# Appendix — Grigsby v. Miami-Dade County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 875

## Text

rame Court, U.S.
vied FILED

No. —O& 134d 26 2004

OPPICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES

CALVIN GRIGSBY,
Petitioner,
v.

MIAMI-DADE COUNTY, FLORIDA, et al.,
Respondents.

Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

SEPARATE APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

WILLIAM P. TEDARDS, JR. LARRY A. STUMPF

1101 30 Street, N.W., Counsel of Record

Suite 500 Black, Srebnick, Kornspan

Washington, D.C. 20007 & Stumpf, P.A.

TEL: (202) 797-9135 201 South Biscayne Blvd.,
Suite 1300

Miami, FL 33131
TEL: (305) 371-6421

July 26, 2004 Counsel for Petitioner

;
j

TABLE OF CONTENTS

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APPENDIX A

United States Court of Appeals

FOR THE ELEVENTH CIRCUIT
Fiscal Operations, Inc., d )
Calvin Grigsby, )
)
Plaintiffs-Appellants, )
)
V. ) No. 03-12576
i )
Miami-Dade County, Florida, et ) D.C. No. 01-04798-
a. ) CV-DLG
)
Defendant, )
)
Alex Penelas,; Steven B. Bass; )
Kathy Jackson, Miriam Alonso, )
and Rachel Baum. )
)
Defendants-Appellees. )

a ne

Fiscal Operations, Inc., and )
Calvin Grigsby, )

)
Plaintiffs-Appellants, )

7, No. 03-12577

D.C. No. 01-04798-
CV-DLG

)
)
ate
Miami-Dade County, Florida, )
)
)

Defendant-Appellee,

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Alex Penelas, et al., )

Defendants. )

Fiscal Operations, Inc., and )
Calvin Grigsby, )
Plaintiffs-Appellants,
V. No. 03-12578
Miami-Dade County, Florida, et : D.C. No. 01-04798-
al.; ) CV-DLG ;
Defendants, ‘
Deloitte & Touche, L.L.P.,
Defendant-Appellee.

Appeals from the United States District Court
for the Southern District of Florida

(March 2, 2004)

Before: TJIOFLAT, BARKETT and SILER*, Circuit Judges.

PER CURIAM:

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AFFIRMED. See 11" Cir. Rule 36-1 ‘y

*Honorable Eugene E. Siler, Jr., United States Judge for the
Sixth Circuit, sitting by designation.

1

11" Cir. R. 36-1 provides:

When the court determines that any of the following
circumstances exist:

(a)
(b)
(c)

(d)

(e)

judgment of the district court is based on
findings of fact that are not clearly erroneous,
the evidence in support of a jury verdict is
sufficient;

the order of an administrative agency is
supported by substantial evidence on the
record as a whole;

summary judgment, directed verdict, or
judgment on the pleadings is supported by the
record;

judgment has been entered without a
reversible error of law; and an opinion would
have no precedential value, the judgment or
order may be affirmed or enforced without
opinion.

4a

APPENDIX B

United States District Court
Southern District of Florida
Miami Division

Fiscal Operations, Inc.,
Calvin Grigsby,

d )

)

)

Plaintiffs-Appellants, )

)
V. ) Case No. 01-04798-
) | CIV-Graham/Garber

Miami-Dade County, Florida; )

Alex Penelas; Steven B. Bass; )

Kathy Jackson; Miriam Alonso; )

)

)

)

)

Rachel Baum; and Deloitte and
Touche, L.L.P.

Defendants-Appellees.

ORDER

THIS CAUSE came before the Court upon Defendants
Alex Penelas, Steven B. Bass, Kathy Jackson, Miriam Alonso,
and Rachel Baum’s Motions to Dismiss First Amended
Complaint, [D.E. 41 and D.E. 118].

THE COURT has reviewed the Motions, the pertinent
portions of the record, and is otherwise fully advised in the
premises.

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INTRODUCTION

Fiscal Operations, Inc., (“Fiscal”) and its President and
Chief Executive Officer, Calvin Grigsby (“Grigsby”) filed this
action against Defendants Miami-Dade County (the “County”,
Mayor Alex Penelas (“Penelas”), Assistant County Attorney
Steven B. Bass (“Bass”), County Auditor Kathy Jackson
(“Jackson”), Commissioner Miriam Alonso (“Alonso”),
Finance Department Director Rachel Baum (“Baum”), and
Deloitte & Touche (“Deloitte”) based upon Defendants’ alleged
participation in the wrongful termination of a franchise
agreement between the County and Fiscal (the “franchise
agreement”). The Complaint also alleges the wrongful taking
of property in the form of Plaintiffs’ contractual rights, the
wrongful seizure of Plaintiffs’ business assets and the
procurement of false information to federal authorities,
resulting in Plaintiff Grigsby’s arrest and prosecution for the
theft of public funds.

PROCEDURAL BACKGROUND

Plaintiffs filed their Original Complaint on November
26, 2001, and alleged Denial of Due Process (Count 1), Taking
Without Just Compensation (Count II), Denial of Due Process
(Count III), Unreasonable Seizure and Restraint (Count IV), and
Conspiracy (Count V). On February 20, 2002, Plaintiffs filed
their Amended Complaint and alleged two additional causes of
action: Accountants’ Fraud (Count VI) and Malicious
Prosecution (Count VII).

On December 17, 2001, Defendants Penelas, Bass and
Jackson filed a motion to dismiss the Original Complaint. On
March 4, 2002, Defendants Penelas, Bass and Jacksin, along
with Defendants Alonso and Baum, filed a motion to dismiss
the Amended Complaint. The motion to dismiss asserts that 1)
Defendants are entitled to absolute immunity from the claims

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alleged; 2) they are entitled to qualified immunity; 3) this action
is barred by Rooker-Feldman doctrine because the same claims
were raised or could have been raised in a related state
proceeding; 4) the Court should dismiss the action pursuant to
the Colorado River doctrine because the same issues are already
being considered in a state claim that has been pending for more
than four years; 5) the Complaint fails to state a claim for
unlawful taking because the deprivation of contractual rights
does not constitute a taking of property; and 6) the Complaint
fails a claim for a conspiracy because it fails to state a claim for
any underlying constitutional violation.

FACTUAL BACKGROUND

According to the Complaint, in 1982, Plaintiff Fiscal
entered into a franchise agreement with the County to manage
and operate gantry cranes at the Port of Miami (the Port”).
Pursuant to the agreement, Fiscal maintained and operated the
cranes, renting the cranes on an hourly fee basis to the
stevedoring companies that loaded and unloaded cargo ships
that docked at the Port. Fiscal sent bills to the stevedoring
companies for the hourly crane rental fees (“crane user fees”).
The Complaint alleges that until the events giving rise to the
lawsuit, the stevedores paid the crane user fees directly to
Fiscal. Also, it is alleged that the County, Deloitte, the Port,
Fiscal, the Internal Revenue Service and all others involved
threatened the crane users fees as the property of Fiscal, rather
than the County’s.

According to the Complaint, however, between 1996
and 1998, the County, Penelas, Bass, Jackson, Alonso, Baum,
Deloitte, and others orchestrated a course of action that was
specifically designed and intended to, and did: a) create and
utilize a fabricated pretext to unlawfully terminate the franchise
agreement; b) seize, by physical force and with no judicial or
other lawful process, all of the personal property of Fiscal used

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by Fiscal in the operation of its business; and c) create and
utilize fabricated evidence to instigate a capricious prosecution
of, and the attendant seizure of, Grigsby. Plaintiffs allege that
Penelas directed Bass and Jackson to fabricate evidence that
could be used to argue that Fiscal was a department or agent of
the County and that the gantry crane user fees that Fiscal
collected were County funds. Plaintiffs also allege that the
Defendants caused Defendant Deloitte to retroactively alter
some of its audit reports of the Port to make them consistent
with this false recharacterization of the County and Fiscal’s
longstanding relationship and treatment of the crane user fees,
with no accounting justification for the material change.
Plaintiffs claim that this conduct by the individual Defendants
constitutes executive, not legislative functions.

Countv and Deloitte Audits

According to the Complaint, on November 18, 1996,
Defendant Penelas directed the County Manager to obtain a
special audit of Fiscal’s business. The responsibility for the
audit was passed to Jackson, then acting Director of the
County’s Audit and Management Services Department. In
furtherance of obtaining the audit and acting on Penelas’ order,
Jackson, with the assistance of Bass, Baum, Deloitte and others,
began in December 1996 to demand every accounting and
financial document that Fiscal had ever generated.
Additionally, the County filed in February 1997, a Public
Records Act action (Metropolitan Dade County v. Fiscal, 11"
Judicial Circuit, Dade County, Case No. 97-04449 CA 32)
against Fiscal, seeking to have Fiscal declared to be “‘a public
agency.” The County’s audit of Fiscal was completed in
January of 1998.

Additionally, the Complaint alleges that at the direction
of Penelas, Bass and Jackson encouraged Deloitte to revisit its
interpretation of the franchise agreement. On February 20,

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1998, Deloitte issued its audit report of the Port for fiscal year
1996 and restated the Port’s 1995 financial statements. The
restated audit report treated the crane user fees as “County
Money.” The audit report also changed, from $2,400 to in
excess of $6 million, the amount of federal funds received by
the Port in 1995. According to the Complaint, these same
altered accounting treatments were also applied to the 1996
financials of the Port.

The County Resolution and the Contract Termination

On April 21, 1998, the County Manager was given a
resolution to present to the Board, approving the termination of
the franchise agreement. According to the Complaint, the
resolution was prepared by Bass and Jackson and was
sponsored and placed on the Commission agenda by Alonso.
Additionally, Defendant Bass approved as to the form and legal
sufficiency of the resolution.

The resolution referred to Jackson’s January 16, 1998
audit report as having ‘found, among other things,
‘mismanagement of the County’s gantry crane operation,
wasteful and abusive spending practices, [and] undocumented
and unauthorized transactions....”” The resolution also stated
“it is believed that Fiscal is currently retaining hundreds of
thousands of collected user fees belonging to the County, in
violation of contract requirements.” Noting Jackson’s
recommendation that the County assume control of the crane
operation “as soon as practical,” the resolution directed the
County Manager to do so. To support the resolution, the
County Manager was also given a memorandum, prepared by
Bass and Jackson, recommending approval of the resolution to
terminate the franchise agreement. According to the
Complaint, that memorandum contained several material
misrepresentations, assertedly designed to support the
Defendants’ theft of “Public Funds” theory. The County

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Commissioners subsequently passed the resolution and in the
Spring of 1998, the County issued a notice of default and
terminated the franchise agreement.

On May 18, 1998, acting in accordance with Jackson’s
statement that “the County should take immediate control of the
operation,” the County physically seized Fiscal’s entire
business, including the personal property and other assets of
Fiscal, and began, according to the Complaint, to run the
business for its own benefit. Based upon the information
obtained from the audits and the Public Records Act action,
Jackson and Bass presented the Federal Bureau of Investigation
(the “FBI’”’) and representatives of the United States Attorney’s
Office with evidence that Grigsby had used “County Money”
and “Public Funds” to make unauthorized expenditures not
directly related to crane operations. Plaintiffs deny stealing
County funds and charge Defendants with fabricating the
evidence.

DISCUSSION
Standard of Review

A complaint should not be dismissed “‘for failure to state
a claim unless it appears beyond a reasonable doubt that the
plaintiff can prove no set of facts” that would entitle the
plaintiff to relief. Conley v. Gibson, 355 USS. 41, 45 (1957);
Bracewell v. Nicholson Air Services, Inc.., 680 F.2d 103, 104
(11™ Cir. 1982). In deciding a motion to dismiss, a court can
only examine the four corners of the complaint. See Crowell v.
Morgan Stanley Dean Witter Services, Co., Inc., 87 F.Supp. 2d
1287 (S.D. Fla. 2000). Additionally, a court must accept a
plaintiff's well pled facts as true and construe the complaint in
the light most favorable to plaintiff. Scheuer v. Rhodes, 416
US. 232 (1974). The threshold of sufficiency that a complaint

10a

must meet is exceedingly low. Ancata v. Prison Health Servs.
Inc., 769 F.2d 700, 703 (11 Cir. 1985); Geidel _v. City of
Bradenton Beach, 56 F.Supp.2d 1359, 1362 (M.D. Fla. 1999).

Absolute Immunity Defense

Legislators have absolute immunity under Section 1983
when they are “acting within their legislative roles,
‘performing’ legislative acts.” Brown v. Crawford County, 960
F.2d 1002, 1011 (11" Cir. 1992) (quoting Tower v. Glover, 467
U.S. 914, 920, 104 S.Ct. 2820, 2824, 81 L.Ed.2d 758 (1984)).
But, the immunity “extends only to actions taken within the
sphere of legitimate legislative activity.” Id. (quoting Finch v.
City of Vernon, 877 F.2d 1497, 1505 (1 1" Cir. 1989)). It is the
nature of the act, and not the position of the actor, which
determines when absolute legislative immunity will apply. See
Yeldell v. Cooper Green Hospital, Inc., 956 F.2d 1056, 1062
(11" Cir. 1992). Thus, whether the Defendants are entitled to
such immunity depends upon whether when making decisions
regarding Plaintiffs and their contract with the County they
were acting in their legislative capacity: was terminating the
franchise agreement a “legislative act’”?

