Opinion
Case No: 02-23303-CIV-ALTONAGA/Baodstra
September 30, 2003
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
THIS CAUSE came before the Court upon Defendant, City of North Bay Village's Motion to Dismiss Second Amended Complaint ( D.E. 37), filed on April 18, 2003; and Defendants, Alan Dorne, George Kane, and Jay Manne's Motion to Dismiss Plaintiffs Second Amended Complaint ( D.E. 38), filed on April 25, 2003. The undersigned has carefully considered the Second Amended Complaint, the Motions, the response and reply memoranda, and applicable law.
Allegations Contained in Plaintiffs Second Amended Complaint
It is alleged that during the course of the 2000 City of North Bay Village, Miami-Dade County, elections, Plaintiff, Gabrielle Nash-Tessler ("Nash-Tessler"), was a candidate for a city commission seat. Her opponent in this election was Defendant, George Kane ("Kane"). On November 17, 2000, approximately four days prior to the election, Nash-Tessler was charged by the City of North Bay Village Police with the misdemeanor crime of defacing the political signage of her election opponent in violation of Florida law. The charge stemmed from allegations made by Defendant, Jay Manne ("Manne"), a City of North Bay Village Commissioner, that Nash-Tessler had damaged or destroyed Kane's campaign signs. Following these allegations, a misdemeanor criminal investigation report was prepared by officers of the City of North Bay Village Police Department. Nash-Tessler alleges that the report was prepared with the specific intent to publicly embarrass and humiliate her and to ensure her defeat in the election four days later.
The police report was allegedly furnished by the Police Department directly to Defendant, Randy Milliard ("Hilliard"), under the direction of Defendant, Alan Dorne ("Dorne"), the Mayor of the City of North Bay Village at the time, with the specific intent to form the basis of a libelous political flyer. Hilliard was Kane's campaign and political advisor, and he was also Dorne's campaign and political advisor. Hilliard, under the direction of Dorne, and with the approval of Marine and Kane, allegedly proceeded to prepare, print, and publish a political flyer (the "Flyer"), which is attached to the Second Amended Complaint as Exhibit B. Within 24 hours of the charges against Nash-Tessler being made, the Flyer was distributed to the residents of the City North Bay Village, under the support and direction of the office of Mayor Dorne and with the direct cooperation and participation of the City of North Bay Village Police. Nash-Tessler alleges that the Flyer was prepared and published by Defendants with malice, with knowledge that it contained false statements about Nash-Tessler, and with a purposefully altered and inaccurate version of Nash-Tessler's police investigation report.
The record reflects that Hilliard has not been served with a summons or any of the complaints in this action.
The morning after the charges were prepared, officers of the North Bay Village Police Department arrested Nash-Tessler, It is alleged that Mayor Dorne and Commissioner Marine improperly used their offices to direct the North Bay Village Police to wrongfully charge and arrest Nash-Tessler, The arrest occurred at Nash-Tessler's house of worship, during religious services, and in full view of Nash-Tessler's neighbors, friends, clergy, and other Village residents. It is further alleged that the arrest violated established Police Department arrest procedures for misdemeanor crimes. Four days following the publication of the Flyer and this arrest, Nash-Tessler was narrowly defeated in the City of North Bay Village elections. The criminal misdemeanor charge has since been dismissed by the State Attorney.
In Count I, Nash-Tessler alleges wrongful arrest, libel, and libel per se claims under Florida law against the City of North Bay Village, acting through the Mayor and the Police Department. The wrongful arrest claim is apparently based on an unreasonable search and seizure in violation of Article I, Section 12, of the Florida Constitution. It is also alleged that Nash-Tessler's arrest was without probable cause, and based on information known to be false. The arrest was allegedly performed in a manner that violated Nash-Tessler's constitutional right to worship without disruption or interference by the government.
