Opinion
CIVIL ACTION FILE No. 2:22-CV-0133-SCJ
2023-07-12
Farrah M. FARR, Phillip Brown, and Kristof & Company, Inc., Plaintiffs, v. Kommerina DALING, John O'Sullivan, Sarah Wilson-Britt, in her individual and official capacities, Matt Tate, in his individual and official capacities, the City of Gainesville, Georgia, Defendants.
Brian David Stoltz, David L. Pardue, Parker Poe Adams & Bernstein LLP, Atlanta, GA, for Plaintiffs. Adam Klein, 770GoodLaw, H.Q. (Alex) Nguyen Law Firm, LLC, Norcross, GA, Kristine Murry Snyder, Downey & Cleveland, LLP, Marietta, GA, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, Vera J. Starks, Fain, Major & Brennan, P.C., Atlanta, GA, for Defendant Kommerina Daling. Adam Klein, 770GoodLaw, H.Q. (Alex) Nguyen Law Firm, LLC, Norcross, GA, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, Vera J. Starks, Fain, Major & Brennan, P.C., Atlanta, GA, for Defendant John O'Sullivan. Dana Kristin Maine, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants Sarah Wilson-Britt, Matt Tate, The City of Gainesville, Georgia.
Brian David Stoltz, David L. Pardue, Parker Poe Adams & Bernstein LLP, Atlanta, GA, for Plaintiffs. Adam Klein, 770GoodLaw, H.Q. (Alex) Nguyen Law Firm, LLC, Norcross, GA, Kristine Murry Snyder, Downey & Cleveland, LLP, Marietta, GA, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, Vera J. Starks, Fain, Major & Brennan, P.C., Atlanta, GA, for Defendant Kommerina Daling. Adam Klein, 770GoodLaw, H.Q. (Alex) Nguyen Law Firm, LLC, Norcross, GA, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, Vera J. Starks, Fain, Major & Brennan, P.C., Atlanta, GA, for Defendant John O'Sullivan. Dana Kristin Maine, Nicolas Bohorquez, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants Sarah Wilson-Britt, Matt Tate, The City of Gainesville, Georgia. ORDER STEVE C. JONES, United States District Judge
This matter appears before the Court on the Motion to Dismiss filed by Defendants Sarah Wilson-Britt, Matt Tate, and the City of Gainesville, Georgia ("City") (collectively "Motion Defendants"). Doc. No. [50]. Plaintiffs filed a response in opposition (Doc. No. [55]), and the Motion Defendants filed a reply in support. Doc. No. [61]. The Motion to Dismiss is now ripe for review.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
The Court derives the following statement of facts from Plaintiffs' Second Amended Complaint ("SAC"). Doc. No. [49]. Plaintiff Dr. Brown owns property located at 725 Mountain View Circle, Gainesville, Georgia 30501 (the "Property"). Id., ¶ 12. Dr. Brown has owned the Property since 2012. Id., ¶ 13. Dr. Brown and Plaintiff Ms. Farr are engaged. Id., ¶ 14. Ms. Farr, through Plaintiff Kristof & Co., rents the Property using third-party rental websites such as Airbnb and VRBO. Id., ¶ 15.
Ms. Daling and Mr. O'Sullivan own the house next door to the Property. Id., ¶ 19. Ms. Daling and Mr. O'Sullivan also rent their property to third parties. Id.
In May 2019, Ms. Farr spoke with Mr. Tate, the City of Gainesville's ("City") Community Economic Development Deputy Director, regarding whether it is legal to rent the Property. Id., ¶ 16. Mr. Tate told Ms. Farr that it was legal to rent the Property and that there were no restrictions on the length of the rental. Id., ¶ 17.
On July 11, 2020, Ms. Farr was near the pool at the Property. Id., ¶ 20. Unbeknownst to her, Mr. O'Sullivan was observing her. Id. Ms. Farr then went inside the Property to take a shower. Id., ¶ 21. Shortly thereafter, Ms. Farr observed a man pressed against the window while she was completely undressed. Id., ¶ 23. The Property's Ring Security Camera recorded Mr. O'Sullivan walking to the Property's front door and then toward the side of the house. Id., ¶ 21. Then, Mr. O'Sullivan was captured on the back deck as he peered into the window. Id., ¶ 22. Following that incident, Ms. Farr has not returned to the Property for fear for her safety. Id., ¶ 26. On July 16, 2020, Dr. Brown told Mr. O'Sullivan never to enter his property or peer into the windows again. Id., ¶ 27.