Legislative immunity was established in the Speech and
Debate Clause of the United States Constitution. The clause
protects not only the speech and debate of legislators, but also
voting on legislative acts. See Kilbourn v. Thompson, 103 U.S.
168, 204, 26 L.Ed. 377 (1880). This absolute legislative
immunity has been extended by the Supreme Court, beyond
federal legislators, to state and regional legislators. See
Supreme Court of Virginia v. Consumers Union, 446 U.S. 719,
732 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980); Hernandez
v. City of Lafayette, 643 F.2d 1188, 1193 (5" Cir. 1981). Thus,
county commissioners can be entitled to legislative immunity
when acting in their legislative capacities. Additionally, even
if the legislators act out of evil intent, the legislative nature of

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the act still controls. See Ellis v. Coffee County Bd. of
Registrars, 981 F.2d 1185, 1191 (11" Cir. 1993).

Defendants Alonso and Penelas

Defendants contend that sponsoring and voting for the
resolution was, in form, quintessentially legislative and
therefore protected by absolute immunity. See e.g. Bogan v.

Scott-Harris, 523 U.S. 44, 49 (1998); Fry v. Board of County
Com’re of County Baca, State of Colo., 7 F.3d 936, 942 (10"

Cir. 1990). Defendants, are however, incorrect in their
contention. An act is deemed legislative, rather than
administrative or managerial, when it is policymaking and of
general application. See Brown, 960 F.2d at 1011. “Only those
acts which are ‘necessary to preserve the integrity of the
legislative process’ are protected.” Yeldell, 956 F.2d at 1062
(quoting United States v. Brewster, 408 U.S. 501, 517, 92 S.Ct.
2531, 2539, 33 L.Ed.2d 507 (1972)). Courts have held that
“voting, debate and reacting to public opinion are manifestly in
furtherance of legislative duties.” DeSisto College, Inc. v. Line,
888 F.2d 755, 765 (11 Cir. 1989).

In Crymes v. DeKalb County, 923 F.2d 1482 (11" Cir.
1991), however, the Eleventh Circuit expressly rejected the

argument that the act of voting, in itself, constitutes legislative
action giving rise to immunity. It has been held that
“Ta]lthough a local legislator may vote on an issue, that alone
does not necessarily determine that he or she was acting in a
legislative capacity.” Cinevision Corp. v. City of Burbank, 745
F.2d 560, 580 (9" Cir. 1984), cert. denied, 471 U.S. 1054, 105
S.Ct. 2115, 85 L.Ed.2d 480 (1985). A legislative act involves
policymaking rather than mere administrative application of
existing policies. Minton v. St. Berard Parrish School Bd.,
803 F.2d 429, 135 (5" Cir. 1986) (citing Hornsby v. Allen, 326
F.2d 605, 608-09 (5" Cir. 1964)). Ifthe facts utilized in making
a decision are specific, rather than general, in nature, then the

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decision is more likely administrative. Moreover, if the
decision impacts specific individuals, rather than the general
population, it is more apt to be administrative in nature. See
Cutting v. Muzzey, 724 F.2d 259, 261 (1* Cir. 1984).

The vote on the resolution to terminate Fiscal’s
franchise agreement was specific, and not general. Moreover,
the termination of the agreement specifically impacted Fiscal
and Grigsby. Accordingly, the court is unable to grant absolute
immunity to the Defendant Alonso in relation to the drafting
and voting of the resolution. Additionally, the Court is unable
to grant absolute immunity to Defendant Penelas in relation to
enforcing and upholding the resolution. Defendants’ motion to
dismiss based upon absolute immunity must therefore be denied
as it relates to Defendants Alonso and Penelas.

Defendant Bass

Courts have consistently granted civil government
attorneys the same absolute immunity provided to criminal
prosecutors. See Butz v. Economou, 438 U.S. 478, 512, 98
S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978). In Mitchell v.
Forsyth, 472 U.S. 511, 520-524, 105 S.Ct. 2806, 86 L.Ed.2d
411 (1985), the Supreme Court discussed three factors that
courts should evaluate when determining whether to give a
government official absolute immunity for a particular function.
The court should ask (1) whether a historical or common law
basis exists for immunity from suit arising out of performance
of the function; (2) whether performance of the function poses
obvious risks of harassing or vexatious litigation against the
official; and (3) whether alternatives to bringing a damage suit
against the official could redress the wrongful conduct.
Executive officials and agency attorneys who initiate
administrative proceedings on behalf of the government meet
this test. See Butz at 512-17, 98 S.Ct. 2894. In granting
absolute immunity to these officials, the Supreme Court

13a

reasoned that attorneys who initiate criminal prosecutions and
agency proceedings are entitled to absolute immunity because
otherwise they “might hesitate to bring forward some witnesses
or documents” for fear of personal liability. Id. at 517, 98 S.Ct.
2894. Additionally, a prosecutor is absolutely immune from
suit for malicious prosecution. Mallery v. Briggs, 475 U.S.
342-43, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Prosecutors
~ also enjoy absolute immunity from allegations stemming from
the prosecutor’s function as advocate. Buckley v. Fitzsimmons,
509 U.S. 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Such
absolute immunity extends to a prosecutor’s “acts undertaken
... in preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of his role as an advocate
for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606;
Mastroianni v. Bowers, 173 F.3d 1363 (11" Cir. 1999).

According to the Complaint, in preparation for initiation
of the judicial proceedings against Fiscal, Assistant County
Attorney Bass, on the direction of Penelas, demanded every
accounting and financial document generated by Fiscal.
Plaintiffs allege that Bass also prepared and approved as to
form and legal sufficiency the resolution approving the
termination of the Fiscal contract. Finally, Plaintiffs allege that
Bass presented the Federal Bureau of Investigation and
representatives of the U.S. Attorney’s Office with evidence that
Grigsby used County money and public funds to make
unauthorized expenditures not directly related to crane
operations. Plaintiffs have failed to demonstrate that Bass was
not performing functions that were not associated with his role
as an advocate of the County. Accordingly, Plaintiffs’
Complaint as it pertains to County Attorney Bass, must be
dismissed.

a

14a

Defendants Baum and Jackson

The Complaint alleges that Finance Department
Director Baum encouraged the County’s auditor, Deloitte, to
revisit its interpretation of the Fiscal contract. Additionally, the
Plaintiffs accuse County Auditor Jackson of auditing Fiscal’s
contract with the County, publishing the results and joining in
a recommendation to pursue litigation. As these actions are
clearly not legislative in nature, Defendants Baum and Jackson
are not entitled to absolute immunity.

Qualified Immunity Defense

The defense of qualified immunity completely protects
government officials performing discretionary functions from
suit in their individual capacities unless their conduct violates
“clearly established statutory or constitutional rights of which
a reasonable person would have known.” Hope v. Pelzer, 536
U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)). “The purpose of this
immunity is to allow government officials to carry out their
discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly
incompetent or one who is knowingly violating the federal
law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11™ Cir. 2002)
(internal citation and quotation omitted). Because qualified
immunity is “an entitlement not to stand trial or face the other
burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 510, 526,
105 S.Ct. at 2806, 2815, 86 L.Ed.2d 411 (1995), questions of
qualified immunity must be resolved “at the earliest possible
stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112
S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam). It is
therefore appropriate for a district court to grant the defense of
qualified immunity at the motion to dismiss stage if the
complaint “fails to allege the violation of a clearly established

15a

constitutional right.” Chesser v. Sparks, 248 F.3d 1117, 1121
(11" Cir. 2001) (quoting Williams v. Ala. State Univ., 102 F.3d
1179, 1182 (11" Cir. 1997)).

In considering whether qualified immunity applies, the
defendants must first show that they were acting within the
scope of their discretionary authority when the wrongful
conduct occurred. Jackson v. Sauls, 206 F.3d 1156, 1164 (1 ~
Cir. 2000). Once a defendant demonsirates that he or she was
acting within his or her discretionary authority, the burden then
shifts to plaintiff to demonstrate that qualified immunity is not
appropriate. Vinyard v. Wilson, 311 F.3d 1340, 1346 (1 1" Cir.
2002).

In Saucier v. Katz, the Supreme Court set forth a two-
part test for evaluating a claim of qualified immunity. As a
“threshold question,” a court must ask, “[t]aken in the light
most favorable to the party asserting the injury, do the facts
alleged show the (defendant’s) conduct violated a constitutional
right?” Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156,
150 L.Ed.2d 272 (2001). If a constitutional right would have
been violated under Plaintiffs version of the facts, the court
must then determine “whether the right was clearly
established.” Id. The burden is on the Plaintiff to demonstrate
that, based on the alleged facts, clearly established law has been
violated. Brown v. Cochran, 171 F.3d 1329, 1332 (11° Ciz.
1999). In this regard, the Supreme Court recently explained:
For a constitutional right to be clearly established, its contours
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not
to say that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful but it is to say that in the light of pre-existing law, the
unlawfulness must be apparent. See Hope v. Pelzer, 122 S.Ct.
2508, 2515 (June 27, 2002) (citations omitted). Thus, the Court
explains that in order to overcome Defendants’ qualified

16a

immunity, it must be shown that existing law at the time of the
conduct in question provided Defendants with “fair warning”
that their conduct violated clearly established law. See Id., 122
S.Ct. at 2515-2516.

In examining the factual allegations in the complaint,
the court must keep in mind the heightened pleading
requirements for civil rights cases, especially those involving
the defense of qualified immunity. GJR Investments, Inc. v.
County of Escambia, 132 F.3d 1359, 1367 (11 Cir. 1998). The
complaint must allege the relevant facts “with some
specificity.” Id. More than mere conclusory notice pleading is
required. “[A] complaint will be dismissed as insufficient
where the allegations it contains are vague and conclusory.”
Fullman v. Graddick, 739 F.2d 553, 556-57 (11" Cir. 1984).
See also Veney v. Hogan, 70 F.3d 917, 922 (6" Cir. 1995)
(holding that complaint must “include the specific, non-
conclusory allegations of fact that will enable the district court
to determine that those facts, is proved, will overcome the
defense of qualified immunity”). Moreover, in reviewing a
motion to dismiss, the court need only accept “well-pleaded
facts” and “reasonable inference drawn from those facts.”
Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11"
Cir. 1992). “{U]nsupported conclusions of law or of mixed fact
and law have long been recognized not to prevent a Rule
12(b)(6) dismissal.” Marsh v. Butler County, 268 F.3d 1014,
1036 (11" Cir. 2001). The Court must also keep in mind the
fact that “[w]Je generally accord ... official conduct a
presumption of legitimacy.” United States Dep’t of State v.
Ray, 502 U.S. 164, 179, 112 S.Ct. 541, 550, 116 L.Ed.2d 526
(1991).

The Court now turns to the Complaint to determine
whether Plaintiffs have stated claims sufficient to establish §
1983 violations.

17a

Count I - Denial of Due Process

Count I of the Complaint, Plaintiffs contend that they
possessed a property right in the franchise agreement which was
“expropriated by arbitrary and capricious means.” Plaintiffs do
not contend that they possessed a liberty interest in their
contract with the county but rather, that the contract was
“property” within the meaning of the Fourteenth Amendment.
This assertion is incorrect as a matter of law. The Supreme
Court in Logan v. Zimmerman Brush, 455 U.S. 422, 102 S.Ct.
1148, 71 L.Ed.2d 265 (1982), provided useful guidance for
determining what interests constitute “property” as envisioned
by the Fourteenth Amendment. In that case the Court remarked
that “[t]he hallmark of property ... is an individual entitlement
grounded in state law, which cannot be removed except ‘for
cause’.” Id. at 430, 102 S.Ct. at 1155. See also, Board of
Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10,
33 L.Ed.2d 548 (1972) (no property interest in having contract
renewed where previous contract did not require renewal absent
sufficient cause). Under this test Plaintiffs did not possess a
property interest in their contract with the County. Because
Plaintiffs have failed to demonstrate that Defendants’ conduct
violated a clearly established constitutional right, the
Defendants’ motion to dismiss Count I of the Complaint must
be granted.

Count II - Taking Without Compensation

Count II of the Complaint alleges that Fiscal’s personal
property was improperly seized without compensation.
Specifically, the Complaint alleges that “Defendants denied
Fiscal’s management access to Fiscal’s own secure, fenced
work area, using posted armed security guards to prevent
access. Defendants then took possession of Fiscal’s procedure
manuals, appropriated Fiscal’s business methods, and began

18a

using over $1,000,000 worth of Fiscal’s tools, spare parts and
equipment, without any compensation to F iscal.”

The Takings Clause of the Fifth Amendment of the U.S.
Constitution provides: “nor shall private property be taken for
public use, without just compensation.” Villas of Lake Jackson
v. Leon County, 121 F.3d 610, 614 (11" Cir. 1997); The
Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379-80
(11 Cir. 1994); the only substantive due process claim is for
“arbitrary and capricious” taking of property. A substantive due
process analysis, within the deprivation of a property interest
context, involves two queries: “1) was the plaintiff deprived of
a constitutionally protectible property interest? and 2) assuming
a property interest, was the deprivation of that property interest
for an improper motive and be means that were pretextual,
arbitrary and capricious and without any rational basis?” The
Reserve, Ltd. at 1379 (11" Cir. 1994).

