1, Laws of Fla.

(same). The Florida legislature established JEA in 1967

as a “body politic and corporate” and provided JEA

with “all powers with respect to electric, water, sewer,

natural gas and such other utilities which are now, in

the future could be, or could have been . . . exercised by

the City of Jacksonville.” Charter of the City of

Jacksonville § 21.01. Because JEA is a statutorily

judgment or judgments may be claimed and rendered in

excess of these amounts and may be settled and paid

pursuant to this act up to $200,000 or $300,000, as the

case may be; and that portion of the judgment that exceeds

these amounts may be reported to the Legislature, but

may be paid in part or in whole only by further act of the

Legislature.

App. 17

created entity, it is not incorporated with the Florida

Secretary of State.

In 1981, the Florida First District Court of Appeal

decided that JEA has sovereign immunity under

section 768.28. See Jetton v. Jacksonville Elec. Auth.,

399 So. 2d 396, 398 (Fla. Dist. Ct. App. 1981) (“The

waiver of sovereign immunity under the statute clearly

extends to units that, like JEA, are primarily acting as

instrumentalities or agents of . . . municipalities.”

(alteration in original) (internal quotations marks

omitted)). Jetton determined that JEA was “a

governmental unit, an electric utility operated by the

City of Jacksonville.” Id. (citing Ven-Fuel v.

Jacksonville Elec. Auth., 332 So. 2d 81 (Fla. Dist. Ct.

App. 1975); Amerson v. Jacksonville Elec. Auth., 362

So. 2d 433 (Fla. Dist. Ct. App. 1978)). As a

governmental unit, JEA is entitled to section

768.28(5)’s liability limits. Id. Florida circuit courts and

federal district courts have continuously cited Jetton

and ruled that section 768.28 applies to JEA.5

5

Duval County circuit courts have consistently applied Jetton and

held that section 768.28 applies to JEA. See, e.g., Order on

Defendants’ Motion to Dismiss, or Alternatively, Motion to Stay,

Bartram Park Ltd. v. City of Jacksonville, No. 16-2008-CA-14100XXXX-MA (Fla. Cir. Ct. Jan. 28, 2010) (citing Jetton for the

proposition that JEA is a municipal agency but finding that

sovereign immunity does not bar claim for breach of implied

contract); Hill v. Altec Indus., Inc., No. 02-04265-CA (Fla. Cir. Ct.

Apr. 19, 2005) (granting summary judgment in favor of JEA

because plaintiff failed to meet the notice requirements under

section 768.28); Order Dismissing Count III of the Second

Amended Complaint, Liberty Mut. Ins. Co. v. Fortress Homes &

Cmtys. of Fla., LLC, No. 2003-CA-00856 (Fla. Cir. Ct. Oct. 12,

2004) (“JEA is a governmental unit which primarily acts as an

App. 18

While Jetton remains the seminal case regarding

section 768.28 and JEA, other Florida courts have come

to a similar conclusion concerning the sovereign

immunity of other municipal utilities in the state. For

example, in Sebring Utilities Commission v. Sicher, the

Second District Court of Appeal had to determine

whether to apply section 768.28’s liability limitations

to a municipal utility. 509 So. 2d 968 (Fla. Dist. Ct.

App. 1987). The Second District agreed with Jetton and

held that section 768.28 applied to a “utility acting as

a municipality.” Id. at 970.

instrumentality or an agency of a municipality.” (citing Jetton, 399

So. 2d at 396)); Order on Plaintiff’s Motion to Strike, Williams v.

Jacksonville Elec. Auth., No. 1997-CA-4539, Div. CV-B (Fla. Cir.

Ct. Oct. 23, 1997) (applying section 768.28 to claims against JEA);

see also Bombgartner v. Jacksonville Elec. Auth., 1 Fla. Jury

Verdict Rev. & Analysis (Jury Verdicts Review Publications, Inc.)

4:C8 (Fla. Cir. Ct. 1990) (plaintiffs’ award was limited to $200,000

under Florida’s sovereign immunity law, with plaintiffs accepting

the limit).

Another judge of this Court has also applied section 768.28 to

JEA. See Sipho v. Jacksonville Elec. Auth., No. 3:02-cv-138-HES

(M.D. Fla. Jan. 9, 2004) (noting that “Florida has waived sovereign

immunity for tort liability against the state . . .” pursuant to

§ 768.28(1) and (6)(a) and granting summary judgment for JEA on

state tort claims because plaintiff failed to satisfy § 768.28); cf.,

Jacksonville Port Auth. v. Thompson Eng’g, Inc., No. 3:12-cv-1227J-20JRK (M.D. Fla. Mar. 4, 2015) (citing Jetton for the proposition

that JEA is entitled to sovereign immunity under Florida Law and

noting that “[t]he First District Court of Appeals [sic] found JEA

to be subject to sovereign immunity . . . .”; declining to dismiss

JEA’s claims based on sovereign immunity grounds but later

allowing JEA to raise sovereign immunity defenses again in

responding to amended complaint).

App. 19

In the same vein, the Fifth District Court of Appeal

determined that section 768.28 applied to the Orlando

Utilities Commission (“OUC”), a municipal utility that

is structurally similar to JEA;6 in Lederer v. Orlando

Utilities Commission, the Fifth District held that the

notice requirement of section 768.28(6) applied to the

OUC. 981 So. 2d at 525-26. The Fifth District explained

that the Florida Legislature “established the OUC as a

‘part of the government of the City of Orlando,’ but

provided that the OUC would have substantial

autonomy to operate independent of the City

government.” Id. at 523-24. As a legislatively created

entity, the OUC could not be sued in tort without

proper section 768.28(6) notice.7 Id.

Following Lederer, a federal district court sitting in

diversity further explained why section 768.28 applies

to the OUC. See Hodge v. Orlando Utils. Comm’n, No.

6:09-cv-1059-Orl-19DAB, 2009 WL 4042930 (M.D. Fla.

Nov. 23, 2009). Applying the language of section 768.28

to the Lederer decision, the Hodge court explained, “[i]f

6

The Florida legislature created the OUC by a special act passed

by the Legislature. Lederer v. Orlando Util. Comm’n, 981 So. 2d

521, 523-24 (Fla. Dist. Ct. App. 2008). Like JEA, the Orlando city

council “selects OUC’s board members” but “the OUC acts

independently and beyond the control of the City with respect to

the powers it has under the special act.” Id. at 524. “Thus, while

the OUC may be a public utility designated as part of [Orlando’s]

government, it remains a distinct legal entity that operates mostly

independently of the city.” Id. at 525.