After the incident, Mr. O'Sullivan emailed Mr. Tate stating that "there was a 'very big house advertised for weddings, music venues, and parties etc.; amplified music, noise, mid-day fireworks; etc.' " Id., ¶¶ 29-30. Mr. Tate responded, stating that he "can have code enforcement investigate the matter if you have a specific address." Id., ¶ 31.
At the end of July 2020, a family rented the Property. Id., ¶ 33. On July 27 and 28, 2020, Ms. Daling approached the children of those renting the Property on two separate occasions. Id., ¶ 34. The renters called to complain to Ms. Farr about the interactions. Id.
Mr. Tate directed Ms. Wilson-Britt, the City's Code Enforcement Manager, or another City employee, to drive through the Property's driveway while renters were staying there. Id., ¶ 36. Between July 27and July 30, 2020, a City employee drove through the Property's driveway multiple times. Id., ¶ 37. As a result of Ms. Daling's behavior and the City of Gainesville employees coming to the Property, the renters left the Property early, and Kristof & Co. lost "a significant amount of money." Id., ¶ 38.
In August 2020, a family from New York rented the Property. Id., ¶ 41. Ms. Daling complained that the renters were too loud. Id. Ms. Daling also approached the children of the renters at the dock and demanded to know what they were doing there. Id. On September 3, 2021, Ms. Daling got into a verbal fight with other renters. Id., ¶ 47.
Plaintiffs contend that because of a false fraud complaint to Expedia.com regarding the Property made by Ms. Daling or Mr. O'Sullivan, Expedia.com removed the Property from their website. Id., ¶ 40. Mr. O'Sullivan and Ms. Daling allegedly enlisted a close friend to email Mr. Tate to "falsely represent" that Plaintiffs were using the Property as a venue for events and that fireworks were being shot from the Property. Id., ¶¶ 44-45.
On July 23, 2021, Dr. Brown listed the Property for sale. Id., ¶ 46. On September 20, 2021, Dr. Brown received a verbal cash offer to purchase the Property for $2,700,000. Id. ¶¶ 48-49. On September 23, 2021, Dr. Brown and the Buyer executed a contract to sell the Property. Id., ¶ 49. On October 15, 2021, Ms. Wilson-Britt sent a notice to Dr. Brown stating that City Code Enforcement would issue a citation if the Property listings were not removed from all rental websites (the "Notice"). Id., ¶ 51. The Notice stated that Lodging Services were not allowed in R-1 zoning districts, and the Property was located in a R-1 zoning district. Id., ¶ 53. Lodging Services are defined in Table 9-6-1 of the City of Gainesville Unified Land Development Code, which is in the nonresidential zoning district section of the Code and states: "[a] facility offering shelter accommodations, or place for such shelter, to the public for a fee for 15 days or less in one or more rooms within the same facility, with provisions for living, sanitation, and sleeping. Includes hotels and motels." City of Gainesville, Ga., Unified Land Dev. Code ("ULDC") § 9-6-1-2, Table 9-6-1 (2022). Because of the Notice, Plaintiffs were unable to rent the Property resulting in Kristof & Co. losing rental income from the Property. Id., ¶ 65.
City of Gainesville, Ga., Unified Land Dev. Code § 9-6-1-2, Table 9-6-1 (2022), https://www.gainesville.org/170/Codes-Guidelines.
After Plaintiffs received the Notice, Dr. Brown informed the Buyer of it. Id., ¶ 63. The Buyer opted not to close the sale because it intended to rent the Property. Id., ¶ 64.
On February 4, 2022, the Director of Community and Economic Development for the City provided Plaintiffs' counsel with a letter confirming the City does not prohibit Plaintiffs from listing the Property for rental for fifteen days or more. Id., ¶ 72. Since receiving the letter, Plaintiffs have not successfully sold the Property. Id., ¶ 74.
On July 8, 2022, Plaintiffs filed this Action against Defendants. Doc. No. [1]. On August 15, 2022, Motion Defendants moved to dismiss Plaintiffs' Initial Complaint. Doc. No. [17]. On September 13, 2022, Plaintiffs filed their First Amended Complaint. Doc. No. [21]. Accordingly, the Court denied the initial Motion to Dismiss as moot. Doc. No. [45]. The Motion Defendants then moved to dismiss the First Amended Complaint. Doc. No. [26]. The Court granted in part and denied in part the Motion to Dismiss the First Amended Complaint (Doc. No. [45]), but allowed Plaintiffs an opportunity to replead. On March 7, 2023, Plaintiffs filed the SAC. Doc. No. [49]. The SAC is now the operative pleading in this case.