Plaintiffs claim that the Defendants deprived them of
access to their property, constituting a taking without due
process in violation of the Fifth Amendment. In Williamson
County Regional Planning Commission v. Hamilton Bank, 473
U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme
Court held that a property owner must exhaust state procedures
for obtaining just compensation, including resort to a state
inverse condemnation action, before bringing a “taking” claim
under 42 U.S.C. 1983. Id., 105 S.Ct. at 3121-22. The Court
reasoned that the Fifth Amendment does not prohibit takings,
only uncompensated takings. “[B]ecause the Constitution does
not require pretaking compensation, and is instead satisfied by
a reasonable and adequate provision for obtaining
compensation after the taking, the State’s action here is not
‘complete’ until the State fails to provide adequate
compensation for the taking.” Id. at 3121. Thus, “if a State
provides an adequate remedy for seeking just compensation, the
property owner cannot claim a violation of the Just

19a

Compensation Clause until it has used the procedure and been
denied just compensation.” Id. at 3121. Florida law provides
compensation for deprivation or impairment of the right of
access, Anhoco Corp. v. Dade County, 144 So.2d 793 (Fla.
1962), which may be enforced in an action for inverse
condemnation. See, e.g., Pinellas County v. Austin, 323 So.2d
6 (Fla. Dist. Ct. App. 1975). As Plaintiffs have not shown that
the Florida procedures were unavailable or inadequate; until
they have utilized those procedures, their takings claim is
premature. Plaintiffs have failed to sufficiently allege any
argument in support of their claim for denial of due process and
accordingly, Defendants’ motion to dismiss as it related to
Count II of the Complaint must be granted.

Counts II and IV - Denial of Due Process and
Unreasonable Seizure

Count III alleges that “Defendants, with the assistance
of Deloitte and others, fabricated evidence to the effect that
Grigsby had stolen ‘Public Funds’ and used that fabricated
evidence to deceive federal prosecutors into initiating a grand
jury proceeding (where the jurors were similarly deceived) and
a subsequent prosecution.” Count IV alleges that “using
deliberately fabricated evidence, Defendants deceived the
prosecutor into believing that probable cause existed and
proximately caused the deception of the grand jury, the
initiation of a prosecution that was not backed by probable
cause, and an unlawful seizure and restraint of Grigsby.”
Plaintiffs argue that § 1983 provides a remedy against a public
official’s use of “false evidence” to support a criminal
prosecution.

Undertaking the first step of the two-step qualified
immunity inquiry, the Court is persuaded that there is a clearly
established constitutional due process right not to be subjected
to criminal charges on the basis of false evidence that was

20a

deliberately fabricated by the government. Perhaps because the
proposition is virtually self-evident, the Court is not aware of
any prior cases that have expressly recognized this specific
right, but that does not mean that there is no such right. Rather,
what is required is that government officials have “fair and
clear warning” that their conduct is unlawful. See United States
v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432
(1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987).

The second step of the qualified immunity analysis
requires a determination of whether the Defendants’ conduct
violated a constitutional right. Plaintiffs point to cases that
stand for the general propositions of law that it is unlawful to

_ pursue a criminal conviction on the basis of “false evidence.”
The relevant question in this case is, however, not whether it is
unlawful to use false evidence, but whether it was clearly
established that an erroneous interpretation of a contract like
that alleged here constitutes “false evidence.” The Plaintiffs’
vague and conclusory allegations of fabricated evidence do not
establish § 1983 liability. Plaintiffs make bold statements and
legal conclusions without alleging any specific facts to support
them. Plaintiffs do not sufficiently allege any
misrepresentations made by Defendants, but merely label the
Defendants’ interpretation of the franchise agreement as it
relates to the determination of the crane user fees as county
funds and Fiscal as a county agency as “false evidence.”

Plaintiffs claim that there is a casual connection between
the Defendants’ interpretation of the contract and subsequent
submission of evidence to prosecutorial authorities and
Grigsby’s subsequent prosecution, but they do not allege any
facts to support this connection. Specifically, Plaintiffs do not
allege that the Defendants directed the FBI or the U.S.
Attorneys’ Office to conduct the investigation or to pursue the
subsequent prosecution of Grigsby. Moreover, Plaintiffs have

2la

failed to demonstrate that it was the Defendants’ reading of the
contract and not that of the FBI, the federal prosecutors and the
grand jury that led to Grigsby’s arrest and prosecution.

Additionally, any causal connection that may have
existed between the Defendants’ statements to prosecutorial
authorities about the franchise agreement and Grigsby’s
subsequent indictment was severed by the intervening, free,
independent and volitional acts of the FBI, the U.S. Attorneys’
Office and the grand jury. See Barts v. Joyner, 865 F.2d 1187,
1195 (11" Cir. 1989); Jones v. Cannon, 174 F.3d 1271, 1287
(11" Cir. 1999); Dixon v. Burke County, Ga., 303 F.3d 1271
(11 Cir. 2002). Plaintiffs argue that these cases do not apply
if the “plaintiff can show that these intervening acts were the
result of deception or undue pressure by the Defendant.”
Plaintiffs, have, however, failed to allege any facts that
demonstrate that the Defendants had the ability to and did
mislead or unduly influence the FBI, the U.S. Attorneys’ office
or the grand jury.

Finally, Plaintiffs cite no cases that would have put the
Defendants on notice that “in light of pre-existing law” their
conduct was forbidden. Quite the contrary, the law actually
encourages Officials to do what these Defendants allegedly did -
interpret public documents, investigate the expenditure of funds
to the public, report their findings to the appropriate authorities
for consideration for prosecution and institute civil litigation to
recover any funds that the public may be due. In sum, Plaintiffs
allege that the Defendants deceived prosecutors in violation of
their Fourth and Fourteenth Amendment rights, but they fail to
allege any facts which, if true, that would establish that the
Defendants caused any such violation. Because Plaintiffs have
failed to allege that the Defendants’ conduct constituted a
constitutional violation, the Defendants are entitled to qualified
immunity as to Counts III and IV of the Complaint.

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Count V - Conspiracy

Count V of the Complaint alleges that “Defendants
conspired with Deloitte, Alonso, Baum and possibly others, to
deprive Fiscal and Grigsby of their Constitutional rights by
fabricating false evidence and then using the fabricated
evidence to confiscate Fiscal’s business and property in
violation of the Fourth and Fourteenth Amendments, and to
instigate a capricious indictment, prosecution and seizure of
Grigsby in violation of the Fourth, Fifth and Fourteenth
Amendments.”

Conspiring to violate another person’s constitutional
rights violates Section 1983. Dennis v. Sparks, 449 U.S. 24,
27, 101 S.Ct. 183, 186 (1980). To establish a prima facie case
of Section 1983 conspiracy, a plaintiff must show, among other
things, that the defendants “reached an understanding to violate
his rights.” Rowe v. Fort Lauderdale, 279 F.3d 1271 (11" Cir.
2002) quoting Strength v. Hubert, 854 F.2d 421, 425 (1 i* Ci.
1988). The plaintiff does not have to produce a “smoking gun”
to establish the “understanding” or “willful participation”
required to show a conspiracy, but must show some evidence of
agreement between the defendants. Id. at 1284. To sustain a
conspiracy action under § 1983 a plaintiff must show an
underlying actual denial of its constitutional rights. See Slavin
v. Curry, 574 F.2d 1256, 1262 (5" Cir. 1978); modified on
denial of r’hrg, 583 F.2d 779 (5" Cir. 1978), Strength v. Hubert,
854 F.2d 425, 421 (11" Cir. 1988) (stating theoretical basis of
and requirements for stating a claim under § 1983 of conspiracy
to violate constitutional rights).

As stated above, Plaintiffs’ Complaint does not
sufficiently allege denial of any of their constitutional rights.
Moreover, the Complaint fails to make any particularized

23a

allegations that a conspiracy existed, another prerequisite ofa
§ 1983 conspiracy claim. See Phillips v. Mashburn, 746 F.2d
782, 784 (11" Cir. 1984). Finally, Plaintiffs have failed to
sufficiently allege that the Defendants were aware of a
conspiracy, much less that they agreed to participate in one. As
the Court can find no sufficiently pled federal claims in the
Complaint that could serve to abrogate Defendants’ qualified

immunity, it follows that the Defendants’ motion to dismiss
must be granted as to Count V.

Supplemental Jurisdiction

A district court has discretion to decline to exercise
supplemental jurisdiction over state law claims when: 1) the
claim raises a novel or complex issue of State law; 2) the claim
substantially predominates over the claim or claims over which
the district court has original jurisdiction, 3) the district court
has dismissed all claims over which it has original jurisdiction,
or 4) in exceptional circumstances, there are other compelling
reasons for declining jurisdictions. 28 U.S.C. § 136(c); Rowe
v. Fort Lauderdale, 279 F.3d 1271 (11" Cir. 2002). The Court
may decline to exercise jurisdiction over state-law claims,
where the Court has dismissed all the federal claims over which
it has original jurisdiction. See 28 U.S.C. 1367(c)(3). Having
dismissed Plaintiffs’ federal claims, the Court declines in its
discretion to exercise supplemental jurisdiction over the
remaining state-law claims.

CONCLUSION

LU.

Based upon the foregoing, it is

ORDERED AND ADJUDGED that Defendants Alex
Penelas, Steven B. Bass, Kathy Jackson, Miriam Alonso, and
Rachel Baum’s Motions to Dismiss First Amended Complaint
are GRANTED as to Counts I, Il, Il, IV and V.

24a

DONE AND ORDERED in Chambers at Miami,
Florida, this 30" day of April, 2003.

/s/
Donald L. Graham
U.S. DISTRICT JUDGE

ce: Magistrate Judge Garber
Counsel of Record

25a

APPENDIX C

United States District Court
Southern District of Florida
Miami Division
Fiscal Operations, Inc., and
Calvin Grigsby,
Plaintiffs-Appellants,

Case No. 01-04798-
CIV-Graham/Garber

V.

Miami-Dade County, Florida;
Alex Penelas; Steven B. Bass;
Kathy Jackson; Miriam Alonso,
Rachel Baum; and Deloitte and
Touche, L.L.P.

eat Neat Nea ea Nee Ne? Nee Wee See See Se” Se” Nee” “ee”

Defendants-Appellees.

THIS CAUSE came before the Court upon Defendant
Miami-Dade County’s Motion to Dismiss First Amended
Complaint, filed March 1, 2002.

THE COURT has reviewed the Motion, the pertinent
portions of the record, and is otherwise fully advised in the
premises.

26a

INTRODUCTION

Fiscal Operations, Inc., (“Fiscal’’) and its President and
Chief Executive Officer, Calvin Grigsby (“Grigsby’) filed this
action against Defendants Miami-Dade County (the “County’’),
Mayor Alex Penelas (‘‘Penelas”), Assistant County Attorney
Steven B. Bass (“Bass”), County Auditor Kathy Jackson
(“Jackson”), Commissioner Miriam Alonso (“Alonso”),
Finance Department Director Rachel Baum (“Baum”), and
Deloitte & Touche (“Deloitte”) based upon Defendants’ alleged
participation in the wrongful termination of a franchise
agreement between the County and Fiscal (the “franchise
agreement”). The Complaint also alleges the wrongful taking
of property in the form of Plaintiffs’ contractual nghts, the
wrongful seizure of Plaintiffs’ business assets and the
procurement of false information to federal authorities,
resulting in Plaintiff Grigsby’s arrest and prosecution for the
theft of public funds.

PROCEDURAL BACKGROUND

Plaintiffs filed their Original Complaint on November
26, 2001, and alleged Denial of Due Process (Count 1), Taking
Without Just Compensation (Count II), Denial of Due Process
(Count ITI), Unreasonable Seizure and Restraint (Count IV), and
Conspiracy (Count V). On February 20, 2002, Plaintiffs filed
their Amended Complaint and alleged two additional causes of
action: Accountants’ Fraud (Count VI) and Malicious
Prosecution (Count VII).

On March 1, 2002, Defendant Miami-Dade filed a
motion to dismiss the Amended Complaint. The motion asserts
that 1) this actions is barred by Rooker-Feldman doctrine
because the same claims were raised or could have been raised
in a related state proceeding; 2) the Court should dismiss the

27a

cause pursuant to the Colorado River doctrine because the same
issues are already being considered in a state claim that has
been pending for more than four years; 3) the Complaint fails
to state a claim for unlawful taking because the deprivation of
contractual rights does not constitute a taking of property; and
4) the Complaint fails a claim for a conspiracy because it fails
to state a claim for any underlying constitutional violation.

FACTUAL BACKGROUND

According to the Complaint, in 1982, Plaintiff Fiscal
entered into a franchise agreement with the County to manage
and operate gantry cranes at the Port of Miami (the “Port”.
Pursuant to the agreement, Fiscal maintained and operated the
cranes, renting the cranes on an hourly fee basis to the
stevedoring companies that loaded and unloaded cargo ships
that docked at the Port. Fiscal sent bills to the stevedoring
companies for the hourly crane rental fees (“crane user fees’’).
The Complaint alleges that until the events giving rise to the
lawsuit, the stevedores paid the crane user fees directly to
Fiscal. Also, it is alleged that the County, Deloitte, the Port,
Fiscal, the Internal Revenue Service and all others involved
treated the crane users fees as the property of Fiscal, rather than
the County’s.

According to the Complaint, however, between 1996
and 1998, the County, Penelas, Bass, Jackson, Alonso, Baum,
Deloitte, and others orchestrated a course of action that was
specifically designed and intended to, and cid: a) create and
utilize a fabricated pretext to unlawfully terminate the franchise
agreement; b) seize, by physical force and with no judicial or
other lawful process, all of the personal property of Fiscal used
by Fiscal in the operation of its business; and c) create and
utilize fabricated evidence to instigate a capricious prosecution
of, and the attendant seizure of, Grigsby. Plaintiffs allege that
Penelas directed Bass and Jackson to fabricate evidence that

28a

could be used to argue that Fiscal was a department or agent of
the County and that the gantry crane user fees that Fiscal
collected were County funds. Plaintiffs also allege that the
Defendants caused Defendant Deloitte to retroactively alter
some of its audit reports of the Port to make them consistent
with this false recharacterization of the County and Fiscal’s
longstanding relationship and treatment of the crane user fees,
with no accounting justification for the material change.
Plaintiffs claim that this conduct by the individuals Defendants
constitutes executive, not legislative functions.