7

In so holding, the Lederer court explained that its conclusion that

the OUC is not a municipality or municipal department resolved

the notice issue before the court, rendering it unnecessary to

“determine precisely what the OUC is.” Id. at 526.

App. 20

OUC is not a municipality . . . and if plaintiffs suing

OUC are subject to the presuit notice requirement

imposed by Section 768.28(6), then OUC must fall

within the definition of ‘state agency or subdivision’ in

Section 768.28(2).” Id. at *10. Thus, the court

explained, “OUC is exempt from punitive damages

pursuant to Section 768.28(5)[.]” Id.

Thus, Florida law establishes that JEA has

sovereign immunity from tort liability exceeding

$200,000 under section 768.28(5). Jetton directly

addressed whether section 768.28 applies to JEA and

determined that it does; entities like JEA that act as

instrumentalities of municipalities have sovereign

immunity. Contrary to Fluid Dynamics’ suggestion,

Jetton is not “inapplicable today” (Doc. 56 at 8); state

and federal courts regularly cite Jetton as authority in

tort suits against JEA. Moreover, Sebring, Lederer, and

Hodge strengthen Jetton’s rationale.

C. The control test does not apply to JEA.

Seeking to avoid the force of this precedent, Fluid

Dynamics asserts that existing case law does not

definitively identify JEA as having sovereign immunity

under section 768.28; instead, JEA’s entitlement to

sovereign immunity is a question of fact under “the

control test.” (Doc. 56 at 1). Fluid Dynamics argues

that because JEA is able to operate independently of

the City of Jacksonville, it is a corporation “primarily

acting as [an instrumentality or agency] of the state.”

Fla. Stat. § 768.28(2).

To decide whether a corporation is entitled to

limited sovereign immunity under section 768.28,

App. 21

Florida courts are required to apply a control test. See

Plancher v. UCF Athletics Ass’n, Inc., 175 So. 3d 724

(Fla. 2015).8 In approving the Fifth District’s holding

that UCF Athletics Association, Inc. (“UCFAA”) was

entitled to limited sovereign immunity under section

768.28, the Florida Supreme Court noted that the

lower court analyzed Florida case law and identified

that the key factor in determining whether a

corporation is an instrumentality of the state and

therefore entitled to section 768.28 immunity “is the

level of governmental control over the performance and

day-to-day operations of the corporation.” Id. at 725

(quotation marks omitted). However, section 768.28

does not provide a definition for the word “corporation.”

Thus, whether an entity is a corporation subject to the

control test needs to be determined in the first

instance.

8

See also Shands Teaching Hosp. and Clinics, Inc. v. Lee, 478 So.

2d 77, 79 (Fla. Dist. Ct. App. 1985) (holding that Shands was not

entitled to sovereign immunity because “Shands’ day-to-day

operations are not under direct [governmental] control”); Prison

Rehabilitative Indus. and Diversified Enterprises, Inc. v.

Betterson, 648 So. 2d 778, 780-81 (Fla. Dist. Ct. App. 1994) (noting

that legislative constraints created “sufficient governmental

control over PRIDE’s daily operations to require the conclusion as

a matter of law that PRIDE has, from its inception, acted

primarily as an instrumentality of the state.”); Pagan v. Sarasota

Cnty. Pub. Hosp. Bd., 884 So. 2d 257, 267 (Fla. Dist. Ct. App. 2004)

(“[T]he analysis of whether a corporation is a governmental

instrumentality or agency centers on the issue of control.”)

(Canady, J., concurring specially); G4S Secure Sols. (USA), Inc. v.

Morrow, 210 So. 3d 92, 93 (Fla. Dist. Ct. App. 2016) (“The

determinative factor [in deciding whether a corporation has

sovereign immunity] is the degree of control retained or exercised

by the state agency.”).

App. 22

The Florida legislature provides the definition of

corporation elsewhere in the Florida Statutes. See Fla.

Stat. § 607.01401(5) (defining “corporation” as a

“corporation for profit, which is not a foreign

corporation, incorporated under or subject to the

provisions of [the Florida Business Corporation Act]”);

Id. §§ 617.01401(4) (defining “corporation” as a

“corporation not for profit, subject to the provisions of

[Chapter 617], except a foreign corporation”),

(5) (defining “corporation not for profit” as “a

corporation no part of the income or profit of which is

distributable to its members, directors, or officers,

except as otherwise provided under [Chapter 617]”). A

corporation does not exist until it files articles of

incorporation with the Department of State. Id.

§ 607.0203; id. § 617.0203.

Case law suggests that the definitions in Chapters

607 and 617 inform whether an entity is a corporation

subject to the control test. Florida courts have only

applied the control test to Chapter 607 or Chapter 617

corporations that have articles of incorporation filed

with the Department of State. See Plancher, 175 So. 3d

at 7269; G4S, 210 So. 3d at 93; Pagan, 884 So. 2d at

9

Fluid Dynamics suggests that “[n]othing in Plancher limits this

analysis [control test] to private corporations” and maintains that

“the ‘control’ test is to be applied to every entity other than the state,

county or municipality itself.” (Doc. 56 at 5). However, Fluid

Dynamics cites no cases in support of this argument. While it is true

that Plancher does not explicitly limit its holding to corporations, the

Court’s opinion strongly suggests as much. For instance, the

Plancher court cited the Fifth District Court of Appeal’s observation

that the “key factor in determining whether a private corporation is

an instrumentality of the state for sovereign immunity purposes is

App. 23

259; Betterson, 648 So. 2d at 780; Shands, 478 So. 2d

at 78. In Plancher, the Florida Supreme Court applied

the control test to UCFAA, a not for profit corporation

with articles of incorporation filed with the Department

of State.10 Shands, Betterson, Pagan, and G4S also

the level of governmental control . . . .” Plancher, 175 So. 3d at 725

(emphasis added). In citing section 768.28(2), the court italicized the

entity under discussion: “corporations primarily acting as

instrumentalities or agencies of the state.” Id. at 726 (emphasis in

original). The court even describes the plaintiffs’ argument as one

about “actual state control over a corporation’s day-to-day

operations.” Id. at 728 (emphasis added). Importantly, UCFAA, the

entity at issue in Plancher, is a not-for-profit Florida corporation. Id.

at 726; see G4S, 210 So. 3d at 94 (citing Plancher for the proposition

that limited sovereign immunity is available for private parties

involved in contractual relationships with the state if those parties

are determined to be acting as agents of the state).