On April 4, 2023, Motion Defendants filed their Motion to Dismiss, seeking dismissal of some, but not all, of the claims against them. Doc. No. [50]. Ms. Daling and Mr. O'Sullivan filed their Answer to the SAC on May 4, 2023 [Doc. No. 60].
II. LEGAL STANDARD
A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining "only a complaint that states a plausible claim for relief survives a motion to dismiss"); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the prior Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) standard which provided that in reviewing the sufficiency of a complaint, the complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. In Twombly, the Supreme Court emphasized that a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations and emphasis omitted).
III. ANALYSIS
A. Federal Claims
Plaintiffs asserted three federal claims against the City, Mr. Tate, and Ms. Wilson-Britt pursuant to 42 U.S.C. § 1983: an alleged breach of the Equal Protection Clause of the Fourteenth Amendment (Count VIII(1)); an alleged breach of the First Amendment (Count VIII(2)); and an alleged breach of procedural due process guaranteed by the Fourteenth Amendment (Count VIII(3)).
The three federal claims in the SAC are each labeled as Count VIII. Doc. No. [49], ¶¶ 120-145. For clarity, the court is referring to them as Count VIII(1), Count VIII(2), and Count VIII(3).
1. Tate and Wilson-Britt: Qualified Immunity
Motion Defendants argue that Mr. Tate and Ms. Wilson-Britt are entitled to qualified immunity as to the federal claims against them.
"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known' " Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (internal citations omitted). "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." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citing Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). It "balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The immunity protects "all officials except 'The plainly incompetent or those who knowingly violate the law.' " Doe v. Braddy, 673 F.3d 1313, 1317 (11th Cir. 2012) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). It is "an immunity from suit rather than a mere defense to liability." Scott v. Harris, 550 U.S. 372, 376, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (cleaned up). Thus, courts must "resolve 'immunity questions at the earliest possible stage in litigation.' " Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
In a qualified immunity analysis, the burden lies first with the official to "prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012) (quoting Lee, 284 F.3d at 1190) (cleaned up). If the official meets this burden, then "the burden shifts to the plaintiff to establish that qualified immunity is not appropriate." Maddox v. Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013) (citing Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996)).
a) Discretionary authority
To meet their burden of establishing they were acting in the scope of their discretionary authority, Mr. Tate and Ms. Wilson-Britt must prove that they were "(a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within [their] power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). The Court looks to "the general nature of the [Defendants'] action[s], temporarily putting aside the fact that [the actions] may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances." Holloman, 370 F.3d at 1266. To meet the first prong, a defendant "must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with[in] his legitimate job description." Id. If met, then the second prong requires the Court to determine whether that defendant executed his or her "job-related function — that is, pursuing [his] job-related goals — in an authorized manner." Id.
Defendants point to this Court's Order adjudicating the Motion to Dismiss the First Amended Complaint that held "investigating code violations and interpreting code provisions are discretionary functions because they require "deliberation and judgment," examination of facts, and reach conclusions. Doc. No. [45], 19 (quoting Roper v. Greenway, 294 Ga. 112, 116, 751 S.E.2d 351, 354 (2013)). This finding was made, however, in the analysis of the application of official immunity as to the State law claims, not in the context of qualified immunity. Id. Nevertheless, there is no dispute that functions at issue in the case (i.e., investigating code violations and interpreting code provisions) occurred when Mr. Tate and Ms. Wilson-Britt were on duty as City officials conducting investigative and citation functions. Therefore, the burden shifts to Plaintiffs to show that qualified immunity is not appropriate. See JERMC LTD v. Town of Redington Shores, No. 8:19-CV-688-T-60AAS, 2020 WL 4227429, at *3 (M.D. Fla. July 23, 2020) (Defendants working under the authority of a municipality who are imposing of a code enforcement lien are acting within their discretionary authority).
b) Two-pronged inquiry
To establish that qualified immunity is not appropriate. Plaintiffs must "satisfy the following two-pronged inquiry: (1) whether the facts that [Plaintiffs] ha[ve] shown make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of Defendants' alleged misconduct." Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013) (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808).
Plaintiffs have alleged three constitutional violations: (1) denial of equal protection; (2) denial of free speech; and (3) denial of due process. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [Plaintiff's] allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). If so, the Court next determines whether the right violated is clearly established. A constitutional right is clearly established "only if its contours are 'sufficiently clear that a reasonable official would understand what he is doing violates that right.' " Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
(1) Equal protection
As explained below, Plaintiffs fail to establish that qualified immunity is not appropriate with respect to their equal protection claim against Mr. Tate and Ms. Wilson-Britt.