The Special Audit

On November 18, 1996, Defendant Penelas allegedly
directed the County Manager to obtain a special audit of
Fiscal’s business. The responsibility for the audit was passed
to Jackson, then Acting Director of the County’s Audit and
Management Services Department. Acting assertedly on
Penelas’ order, Jackson, with the assistance of Bass, Baum,
Deloitte and others, began in December 1996 to demand every
accounting and financial document that Fiscal had ever
generated. Additionally, the County filed in February 1997, a
Public Records Act action (Metropolitan Dade County v. Fiscal,
11" Judicial Circuit, Dade County, Case No. 97-04449 CA 32)
against Fiscal, seeking to have Fiscal declared to be “a public
agency.” The County audit was completed by Jackson in
January of 1998. Plaintiffs allege that Penelas directed Bass
and Jackson to fabricate evidence that could be used to argue
that Fiscal was a department or agent of the County and that the
gantry crane user fees that Fiscal collected at the Port were
County funds. Accordingly, the Complaint alleges, at the
direction of Penelas, Bass and Jackson encouraged Deloitte to
revisit its interpretation of the franchise agreement.

29a

The Deloitte Audit and Financial Restatements

Pursuant to the franchise agreement, Fiscal maintained
and operated the cranes, renting the cranes on an hourly fee
basis to the stevedoring companies that loaded and unloaded
cargo ships that docked at the Port. Fiscal sent bills to the
stevedoring companies for the hourly crane rental fees (“crane
user fees”). The Complaint alleges that until the events giving
rise to the lawsuit, the stevedores paid the crane useT fees
directly to Fiscal. Also, the County, Deloitte, the Port, Fiscal,
the Internal Revenue Service and all others involved treated the
crane user fees as the property of Fiscal, rather than the
County’s. According to the Complaint, Deloitte's audit reports
for many years accurately reflected these financial arrangements
and treated the crane user fees as the property of Fiscal.
Plaintiffs allege that from 1990 to 1995, the financial
statements of the Seaport did not include crane usage within the
Seaport’s operating revenues. Additionally, Plaintiffs allege
that Deloitte and the County specifically knew of certain
questionable expenditures made by Fiscal from the crane
revenues, later called into question by the County.

Plaintiffs allege that in 1998, the other Defendants
caused Deloitte to retroactively alter some of its audit reports of
the Port to make them consistent with a false characterization
of Fiscal as an County agency and the crane user fees as
revenue of the Port. The restated audit report treated the crane
user fees as “County Money.” Additionally, Deloitte added the
phrase “crane usage” to its 1995 list of items included in the
Seaport 1995 operating revenues. Deloitte also increased the
stated amount of federal funds received by the Port in the
Seaport’s Restatement of the 1995 financial statements.
Plaintiffs allege that these same altered accounting treatments
were also applied to the 1996 financials of the Port.

30a

Plaintiffs allege that Deloitte made the changes to the
financial statements “for no reason other than to provide a
jurisdictional perquisite for the prosecution of Grigsby under 18
U.S.C. § 666.” The Complaint alleges that Deloitte capitulated
to the other Defendants’ request to change its accounting
treatment in this arbitrary manner. According to Plaintiffs, but
for Deloitte’s capitulation, the other Defendants “likely would
not have taken the predatory actions which followed shortly
thereafter, which depended entirely on the new fabricated
assertion that the crane revenues belonged to the County.”

Contract Termination and The Resolution

On April 21, 1998, the County Manager was given a
resolution to present to the Board, approving the termination of
the franchise and the implementing contract. The resolution
was sponsored by Alonso, prepared by other Defendants, and
approved as to form and legal sufficiency by Bass. The
resolution referred to Jackson’s January 16, 1998 audit report
as having “found, among other things, ‘mismanagement of the
County’s gantry crane operations, wasteful and abusive
spending practices, [and] undocumented and unauthorized
transactions...” The resolution also stated “it is believed that
Fiscal is currently retaining hundreds of thousands of collected
user fees belonging to the County, in violation of contract
requirements.” Noting Jackson’s recommendation that the
County assume control of the crane operation “as soon as _
practical,” the resolution directed the County Manager to do so.
To support the resolution, the County Manager was also given
a memorandum, prepared by the Defendants, recommending
approval of the resolution to terminate the Agreement.
According to the Complaint, that memorandum contained
several material misrepresentations, assertedly designed to
support the Defendants’ theft of “Public Funds” theory.
Subsequently, the County Commissioners passed the resolution.
Based upon the results of the County Manager’s audit of Fiscal

3la

and the passage of the resolution, in the Spring of 1998, the
County issued a notice of default and then terminated the
franchise contract. On May 18, 1998, acting in accordance with
Jackson’s statement that “the County should take immediate
control of the operation,” the County physically seized Fiscal’s
entire business, including the personal property and other assets
of Fiscal, and began to run the business assertedly for its own

benefit.

According to the Complaint, subsequent to the release
of the special audit, J ackson and Bass presented the Federal
Bureau of Investigation and representative of the United States
Attorney’s Office with fabricated evidence that Grigsby had
used “County Money” and “Public Funds” to make
unauthorized expenditures not directly related to crane
operations, thereby stealing County funds.

DISCUSSION

Standard of Review

A complaint should not be dismissed “‘for failure to state
a claim unless it appears beyond a reasonable doubt that the
plaintiff can prove no set of facts” that would entitle the
plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957);
Bracewell Vv. Nicholson Air Services, Inc., 680 F.2d 103, 104
(11" Cir. 1982). In deciding a motion to dismiss, a court can
only examine the four comers of the complaint. See Crowell v.
Morgan Stanley Dean Witter Services, Co., Inc., 87 F.Supp. 2d
1287 (S.D. Fla. 2000). Additionally, a court must accept a
plaintiffs well pled facts as true and construe the complaint in
the light most favorable to plaintiff. Scheuer v. Rhodes, 416

U.S. 232 (1974). The threshold of sufficiency that a complaint
must meet is exceedingly low. Ancata v. Prison Health Servs.

32a

Inc., 769 F.2d 700, 703 (11" Cir. 1985); Geidel v. City of
Bradenton Beach, 56 F.Supp.2d 1359, 1362 (M.D. Fla. 1999).

Rooker-Feldman Doctrine

The Rooker-Feldman doctrine provides that lower
federal courts are barred from reviewing the final judgment of
a state’s highest court, since review of such a determination is
an exercise of appellate jurisdiction, available only in the U.S.
Supreme Court. Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923). Thus, U.S.
district courts have no jurisdiction over challenges to final state
court decisions, even if those challenges allege that the state
court’s action was unconstitutional. District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303,
1317, 75 L.Ed.2d 206 (1983); Goodman v. Sipas, 259 F.3d
1327 (11" Cir. 2001); Wood v. Orange County, 715 F.2d 1542,
1546 (11 Cir. 1983). The doctrine extends not only to
constitutional claims presented or adjudicated by a state court,
but also to claims that are “inextricably intertwined” with a
state court judgment. Feldman, 460 U.S. at 483; Dale v.
Moore, 121 F.3d 624, 626 (11" Cir. 1997). A federal claim is
inextricably intertwined with a state court judgment “if the
federal claim succeeds only to the extent that the state court
wrongly denied the issues before it.”” Pennzoil Co. v. Texaco
Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 1533, 95 L.Ed.2d 1(1987)
(Marshall, J., concurring); Blue Cross and Blue Shield of
Maryland, Inc. v. Weiner, 868 F.2d 1550, 1554(11" Cir. 1989).
The Rooker-Feldman doctrine applies as long as the party had
a reasonable opportunity to raise his federal claims in the state
court proceedings. Wood v. Orange County, 715 F.2d 1543,
1547 (11" Cir. 1983). If the party had no reasonable
opportunity, the court must find “that the federal claim was not
‘inextricably intertwined’ with the state court’s judgment.”
Powell v. Powell, 80 F.3d 464, 467 (11" Cir. 1996).

33a

The crucial question in determining the applicability of
Rooker-Feldman is whether the relief requested of the federal
court would effectively reverse or void the state court’s ruling.
Olson Farms, Inc. v. Barbosa, 134 F.3d.933, 936 (9" Cir. 1998).
Ifa federal court’s decision on an issue requires a determination
that the state court was wrong, then the action is properly
characterized as an appeal and the federal court cannot hear the
case. See Charchenko v. City of Stillwater, 47 F.3d 981, 983
(8 Cir. 1995). “Both the timing of the filing of the federal and
state actions, as well as the timing of the ruling in the state case
are relevant in deciding whether the federal action should be
characterized as an appeal. For example, if the federal action
was filed prior to the state action, it cannot be said that the party
aggrieved by the state court’s ruling. See Doctor's Associates,
Inc. v. Distajo, 107 F.3d 126, 138 co ce. 1997); Texaco Inc.
vy. Pennzoil Co., 784 F.2d 1133, 1143 (2™ Cir. 1986) rev'd on
other grounds, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987).

The Eleventh Circuit has explained that the Rooker-
Feldman doctrine asks: is the federal plaintiff seeking to set
aside a state judgment, or does he present some independent
claim, albeit one that denies a legal conclusion that a state court
reached in a case to which he was a party? If the latter, then
there is jurisdiction and state law determines whether the
Defendant prevails under principles of preclusion. Narey V.
Dean, 32 F.3d 1521, 1525 (11 Cir. 1994).

Rooker-Feldman and Abstention
As with abstention, much of the justification behind the

Rooker-Feldman doctrine is premised on respect for state
courts. See Bryant v. Sylvester, 1995 WL 265303 2 (3° Cir.

1995), vacated on other grounds, 516 U.S. 1105, 116S.Ct. 899,
133 L.Ed.2d 834 (1996). A second justification for the doctrine
is its concern with finality. See Id. at 3. Like res judicata and
collateral estoppel, the Rooker-Feldman doctrine is intended to

34a

ensure that litigants do not take multiple bites from the same
apple. See Id. Once a litigant’s claims have been adjudicated
in the state court system, that litigant should not also have
access to the entire federal court system. See Id. at 2.

The Rooker-Feldman Doctrine is “at a minimum”
coextensive with the principles of res judicata and collateral
estoppel. See Doctor’s, 107 F.3d at 137 (citing Moccio v. New
York State Office of Court Administration, 95 F.3d 195, 199-
200 (2™ Cir. 1996)). Thus, litigation in federal court on an
issue previously addressed by a state court would be barred
under the Rooker-Feldman doctrine if it would be barred by res
judicata or collateral estoppel. See Id. The Rooker-Feldman
doctrine, however, goes farther than these preclusion doctrines
in that it does not require a final judgment before giving
preclusive effect to a state court order. Rooker-Feldman also
precludes federal courts from reviewing non-final and
interlocutory state judgments. “It cannot be the meaning of
Rooker-Feldman that while the inferior federal courts are barred
from reviewing final decisions of state courts, they are free to
review interlocutory orders.” Id. Under this reasoning, the
Rooker-Feldman doctrine bars a federal court from reviewing
the orders of state courts even when res judicata or collateral
estoppel would be inapplicable due to the lack of final
judgment.

ANALYSIS
With this sketch of the Rooker-Feldman doctrine in
mind, the Court turns now to evaluate the doctrine in light of

the circumstances presented in the instant case.

Fiscal’s State Court Actions

Fiscal’s legal dispute with the County began in 1997
when the County filed an action in state court to require Fiscal

35a

to produce its financial books and records pursuant to the terms
of the franchise agreement. (Metropolitan Dade County v.
Fiscal Operations, Inc., No. 97-04449-CA-32 (Fla. 11" Jud. Cir.
Ct.)). As a result of that action, the court ordered Fiscal to
produce all of its books and records pertaining to Fiscal’s
operation of the gantry cranes at the Port.

Based upon the information it obtained through the
action, the County filed a second state court action in July 1997
alleging, among other things, breach of contract against Fiscal, -
Grigsby, and others. (Metropolitan Dade County v. Fiscal
Operations, Inc., No. 97-15083-CA-32 (Fla. 11" Jud. Cir. Ct.)).
In response to the County’s claims, Fiscal counterclaimed for
1) Breach of Contract, 2) Conversion/Breach of Good Faith and
Fair Dealing, 3) Tortious Interference, 4) Breach of Settlement
Agreement, 5) Violation of 42 U.S.C. § 1983, 6) Public
Disclosure of Private Acts, and 7) Declaratory Judgment.
During the course of the state action, Fiscal moved to enjoin the
County from terminating the franchise agreement. That motion
was denied on March 24, 1998. Subsequently, the court
dismissed with prejudice Fiscal’s counterclaim under § 1983.
In April 1998, Fiscal filed an emergency motion to enjoin the
County from terminating Fiscal’s right to control and manage
the gantry cranes at the Port. That motion was also denied, and
the Third District Court of Appeals affirmed on May 28, 1998.

After the County terminated the franchise agreement on
May 18, 1998, Fiscal instituted a separate statutory action
against the county for forcible entry and unlawful retainer.
(Fiscal Operations, Inc. v. Miami-Dade County, 735 So.2d 598
(Fla. 3° DCA 1999)). The circuit court granted summary
judgment in favor of the County on this claim and the Third
District Court of Appeals affirmed.