As these examples demonstrate, Plancher confined its analysis

to corporations and did not address the applicability of its decision

to independent public utilities like JEA. Fluid Dynamics has

provided no authority suggesting that the Florida Supreme Court

intended to abrogate the First District Court of Appeal’s decision in

Jetton, and this Court, sitting in diversity, declines at this time to

unilaterally extend Plancher without a showing that the Florida

Supreme Court would do so. See Starling v. R.J. Reynolds Tobacco

Co., 845 F. Supp. 2d 1215, 1236 (M.D. Fla. 2011) (“Where the

highest court—in this case, the Florida Supreme Court—has spoken

on the topic, [this Court follows] its rule. Where that court has not

spoken, however, [this Court] must predict how the highest court

would decide this case.”), adhered to on denial of reconsideration

(Dec. 22, 2011) (citing Molinos Valle Del Cibao, C. por A. v. Lama,

633 F.3d 1330, 1348 (11th Cir. 2011)).

10

See the Florida Department of State Division of Corporations’

website, www.sunbiz.org, which features records of Florida

corporations. Individual corporations’ records can be found by

completing a search of the entity name.

App. 24

applied the control test to entities that have articles of

incorporation filed with the Department of State. Fluid

Dynamics did not cite any cases that apply the control

test to entities not incorporated under Chapters 607 or

617.

JEA is not such a corporation because articles of

incorporation did not establish JEA’s existence.

Instead, the Florida Legislature created JEA as part of

the City of Jacksonville Charter. Thus, the control test

is irrelevant in determining whether JEA has limited

sovereign immunity under section 768.28. Rather,

under Jetton, Sebring, Lederer, and Hodge, JEA is a

governmental unit acting as an instrumentality of the

City of Jacksonville or a state agency or subdivision.

Either way, section 768.28 applies to JEA. Thus,

section 768.28(5) limits the amount of damages Fluid

Dynamics can recover from JEA in this action, and

partial summary judgment for JEA is proper.11

11

The Court notes that section 768.28 contains the following

provision:

No provision of this section, or of any other section of the

Florida Statutes, whether read separately or in

conjunction with any other provision, shall be construed to

waive the immunity of the state or any of its agencies from

suit in federal court, as such immunity is guaranteed by

the Eleventh Amendment to the Constitution of the United

States, unless such waiver is explicitly and definitely

stated to be a waiver of the immunity of the state and its

agencies from suit in federal court. This subsection shall

not be construed to mean that the state has at any time

previously waived, by implication, its immunity, or that of

any of its agencies, from suit in federal court through any

statute in existence prior to June 24, 1984.

App. 25

Accordingly, it is hereby

ORDERED:

1. Defendant JEA’s Motion for Partial Summary

Judgment (Doc. 53) is GRANTED. The Court finds as

a matter of law that the City and JEA’s affirmative

defense of sovereign immunity applies to this action,

limiting the damages Plaintiff Fluid Dynamics

Holdings LLC can recover.

2. Based on this ruling, JEA’s Motion for Protective

Order (Doc. 46) is also GRANTED.

3. The Court vacated the case schedule pending the

outcome of these motions. No later than September

22, 2017, the parties shall file a proposed schedule to

return this case to the active docket.

DONE AND ORDERED in Jacksonville, Florida

the 29th day of August, 2017.

s/_____________________________

TIMOTHY J. CORRIGAN

United States District Judge

bh

Copies:

Counsel of record

Fla. Stat. § 768.28(18). Neither party has discussed whether this

provision has any applicability in the case, so the Court does not

consider it.

App. 26

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-11082-JJ

[Filed December 13, 2018]

____________________________________________

FLUID DYNAMICS HOLDINGS, LLC,

)

a Delaware Limited Liability Company,

)

)

Plaintiff - Appellant,

)

)

versus

)

)

CITY OF JACKSONVILLE,

)

a Florida municipality,

)

JACKSONVILLE ELECTRIC AUTHORITY,

)

a body politic and corporate created by the

)

Charter of the City of Jacksonville, Florida,

)

)

Defendants - Appellees. )

____________________________________________ )

Appeal from the United States District Court

for the Middle District of Florida

BEFORE: MARCUS, MARTIN, and ROSENBAUM,

Circuit Judges.

PER CURIAM:

App. 27

The petition(s) for panel rehearing filed by Fluid

Dynamics Holdings LLC. is DENIED.

ENTERED FOR THE COURT:

/s/__________________________

UNITED STATES CIRCUIT JUDGE

App. 28

APPENDIX E

Florida Statutes §768.28

768.28 Waiver of sovereign immunity in tort

actions; recovery limits; limitation on attorney

fees; statute of limitations; exclusions;

indemnification; risk management programs.—

(1) In accordance with s. 13, Art. X of the State

Constitution, the state, for itself and for its agencies or

subdivisions, hereby waives sovereign immunity for

liability for torts, but only to the extent specified in this

act. Actions at law against the state or any of its

agencies or subdivisions to recover damages in tort for

money damages against the state or its agencies or

subdivisions for injury or loss of property, personal

injury, or death caused by the negligent or wrongful act

or omission of any employee of the agency or

subdivision while acting within the scope of the

employee’s office or employment under circumstances

in which the state or such agency or subdivision, if a

private person, would be liable to the claimant, in

accordance with the general laws of this state, may be

prosecuted subject to the limitations specified in this

act. Any such action may be brought in the county

where the property in litigation is located or, if the

affected agency or subdivision has an office in such

county for the transaction of its customary business,

where the cause of action accrued. However, any such

action against a state university board of trustees shall

be brought in the county in which that university’s

App. 29

main campus is located or in the county in which the

cause of action accrued if the university maintains

therein a substantial presence for the transaction of its

customary business.

(2) As used in this act, “state agencies or

subdivisions” include the executive departments, the

Legislature, the judicial branch (including public

defenders), and the independent establishments of the

state, including state university boards of trustees;

counties and municipalities; and corporations primarily

acting as instrumentalities or agencies of the state,

counties, or municipalities, including the Florida Space

Authority.

(3) Except for a municipality and the Florida Space

Authority, the affected agency or subdivision may, at

its discretion, request the assistance of the Department

of Financial Services in the consideration, adjustment,

and settlement of any claim under this act.

(4) Subject to the provisions of this section, any

state agency or subdivision shall have the right to

appeal any award, compromise, settlement, or

determination to the court of appropriate jurisdiction.

