Opinion
Case No. 6:13-cv-164-Orl-28TBS
04-30-2013
RACHELLE CORTEZ, Plaintiff, v. CITY OF ORLANDO, FLORIDA, BRANDON LAVERDE, ALL IN ONE CONSULTANTS, LLC, and JAN HAROLD, Defendants.
ORDER
Plaintiff has filed a nine-count Complaint (Doc. 1) against four Defendants, alleging seven state law claims and two federal claims pursuant to 42 U.S.C. § 1983. Two of the Defendants—the City of Orlando and All in One Consultants, LLC ("All in One")—have filed motions to dismiss (Docs. 19 & 27).
I. Legal Standard
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "'[D]etailed factual allegations'" are not required, but "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).
II. Discussion
A. The City's Motion (Doc. 19)
The City moves to dismiss the lone count against it—Count IX, a § 1983 claim. As the City notes in its motion, the doctrine of respondeat superior does not apply in actions under § 1983, and a municipality may only be held liable when the injury caused was a result of municipal policy or custom. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978). Plaintiff has not pleaded any facts supporting her conclusory assertion of a policy, custom, or practice of the City. (See Compl. ¶ 79). The City's motion will be granted, but Plaintiff will be granted leave to amend her claim against the City if she can support her assertion of a policy or custom.
B. All in One's Motion (Doc. 27)
Three of the nine counts in the Complaint are brought against All in One: Count V (false arrest); Count VI (battery); and Count VII (negligent hiring and retention). All in One has answered Count VII, (see Answer, Doc. 16), but it moves to dismiss Counts V and VI for failure to state a claim. Plaintiff has not responded to All in One's motion, and the time in which to do so has passed. See M.D. Fla. Local Rule 3.01(b). Thus, this motion is unopposed and shall be granted as such.
III. Conclusion
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. The Motion to Dismiss (Doc. 19) filed by the City of Orlando is GRANTED. Count IX of the Complaint (Doc. 1) is DISMISSED without prejudice. If Plaintiff wishes to replead this claim, she may file an amended complaint on or before Friday, May 31, 2013.
2. The Motion to Dismiss (Doc. 27) filed by All in One Consultants, LLC, is GRANTED. Counts V and VI of the Complaint (Doc. 1) are DISMISSED with prejudice insofar as they are brought against Defendant All in One Consultants, LLC.
DONE and ORDERED in Orlando, Florida this ___ day of April, 2013.
____________________________
JOHN ANTOON II
United States District Judge
Copies furnished to:
Counsel of Record
Unrepresented Party