In Counts II, IV and V, Nash-Tessler alleges state and federal law claims against individual Defendants, Dorne, Manne and Kane. Nash-Tessler alleges that Dorne and Manne, acting under color of state law, and Kane, acting jointly with Dorne and Manne, violated Nash-Tessler's rights under 42 U.S.C. § 1983, and that they are all personally subject to a claim for damages. In these counts, Nash-Tessler raises claims against Dorne and Manne in their individual and official capacities. It is alleged that Dorne, Manne and Kane violated Nash-Tessler's rights as follows: (1) violation of Nash-Tessler's First Amendment right to practice religion; (2) deprivation of Nash-Tessler's liberty without due process under the Fourth Amendment; and (3) an unreasonable search and seizure in violation of the Ninth Amendment. It is further alleged that Dorne, Manne, and Kane violated Nash-Tessler's rights, pursuant to 42 U.S.C § 1985(3), by obstructing Nash-Tessler's right to run for political office. Nash-Tessler further alleges libel and libel per se claims against Dorne, Manne and Kane based on their participation in the preparation and the publication of the Flyer.
Count III contains allegations against Defendant Hilliard only. This Order does not address the sufficiency of the allegations raised in the Second Amended Complaint against Hilliard.
Nash-Tessler fails to properly allege a due process claim because a citizen's right to be free from interference with her life, liberty and property without due process of law arises from the Fifth and Fourteenth Amendments to the United States Constitution, not the Fourth Amendment.
In Count VI, Nash-Tessler alleges a conspiracy claim under Florida law. It is alleged that Kane and Manne, jointly and in concert with Mayor Dorne, the acting Chief of Police of the City of North Bay Village, and the City of North Bay Village Police Department, all conspired to cause Nash-Tessler's wrongful arrest and the preparation and publication of the Flyer. Based on this conspiracy, it is alleged that Defendants are jointly responsible for damages resulting from the federal and state law violations alleged in the other counts.
Nash-Tessler seeks money damages for past and continuing mental pain, anguish, humiliation and public disgrace; past and future injury to her professional reputation, character, and name; legal expenses she incurred in defending against the criminal charges; and damages for libel per se.
Legal Standard
For purposes of a motion to dismiss, the court must accept the allegations of the complaint as true. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc). Moreover, the complaint must be viewed in the light most favorable to the plaintiff. St. Joseph's Hosp., Inc. v. Hosp. Corp. of America, 795 F.2d 948, 953 (11th Cir. 1986). To warrant a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Nonetheless, to survive a motion to dismiss, a plaintiff must do more than merely label her claims. Blumel v. Mylander, 919 F. Supp. 423, 425 (M.D. Fla. 1996). Thus, dismissal of a complaint or a portion thereof is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
The Motions to Dismiss
1. The City of North Bay Village is Entitled to Sovereign Immunity from Liability for Nash-Tessler's Tort Claims Under the Provisions of the Florida Tort Claims Act, Section 768.28(9)(a) of the Florida Statutes
In Section 768.28 of the Florida Statutes, the State of Florida waives, on its own behalf and for all of its agencies and subdivisions, sovereign immunity for liability in tort in certain situations as enumerated in the statute. Municipalities are included within the "subdivisions" that are subject to the provisions of Section 768.28. See, e.g., Geidel v. City of Bradenton Beach, 56 F. Supp.2d 1359 (M.D. Fla. 1999). The City of North Bay Village is correct in arguing that, pursuant to the provisions of Section 768.28(9)(a), Florida municipalities are not liable in tort for the acts or omissions of their officers or employees that are committed in bad faith or for a malicious purpose. Specifically, the statute provides that
[t]he state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
Fla. Stat., § 768.28(9)(a) (emphasis added). Thus, municipalities are immune from tort liability when their officers or employees either act outside of the scope of their employment, or act in bad faith or with a malicious purpose. See, e.g., Geidel, 56 F. Supp.2d at 1365.
A. Libel and Conspiracy Claims
In Counts I and VI of the Second Amended Complaint, Nash-Tessler alleges libel and civil conspiracy claims under Florida law against the City of North Bay Village. The conspiracy claim in Count VI appears to be based on all of the claims raised in Counts I through V, i.e., wrongful arrest in violation of the Florida Constitution; libel and libel per se; violations of 42 U.S.C. § 1983 grounded upon the First, Fourth and Ninth Amendments of the United States Constitution; and violations of 42 U.S.C. § 1985 grounded upon the First Amendment. In other words, the conspiracy claims are for conspiracy to commit libel, and conspiracy to commit wrongful arrest in violation of the United States Constitution and the Florida Constitution. Libel and conspiracy claims are traditional tort claims that are subject to the provisions of Section 768.28; that is, these are claims for which Florida municipalities have waived sovereign immunity, except where bad faith or malicious conduct, or conduct outside the scope of public employment, is alleged. The City of North Bay Village contends that, based upon Nash-Tessler's allegations, the City has not waived sovereign immunity from liability for the libel and conspiracy claims asserted in Counts I and VI of the Second Amended Complaint.
