Opinion
Case No. 6:13-cv-1869-Orl-37TBS
02-26-2015
JOSE DIAZ, Plaintiff, v. CITY OF ORLANDO; and THE ORLANDO POLICE DEPARTMENT, Defendants.
ORDER
This cause is before the Court on the following:
1. Defendant City of Orlando's Motion for Summary Judgment and Memorandum of Law (Doc. 39), filed December 8, 2014;Upon consideration, the Court finds that the Motion is due to be granted in part.
2. Plaintiff's Opposition to Motion for Summary Judgment as to Count III (Doc. 41), filed December 22, 2014; and
3. Defendant City of Orlando's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. 43), filed January 5, 2015.
BACKGROUND
This action arises out of an April 17, 2010 altercation in downtown Orlando's Wall Street Plaza, during which two officers of the Orlando Police Department allegedly used excessive force while arresting Plaintiff. (See Doc. 3, ¶¶ 6-21; Doc. 39, pp. 1-2, 4-6; Doc. 41, pp. 3-12.)
Plaintiff initially filed suit in state court, asserting only state-law claims against Hub City Enterprises, Inc. ("Hub City") and The Other Bar, LLC ("Other Bar"), two Wall Street Plaza businesses. (Doc. 1, ¶ 1; Doc. 1-10, p. 75.) On October 22, 2013, Plaintiff amended his complaint to add the City of Orlando ("City") and the Orlando Police Department as Defendants, against which he asserts two claims: (1) a state-law "respondeat superior and/or . . . vicariously liability" excessive-force claim ("Count III"); and (2) a 42 U.S.C. § 1983 Fourth Amendment excessive-force claim ("Count IV"). (See Doc. 3, ¶¶ 30-56.) Plaintiff served the City on November 4, 2013, and the City timely removed the action on December 4, 2013, invoking the Court's federal-question jurisdiction. (See Doc. 1, ¶ 2.) In the interim between service and removal, Plaintiff dismissed his claim against Other Bar (see Doc. 4) and the state-court judge granted summary judgment in favor of Hub City on the only claim raised against it (see Doc. 5). Accordingly, the only claims remaining in this action are those raised against the City in Counts III and IV.
Although Plaintiff named both the City and the Orlando Police Department as separate Defendants, the City maintains that they are one in the same for purposes of this action. (See Doc. 1, ¶ 2; Doc. 39, pp. 1-2.) Plaintiff has not responded to the City's argument. (See Doc. 41.) In any event, Plaintiff served only the City (see Doc. 1-1, p. 40), and the Orlando Police Department never independently appeared, so the City is the only Defendant currently involved in this action.
The City now moves for summary judgment on both of Plaintiff's remaining claims. (See Doc. 39.) Plaintiff opposes as to Count III, but he concedes that the Court should grant the City's Motion as to Count IV. (See Doc. 41.) The matter is now ripe for the Court's adjudication.
STANDARDS
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A movant carries its burden by showing that there is an absence of evidence supporting the non-movant's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).
DISCUSSION
Both parties agree that the City is entitled to summary judgment on Count IV, Plaintiff's § 1983 claim. (See Doc. 39, pp. 6-11; Doc. 41, p. 14; Doc. 43, p. 2.) Municipal liability under § 1983 requires proof of an official custom or policy that led to the claimed injury, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), which Plaintiff concedes he cannot produce (see Doc. 41, p. 14). Accordingly, the Court finds that the City's Motion for summary judgment is due to be granted as to Count IV.
Resolution of Count IV disposes of the only claim over which the Court would have had original jurisdiction pursuant to 28 U.S.C. § 1331. (See Doc. 3.) Under such circumstances, 28 U.S.C. § 1367(c)(3) permits district courts to decline to exercise supplemental jurisdiction over any remaining claims. See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1282 (11th Cir. 2004) (affirming a district court's decision to remand state-law claims after entering summary judgment in a defendant's favor on all federal claims). In this case, only Count III remains. (See Doc. 3, ¶¶ 30-33.) Count III—which was never challenged at the pleading stage—is not a model of clarity; it purports to assert an "excessive force" tort claim against the City under a respondeat superior or vicarious liability theory. (See id.) Plaintiff maintains that Florida Statute § 768.28—which pertains to state sovereign immunity—creates a cause of action for such a claim. (See Doc. 41, p. 15.) In the Court's experience, Plaintiff's use of § 768.28 is, to say the least, novel. Nevertheless, in light of the extensive record already developed in this case at the state-court level (see Doc. 1), and given that Florida law recognizes that the application of excessive force during the course of an arrest can be tortious, see City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) ("If excessive force is used in an arrest, the ordinarily protected use of force by a police officer is transformed into a battery."), the Court finds that the viability of Plaintiff's state-law claim would be best addressed in the first instance by the state court. The Court therefore declines to exercise supplemental jurisdiction over Count III.
As there is no just reason for delay, the Court will grant the City's Motion as it pertains to Count IV and will enter judgment in the City's favor on that Count. See Fed. R. Civ. P. 54(b). The Court will deny the remainder of the City's motion without prejudice to its reassertion in state court, where this action will be remanded.
Defendant concedes that the Court has the discretion to remand this action to state court for further proceedings. (See Doc. 43, p. 5.)
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Defendant City of Orlando's Motion for Summary Judgment and Memorandum of Law (Doc. 39) is GRANTED IN PART AND DENIED IN PART.
a. The motion is GRANTED as to Count IV. (Id. ¶¶ 34-56.)
b. In all other respects, the motion is DENIED WITHOUT PREJUDICE.
2. Pursuant to Federal Rule of Civil Procedure 54(b), the Clerk is DIRECTED to enter judgment in favor of the City of Orlando and against Plaintiff Jose
Diaz on Count IV of the Amended Complaint (Doc. 3, ¶¶ 34-56).DONE AND ORDERED in Chambers in Orlando, Florida, on February 26, 2015.
3. Pursuant to 28 U.S.C. § 1367(c)(3), the Court DECLINES to exercise supplemental jurisdiction over the remainder of this action, which is REMANDED to the Ninth Judicial Circuit, in and for Orange County, Florida.
4. The Clerk is DIRECTED to terminate all remaining deadlines and to close the file.
For clarity, the Court notes that the City had previously filed a Third-Party Complaint against Hub City. (See Doc. 20.) On December 31, 2014, the City and Hub City filed a "Joint Stipulation of Voluntary Dismissal with Prejudice as to Third Party Complaint Only" (Doc. 42), which the Court construes as a Rule 41(a)(1)(A)(ii) stipulated dismissal of the Third-Party Complaint. Such dismissals are "self-executing" and dismiss the referenced pleading upon filing. See Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012). Accordingly, the third-party portion of this case has been resolved, and the Clerk is DIRECTED to close this case's file in its entirety.
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/s/_________
ROY B. DALTON JR.
United States District Judge
Copies: Counsel of Record The Ninth Judicial Circuit, in and for Orange County, Florida