Clark v. Hernandez

Full title: NOEL CLARK, JR., Plaintiff, v. JORGE HERNANDEZ, et al., Defendants

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Nov 16, 2006

Case No. 8:06-cv-1728-T-30EAJ (M.D. Fla. Nov. 16, 2006)

Opinion

Case No. 8:06-cv-1728-T-30EAJ.

November 16, 2006

ORDER

JAMES MOODY JR., District Judge

THIS CAUSE comes before the Court upon Defendant Tom South's Motion to Dismiss, or in the Alternative, for More Definite Statement (Dkt. #12), and Plaintiff's Response to Defendant South's Motion to Dismiss and Motion for More Definite Statement and Memorandum of Law (Dkt. #15). The Court, having considered the motion, response, memoranda, and being otherwise advised in the premises, finds that Defendant Tom South's motion should be granted without prejudice with leave to amend.

Defendant argues that Plaintiff's complaint should be dismissed based on the following grounds: (1) this Court lacks jurisdiction over this case since none of Plaintiff's claims raise a federal question, and (2) Plaintiff has failed to plead compliance with pre-suit filing requirements pursuant to Fla. Stat. § 768.28(6)(a). Neither of these arguments are relevant as to the claims brought by Plaintiff against Defendant, Tom South. First, Plaintiff has raised a federal question in Count I of the Complaint. Second, it is not necessary for Plaintiff to comply with pre-suit requirements under Fla. Stat. § 768.28(6)(a) in order to file suit against Defendant, Tom South, as an individual.

Nevertheless, upon review of the complaint, the Court notes that Plaintiff seeks to bring a claim of civil conspiracy against Defendant Tom South. The elements of civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy. Kent v. Kent, 431 So.2d 279, 281 (Fla. 5^th DCA 1983). Generally, an actionable conspiracy requires an actionable underlying tort or wrong. Wright v. Yurko, 446 So.2d 1162, 1165 (Fla. 5^th DCA 1984). An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy. Id.

Plaintiff has failed to state an actionable underlying tort or wrong against Defendant Tom South. For this reason, the Court grants Defendant Tom South's Motion to Dismiss without prejudice.

It is therefore ORDERED AND ADJUDGED that:

1. Defendant Tom South's Motion to Dismiss or in the Alternative, For More Definite Statement (Dkt. #12) is GRANTED without prejudice.

2. Plaintiff may file an amended complaint within twenty (20) days of the entry of this Order.

DONE and ORDERED.