Fiscal then filed a Third Amended Counterclaim in the
state court breach of contract action, asserting twelve separate

36a

counts, including a claim under § 1983. The court again
dismissed the § 1983 claim with prejudice. Fiscal then moved
for partial summary judgment on the pleadings, and sought
judgment as a matter of law on, among other things, the
County’s claim for breach of contract. The Court denied
Fiscal’s motion for partial summary judgment on the pleadings.

Plaintiffs argue that the Rooker-Feldman doctrine has
no application in this case because the doctrine requires a final
state judgment and the only rulings in state court are
interlocutory and have not ripened into a judgment. Second,
Plaintiffs assert that the doctrine presupposes an identity of
parties between the state court judgment and subsequent federal
litigation not present in this case because Plaintiff Grigsby was
not a party to the state claims. Third, Plaintiffs contend that the
state courts never adjudicated Fiscal’s contract, seizure, or due
process claims flowing from the termination of the franchise
agreement. Plaintiffs contend that the state courts merely
determined that the statutory remedy for forcible entry and
detainer would not lie. Further, Plaintiffs contend that it was
only during his criminal prosecution that the facts of
Defendants’ “orchestrated course of action was made evident in
cross examination of County and other witnesses.”

The Court has reviewed the Rooker-Feldman doctrine
along with Plaintiffs’ objections to its application in this case
and finds that the application of the doctrine is appropriate in
this cause.

Final Order Requirement

Plaintiffs argue that the Rooker-Feldman doctrine does
not apply to this case because the state action did not result in
a final order. Although the issue of whether the Rooker-
Feldman doctrine precludes federal review of state interlocutory
orders has not been definitively resolved by the Circuits, the

37a

greater weight of authority seems to hold that the doctrine
should bar review of final and nonfinal orders alike. See
Doctor’s, 107 F.3d at 137 (Rooker-Feldman is broader than
preclusion doctrines because it does not depend on final -
judgment); Goetzman_V. Agribank, FCB, 91 F.3d 1173, 1177
(8 Cir. 1996), Charchenko, 47 F.3d at 983. This argument,
therefore does not preclude the application of the Rooker-
Feldman doctrine in this case.

Absolute Identity of Parties

While Fiscal was a party to the state action, Grigsby was
not. Plaintiffs contend that the Rooker-Feldman doctrine has
never been applied against nonparties and should not be applied
in this case. This, however, is not quite accurate. The Court
does recognize that some courts have held that the Rooker-
Feldman doctrine does not apply to bar a suit in federal court
brought by a party that was not a party in the preceding state
court action. See,_e.g., Bennett v. Yoshina, 140 F.3d 1218,
1223-24 (9" Cir. 1998), cert. denied sub nom.; Citizens for a
Constitutional Convention _v. Yoshina, 525 U.S. 1103, 119
S.Ct. 868, 142 L.Ed.2d 770 (1999) (mere participation in state
case as amici does not invoke the doctrine); United States v.
Owens, 54 F.3d 271, 274 (6 Cir. 1995); Valenti, 962 F.2d at
797-98. Other courts, however, have not hesitated to apply
Rooker-Feldman against parties who did not participate in the
state suit. See T.W. & M.W. v. Brophy, 124 F.3d 893, 898 (7"
Cir. 1997); Republic of Paraguay V. Allen, 949 F.Supp. 1269,
1273 (E.D. Va. 1996), aff'd on other grounds, 134 F.3d 622,
628 (4" Cir. 1997) Williams v. Adkinson, 792 F.Supp. 755,
761-63 (M.D. Ala. 1992) aff'd, 987-F.2d 774 (11" Cir. 1993).
Additionally, more than one federal appellate judge has
expressed the view that the applicability of Rooker-Feldman
should not depend on identity of the parties in the state and
federal suits, see Bates v. Jones, 131 F.3d 843, 855-57 (9" Cir.
1997) (en banc) (Rymer, J. , concurring); Roe v. Alabama, 43

38a

F.3d 574, 586 (11" Cir. 1995) (Edmonson, J., dissenting
(disagreeing with the thought that only absolute identity of
parties in state action and federal court action, without regard
to state-case parties possibly under control or in privity with
federal-case parties, will trigger a Rooker-Feldman bar in
federal court)).

The Court is persuaded by the latter approach. Insisting
that the parties must be identical, it seems, confuses the
Rooker-Feldman doctrine with principles of res judicata. As
noted above, these doctrines are not the same. See
Hachamovitch v. DeBuono, 159 F.3d 687, 696 (2™ Cir. 1998)
(noting that the “Rooker-Feldman doctrine differs from
preclusion in certain critical ways”); Charchenko, 47 F.3d at
984-85 (conducting separate analyses and finding claims barred
by Rooker-Feldman but not res judicata). Accordingly, the fact
that Grigsby was not a party to the state suit is not by itself
dispositive. Moreover, Grigsby has failed to demonstrate that
he did not have a reasonable opportunity to raise his claims in
state court. Additionally, though Grigsby chose not to join in
the state court lawsuit, Grigsby’s corporation, Fiscal, did. As
the President and CEO of Fiscal, not only did Grigsby have a
reasonable opportunity to join in the state action, but Grigsby
was also arguably in privity. This is enough to bar his claim.
See Dudley v. Smith, 504 F.2d 979 (5" Cir. 1974); Union Oil
of California Amsco Div. v. Watson, 468 So.2d 349 (Fla. DCA
1985). Accordingly, this argument does not preclude the
application of the Rooker-Feldman doctrine in this case.

Exact Identity of Claims

Plaintiffs assert that Rooker-Feldman is inapplicable in
this case because the claims made in the state action are not
identical to those made in the federal action. Plaintiffs contend
that while the state action addressed the parties’ breach of
contract claims, the “gist of the [federal] claim focuses on the

39a

improper motivation of the Defendants, not on whether they
breached the terms of any particular contract.” Specifically,
Plaintiffs contend that while the state court examined Fiscal’s
defamation, property right and § 1983 claims, the state court
never assumed jurisdiction over the fabricated evidence,
conspiracy, and use of armed force, instigation of capricious
prosecution or malicious prosecution claims. Plaintiffs argue
that only after the trials were concluded in late 1999 were
Plaintiffs “cognizant that fabricated evidence was used to
secure the indictment to help the County cover up its invasion.”

Supreme Court and Eleventh Circuit authority, however,
refutes Plaintiffs’ assertions. In Feldman, the Supreme Court
noted that a district court could not exercise jurisdiction over
constitutional claims inextricably intertwined with a state
court’s judgment simply because the federal plaintiff failed to
raise such claim in the state court. Feldman, 460 U.S. at 482,
103 S.Ct. at 1315, 75 L.Ed.2d at 223. Interpreting this broad
proposition, the court concluded that the Rooker-Feldman
doctrine applies when the federal plaintiff had a reasonable
opportunity to raise the federal claim in the state court
proceedings. Wood, 715 F.2d at 1546-47. The Rooker-
Feldman doctrine therefore does not require an exact identity of
the claims. It applies not only to claims that were actually
raised in state court, but also to “claims that the litigants did not
argue in state court, but were inextricably intertwined with the
state court judgment.” Dale v. Moore, 121 F.3d 624, 626 (1
Cir. 1997).

The problem then becomes determining the scope of the
term “reasonable opportunity.” Courts have rendered several
relevant decisions. In Wood, for example, the court indicated
that a party’s ability to raise a claim on appeal constituted a
reasonable opportunity to raise the claim. Wood, 715 F.2d at

1548 (district court has jurisdiction only because the federal
plaintiff did not have a reasonable opportunity to raise his

40a

claim; he lacked a reasonable opportunity to appeal the
judgment, and the opportunity for a post-judgment attack did
not substitute for an appeal). In Rolleston v. Eldridge, 848 F.2d
163, 165 (11 Cir. 1988), the court affirmed the district court’s
dismissal for lack of jurisdiction because the party had the
opportunity, and in fact availed himself of such opportunity, to
raise his federal claims in his state court appeal of a state trial
court’s decision. See also Hollins v. Wessel, 819 F.2d 1073,
1074 (11" Cir. 1987).

Turning to the federal complaint, the Court notes that
the relief sought would, as a practical matter, directly nullify the
final judgment of the state district court dismissing Fiscal’s
claims against the County. This fact alone may be sufficient to
decide the case. See Suzanna Sherry, Judicial Federalism in
the Trenches: Rooker-Feldman Doctrine in Action, 74 Notre
Dame L.Rev. 1085, 1099 (1999) (suggesting that Rooker-
Feldman applies wherever the federal court “is in effect
reviewing the state court judgment even if it is not reviewing
the decision’’). As in Rolleston, and Hollins, Plaintiffs had the
opportunity to assert, and did assert, deprivation of property
claims arising from the County’s decision to terminate Fiscal’s
contract at the Port, in state court. Accordingly, the Rooker-
Feldman bar applies to Plaintiffs’ due process claims. See Key
v. Wise, 629 F.2d 1049, 1055 (5" Cir. 1980), cert. denied, 454
U.S. 1103, 102 S.Ct. 682, 70 L.Ed.2d 647 (1981). The Court
also finds, however, that even if Plaintiffs were not asking the
court to effectively overturn the state court’s judgment, the
federal claims they state so closely implicate the decision of the
state court that the federal suit would be barred anyway. See
Feldman, 460 U.S. at 482 n. 16, 103 S.Ct. 1303. In reaching
this conclusion, the court addresses two issues that complicate
- the inquiry.

First, since Rooker-Feldman deprives federal courts of
jurisdiction over claims not raised before the state court only

4ia

where such claims are inextricably intertwined with the state
court judgment, “a claim -- particularly a claim under federal
law -- is not precluded if it is ‘separable from and collateral to
the merits of the state-court judgment.’” Fielder, 188 F.3d at
1034 (quoting Pennzoil, 481 U.S. at 21, 107 S.Ct. 1519
(Brennan, J., concurring)). On its face, Plaintiffs’ federal
complaint in this case may initially appear to articulate legal
claims that are separable from and collateral to those raised
before the state court. Indeed, whereas the state court faced a
breach of contract claim along with the torts of interference and
public disclosure challenge, the federal complaint studiously
alters the framing of the claims. Instead, Plaintiffs creatively
invoke the Fourth and Fourteenth Amendments, alleging that
the County’s termination of the franchise agreement,
Defendants’ demands for Fiscal’s accounting and financial
documents, and Defendants’ disclosure of Fiscal’s alleged
wrongdoing to prosecutorial authorities and the media, resulted
in § 1983 violations.

Ultimately, the Court believes that these arguments do
no more than restate the claims for relief that were rejected on
the merits by the state court. Although technically the suits may
invoke distinct constitutional provisions, as a substantive matter
they both challenge the basic fairness of the County’s
termination of the franchise agreement, the demands made for
Fiscal’s accounting documents and disclosures by Defendant's
regarding Fiscal’s alleged misconduct. Thus, the Fourth and
Fourteenth Amendment arguments presented to the district
court appear to be nothing more than creative attempts to
reclothe the failed due process claims in new constitutional
garb. The claims made in Count I and II of the federal
Complaint are based upon the same allegations of deprivation
of Plaintiffs’ constitutional nghts that Fiscal argued and lost in
state court proceedings. The claims in Count III and IV of the
federal Complaint are based upon the same allegations of the
County’s procurement of “false evidence” that Fiscal argued

42a

and lost in state court proceedings. Plaintiffs’ addition of the
claims made in the federal action therefore are insufficient to
preclude a dismissal based upon the Rooker-Feldman doctrine.
As such, these arguments present the court with a situation in
which a decision favorable to Plaintiffs could “only be
predicated upon a conviction that the state court was wrong.”
Pennzoil, 481 U.S. at 25, 107 S.Ct. 1519 (Marshall, J.,
concurring). Without commenting on the merits of Plaintiffs’
arguments, the court simply reiterates that federal plaintiffs
cannot by artful pleading obtain a hearing of disguised state
court appeals that would otherwise be subject to a Rooker-
Feldman bar. See Fielder, 188 F.3d at 1034; Valenti_v.
Mitchell, 962 F.2d 288, 296 (3 Cir. 1992) (party “cannot be
allowed to escape Rooker-Feldman by raising a new
constitutional theory in federal court’).

CONCLUSION

As stated above, the state courts previously considered
Fiscal’s very similar claims, dismissed with prejudice the §
1983 claims, and granted the County’s motion for summary
judgmentas to the other claims. The Court finds that the claims
in the instant action are inextricably intertwined with those in
the state action. Accordingly, based upon the Rooker-Feldman
doctrine, the Court is unable to consider Plaintiffs’ claims
against the County and the County’s motion to dismiss must be
granted. Consequently Fiscal’s claims against the County must
be dismissed. Based upon the foregoing, it is.

ORDERED AND ADJUDGED that Defendant's
Motion to Dismiss is GRANTED.

DONE AND ORDERED in chambers at Miami,
Florida this 30" day of April, 2003.

cc:

43a
/s/
Donald L. Graham
U.S. DISTRICT JUDGE
Magistrate Judge Garber

Counsel of Record

44a

APPENDIX D

United States District Court
Southern District of Florida
Miami Division

Fiscal Operations, Inc., d )
Calvin Grgisby, )
)
Plaintiffs-Appellants, )
)
V. ) Case No. 01-04798-
) | CIV-Graham/Garber
Miami-Dade County, Florida; )
Alex Penelas; Steven B. Bass; )
Kathy Jackson; Miriam Alonso; )
)
)
)
)

Rachel Baum; and Deloitte and
Touche, L.L.P.

Defendants-Appellees.

ORDER

THIS CAUSE came before the Court upon Defendant
Deloitte & Touche, LLP’s Motion to Dismiss First Amended
Complaint, filed August 2, 2002.