(a) alleged conduct
Plaintiffs contend that Mr. Tate and Ms. Wilson-Britt violated the Equal Protection Clause of the Fourteenth Amendment by requiring them to remove the Property from rental listing websites, prohibiting them from renting the Property, threatening them with citations and fines for non-compliance, and misapplying and misinterpreting the applicable regulations. Doc. No. [49], ¶ 121. Also, Plaintiffs allege that before the October 15, 2021 Notice to Dr. Brown, the City and Code Enforcement had never threatened any other homeowners with a citation for renting properties on rental websites such as VRBO and Airbnb. Id., ¶ 122. Further, Plaintiffs allege that until November 22, 2021, the City did not send correspondence to any other homeowners demanding that they remove their properties from rental websites. Id.
The Equal Protection Clause "commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). At its heart, the clause is a mandate that "all persons similarly situated should be treated alike" by the government. Id. To state a claim under the Equal Protection Clause, Plaintiffs must allege that: (1) they were treated differently from other, similarly-situated individuals, and (2) Defendants unequally applied regulations for the purpose of discriminating against Plaintiffs. Prelutsky v. DeKalb Cnty. Sch. Dist., No. 1:08-CV-1596-CAP-GGB, 2010 WL 11598058, at *3 (N.D. Ga. Apr. 13, 2010), report and recommendation adopted, No. 1:08-CV-1596-CAP-GGB, 2010 WL 11598096 (N.D. Ga. Apr. 30, 2010); accord Amnesty Int'l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009) (stating that a valid equal protection claim requires the identification of other similarly-situated individuals who were treated better). Here, Plaintiffs do not identify any similarly situated individuals. They merely refer to "other homeowners" who they allege were not prevented from advertising and renting their homes during a period of time when Plaintiffs were prevented from doing so. Doc. No. [49], ¶¶ 68, 122. Importantly, there is no allegation that these "other homeowners" were reported to Code Enforcement authorities through neighbor complaints that required investigation—as Plaintiffs were. Therefore, Plaintiffs have failed to allege a constitutional violation with respect to the Equal Protection Clause.
(b) clearly established
Even if Plaintiffs could establish that "other homeowners" were similarly situated to them for purposes of the Equal Protection Clause, they still must show that their equal protection rights were "clearly established." This is accomplished by identifying " '(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.' " Smith v. LePage, 834 F.3d 1285, 1297 (11th Cir. 2016). The second and third methods, known as "obvious clarity" cases, exist when "case law is not needed" to demonstrate the unlawfulness of the conduct or where the existing case law is so obvious that "every reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted." Vinyard v. Wilson, 311 F.3d 1340, 1350-51 (11th Cir. 2002). Such cases are rare. See, e.g., Santamorena v. Ga. Mil. Coll., 147 F.3d 1337, 1340 n.6 (11th Cir. 1998) (noting that "these exceptional cases rarely arise").
In response to the Motion to Dismiss, Plaintiffs fail to cite to any authority clearly establishing their equal protection rights in the application of city rental restrictions. Instead, Plaintiffs merely argue that "it should be abundantly obvious that arbitrarily banning only a single homeowner from renting their property for period of less than 15 days is a violation of equal protection rights." Doc. No. [55], 23. For a plaintiff to overcome qualified immunity on the basis of obvious clarity, the official's conduct must "lie[ ] so obviously at the very core of what the [constitutional provision] prohibits that the unlawfulness of the conduct was readily apparent to [the official], notwithstanding the lack of fact-specific case law" on point. Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). Given the absence of any allegation that Plaintiffs are within any protected category or, more importantly, that Mr. Tate and Ms. Wilson-Britt were motivated by Plaintiffs' inclusion in any particular category, the Court cannot find this to be an "obvious clarity" equal protection case.
(2) Free speech
The Eleventh Circuit has held that "[i]t is particularly difficult to overcome the qualified immunity defense in the First Amendment context." Gaines v. Wardynski, 871 F.3d 1203, 1210 (11th Cir. 2017). As set forth below, Plaintiffs have failed to do so here.
(a) alleged conduct
Plaintiffs allege that the requirement to remove advertisements for rental of the Property violated their rights to free speech as established by the First Amendment of the United States Constitution. Doc. No. [49], ¶ 129. First, the Court finds that Plaintiffs' inability to advertise a short-term rental on a website such as Airbnb or VRBO does not implicate the First Amendment because the effect of the Notice sent to Plaintiffs was to prohibit short-term rental of the Property, which is non-expressive conduct, not speech. See HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 685 (9th Cir. 2019); Thinh Tran v. Dep't of Plan. for Cnty. of Maui, No. CV 19-00654 JAO-RT, 2020 WL 3146584, at *8 (D. Haw. June 12, 2020). Second, even though the prohibition on use of the Property as a short-term rental did include a prohibition on advertising, any speech allegedly chilled is an incidental burden from the application of a City regulation, which is directed at commerce or commercial conduct. See Short Term Rental Owners Ass'n of Ga., Inc. v. Cooper, 515 F. Supp. 3d 1331, 1349 (N.D. Ga. 2021), aff'd sub nom. Heyman v. Cooper, 31 F.4th 1315 (11th Cir. 2022) (citing Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011)) ("[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.").