(5) The state and its agencies and subdivisions shall

be liable for tort claims in the same manner and to the

same extent as a private individual under like

circumstances, but liability shall not include punitive

damages or interest for the period before judgment.

Neither the state nor its agencies or subdivisions shall

be liable to pay a claim or a judgment by any one

person which exceeds the sum of $200,000 or any claim

or judgment, or portions thereof, which, when totaled

App. 30

with all other claims or judgments paid by the state or

its agencies or subdivisions arising out of the same

incident or occurrence, exceeds the sum of $300,000.

However, a judgment or judgments may be claimed and

rendered in excess of these amounts and may be settled

and paid pursuant to this act up to $200,000 or

$300,000, as the case may be; and that portion of the

judgment that exceeds these amounts may be reported

to the Legislature, but may be paid in part or in whole

only by further act of the Legislature. Notwithstanding

the limited waiver of sovereign immunity provided

herein, the state or an agency or subdivision thereof

may agree, within the limits of insurance coverage

provided, to settle a claim made or a judgment

rendered against it without further action by the

Legislature, but the state or agency or subdivision

thereof shall not be deemed to have waived any defense

of sovereign immunity or to have increased the limits

of its liability as a result of its obtaining insurance

coverage for tortious acts in excess of the $200,000 or

$300,000 waiver provided above. The limitations of

liability set forth in this subsection shall apply to the

state and its agencies and subdivisions whether or not

the state or its agencies or subdivisions possessed

sovereign immunity before July 1, 1974.

(6)(a) An action may not be instituted on a claim

against the state or one of its agencies or subdivisions

unless the claimant presents the claim in writing to the

appropriate agency, and also, except as to any claim

against a municipality, county, or the Florida Space

Authority, presents such claim in writing to the

Department of Financial Services, within 3 years after

such claim accrues and the Department of Financial

App. 31

Services or the appropriate agency denies the claim in

writing; except that, if:

1. Such claim is for contribution pursuant to

s. 768.31, it must be so presented within 6 months after

the judgment against the tortfeasor seeking

contribution has become final by lapse of time for

appeal or after appellate review or, if there is no such

judgment, within 6 months after the tortfeasor seeking

contribution has either discharged the common liability

by payment or agreed, while the action is pending

against her or him, to discharge the common liability;

or

2. Such action is for wrongful death, the claimant

must present the claim in writing to the Department of

Financial Services within 2 years after the claim

accrues.

(b) For purposes of this section, the requirements of

notice to the agency and denial of the claim pursuant

to paragraph (a) are conditions precedent to

maintaining an action but shall not be deemed to be

elements of the cause of action and shall not affect the

date on which the cause of action accrues.

(c) The claimant shall also provide to the agency the

claimant’s date and place of birth and social security

number if the claimant is an individual, or a federal

identification number if the claimant is not an

individual. The claimant shall also state the case style,

tribunal, the nature and amount of all adjudicated

penalties, fines, fees, victim restitution fund, and other

judgments in excess of $200, whether imposed by a

civil, criminal, or administrative tribunal, owed by the

App. 32

claimant to the state, its agency, officer or subdivision.

If there exists no prior adjudicated unpaid claim in

excess of $200, the claimant shall so state.

(d) For purposes of this section, complete, accurate,

and timely compliance with the requirements of

paragraph (c) shall occur prior to settlement payment,

close of discovery or commencement of trial, whichever

is sooner; provided the ability to plead setoff is not

precluded by the delay. This setoff shall apply only

against that part of the settlement or judgment payable

to the claimant, minus claimant’s reasonable attorney’s

fees and costs. Incomplete or inaccurate disclosure of

unpaid adjudicated claims due the state, its agency,

officer, or subdivision, may be excused by the court

upon a showing by the preponderance of the evidence

of the claimant’s lack of knowledge of an adjudicated

claim and reasonable inquiry by, or on behalf of, the

claimant to obtain the information from public records.

Unless the appropriate agency had actual notice of the

information required to be disclosed by paragraph (c) in

time to assert a setoff, an unexcused failure to disclose

shall, upon hearing and order of court, cause the

claimant to be liable for double the original undisclosed

judgment and, upon further motion, the court shall

enter judgment for the agency in that amount. Except

as provided otherwise in this subsection, the failure of

the Department of Financial Services or the

appropriate agency to make final disposition of a claim

within 6 months after it is filed shall be deemed a final

denial of the claim for purposes of this section. For

purposes of this subsection, in medical malpractice

actions and in wrongful death actions, the failure of the

Department of Financial Services or the appropriate

App. 33

agency to make final disposition of a claim within 90

days after it is filed shall be deemed a final denial of

the claim. The statute of limitations for medical

malpractice actions and wrongful death actions is

tolled for the period of time taken by the Department

of Financial Services or the appropriate agency to deny

the claim. The provisions of this subsection do not

apply to such claims as may be asserted by

counterclaim pursuant to s. 768.14.

(7) In actions brought pursuant to this section,

process shall be served upon the head of the agency

concerned and also, except as to a defendant

municipality, county, or the Florida Space Authority,

upon the Department of Financial Services; and the

department or the agency concerned shall have 30 days

within which to plead thereto.

(8) No attorney may charge, demand, receive, or

collect, for services rendered, fees in excess of 25

percent of any judgment or settlement.

(9)(a) No officer, employee, or agent of the state or

of any of its subdivisions shall be held personally liable

in tort or named as a party defendant in any action for

any injury or damage suffered as a result of any act,

event, or omission of action in the scope of her or his

employment or function, unless such officer, employee,

or agent acted in bad faith or with malicious purpose or

in a manner exhibiting wanton and willful disregard of

human rights, safety, or property. However, such

officer, employee, or agent shall be considered an

adverse witness in a tort action for any injury or

damage suffered as a result of any act, event, or

omission of action in the scope of her or his

App. 34

employment or function. The exclusive remedy for

injury or damage suffered as a result of an act, event,

or omission of an officer, employee, or agent of the state

or any of its subdivisions or constitutional officers shall

be by action against the governmental entity, or the

head of such entity in her or his official capacity, or the

constitutional officer of which the officer, employee, or

agent is an employee, unless such act or omission was

committed in bad faith or with malicious purpose or in

a manner exhibiting wanton and willful disregard of

human rights, safety, or property. The state or its

subdivisions shall not be liable in tort for the acts or

omissions of an officer, employee, or agent committed

while acting outside the course and scope of her or his

employment or committed in bad faith or with

malicious purpose or in a manner exhibiting wanton

and willful disregard of human rights, safety, or

property.