THE COURT has reviewed the Motion, the pertinent
portions of the record, and is otherwise fully advised in the
premises.

45a

INTRODUCTION

Fiscal Operations, Inc., (“Fiscal’’) and its President and
Chief Executive Officer, Calvin Grigsby (“Grigsby”) filed this
action against Defendants Miami-Dade County (the “County”’),
Mayor Alex Penelas (‘Penelas’”’), Assistant County Attorney
Steven B. Bass (“Bass”), County Auditor Kathy Jackson
(“Jackson”), Commissioner Miriam Alonso (“Alonso”),
Finance Department Director Rachel Baum (“Baum”), and
Deloitte & Touche (“Deloitte”) based upon Defendants’ alleged
participation in the wrongful termination of a franchise
agreement between the County and Fiscal (the “franchise
agreement”). The Complaint also alleges the wrongful taking
of property in the form of Plaintiffs’ contractual rights, the
wrongful seizure of Plaintiffs’ business assets and the
procurement of false information to federal authorities,
resulting in Plaintiff Grigsby’s arrest and prosecution for the
theft of public funds.

PROCEDURAL BACKGROUND

Plaintiffs filed their Original Complaint on November
26, 2001, and alleged Denial of Due Process (Count 1), Taking
Without Just Compensation (Count II), Denial of Due Process
(Count II), Unreasonable Seizure and Restraint (Count IV), and
Conspiracy (Count V). On February 20, 2002, Plaintiffs filed
their Amended Complaint and alleged two additional causes of
action: Accountants’ Fraud (Count VI) and Malicious
Prosecution (Count VII).

On August 2, 2002, Deloitte filed its motion to dismiss
the Amended Complaint and asserts that 1) the Complaint fails
to state a cause of action against Deloitte under 42 U.S.C. §
1983, 2) the Complaint fails to plead the claim of Accountants’
Fraus with particularity, and 3) the Complaint fails to state a

ee

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46a

cause of action against Deloitte for malicious prosecution. For
the reasons discussed herein, the Defendant Deloitte’s motion
to dismiss under Rules 12(b)(6) and 9(b) is granted.

FACTUAL BACKGROUND

According to the Complaint, in 1982, Plaintiff Fiscal
entered into a franchise agreement with the County to manage
and operate gantry cranes at the Port of Miami (the “Port”), a
County facility. According to the Complaint between 1996 and
1998, the County, Penelas, Bass, Jackson, Alonso, Baum,
Deloitte, and others orchestrated a course of action that was
specifically designed and intended to, and did: a) create and
utilize a fabricated pretext to unlawfully terminate Plaintiffs’
exclusive franchise agreement; b) seize, by physical force and
with no judicial or other lawful process, all of the personal
property of Fiscal used by Fiscal in the operation of its
business; and c) create and utilize fabricated evidence to
instigate a capricious prosecution of, and the attendant seizure
of, Grigsby.

The Special Audit

On November 18, 1996, Defendant Penelas allegedly
directed the County Manager to obtain a special audit of
Fiscal’s business. The responsibility for the audit was passed
to Jackson, then Acting Director of the County’s Audit and
Management Services Department. Acting on Penelas’ order,
Jackson, with the assistance of Bass, Baum, Deloitte and others,
allegedly began in December 1996 to demand every accounting
and financial document that Fiscal had ever generated.
Additionally, the County filed in February 1997, a Public
Records Act action (Metropolitan Dade County v. Fiscal, |
Judicial Circuit, Dade County, Case No. 97-04449 CA 32)
against Fiscal, seeking to have Fiscal declared to be “a public
agency.” The audit was completed by Jackson in January of

47a

1998. Plaintiffs allege that Penelas directed Bass and J ackson
to fabricate evidence that could be used to argue that Fiscal was
a department or agent of the County and that the gantry crane
user fees that Fiscal collected at the Port were County funds.
Accordingly, the Complaint alleges, at the direction of Penelas,
Bass and Jackson encouraged Deloitte to revisit its
interpretation of the franchise agreement.

The Deloitte Audit and Financial Restatements

Pursuant to the franchise agreement, Fiscal maintained
and operated the cranes, renting the cranes on an hourly fee
basis to the stevedoring companies that loaded and unloaded
cargo ships that docked at the Port. Fiscal sent bills to the
stevedoring companies for the hourly crane rental fees (“crane
user fees”). The Complaint alleges that until the events giving
rise to the lawsuit, the stevedores paid the crane user fees
directly to Fiscal. According to the Plaintiffs, the County,
Deloitte, the Port, Fiscal, the Internal Revenue Service and all
others involved treated the crane user fees as the property of
Fiscal, rather than the County’s. According to the C omplaint,
Deloitte’s audit reports for many years accurately reflected
these financial arrangements and treated the crane user fees as
the property of Fiscal. Plaintiffs allege that from 1990 to 1995,
the financial statements of the Seaport did not include crane
usage within the Seaport’s operating revenues. Additionally,
Plaintiffs allege that Deloitte and the County specifically knew
of certain questionable expenditures made by Fiscal from the
crane revenues, later called into question by the County.

Plaintiffs allege that in 1998, the other Defendants
caused Deloitte to retroactively alter some of its audit reports of
the Port to make them consistent with a false characterization
of Fiscal as an County agency and the crane user fees as
revenue of the Port. The restated audit report treated the crane
user fees as “County Money.” Additionally, Deloitte added the

48a

phrase “crane usage” to its 1995 list of items included in the
Seaport 1995 operating revenues. Deloitte also increased the
stated amount of federal funds received by the Port in the
Seaport’s Restatement of the 1995 financial statements.
Plaintiffs allege that these same altered accounting treatments
were also applied to the 1996 financials of the Port.

Plaintiffs allege that Deloitte made the changes to the
financial statements “for no reason other than to provide a
jurisdictional perquisite for the prosecution of Grigsby under 18
U.S.C. § 666.” The Complaint alleges that Deloitte capitulated
to the other Defendants’ request to change its accounting
treatment in this arbitrary manner. According to Plaintiffs, but
for Deloitte’s capitulation, the other Defendants “likely would
not have taken the predatory actions which followed shortly
thereafter, which depended entirely on the new fabricated
assertion that the crane revenues belonged to the County.”

Contract Termination and The Resolution

On April 21, 1998, the County Manager was given a
resolution to present to the Board, approving the termination of
the franchise and implementing contract. The resolution was
sponsored by Alonso, prepared by other Defendants, and
approved as to form and legal sufficiency by Bass. The
resolution referred to Jackson’s January 16, 1998 audit report
as having “found, among other things, ‘mismanagement of the
County’s gantry crane operation, wasteful and abusive spending
practices, [and] undocumented and unauthorized
transactions...” The resolution also stated “it is believed that
Fiscal is currently retaining hundreds of thousands of collected
user fees belonging to the County, in violation of contract
requirements.” Noting Jackson’s recommendation that the
County assume control of the crane operation “as soon as
practicai,” the resolution directed the County Manager to do so.
To support the resolution to terminate the Agreement.

According to the Complaint, that memorandum contained
several material misrepresentations, assertedly designed to
support the Defendants’ theft of “Public Funds” theory.
Subsequently, the County Commissioners passed the resolution.
Based upon the results of the County Manager’s audit of Fiscal
and the passage of the resolution, in the Spring of 1998, the
County issued a notice of default and then terminated the
franchise contract. On May 18, 1998, acting in accordance with
Jackson’s statement that “the County should take immediate
control of the operation,” the County physically seized Fiscal’s
entire business, including the personal property and other assets
of Fiscal, and began to run the business assertedly for its own
benefit.

According to the C omplaint, subsequent to the release
of the special audit, Jackson and Bass presented the Federal
Bureau of Investigation and representative of the United States
Attorney’s Office with fabricated evidence that Grigsby had
used “County Money” and “Public Funds’ to make
unauthorized expenditures not directly related to crane
operations, thereby stealing County funds.

DISCUSSION

Standard of Review

A complaint should not be dismissed “for failure to state
a claim unless it appears beyond a reasonable doubt that the
plaintiff can prove no set of facts” that would entitle the
plaintiff to relief. Conley v. Gibson, 355 USS. 41, 45 (1957);
Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104
(11" Cir. 1982). In deciding a motion to dismiss, a court can
only examine the four corners of the complaint. See Croweil v.
Morgan Stanley Dean Witter Services, Co., Inc., 87 F.Supp. 2d

1287 (S.D. Fla. 2000). Additionally, a court must accept a

50a

plaintiffs well pled facts as true and construe the complaint in
the light most favorable to plaintiff. Scheuer v. Rhodes, 416
U.S. 232 (1974). The threshold of sufficiency that a complaint
must meet is exceedingly low. Ancata v. Prison Health Servs.
Inc., 769 F.2d 700, 703 (11™ Cir. 1985); Geidel v. City of
Bradenton Beach, 56 F.Supp.2d 1359, 1362 (M.D. Fla. 1999).

42 U.S.C. § 1983 and State Action

Plaintiffs allege that Deloitte’s revision in 1998 of a
“dormant 3 year old Seaport 1995 financial statement to show
Fiscal’s Money as the County’s Money and its other auditing
manipulations” was an integral part of Defendants’ jointly
orchestrated, conspiratorial, and tortious scheme to take Fiscal’s
business methods, assets and goodwill and instigate a
prosecution of Grigsby. Plaintiffs allege further that Deloitte’s
conduct constituted state action and as such, Deloitte may be
found liable for § 1983 violations. Deloitte contends that as a
private entity furictioning as an independent auditor for the Port,
the Complaint fails to state a cause of action against it under 42
U.S.C. § 1983 because it fails to allege state action.
Accordingly, Deloitte petitions the Court to find that Plainuffs’
§ 1983 claims against Deloitte must be dismissed.

It is axiomatic that the Fourteenth Amendment, which
is the constitutional authority for Plaintiffs’ § 1983 claims,
applies only to such action as may be fairly be said to be that of
the states. That Amendment erects no shield against merely
private conduct, however discriminatory or wrongful. See
Shelley v. Kramer, 334 U.S. 1, 13 (1984); Jackson _v.
Metropolitan Edison Co., 419 U.S. 345, 349 (1974). Thus, the

only prope: Defendants in a § 1983 action are those who
represent the state in some capacity, whether they act in
accordance with their authority or misuse it. Monroe v. Pape,
365 U.S. 167, 172 (1961).

Sla

The § 1983 plaintiff must establish that the actions of a
private entity are properly attributable to a governmental entity.
See Flagg Brothers v. Brooks, 436 U.S. 149, 156 (1978). In
fact, when the Defendant is not a state agency or employee,
state action may be found only in rare circumstances. See
Harvey v. Harvey, 949 F.2d 1127, 1130. (11 Cir. 1992). In
this circuit, the Court may ascribe governmental status to
private conduct based upon 1) the public function test; 2) the
state compulsion test; and 3) the nexus/joint action test.
Accord, Willis v. The University Health Services, Inc., 993
F.2d 840 (11" Cir. 1992); Morast v. Lance, 807 F.2d 926, 931
(11 Cir. 1987).

Public Function Test

The Court may find state action present in the exercise
by a private entity of powers traditionally exclusively reserved
to the State. This requirement of exclusivity is not satisfied
merely by the conferral of monopoly by the State or extensively
be government regulation; or merely by the performance of a
public service. It requires delegation of a function which is
uniquely and excessively governmental in nature. See Jackson
v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974); Public
Utilities Comm’n v. Pollak, 343 U.S. 451, 462 (1952).

Plaintiffs have made no allegations that Deloitte’s audit,
or restatement of the Seaport’s financial statements constituted
a uniquely governmental function. According to the record,
Deloitte, as an independent auditor, performed only a traditional
accounting function routinely performed by a myriad of non-
governmental entities. Moreover, while federal officers and
investigators may have reviewed Deloitte’s audit in furtherance
of Grigsby’s arrest and seizure, Deloitte did not participate in
any such prosecutorial conduct and therefore did not perform a
governmental function. Accordingly, the Complaint fails to
state a factual predicate for ascribing state action on this basis.

Nexus/Joint Action Test

State action can be imputed where the state so far
insulated itself into a position of interdependence with the
private entity that it must be recognized as a joint participant in
the challenged activity. Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 351 (1974). There must exist a “close nexus
between the state and the challenged action of the regulated
entity so that the action of the latter may be fairly treated as that
of the state itself.” Id. at 352. Further, the government entity
must have been a joint participant in the very wrongdoing
attributed to the private Defendant. See National Broadcasting
Company v. Communications Workers of America, AFL-CIO,
860 F.2d 1022, 1027 (11" Cir. 1988). The question is whether
the particular conduct at issue resulted from a government
policy of decision. In fact, “the governmental actor must be
ultimately responsible, no less than the private actor, for the
particular wrongful conduct attributed to the private actor.”
Greco v. Orange Memorial Hospital Corp., 513 F.2d 873, 882
(5" Cir. 1975). Further, the relationship must be sufficiently
symbiotic that the governmental entity has joint responsibility
for allegediy wrongful private conduct. “The symbiotic
relationship must involve the alleged constitutional violation.”
Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11" Cir.
1993).

The Complaint contains no allegation that the County
and Deloitte were joint participants in the restatements of the
1995 financial statements of the Seaport. At most, the
Complaint alleges that the Defendants encouraged Deloitte to
undertake the asserted restatements, and that Deloitte
acquiesced. Further, the Complaint fails to allege that the
County was in any way a participant in the accounting function.
Moreover, the Complaint fails to allege with particularity that
the County insulated itself into a position of interdependence
with Deloitte such that the two might be recognized as joint

53a

participants in the accounting restatements. The Complaint
ascribes the asserted wrongdoing to Deloitte alone, though with
the County’s encouragement. Therefore, the Complaint fails to
ascribe state action to Deloitte under the nexus/joint action test.