(b) clearly established
Even if the conduct alleged by Plaintiffs violated the First Amendment, they still must show that their free speech rights were "clearly established." As set forth above, this requires identifying " '(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.' " Smith, 834 F.3d at 1297.
In response to the Motion to Dismiss, Plaintiffs fail to cite to any authority clearly establishing their First Amendment rights to advertise rental property when the City has determined, albeit incorrectly, that short-term rental of the Property is unlawful. Instead, Plaintiffs merely argue that "[i]t should be clear to any official that a total ban on commercial speech is a violation of constitutional rights." Doc. No. [55], 23. This argument completely misconstrues the facts alleged in this case — there is no allegation that Mr. Tate and Ms. Wilson-Britt prohibited all commercial speech by Plaintiffs. Rather, they informed Plaintiffs that advertising the Property for rent in violation of City regulations — a very specific form of commercial speech—would result in sanctions. Thus, Plaintiffs have failed to even attempt to meet the burden of showing that Mr. Tate and Ms. Wilson-Britt violated clearly established rights by prohibiting advertisement of the Property as a short-term rental.
(3) Due process
(a) alleged conduct
Plaintiffs allege that the actions of Mr. Tate and Ms. Wilson-Britt in restricting their ability to rent the Property, threatening to issue citations and fines, misapplying and misinterpreting the [regs] deprived Plaintiffs of property without due process of law as required by the Fourteen Amendment. Doc. No. [49], ¶ 37. For Section 1983 claims alleging a denial of procedural due process, a plaintiff must demonstrate: "(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process." Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Here, Plaintiffs fail to allege an absence of process. In fact, Plaintiffs allege that they engaged in some form of appeal of the prohibition of renting the Property and received a favorable outcome. Doc. No. [49], ¶¶ 70, 72.
(b) clearly established
Even if the conduct alleged by Plaintiffs violated their Fourteenth Amendment Due Process rights, they make no effort to show that the rights were clearly established. In response to the Motion to Dismiss, Plaintiffs completely abandon any effort to meet their burden under the "clearly established" prong and address only the establishment of their rights under the Equal Protection Clause and First Amendment. Doc. No. [55], 23.
c) Intentional Misconduct
Plaintiffs argue that instances of intentional misconduct by officials bar qualified immunity. They cite two cases involving police investigations where the alleged constitutional violations were under the search and seizure provisions of the Fourth Amendment. See Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004); Rogers v. City of Coll. Park, Ga., No. 1:16-CV-1556, 2019 WL 4168797 (N.D. Ga. Sept. 3, 2019). The SAC includes allegations that Mr. Tate and Ms. Wilson-Britt "deliberately and intentionally misapplied ULDC ordinances" and that they knew or should have known that Plaintiffs could lawfully rent the Property. Doc. No. [49], ¶¶ 55-57, 126, 144. These allegations are materially different than what the Eleventh Circuit deemed "objectively unreasonable" conduct in Kingsland. 382 F.3d at 1234 (allegations of manufactured probable cause to arrest). Therefore, the Court finds that Plaintiffs' reliance on a theory of intentional misconduct to negate qualified immunity is unavailing.
Rogers does not support Plaintiff's position at all. The officers in that case were granted qualified immunity. Rogers, No. 1:16-CV-01556, 2019 WL 4168797, at *9 (N.D. Ga. Sept. 3, 2019).
d) Conclusion as to Qualified Immunity
In sum, Mr. Tate and Ms. Wilson-Britt are entitled to qualified immunity as to the federal claims against them—primarily because the facts alleged do not arise to constitutional violations. But also because the rights Plaintiffs allege were violated were not "clearly established" in the context of the facts of this case. Finally, the cases in which qualified immunity was precluded by intentional misconduct are inapplicable to the facts alleged here. Because the Section 1983 claims against Mr. Tate and Ms. Wilson-Britt are barred by qualified immunity, those claims are subject to dismissal.