(b) As used in this subsection, the term:

1. “Employee” includes any volunteer firefighter.

2. “Officer, employee, or agent” includes, but is not

limited to, any health care provider when providing

services pursuant to s. 766.1115; any nonprofit

independent college or university located and chartered

in this state which owns or operates an accredited

medical school, and its employees or agents, when

providing patient services pursuant to paragraph

(10)(f); and any public defender or her or his employee

or agent, including, among others, an assistant public

defender and an investigator.

App. 35

(c) For purposes of the waiver of sovereign

immunity only, a member of the Florida National

Guard is not acting within the scope of state

employment when performing duty under the

provisions of Title 10 or Title 32 of the United States

Code or other applicable federal law; and neither the

state nor any individual may be named in any action

under this chapter arising from the performance of

such federal duty.

(d) The employing agency of a law enforcement

officer as defined in s. 943.10 is not liable for injury,

death, or property damage effected or caused by a

person fleeing from a law enforcement officer in a

motor vehicle if:

1. The pursuit is conducted in a manner that does

not involve conduct by the officer which is so reckless

or wanting in care as to constitute disregard of human

life, human rights, safety, or the property of another;

2. At the time the law enforcement officer initiates

the pursuit, the officer reasonably believes that the

person fleeing has committed a forcible felony as

defined in s. 776.08; and

3. The pursuit is conducted by the officer pursuant

to a written policy governing high-speed pursuit

adopted by the employing agency. The policy must

contain specific procedures concerning the proper

method to initiate and terminate high-speed pursuit.

The law enforcement officer must have received

instructional training from the employing agency on

the written policy governing high-speed pursuit.

App. 36

(10)(a) Health care providers or vendors, or any of

their employees or agents, that have contractually

agreed to act as agents of the Department of

Corrections to provide health care services to inmates

of the state correctional system shall be considered

agents of the State of Florida, Department of

Corrections, for the purposes of this section, while

acting within the scope of and pursuant to guidelines

established in said contract or by rule. The contracts

shall provide for the indemnification of the state by the

agent for any liabilities incurred up to the limits set out

in this chapter.

(b) This subsection shall not be construed as

designating persons providing contracted health care

services to inmates as employees or agents of the state

for the purposes of chapter 440.

(c) For purposes of this section, regional poison

control centers created in accordance with

s. 395.1027 and coordinated and supervised under the

Division of Children’s Medical Services Prevention and

Intervention of the Department of Health, or any of

their employees or agents, shall be considered agents

of the State of Florida, Department of Health. Any

contracts with poison control centers must provide, to

the extent permitted by law, for the indemnification of

the state by the agency for any liabilities incurred up to

the limits set out in this chapter.

(d) For the purposes of this section, operators,

dispatchers, and providers of security for rail services

and rail facility maintenance providers in the South

Florida Rail Corridor, or any of their employees or

agents, performing such services under contract with

App. 37

and on behalf of the South Florida Regional

Transportation Authority or the Department of

Transportation shall be considered agents of the state

while acting within the scope of and pursuant to

guidelines established in said contract or by rule.

(e) For purposes of this section, a professional firm

that provides monitoring and inspection services of the

work required for state roadway, bridge, or other

transportation facility construction projects, or any of

the firm’s employees performing such services, shall be

considered agents of the Department of Transportation

while acting within the scope of the firm’s contract with

the Department of Transportation to ensure that the

project is constructed in conformity with the project’s

plans, specifications, and contract provisions. Any

contract between the professional firm and the state, to

the extent permitted by law, shall provide for the

indemnification of the department for any liability,

including reasonable attorney’s fees, incurred up to the

limits set out in this chapter to the extent caused by

the negligence of the firm or its employees. This

paragraph shall not be construed as designating

persons who provide monitoring and inspection

services as employees or agents of the state for

purposes of chapter 440. This paragraph is not

applicable to the professional firm or its employees if

involved in an accident while operating a motor vehicle.

This paragraph is not applicable to a firm engaged by

the Department of Transportation for the design or

construction of a state roadway, bridge, or other

transportation facility construction project or to its

employees, agents, or subcontractors.

App. 38

(f) For purposes of this section, any nonprofit

independent college or university located and chartered

in this state which owns or operates an accredited

medical school, or any of its employees or agents, and

which has agreed in an affiliation agreement or other

contract to provide, or permit its employees or agents

to provide, patient services as agents of a teaching

hospital, is considered an agent of the teaching hospital

while acting within the scope of and pursuant to

guidelines established in the affiliation agreement or

other contract. To the extent allowed by law, the

contract must provide for the indemnification of the

teaching hospital, up to the limits set out in this

chapter, by the agent for any liability incurred which

was caused by the negligence of the college or

university or its employees or agents. The contract

must also provide that those limited portions of the

college, university, or medical school which are directly

providing services pursuant to the contract and which

are considered an agent of the teaching hospital for

purposes of this section are deemed to be acting on

behalf of a public agency as defined in s. 119.011(2).

1. For purposes of this paragraph, the term:

a. “Employee or agent” means an officer, employee,

agent, or servant of a nonprofit independent college or

university located and chartered in this state which

owns or operates an accredited medical school,

including, but not limited to, the faculty of the medical

school, any health care practitioner or licensee as

defined in s. 456.001 for which the college or university

is vicariously liable, and the staff or administrators of

the medical school.

App. 39

b. “Patient services” mean:

(I) Comprehensive health care services as defined in

s. 641.19, including any related administrative service,

provided to patients in a teaching hospital;

(II) Training and supervision of interns, residents,

and fellows providing patient services in a teaching

hospital; or

(III) Training and supervision of medical students

in a teaching hospital.

c. “Teaching hospital” means a teaching hospital as

defined in s. 408.07 which is owned or operated by the

state, a county or municipality, a public health trust, a

special taxing district, a governmental entity having

health care responsibilities, or a not-for-profit entity

that operates such facility as an agent of the state, or

a political subdivision of the state, under a lease or

other contract.

2. The teaching hospital or the medical school, or its

employees or agents, must provide notice to each

patient, or the patient’s legal representative, that the

college or university that owns or operates the medical

school and the employees or agents of that college or

university are acting as agents of the teaching hospital

and that the exclusive remedy for injury or damage

suffered as the result of any act or omission of the

teaching hospital, the college or university that owns or

operates the medical school, or the employees or agents

of the college or university, while acting within the

scope of duties pursuant to the affiliation agreement or

other contract with a teaching hospital, is by

commencement of an action pursuant to the provisions

App. 40

of this section. This notice requirement may be met by

posting the notice in a place conspicuous to all persons.