The Compulsion Test

It is only when a state has exercised coercive power OF
has significant encouragement, either overt of covert, that the
choice must in law be deemed to be that of the state. Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982). The government must

exercise such coercive power that the private entity's action
must, in law, be deemed that of the government. Id. at 1004.

The Complaint alleges that the County defendants
conferred with Deloitte beginning in early 1997 on a plan to
switch the accounting treatment to establish a fabricated basis
for seizing the business and prosecuting Grigsby. The
Complaint further alleges that the County “induced Deloitte” to
revise its longstanding accounting treatment of the crane user
fees. Because Plaintiffs have sufficiently pled that some form
of encouragement for Deloitte’s act of conducting the audit and
the restatements may have been tantamount to an act of the
County, the Court must find that state action may be ascribed to
Deloitte. The Court must therefore deny Deloitte’s motion to
dismiss Plaintiffs § 1983 claims. .

As such, the Court now tums to the Complaint to
determine whether Plaintiffs have stated a claim of § 1983

violations upon which relief could be granted.

Count I - Denial of Due Process

Plaintiffs contend that they possessed a property right in
the franchise agreement which was “expropriated by arbitrary
and capricious means.” Plaintiffs contend that the “gist of the

54a

claim focuses on the improper motivation of the Defendants,
not on whether they breached the terms of any particular
agreement.” Plaintiffs do not contend that they possessed a
liberty interest in their contract with the county but rather, that
the contract was “property” within the meaning of the
Fourteenth Amendment. This assertion is incorrect as a matter
of law. The Supreme Court in Logan v. Zimmerman Brush,
455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), provided
useful guidance for determining what interests constitute
“property” as envisioned by the Fourteenth Amendment. In that
case the Court remarked that “[t}he hallmark of property ... is an
individual entitlement grounded in state law, which cannot be
removed except ‘for cause’.”’ Id. at 430, 102 S.Ct. at 1155. See
also, Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct.
2701, 2708-10, 33 L.Ed.2d 548 (1972) (no property interest in
having contract renewed where previous contract did not
require renewal absent sufficient cause). Under this test
Plaintiffs did not possess a property interest in their contract
with the County. Accordingly, Plaintiffs have failed to state a
claim of denial of due process upon which relief could be
granted and Deloitte’s motion to dismiss as it relates to Count
I of the Complaint must be granted.

Count II - Taking Without Compensation

Count II of the Complaint alleges that Fiscal’s personal
property was improperly seized without compensation.
Specifically, the Complaint alleges that “Defendants denied
Fiscal’s management access to Fiscal’s own secure, fenced
work area, using posted armed security guards to prevent
access. Defendants then took possession of Fiscal’s procedure
manuals, appropriated Fiscal’s business methods, and began
using over $1,000,000 worth of Fiscal’s tools, spare parts and
equipment, without any compensation to Fiscal.”

55a

The Takings Clause of the Fifth Amendment of the U.S.
Constitution provides: “nor shall private property be taken for
public use, without just compensation.” Villas of Lake Jackson
vy. Leon County, 121 F.3d 610, 614 (1 1" Cir. 1997); The
Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379-80
(11" Cir. 1994); the only substantive due process claim is for
“arbitrary and capricious” taking of property. A substantive due
process analysis, within the deprivation of a property interest
context, involves two queries: “1 ) was the plaintiff deprived of
a constitutionally protectible property interest? and 2) assuming
a property interest, was the deprivation of that property interest
for an improper motive and by means that were pretextual,
arbitrary and capricious and without any rational basis?” The
Reserve, Ltd. at 1379 (11" Cir. 1994).

‘Se

Plaintiffs claim that the Defendants deprived them of
access to their property, constituting a taking without due
process in violation of the Fifth Amendment. In Williamson
County Regional Planning C ommission v. Hamilton Bank, 473
U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme
Court held that a property owner must exhaust state procedures
for obtaining just compensation, including resort to a state
inverse condemnation action, before bringing a “taking” claim
under 42 U.S.C. 1983. Id., 105 S.Ct. at 3121-22. The Court
reasoned that the Fifth Amendment does not prohibit takings,
only uncompensated takings. “(Because the Constitution does
not require pretaking compensation, and is instead satisfied by
a reasonable and adequate provision for obtaining
compensation after the taking, the State’s action here is not
‘complete’ until the State fails to provide adequate
compensation for the taking.” Id. Thus, “ifa State provides an
adequate remedy for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation
Clause until it has used the procedure and been denied just
compensation.” Id. at 3121. Florida law provides
compensation for deprivation or impairment of the right of

S6a

access, Anhoco Corp. v. Dade County, 144 So.2d 793 (Fla.
1962), which may be enforced in an action for inverse

condemnation. See, e.g., Pinellas County v. Austin, 323 So.2d
6 (Fla. Dist. Ct. App. 1975). As Plaintiffs have not shown that
the Florida procedures were unavailable or inadequate; until
they have utilized those procedures, their takings claim is
premature. Plaintiffs have failed to sufficiently allege any
argument in support of their claim for denial of due process and
accordingly, Defendants’ motion to dismiss as it related to
Count II of the Complaint must be granted.

Counts III and IV - Denial of Due Process and
Unreasonable Seizure

Count III alleges that “Defendants, with the assistance
of Deloitte and others, fabricated evidence to the effect that
Grigsby had stolen ‘Public Funds’ and used that fabricated
evidence to deceive federal prosecutors into initiating a grand
jury proceeding (where the jurors were similarly deceived) and
a subsequent prosecution.” Count IV alleges that “using
deliberately fabricated evidence, Defendants deceived the
prosecutor into believing that probable cause existed and
proximately caused the deception of the grand jury, the
initiation of a prosecution that was not backed by probable
cause, and an unlawful seizure and restraint of Grigsby.”
Plaintiffs argue that § 1983 provides a remedy against a public
official’s use of “false evidence” to support a criminal
prosecution.

In order to determine whether Plaintiffs have stated a
claim for Deloitte’s violation of their constitutional due process
rights, the Court must first determine whether a constitutional
right has been established. Secondly, the court must determine
whether Plaintiffs have alleged sufficiently that Deloitte
violated such a nght.

=
/

nN

a

The Court is persuaded that there is aclearly established
constitutional due process nght not to be subjected to criminal
charges on the basis of false evidence that was deliberately
fabricated by the government. Perhaps because the proposition
is virtually self-evident, the Court is not aware of any prior
cases that have expressly recognized this specific right, but that
does not mean that there is no such right. Rather, what is
required is that government officials have “fair and clear
warning” that their conduct is unlawful. See United States v.
Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432
(1997) (quoting Anderson v. Creighton, 483 U.S. 635,640, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987).

While a constitutional due process nght has clearly been
established, Plaintiffs have failed to allege sufficiently that
Deloitte’s conduct violated such a right. Plaintiffs point to
cases that stand for the general proposition of law that it is
unlawful to pursue a criminal conviction on the basis of “false
evidence.” The relevant question in this case is, however, not
whether it is unlawful to use false evidence, but whether it was
clearly established that Deloitte’s undertaking of the audit and
financial restatements constitutes the procurement of “false

evidence.”

The Plaintiffs’ vague and conclusory allegations of
fabricated evidence do not establish a § 1983 liability. The
Eleventh Circuit has consistently held that a complaint must
allege relevant facts “with some specificity.” GJR Investments,
Inc. v, County of Escambia, 132 F.3d 1359, 1367 (1i™ Cir.
1998). More than mere conclusory notice pleading is required.
“(A] complaint will be dismissed as insufficient where the
allegations it contains are vague and conclusory.” Fullman v.
Graddick, 739 F.2d 553, 556-57 (11" Cir. 1984). Moreover, in
reviewing a motion to dismiss, the court need only accept
“well-pleaded facts” and “reasonable inferences drawn from
those facts.” Oladeinde v. City of Birmingham, 963 F.2d 1481,

58a

1485 (11" Cir. 1992). “[U]nsupported conclusions of law or of
mixed fact and law have long been recognized not to prevent a
Rule 12(b)(6) dismissal.’’ Marsh v. Butler County, 268 F.3d
1014, 1036(11" Cir. 2001). Plaintiffs have failed to allege with
any specificity that Deloitte “used the fabricated evidence to
deceive federal prosecutors” or that Deloitte “deceived the
prosecutor into believing that probable cause existed.” Instead,
Plaintiffs allege that Deloitte aided in the fabrication of
evidence that was eventually submitted by others to
prosecutorial authorities.

Plaintiffs claim that there is a causal connection between
Deloitte’s audit and financial restatements and Grigsby’s
subsequent prosecution, but they do not allege any facts to
support this connection. In fact, the Complaint contains no
allegation that Deloitte transmitted any information regarding
the financial statements to anyone other than the Seaport, its
client. The Complaint also fails to allege that Deloitte had any
knowledge that any of the Defendants would communicate with
federal prosecutors. Further, Plaintiffs do not allege that
Deloitte directed the FBI or the U.S. Attorneys’ Office to
conduct the investigation or to pursue the subsequent
prosecution of Grigsby. Additionally, any causal connection
that may have existed between Deloitte’s restatements and
Grigsby’s subsequent indictment was severed by the
intervening, free, independent and volitional acts of the FBI, the
U.S. Attorneys’ Office and the grand jury. See Barts v. Joyner,
865 F.2d 1187, 1195 (11"™ Cir. 1989); Jones v. Cannon, 174
F.3d 1271, 1287 (11" Cir. 1999); Dixon v. Burke County, Ga.,
303 F.3d 1271 (11" Cir. 2002). Plaintiffs argue that these cases
do not apply if the “plaintiff can show that these intervening
acts were the result of deception or undue pressure by the
Defendant.” Plaintiffs, have, however, failed to allege any facts
that demonstrate that the Defendants had the ability to and did
mislead or unduly influence the FBI, the U.S. Attorneys’ office
or the grand jury.

59a

While Plaintiffs have established the existence of a
constitutional due process right, they have failed to allege
sufficiently that Deloitte violated such a right. Accordingly,
Deloitte’s motion to dismiss as it pertains to Plaintiffs’ § 1983
claims must be granted.

Count V - Conspiracy

Conspiring to violate another person’s constitutional
rights violates Section 1983. Dennis v. Sparks, 449 U.S. 24,
27. 101 S.Ct. 183, 186 (1980). To establish a prima facie case
of Section 1983 conspiracy, a plaintiff must show, among other
things, that the defendants “reached an understanding to violate
his rights.” Rowe v. Fort Lauderdale, 279 F.3d 1271 (11" Cir.
2002) quoting Strength v. Hubert, 854 F.2d 421, 425 (11" Cir.
1988). The plaintiff does not have to produce a “smoking gun”
to establish the “understanding” or “willful participation”
required to show a conspiracy, but must show some evidence of
agreement between the defendants. Id. at 1284. Section 1983
does not afford a remedy against a private person unless that
person is shown to have conspired with one or more state
actors. NAACP v. Hunt, 891 F.2d 1555, 1563 (1 1" Cir. 1990).

To sustain a conspiracy action under § 1983 a plaintiff
must show an underlying actual denial of its constitutional
rights. See Slavin v. Curry, 574 F.2d 1256, 1262 (5™ Cir.
1978); modified on denial of r’hrg, 583 F.2d 779 (5™ Cir.
1978); Strength v. Hubert, 854 F.2d 421, 425 (11" Cir. 1988)
(stating theoretical basis of and requirements for stating a claim
under § 1983 of conspiracy to violate constitutional rights).

Count V of the Complaint alleges that “Defendants
conspired with Deloitte, Alonso, Baum and possibly others, to
deprive Fiscal and Grigsby of their Constitutional rights by
fabricating false evidence and then using the fabricated
evidence to confiscate Fiscal’s business and property in

60a

violation of the Fourth and Fourteenth Amendments, and to
instigate a capricious indictment, prosecution and seizure of
Grigsby in violation of the Fourth, Fifth and Fourteenth
Amendments.” As Plaintiffs have failed to demonstrate the
denial of their underlying constitutional rights, the conspiracy
claim must be dismissed.

Count VI - Accountants’ Fraud

In order for a plaintiff to satisfactorily allege a case for
fraud, under Florida law, the plaintiff must plead (1) a false
Statement or misrepresentation of material fact, (2) the
representor’s knowledge at the time the misrepresentation is
made that the statement is false, (3) an intention that the
misrepresentation induce another to act, (4) action in justifiable
reliance on the representation, and (5) resulting damage or

_ injury. MeterLogic, Inc. v. Copier Solutions. Inc., 126

F.Supp.2d 1346 (S.D.Fla. 2000).

Count VI of Complaint alleges that Deloitte had a public
responsibility which it violated by fraudulently reversing its
accounting treatment of the crane revenues, at the request of
other Defendants. The Complaint further alleges that Deloitte
reversed its accounting treatment of the crane revenues with
knowledge of its misrepresentations and with the intent of
enabling the other Defendants to use these misrepresentations
to deceive prosecutorial authorities. Assertedly, Plaintiffs were
severely injured by Deloitte’s fraud.