2. City Defendant: Monell Liability
As set forth above, the conduct alleged by Plaintiffs does not arise to constitutional violations. See Sections III. A.1.b.1(a), 2(a) and 3(a) supra. But even if Plaintiffs' allegations were sufficient to raise constitutional claims, their allegations regarding the City's liability are deficient. According to the Supreme Court, a municipality or other local government may be subject to liability under Section 1983. Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, (1978). There are, however, "strict limitations on municipal liability under § 1983." Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). "[R]ecovery from a municipality is limited to acts that are, properly speaking, acts 'of the municipality' — that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). To establish municipal liability under Section 1983, the alleged constitutional violations must result from: (1) an officially adopted and promulgated government policy; (2) an unofficial custom or practice of the municipality that is so pervasive and settled that it assumes the force of law; or (3) the actions of an official with final policymaking authority whose decision violated the plaintiff's constitutional rights. Monell, 436 U.S. at 694, 98 S.Ct. 2018; Oladeinde v. City of Birmingham, 230 F.3d 1275, 1295 (11th Cir. 2000).
Here, Plaintiffs have made allegations that indicate reliance on the second and third prongs: unofficial custom and actions of an official with final policymaking authority. As explained below, these allegations are insufficient to survive the Motion to Dismiss.
As to the existence of an unofficial policy, Plaintiffs allege "[u]pon information and belief, the City of Gainesville has an unofficial policy or custom of banning advertisements for rental properties on rental websites" and "[u]pon information and belief, the City of Gainesville, Tate, and/ or Wilson-Britt had a policy and/or unofficial custom of misapplying Table 9-6-1 of the [Uniform Land Development Code] for residential zoning districts and/or misinterpreting the definition of 'lodging services' to erroneously apply it to rental of entire residences." Doc. No. [49], ¶¶ 133, 143. Allegations founded on "information and belief" are not entitled to a presumption of truth at the pleading stage. See Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013) (noting that the court does "not have to take as true . . . allegations 'upon information and belief' "); see also Smith v. City of Sumiton, 578 F. App'x. 933, 935 n.4 (11th Cir. 2014) ("for purposes of a Rule 12(b)(6) motion to dismiss, we do not have to take as true allegations based merely 'upon information and belief' "). Even presuming the allegations are true, there is nothing in the SAC to support an inference that the wrongful conduct alleged here was a practice that was pervasive and settled, or even that it had occurred before.
As to an official with final policymaking authority, Plaintiffs allege "[u]pon information and belief, Matt Tate and/or Sarah Wilson Britt [sic] possess final policy-making authority regarding code enforcement in the City of Gainesville." Doc. No. [49], ¶¶ 125, 132, 142, 143. Again, allegations based on "information and belief" are not entitled to a presumption of truth at this stage of the litigation. See Mann, 713 F.3d at 1315; Smith, 578 F. App'x. at 935 n.4. More importantly, however, Plaintiffs acknowledge that Rusty Ligon is the Director of Community and Economic Development for the City of Gainesville whereas Mr. Tate is the Deputy Director and Ms. Wilson-Britt is the Code Enforcement Manager. Doc. Nos. [55], 26; [49], ¶ 51. Plaintiffs make no allegations to support an inference that Mr. Ligon's subordinates possessed final policymaking authority.
In fact, Plaintiffs cite Section 9-24-1-3 of the City's ULDC, which provides, "the director of planning and development or designee shall have all the necessary powers explicitly provided or reasonably implied in connection with the administration of this Code." Doc. No. [55], 26. While Plaintiffs assert in the response brief that Mr. Tate was the "designee," there is no factual allegation to support this conclusion in the SAC. Id.
Plaintiffs have failed to allege facts to support an inference that the alleged constitutional violations stemmed from official City policy. Therefore, the Section 1983 claims against the City are subject to dismissal.
Because the federal claims are subject to dismissal, Plaintiffs' claim for attorney fee based on 42 U.S.C. § 1988 is also due to be dismissed.
B. State Law Claims
1. City
Motion Defendants move to dismiss the state law claims against the City, arguing that these claims are barred by sovereign immunity. The only substantive claim Plaintiffs asserted against the City seeking monetary damages is for civil conspiracy (Count X). As relief, Plaintiffs seek punitive damages (Count XVI) and attorney fees (Count XVII), both under Georgia law. This Court has already held that the City is entitled to sovereign immunity on monetary claims brought under state law. Doc. No. [45], 17. Plaintiffs do not argue otherwise in response to the Motion to Dismiss. Accordingly, the civil conspiracy claim as well as the claims for punitive damages and attorney fees against the City are subject to dismissal.
As to the City, Plaintiffs argue that they would be entitled to receive attorneys fees pursuant to the federal claims. However, as set forth in Section III(A)(2) supra, the federal claims are due to be dismissed.