3. This paragraph does not designate any employee

providing contracted patient services in a teaching

hospital as an employee or agent of the state for

purposes of chapter 440.

(g) For the purposes of this section, the executive

director of the Board of Nursing, when serving as the

state administrator of the Nurse Licensure Compact

pursuant to s. 464.0095, and any administrator, officer,

executive director, employee, or representative of the

Interstate Commission of Nurse Licensure Compact

Administrators, when acting within the scope of their

employment, duties, or responsibilities in this state,

are considered agents of the state. The commission

shall pay any claims or judgments pursuant to this

section and may maintain insurance coverage to pay

any such claims or judgments.

(11)(a) Providers or vendors, or any of their

employees or agents, that have contractually agreed to

act on behalf of the state as agents of the Department

of Juvenile Justice to provide services to children in

need of services, families in need of services, or juvenile

offenders are, solely with respect to such services,

agents of the state for purposes of this section while

acting within the scope of and pursuant to guidelines

established in the contract or by rule. A contract must

provide for the indemnification of the state by the

agent for any liabilities incurred up to the limits set out

in this chapter.

App. 41

(b) This subsection does not designate a person who

provides contracted services to juvenile offenders as an

employee or agent of the state for purposes of chapter

440.

(12)(a) A health care practitioner, as defined in

s. 456.001(4), who has contractually agreed to act as an

agent of a state university board of trustees to provide

medical services to a student athlete for participation

in or as a result of intercollegiate athletics, to include

team practices, training, and competitions, shall be

considered an agent of the respective state university

board of trustees, for the purposes of this section, while

acting within the scope of and pursuant to guidelines

established in that contract. The contracts shall

provide for the indemnification of the state by the

agent for any liabilities incurred up to the limits set out

in this chapter.

(b) This subsection shall not be construed as

designating persons providing contracted health care

services to athletes as employees or agents of a state

university board of trustees for the purposes of chapter

440.

(13) Laws allowing the state or its agencies or

subdivisions to buy insurance are still in force and

effect and are not restricted in any way by the terms of

this act.

(14) Every claim against the state or one of its

agencies or subdivisions for damages for a negligent or

wrongful act or omission pursuant to this section shall

be forever barred unless the civil action is commenced

by filing a complaint in the court of appropriate

App. 42

jurisdiction within 4 years after such claim accrues;

except that an action for contribution must be

commenced within the limitations provided in

s. 768.31(4), and an action for damages arising from

medical malpractice or wrongful death must be

commenced within the limitations for such actions in

s. 95.11(4).

(15) No action may be brought against the state or

any of its agencies or subdivisions by anyone who

unlawfully participates in a riot, unlawful assembly,

public demonstration, mob violence, or civil

disobedience if the claim arises out of such riot,

unlawful assembly, public demonstration, mob

violence, or civil disobedience. Nothing in this act shall

abridge traditional immunities pertaining to

statements made in court.

(16)(a) The state and its agencies and subdivisions

are authorized to be self-insured, to enter into risk

management programs, or to purchase liability

insurance for whatever coverage they may choose, or to

have any combination thereof, in anticipation of any

claim, judgment, and claims bill which they may be

liable to pay pursuant to this section. Agencies or

subdivisions, and sheriffs, that are subject to

homogeneous risks may purchase insurance jointly or

may join together as self-insurers to provide other

means of protection against tort claims, any charter

provisions or laws to the contrary notwithstanding.

(b) Claims files maintained by any risk

management program administered by the state, its

agencies, and its subdivisions are confidential and

exempt from the provisions of s. 119.07(1) and s. 24(a),

App. 43

Art. I of the State Constitution until termination of all

litigation and settlement of all claims arising out of the

same incident, although portions of the claims files

may remain exempt, as otherwise provided by law.

Claims files records may be released to other

governmental agencies upon written request and

demonstration of need; such records held by the

receiving agency remain confidential and exempt as

provided for in this paragraph.

(c) Portions of meetings and proceedings conducted

pursuant to any risk management program

administered by the state, its agencies, or its

subdivisions, which relate solely to the evaluation of

claims filed with the risk management program or

which relate solely to offers of compromise of claims

filed with the risk management program are exempt

from the provisions of s. 286.011 and s. 24(b), Art. I of

the State Constitution. Until termination of all

litigation and settlement of all claims arising out of the

same incident, persons privy to discussions pertinent to

the evaluation of a filed claim shall not be subject to

subpoena in any administrative or civil proceeding with

regard to the content of those discussions.

(d) Minutes of the meetings and proceedings of any

risk management program administered by the state,

its agencies, or its subdivisions, which relate solely to

the evaluation of claims filed with the risk

management program or which relate solely to offers of

compromise of claims filed with the risk management

program are exempt from the provisions of s. 119.07(1)

and s. 24(a), Art. I of the State Constitution until

App. 44

termination of all litigation and settlement of all claims

arising out of the same incident.

(17) This section, as amended by chapter 81-317,

Laws of Florida, shall apply only to causes of actions

which accrue on or after October 1, 1981.

(18) No provision of this section, or of any other

section of the Florida Statutes, whether read

separately or in conjunction with any other provision,

shall be construed to waive the immunity of the state

or any of its agencies from suit in federal court, as such

immunity is guaranteed by the Eleventh Amendment

to the Constitution of the United States, unless such

waiver is explicitly and definitely stated to be a waiver

of the immunity of the state and its agencies from suit

in federal court. This subsection shall not be construed

to mean that the state has at any time previously

waived, by implication, its immunity, or that of any of

its agencies, from suit in federal court through any

statute in existence prior to June 24, 1984.

(19) Neither the state nor any agency or subdivision

of the state waives any defense of sovereign immunity,

or increases the limits of its liability, upon entering into

a contractual relationship with another agency or

subdivision of the state. Such a contract must not

contain any provision that requires one party to

indemnify or insure the other party for the other party’s

negligence or to assume any liability for the other

party’s negligence. This does not preclude a party from

requiring a nongovernmental entity to provide such

indemnification or insurance. The restrictions of this

subsection do not prevent a regional water supply

authority from indemnifying and assuming the

App. 45

liabilities of its member governments for obligations

arising from past acts or omissions at or with property

acquired from a member government by the authority

and arising from the acts or omissions of the authority

in performing activities contemplated by an interlocal

agreement. Such indemnification may not be considered

to increase or otherwise waive the limits of liability to

third-party claimants established by this section.