Count VI, however, contains no allegations of
fraudulent statements made by Deloitte to the Plaintiffs, upon
which they relied to their detriment. Further, Plaintiffs have
failed to properly plead their fraud claim as required by Federal
Rule of Civil Procedure 9(b). Rule 9(b) of the Federal Rules of
Civil Procedure provides that “{i]n all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall

6la

be stated with particularity.” Fed. R. Civ. P. 9(b). This rule
“serves an important purpose in fraud actions by alerting
defendants to the ‘precise misconduct with which they are
charged’ and protecting defendants ‘against spurious charges of
immoral and fraudulent behavior.” Durham_v. Business
Management _Assoc., 847 F.2d 1505, 1511 (11" Cir. 1988)
(quoting Seville Indus. Machinery Corp. Vv. Southmost
Machinery Corp., 742 F.2d 786, 791 (3% Cir. 1984), cert.
denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985)).
Rule 9(b) may be satisfied if the complaint sets forth: 1)
precisely what statements were made in what documents or oral
representations of what omissions were made, and 2) the time
and place of each such statement and the person responsible for
making (or, in the case of omissions, not making) same, and 3)
the content of such statements and the manner in which they
misled the plaintiff, and (4) what the defendants “‘obtained as a
consequence of the fraud.” Medalie v. FSC Securities Corp., 87
F.Supp.2d 1295, 1306 (S.D. Fla. 2000). Based upon the
foregoing, Plaintiffs’ claim for accountant fraud must be
dismissed.

Count VII - Malicious Prosecution

The tort of malicious prosecution is premised on the
right of an individual to be protected from unjustifiable
litigation or unwarranted criminal prosecution. Against this
right, the need of society to bring criminals to justice by
protecting those who, in good faith, report and legally prosecute
persons apparently guilty of crime must be balanced. The latter
need, in addition to the public policy in favor of the termination
of litigation, dictates the plaintiff's heavy burden of proof..
Burns v. GCC Beverages, Inc., $02 So.2d 1217, 1219 (Fla.
1986).

In order to state a claim for malicious prosecution, a
plaintiff must show 1) the commencement or continuance of an

62a

original criminal civil judicial proceeding, 2) its legal causation
by the present proceeding, 3) its bonafide termination in favor
of the present plaintiff, 4) the absence of probable cause for
such proceeding, 5) the presence of malice therein, and 6)
damage conforming to legal standards resulting to plaintiff.

Buchanan v. Miami Herald Publishing Co., 230 So.2d 9, 11
(Fla. 1969).

The parties do not dispute the existence of three of the
elements required to prove the tort of malicious prosecution: (1)
the commencement and continuation of a criminal judicial
proceedings; (2) its bona fide termination in favor of the
plaintiff, and (3) damages resulting to the piaintiff. A fourth
element, the presence of malice, may be inferred from the
absence of probable cause for such prosecution, the fifth
element. The sixth element, legal causation, requires a showing
that the defendant was in some way responsible for the criminal
prosecution. See Harris v. Lewis State Bank, 482 So.2d 1378,
1381 (Fla. 1* DCA 1986).

Although legal causation is usually established by the
signing of a complaint or affidavit, there is authority for the
proposition that the giving of information may constitute the
initiation of prosecution, if the information was known by the
giver to be false. The real instigator cannot escape liability by
showing he was not the prosecutor of record. The test is
whether the defendant’s action was the proximate and efficient
cause of putting the law in motion. Although one may not have
intended to institute a criminal proceeding, he may be liable if
he afterward continued the prosecution or gave it momentum.
See Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736
(Fla. 3“ DCA 1971), cert. den., 252 So.2d 797 (Fla. 1971).
Plaintiffs charge the Defendants, including Deloitte, with
malicious prosecution, for instigating criminal proceedings
against Plaintiff Grigsby by providing false and misleading
evidence to the investigators and the prosecutors who, in turn,

63a

assertedly misled the grand jury that issued the indictment. The
Complaint, however, contains no allegation that Deloitte
transmitted any information to anyone other than the Port, its
client. The Complaint also fails to allege that Deloitte had any
knowledge that any of the Defendants would communicate with
federal prosecutors. The Complaint only charges Deloitte with
aiding and abetting the County’s effort to instigate the federal
investigation of Grigsby. Plaintiffs’ claim of malicious
prosecution against Deloitte must therefore be dismissed.

CONCLUSION

Based upon the foregoing, it is

~«

ORDERED AND ADJUDGED. that Defendant
Deloitte’s Motion to Dismiss is GRANTED. It is further

ORDERED AND ADJUDGED that this cause is
CLOSED for administrative purposes.

DONE AND ORDERED in Chambers at Miami,
Florida this 30 day of April, 2003.

/s/
Donald L. Graham
U.S. DISTRICT JUDGE

ce: Magistrate Judge Garber
Counsel of Record

64a

APPENDIX E

United States Court of Appeals
FOR THE ELEVENTH CIRCUIT

Calvin Grigsby; and Fiscal
Operations, Inc.,

Plaintiffs-Appellants,
V.

Miami-Dade County, Florida, et
e..

Defendant,
Alex Penelas; Steven B. Bass;
Kathy Jackson; Miriam Alonso;

and Rachel Baum.

Defendants-Appellees.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 03-12576-II

D.C. No. 01-04798-
CV-DLG

Calvin Grigsby; and Fiscal
Operations, Inc.,

Plaintiffs-Appellants,
V.
Miami-Dade County, Florida,

Defendant-Appellee,

a eae ae ae eee eee

No. 03-12577-II

D.C. No. 01-04798-
CV-DLG

65a

Alex Penelas, et al., )

Defendants. )

Calvin Grigsby; and Fiscal )
Operations, Inc., )

Plaintiffs-Appellants,
V. ‘ No. 03-12578-II
Miami-Dade County, Florida, et : D.C. No. 01-04798-
al.; ) CV-DLG

Defendants,

Deloitie & Touche, L.L.P.,

Defendant-Appellee.

On Appeal from the United States District Court
for the Southern District of Florida

(April 28, 2004)

ON PETITION(S) FOR REHEARING AND PETITION(S)
FOR REHEARING EN BANC

(Opinion , 11" Cir, 19, F.2d ).

Before: TJOFLAT, BARKETT and SILER*, Circuit Judges.

66a
PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge in
regular active service on the Court having requested that the
Court be polled on rehearing en banc (Rule 35, Federal Rules
of Appellate Procedure), the Petition(s) for Rehearing en Banc
are DENIED.

ENTERED FOR THE COURT:

/s/
UNITED STATES CIRCUIT JUDGE

*Honorable Eugene E. Siler, Jr., United States Circuit Judge for
the Sixth Circuit, sitting by designation.

ORD-42
(12/01)

67a

APPENDIX F

United States Court of Appeals

FOR THE ELEVENTH CIRCUIT
Calvin Grigsby; and Fiscal )
Operations, Inc., )
)
Plaintiffs-Appellants, )
)
V. ) No. 03-12576
)
Miami-Dade County, Florida, et ) D.C. No. 01-04798-
al., ) CV-DLG
ee
Defendant, )
)
Alex Penelas; Steven B. Bass; )
Kathy Jackson; Miriam Alonso; )
and Rachel Baum. )
)
Defendants-Appellees. )

Calvin Grigsby; and Fiscal
Operations, Inc.,

Plaintiffs-Appellants,
V. No. 03-12577

D.C. No. 01-04798-
CV-DLG

Miami-Dade County, Florida,

Defendant-Appellee,

ae! See” Saat Sait See Nee’ Net See” Nee Nee Nee”

68a
Alex Penelas, et al.,

Defendants.

Calvin Grigsby; and Fiscal
Operations, Inc.,

Plaintiffs-Appellants,
¥,

Miami-Dade County, Florida, et
al.;

Defendants,
Deloitte & Touche, L.L.P.,

Defendant-Appellee.

No. 03-12578

D.C. No. 01-04798-
CV-DLG

Appeals from the United States District Court
for the Southern District of Florida

JUDGMENT

It is hereby ordered, adjudged, and decreed that the
attached 11" Cir. R. 36-1 affirmance without opinion included
herein by reference, is entered as the judgment of this Court.

69a

Entered: March 2, 2004

For the Court: Thomas K. Kahn, Clerk

By: Jackson, Jarvis
ISSUED AS MANDATE

May 06, 2004
U.S. Court of Appeals
Atlanta, GA

70a

APPENDIX G

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person with the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of Columbia.

Tla

APPENDIX H

Fourth Amendment to the U.S. Constitution

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

72a

APPENDIX I

Fifth Amendment to the U.S. Constitution

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of
war or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
use, without just compensation.

KR =

73a

APPENDIX J

Fourteenth Amendment to the U.S. Constitution

Section 1:

Section 2:

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; not deny to any person within its
jurisdiction the equal protection of the laws.

Representatives shall be apportioned among the
several states according to their respective
numbers, counting the whole number of persons
in each state, excluding Indians not taxed. But
when the right to vote at any election for the
choice of electors for President and Vice
President of the United States, Representatives
in Congress, the executive and judicial officers
of a state, or the members of the legislature
thereof, is denied to any of the male inhabitants
of such state, being twenty-one years of age, and
citizens of the United States, or in any way
abridged, except for participation in rebellion,
or other crime, the basis of representation
therein shall be reduced in the proportion which
the number of such male citizens shall bear to
the whole number of male citizens twenty-one
years of age in such state.

Section 3:

Section 4:

Section 5:

74a

No person shall be a Senator or Represenitative
in Congress, or elector of President or Vice
President, or hold any office, civil or military,
under the United States, or under any state, who,
having previously taken an oath, as amember of
Congress, or as an officer of the United States,
or as a member of any state legislature, or as an
executive or judicial officer of any state, to
support the Constitution of the United States,
shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of
two-thirds of each House, remove such
disability.

The validity of the public debt of the United
States, authorized by law, including debts
incurred for payment of pensions and bounties
for services in suppressing insurrection or
rebellion, shall not be questioned. But neither
the United States nor any state shall assume or
pay any debt or obligation incurred in aid of
insurrection or rebellion against the United
States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations and
claims shall be held illegal and void.

The Congress shall have power to enforce, by
appropriate legislation, the provisions of this
article.

75a

APPENDIX K

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

FISCAL OPERATIONS, INC. Case No. 01-4798

and CALVIN GRIGSBY,

Plaintiffs,
FIRST AMENDED
COMPLAINT

V.

)
)
)
)
)
)
MIAMI-DADE COUNTY, )
FLORIDA, ALEX PENELAS, )
STEVEN B. BASS, KATHY )
JACKSON, MIRIAM )
ALONSO, RACHEL BAUM. )
and DELOITTE & TOUCHE, )
LLP, )
)

)

)

Defendants.

Fiscal Operations, Inc. (“Fiscal”) and Calvin Grigsby
(“Grigsby”), for their Complaint against Defendants Miami-
Dade County (the “County”), Alex Penelas (“Penelas”), Steven
B. Bass (“Bass”), Kathy Jackson (“Jacksen”), Miriam Alonso
(“Alonso”), Rachel Baum (“Baum”), # Deloitte & Touche
(““Deloitte’’) state:

76a

I. NATURE OF THE ACTION

l. Beginning in late 1996 and continuing through
mid-1998, the County, Penelas, Bass, Jackson, Alonso, Baum.
Deloitte, and others orchestrated a course “ action that was
specifically designed and intended to, and did.

(a) crate and utilize a fabricated
pretext to unlawfully terminate an exclusive
franchise previously granted by the County to
Fiscal to operate its business at the Port of
Miami (the “Port”) and to unlawfully terminate
the contract through which the County had
implemented the franchise granted to Fiscal;

(b) seize, by physical force and with
no judicial or other lawful process, all of the
personal property of Fiscal used by Fiscal in the
operation of its business; and

(c) create and utilize fabricated
evidence to instigate a capricious prosecution
of, and the attendant seizure of, Grigsby.

ra Pursuant to 42 U.S.C. § 1983 and the laws of
Florida, Fiscal and Grigsby seek to recover the millions of
dollars in loses sustained by them as the direct result of this
abuse of governmental power by the Defendants and others that
violated the Constitutional rights of Fiscal and Grigsby and
their rights under the laws of Florida in at least the following
ways:

(a) the use by the Defendants of a
fabricated pretext and improper motive to
terminate the franchise and contract rights of
Fiscal was a violation of the due process rights

5 77a

of Fiscal guaranteed to Fiscal by, among other
things, the Fifth and Fourteenth Amendments to
the Constitution of the United States:

(b) the physical seizure of the-
property of Fiscal by the Defendants, in the
absence of any lawful process or compensation,
constituted an unlawful taking of the property of
Fiscal in violation of the rights of Fiscal
guaranteed to it by, among other things, the
Fifth and Fourteenth Amendments to the
Constitution of the United States to be free of
such unlawful taking without just
compensation;

(c) the creation and use by the
Defendants and others of fabricated evidence to
procure the prosecution and seizure of Grigsby
is a Violation of the rights of Grigsby guaranteed
to him by, among other things, the Fourth, Fifth
and Fourteenth Amendments to the Constitution
of the United States to be free of the use of
such fabricated evidence and such capricious
prosecution and improper seizure based upon
fabricated evidence;

(d) deliberate fraudulent
misrepresentation by Deloitte in violation of its
duty to the public and to Fiscal and Grigsby
under the law of Florida enabled the Defendants
to take these predatory actions against Fiscal
and Grigsby; and

(e) the instigation of a malicious
prosecution against Grigsby by the Defendants
violated Grigsby’s rights under the law of Florida.

78a

Il. JURISDICTION AND VENUE

. | This action arises under the Fourth, Fifth, and
Fourteenth Amendments to the Constitution of the United
States and 42 U.S.C. § 1983 and the laws of Florida. This
Court has authority to award damages to Fiscal and Grigsby for
the Constitutional violations under 42 U.S.C. § 198

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0919%3A2. Public record. Not legal advice.