2. Tate and Wilson-Britt
a) Negligence and negligent misrepresentation (Counts XI and XIII)
Motion Defendants move to dismiss Plaintiffs' negligence and negligent misrepresentation claims, which are brought against only Mr. Tate and Ms. Wilson-Britt, on the grounds that these claims are barred by official immunity. The court determined that official immunity precluded these claims — as pled in the First Amended Complaint. Doc. No. [45], 18. Nevertheless, Plaintiffs raised them again in the SAC.
Official immunity "protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without willfulness, malice, or corruption." Murphy v. Bajjani, 282 Ga. 197, 198, 647 S.E.2d 54, 56-57 (2007). Such agents can be sued "if they (1) negligently perform a ministerial duty, or (2) act with actual malice or actual intent to cause injury while performing a discretionary function." Daniels v. Gordon, 232 Ga. App. 811, 813, 503 S.E.2d 72, 75 (1998) (citing Teston v. Collins, 217 Ga. App. 829, 830, 459 S.E.2d 452, 454 (1995)); see also Chisolm v. Tippens, 289 Ga. App. 757, 760, 658 S.E.2d 147, 151 (2008). This requires an analysis of the officer's subjective intent. Croland v. City of Atlanta, 782 F. App'x 753, 758-59 (11th Cir. 2019) (citing Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007)). In the SAC, Plaintiffs allege that Mr. Tate and Ms. Wilson-Britt breached ministerial duties. Doc. No. [49], ¶¶ 155, 157, 162, 175[49]. Specifically, Plaintiffs claim that Mr. Tate and Ms. Wilson-Britt failed to perform any investigation of the complaints received from O'Sullivan regarding the Property and they failed to properly state the definition of "lodging services" in the October 15 Notice. Doc. No. [49], ¶¶ 156, 162.
This Court has already determined that investigating code violations and interpreting code provisions are discretionary functions because they require "deliberation and judgment," examination of facts, and reaching conclusions. Doc. No. [45], 19. The use of semantics by Plaintiffs in pleading their claims does not render a different result.
Whether an act is ministerial or discretionary depends on the nature of the act and not the actor's position. Daley v. Clark, 282 Ga.App. 235, 638 S.E.2d 376, 380 (2006). "A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty." Id., By contrast, a discretionary act is one that "calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed." Id. Despite Plaintiffs' efforts to create a ministerial act by breaking the actions of Mr. Tate and Ms. Wilson-Britt down to a granular level, the SAC does not allege anything beyond investigating code violations and interpreting code provisions — acts this Court has already deemed discretionary.
The Court recognizes that Plaintiffs allege in Count XI that Mr. Tate and Ms. Wilson-Britt failed to perform any investigation and argue that the decision whether to investigate is ministerial rather than discretionary. Doc. No. [49], ¶ 156; Doc. No. [55], 15-19. The detailed factual allegations of the SAC undermine this wholly conclusory assertion, however. For example, Plaintiffs allege that Ms. Wilson-Britt or another code enforcement employee came to the property on multiple occasions after the complaint was lodged by O'Sullivan. Doc. No. [49], ¶¶ 36, 37. In fact, the SAC contains pictures of a City vehicle on the premises of the Property. Furthermore, the gravamen of Plaintiffs' complaint about actions taken by Mr. Tate and Ms. Wilson-Britt is their failure to discuss the complaint with Plaintiffs. See SAC, ¶¶ 62, 67. Thus, the challenged actions by Mr. Tate and Ms. Wilson-Britt are about how they conducted their investigation—which is clearly a discretionary act. A single conclusory allegation that is contradicted by detailed allegations of the actual complained-about conduct is not sufficient to transform Mr. Tate and Ms. Wilson-Britt's actions from discretionary to ministerial.
Because Mr. Tate and Ms. Wilson-Britt were performing discretionary acts, Plaintiff's negligence and negligent misrepresentation claims against them are barred by official immunity. Therefore Counts XI and XIII are subject to dismissal.
b) Intentional misrepresentation
Count XII of the SAC is labeled "Intentional Misrepresentation" and is asserted against Mr. Tate and Ms. Wilson-Britt. Doc. No. [49], ¶¶ 164-168. In its prior Order, this Court explained that there is no cause of action for intentional misrepresentation under Georgia law. Doc. No. [45], 24 n.3. Disregarding the label of the claim, the Court found that the claim was for fraudulent misrepresentation and determined that official immunity did not apply. Id. at 25. Despite the Court's explanation of the improper label, Plaintiffs have again referred to the claim as one for intentional misrepresentation. Again, the Court will consider the claim as one for fraudulent misrepresentation.