(20) Every municipality, and any agency thereof, is

authorized to undertake to indemnify those employees

that are exposed to personal liability pursuant to the

Clean Air Act Amendments of 1990, 42 U.S.C.A. ss.

7401 et seq., and all rules and regulations adopted to

implement that act, for acts performed within the

course and scope of their employment with the

municipality or its agency, including but not limited to

indemnification pertaining to the holding, transfer, or

disposition of allowances allocated to the municipality’s

or its agency’s electric generating units, and the

monitoring, submission, certification, and compliance

with permits, permit applications, records, compliance

plans, and reports for those units, when such acts are

performed within the course and scope of their

employment with the municipality or its agency. The

authority to indemnify under this section covers every

act by an employee when such act is performed within

the course and scope of her or his employment with the

municipality or its agency, but does not cover any act

of willful misconduct or any intentional or knowing

violation of any law by the employee. The authority to

indemnify under this section includes, but is not

limited to, the authority to pay any fine and provide

legal representation in any action.

App. 46

Florida Rule of Appellate Procedure 9.150

RULE 9.150. DISCRETIONARY PROCEEDINGS

TO REVIEW CERTIFIED QUESTIONS FROM

FEDERAL COURTS

(a) Applicability. On either its own motion or that of

a party, the Supreme Court of the United States or a

United States court of appeals may certify 1 or more

questions of law to the Supreme Court of Florida if the

answer is determinative of the cause and there is no

controlling precedent of the Supreme Court of Florida.

(b) Certificate. The question(s) may be certified in an

opinion by the federal court or by a separate certificate,

but the federal court should provide the style of the

case, a statement of the facts showing the nature of the

cause and the circumstances out of which the questions

of law arise, and the questions of law to be answered.

The certificate shall be certified to the Supreme Court

of Florida by the clerk of the federal court.

(c) Record. The Supreme Court of Florida, in its

discretion, may require copies of all or any portion of

the record before the federal court to be filed if the

record may be necessary to the determination of the

cause.

(d) Briefs. If the Supreme Court of Florida, in its

discretion, requires briefing, it will issue an order

establishing the order and schedule of briefs.

(e) Costs. The taxation of costs for these proceedings

is a matter for the federal court and is not governed by

these rules.

App. 47

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPEAL NUMBER 18-11082

DISTRICT COURT CASE NO.: 3:14-cv-1454-TJCMCR (S.D. Fla.)

[Filed June 11, 2018]

_________________________________________________

FLUID DYNAMICS HOLDINGS, LLC,

Appellant,

Versus

JACKSONVILLE ELECTRIC AUTHORITY,

Appellee,

_________________________________________________

MOTION FOR CERTIFICATION TO THE

SUPREME COURT OF FLORIDA

_________________________________________________

Matthew Petrie

Jake M. Greenberg

Christopher B. Spuches

AGENTIS PLLC

501 Brickell Key Dr., Suite 300

Miami, Florida 33131

Telephone (305) 722-2002

Counsel for Appellant

App. 48

CERTIFICATE OF INTERESTED PERSONS

The following persons and business entities have an

interest in the outcome of this appeal:

2011 Waxman Family Dynasty Trust, member of

Plaintiff/Appellant, Fluid Dynamics Holdings, LLC;

2011 Weiner Family Dynasty Trust, member of

Plaintiff/Appellant, Fluid Dynamics Holdings, LLC;

Adams, Eric S., District Court counsel to Plaintiff,

Fluid Dynamics Holdings, LLC (terminated July 7,

2015);

Agentis PLLC, appellate counsel for Plaintiff/

Appellant, Fluid Dynamics Holdings, LLC;

Antonos, Howard J., trustee to 2011 Weiner Family

Dynasty Trust;

Bishop, Thomas E., District Court counsel to

Plaintiff, Fluid Dynamics Holdings, LLC;

CFS 7 Funding, LLC, attorney-in-fact to Fluid

Dynamics Holdings, LLC;

City of Jacksonville, co-defendant;

Corrigan, The Hon. Timothy J., United States

District Court Judge

App. 49

D’Agata, David J., District Court counsel for codefendants, City of Jacksonville and Jacksonville

Electric Authority;

ECC, P.L., District Court counsel to Plaintiff, Fluid

Dynamics Holdings, LLC;

Ehrenstein, Michael D., District Court counsel to

Plaintiff, Fluid Dynamics Holdings, LLC;

Falkner, Douglas, trustee to 2011 Waxman Family

Dynasty Trust;

Fluid Dynamics Holdings, LLC, Plaintiff/Appellant;

Greenberg, Jake M., District Court and appellate

counsel to Plaintiff/Appellant, Fluid Dynamics

Holdings, LLC;

Jacksonville

Appellee;

Electric

Authority,

Defendant/

Mairs, Rita M., District Court counsel to codefendants, City of Jacksonville and Jacksonville

Electric Authority;

Office of General Counsel, City of Jacksonville,

District Court counsel to co-defendants, City of

Jacksonville and Jacksonville Electric Authority;

Petrie, Matthew A., appellate counsel to Appellant,

Fluid Dynamics Holdings, LLC;

App. 50

Phillips, Jon R., District Court counsel to codefendants, City of Jacksonville and Jacksonville

Electric Authority;

Richardson, The Hon. Monte C., United States

Magistrate Judge;

Roberson, Helen P., District Court counsel to

Plaintiff, Fluid Dynamics Holdings, LLC;

Safi, Tiffiny, District Court counsel to co-defendants

City of Jacksonville and Jacksonville Electric

Authority;

Shenhav, Ella A., District Court counsel to Plaintiff,

Fluid Dynamics Holdings, LLC (terminated July 7,

2015);

Shutts & Bowen, LLP, District Court counsel to

Plaintiff, Fluid Dynamics Holdings, LLC

(terminated on July 7, 2015);

Spuches, Christopher B., District Court and

appellate counsel for Plaintiff/Appellant, Fluid

Dynamics Holdings, LLC;

Tanner & Bishop, P.A., District Court counsel to

Plaintiff, Fluid Dynamics Holdings, LLC;

Teal, Jason R., District Court counsel to codefendants, City of Jacksonville and Jacksonville

Electric Authority;

App. 51

Waxman, Adam, beneficiary of 2011 Waxman

Family Dynasty Trust;

Waxman, Michael, beneficiary of 2011 Waxman

Family Dynasty Trust;

Weiner, Andrew J., beneficiary of 2011 Weiner

Family Dynasty Trust;

Weiner, Jessica L., beneficiary of 2011 Weiner

Family Dynasty Trust;

Weiner, Michael A., beneficiary of 2011 Weiner

Family Dynasty Trust.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure

26.1 and 11th Cir. R. 26.1-3, the Appellant certifies

that no publicly held corporations either (1) directly or

indirectly own 10% or more of any class of the

Appellant’s equity interests, or (2) otherwise have any

interest in the outcome of this appeal.