Motion Defendants move to dismiss the fraudulent misrepresentation claim because it does not meet Federal Rule of Civil Procedure 9(b)'s requirement to plead with particularity.
Fraudulent misrepresentation claims are subject to Rule 9(b), which requires a party "alleging fraud" to "state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b); see, e.g., Quashie v. Olympus Am., Inc., 315 F. Supp. 3d 1329, 1340 (N.D. Ga. 2018) (applying Rule 9(b) to fraudulent misrepresentation claim). To plead fraud with particularity, a plaintiff must allege (1) precisely what statements or omissions were made in which documents or oral representations; (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) them; (3) the content of such statements and the manner in which they misled the plaintiff; and (4) what the defendant obtained as a consequence of the fraud. FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011). "Failure to satisfy Rule 9(b) is a ground for dismissal of a complaint." Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005).
Plaintiffs' fraudulent misrepresentation claim contains no allegation regarding what the Mr. Tate and Ms. Wilson-Britt obtained as a consequence of their alleged fraud. Also, Plaintiffs do not delineate which Defendants' alleged misrepresentations they relied upon. Even close inspection of Paragraphs 63-65 of the SAC, cited by Plaintiffs in response to Motion Defendants' argument, fails to reveal the level of specificity required for a fraud claim. And to confuse the matter further, Plaintiffs allege "Defendant City of Gainesville is liable through the misrepresentations of Sarah Wilson-Britt and Matt Tate under a theory of respondeat superior and/or agency" yet the fraudulent misrepresentation claim purports to be asserted against only Mr. Tate and Ms. Wilson-Britt. Doc. No. [49], ¶ 167.
The Court notes that these three paragraphs are not contained within the claim for fraudulent misrepresentation. Rather, they more than one-hundred paragraphs earlier in the SAC.
Plaintiffs' allegations regarding fraudulent misrepresentation fall short of Rule 9's particularity requirements. Therefore, Count XII is subject to dismissal.
C. Declaratory Judgment
Count XIV of the SAC seeks a declaratory judgment against the City, Mr. Tate, and Ms. Wilson-Britt. Specifically, Plaintiffs request a judgment stating (1) they are permitted to rent out the Property and advertise the Property for rent for periods of 15 days or less and (2) the ULDC and other applicable ordinances do not prohibit Plaintiffs from listing the Property on rental websites and renting the Property for less than 15 days. Doc. No. [49], ¶ 181. In addressing the Motion to Dismiss the First Amended Complaint, the Court held that because there remained a controversy over whether Plaintiffs are restricted from renting the Property for 15 days or less, they are entitled to seek a declaratory judgment. Doc. No. [45], 38-39. Now, Motion Defendants move to dismiss the claim for a declaratory judgment because Plaintiffs have an adequate state remedy. Doc. No. [50], 19-21.
In reviewing the instant Motion to Dismiss, the Court has determined that it does not have subject matter jurisdiction over the declaratory judgment claim because Plaintiff's allegations do not establish that they have completed the appeals process with regard to the City's zoning decision. As a result, there is no final decision, and the declaratory judgment claim is unripe. See Silvey v. City of Lookout Mountain, Ga., No. 4:18-CV-0027-HLM, 2018 WL 8619795 (N.D. Ga. 2018). Therefore, Count XIV is subject to dismissal.
Federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y&H Corp., 546 U.S. 500, 501, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).
D. Injunctive Relief
In this Court's prior Order, the claim for permanent injunctive relief was dismissed because Plaintiffs have an adequate remedy under Georgia law. Doc. No. [45], 37. More specifically, Plaintiffs have the ability to seek a writ of certiorari to challenge a zoning decision. See City of Cumming v. Flowers, 300 Ga. 820, 834, 797 S.E.2d 846, 857 (2017) (citing O.C.G.A. § 5-4-1).
In the instant Motion to Dismiss, Motion Defendants point out that in subsection (d) of the ad damnum paragraph, Plaintiffs request an injunction restraining the City, Mr. Tate, and Mrs. Wilson-Britt from tortiously interfering with the lawful rental and sale of the Property. See Doc. No. [49], ¶ 189(d). Motion Defendants argue that this request is inconsistent with the Court's prior ruling. In response to the Motion to Dismiss, Plaintiffs do not address the issue.
Because the Court has already determined that Plaintiffs may not assert a claim for injunctive relief, any remaining claim for such relief in the SAC is subject to dismissal.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Motion Defendants' Motion to Dismiss. Doc. No. [50]. As a result, the following claims remain:
Counts I-VII
Count X as to all Defendants except the City;
Count XV
Counts XVI and XVII as to all Defendants except the City.
IT IS SO ORDERED 12th this day of July, 2023.