App. 52

MOTION FOR CERTIFICATION

Appellant, Fluid Dynamics Holdings, LLC (“Fluid”),

through undersigned counsel, respectfully moves this

Court to certify the following question to the Supreme

Court of Florida:

Whether the “control” test established in

Plancher v. UCF Athletics Association, Inc., 175

So.3d 724 (Fla. 2015), applies to any entity not

specifically identified under Florida Statute Ch.

768.28(2) seeking sovereign immunity as a

corporation primarily acting as

instrumentalities or agencies of the state,

counties, or municipalities, or whether its

application is limited to only private

corporations.

AUTHORITY FOR CERTIFICATION

OF THE QUESTION

The Court of Appeals “may certify one or more

questions of law to the Supreme Court of Florida if the

answer is determinative of the cause and there is no

controlling precedent of the Supreme Court of Florida.”

Fla. R. App. P. 9.150(a). See also Art. V, § 3(b)(6), Fla.

Const.; Fla. Stat. § 25.031 (2009); MCI WorldCom

Network Servs. v. Mastec, Inc., 370 F.3d 1074, 1078

(11th Cir. 2004) (noting that the Court of Appeals “may

certify questions of state law to the state’s highest

court.”) “When substantial doubt exists about the

answer to a material state law question upon which the

case turns, a federal court should certify that question

to the state supreme court in order to avoid making

unnecessary state law guesses and to offer the state

App. 53

court the opportunity to explicate state law.” Forgione

v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th

Cir. 1996).

The Appellant submits that the issue raised in this

appeal regarding the application of the “control test” is

purely a question of Florida state law on which there is

no controlling precedent from the Supreme Court of

Florida. Section 726.28, Florida Statutes provides for a

limited waiver of sovereign immunity in tort actions for

state “agencies and subdivisions” and expressly

identifies entities to whom sovereign immunity applies:

(i) the executive departments; (ii) the Legislature;

(iii) the judicial branch; (iv) the independent

establishments of the state, including state university

boards of trustees; (v) counties and municipalities; and

(vi) corporations primarily acting as

instrumentalities or agencies of the state,

counties, or municipalities, including the Florida

Space Authority. Fla. Stat. § 768.28(1)-(2) (emphasis

added). Notably, utility companies (such as the JEA)

are not included as enumerated “agencies and

subdivisions” entitled to sovereign immunity under the

statute. Thus, sovereign immunity will only apply to

JEA if it primarily acts as an instrumentality of

Jacksonville.

Although the Supreme Court of Florida in Plancher

v. UCF Athletics Association, Inc. held that “whether

an entity is acting primarily as an instrumentality”

and therefore entitled to sovereign immunity depends

on the level of control the applicable government

maintains over the independent entity, 175 So.3d 724

(Fla. 2015), the District Court in this case held that the

App. 54

“control test” only applies to private corporations that

have filed articles of incorporation with the Florida

Department of State despite no such limitation in

Plancher.

Rather, Plancher confirmed that the application of

the limited waiver of sovereign immunity under section

768.28 of the Florida Statutes depends on whether the

governmental entity exercises sufficient control over

the day-to-day operations of the corporate “entity” or,

alternatively, whether the entity is “autonomous and

self-sufficient.” 175 So. 3d at 726. Neither the Supreme

Court of Florida nor any other Florida court has made

any distinction that a different standard applies

depending on the type of entity at issue, and the

District Court provided no basis for applying a different

standard for private corporations. Indeed, the Florida

Supreme Court’s analysis included no discussion of the

scope of the application of the “control test”, but rather,

consistently speaks in terms of the “entity” that is

subject to control. See id. at 728 (setting forth the

elements of the “control test” with respect to the entity

at issue); id. at 726 (“[T]hree Florida district court

decisions have addressed whether an entity was

primarily acting as an instrumentality of the state and,

therefore, entitled to limited sovereign immunity under

section 768.28, and all three decisions focused upon

governmental control over the entity.” (emphasis

added)); id. (discussing Shands Teaching Hospital &

Clinics, Inc. v. Lee, 478 So.2d 77 (Fla. Dist. Ct. App.

1985), and noting that “the intent of the legislature was

to treat Shands as an autonomous and self-sufficient

entity[.]” (emphasis added)). If the Supreme Court of

Florida intended to limit the application of its decision

App. 55

to only private corporations, it could have expressly

done so.

Because the Supreme Court of Florida did not

expressly limit application of the “control test” and the

applicable statute likewise includes no such limitation,

this Court would need to guess as to how the Supreme

Court of Florida would interpret and apply its decision

in Plancher. Because of the lack of precedent from the

Supreme Court of Florida and the determinative

nature of the question with respect to this appeal,

certification of this question to the Florida Supreme

Court is appropriate.

CONCLUSION

For these reasons, Fluid respectfully requests that

this Court certify the issue to the Supreme Court of

Florida:

Respectfully submitted,

June 11, 2018

By: /s/ Matthew A. Petrie

Matthew A. Petrie

Fla. Bar No. 44770

App. 56

CERTIFICATE OF COMPLIANCE

I certify that this motion complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6), as it has

been prepared in the Times New Roman font, 14-point,

on Microsoft Word 2010. I also certify that this motion

complies with the length limits of Fed. R. App. P.

27(d)(2), as it was prepared on a computer and contains

fewer than 5,200 words.

By: /s/ Matthew A. Petrie

Matthew A. Petrie

Fla. Bar No. 44770

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 11, 2018, a true

and correct copy of the foregoing motion was filed

electronically with the Court via the Court’s CM/ECF

filing system, and that the brief was e-served through

the CM/ECF system to the following:

Notice will be electronically mailed to:

Jon Robert Phillips

Jason R. Teal

Tiffiny Douglas Safi

David Jeffrey D’Agata

Jake Matthew Greenberg

Matthew A. Petrie

By: /s/ Matthew A. Petrie

Matthew A. Petrie

Fla. Bar No. 44770