See, e.g., Bailey v. Board of County Commissioners, et al., 659 So.2d 295, 300 (Fla. 1st DCA 1994) (citing to unpublished decision of the United States District Court, Northern District of Florida, Case No. 88-10198, wherein district court held that Alachua County was entitled to sovereign immunity under Section 768.28 as to conspiracy claims based on torts and violations of constitutional civil rights where the alleged conduct was taken in bad faith or with malice); Ford v. Rowland, 562 So.2d 731, 733 (Fla. 5th DCA 1990) (holding that the Port Authority had sovereign immunity under Section 768.28 for alleged libel by its employees conducted in bad faith, with malicious purpose, or in willful and wanton disregard of another's rights).
The issues before the Court on the City of North Bay Village's motion to dismiss under Section 768.28(9)(a) are: (1) whether Nash-Tessler alleges that the individual Defendants, Dorne and Marine, and the police officers of the City of North Bay Village Police Department, were acting within the scope of their employment as public officers when the alleged wrongful arrest and libel occurred; or (2) whether Nash-Tessler alleges that the acts of Dorne, Marine and the police officers were committed in bad faith, or with malice or wanton or willful disregard of Nash-Tessler's rights. With respect to the libel claim, the Second Amended Complaint alleges both circumstances. Count I, paragraph 38, states that Mayor Dorne's actions "were malicious, and not protected as an essential function of the performance of his duties as City Mayor," and Count II states at paragraph 51 that Dorne's acts that "constituted libel" were "performed in his official capacity as Mayor." (emphasis added). Similarly, Count V states at paragraph 101 that Marine's acts that "constituted libel" were "performed in his official capacity as a member of the North Bay Village City Commission," while Count I states in paragraph 36 that "[t]he Flyer was approved by, and published under the direction of Mayor Alan Dorne, and Defendants Kane and Manne, all of whom acted with malice." (emphasis added). As to the wrongful arrest claim, paragraph 32 alleges that "[t]he plaintiff was arrested and charged wrongfully, with malice and intent to both publicly humiliate Ms. Nash-Tessler, and ensure her defeat in the election held three days subsequent." (emphasis added).
Thus, the Second Amended Complaint clearly alleges that Dorne, Manne, and officers of the City of North Bay Village Police Department acted with bad faith or with malice; while containing contradictory allegations as to whether they were acting within the scope of their employment as public officials. Nash-Tessler's libel and conspiracy claims in Counts I and VI are subject to dismissal against the City of North Bay Village under Section 768.28 of the Florida Statutes because these tort claims are based solely on allegations of malice and bad faith conduct by the City's employees, regardless of whether the City employees were acting within or outside the scope of their public employment. Accordingly, the libel and conspiracy claims raised in Counts I and VI are dismissed with prejudice against the City of North Bay Village on sovereign immunity grounds. No construction of the factual allegations will support these causes of action against the City. Because the City is immune from suit on these tort claims, all such claims against individual Defendants, Dorne and Manne, in their official capacities, and against the City of North Bay Police Department, are also dismissed. However, the libel and conspiracy claims are not dismissed against Defendants, Dorne, Manne and Kane in their individual capacities.
See, e.g., LLoyd v. Ellis, et al., 520 So.2d 59, 60 (Fla. 1st DCA 1988) (noting that tort actions against public officials in their official capacities may only be maintained according to the provisions of Section 768.28); see also Searer v. Wells, 837 F. Supp. 1198, 1201 (M.D. Fla. 1993) (allegations against a state officer, in his official capacity, are really allegations against the state entity); L.S.T., Inc. v. Crow, 772 F. Supp. 1254, 1255 (M.D. Fla. 1991) ("an action [in tort] against a sheriff [or other public officer] in his official capacity is another form of a claim against the government itself").
See, e.g., Geidel, 56 F. Supp.2d at 1367-68 (holding, on motion to dismiss, that state actors could be liable for state common law tort claims in their individual capacities because complaint sufficiently alleged that they acted in bad faith and/or with malicious purpose); Witmer v. University of Florida Police Department, 610 So.2d 87, 88 (Fla. 1st DCA1992) (same; affirming dismissal of complaint).
B. Claims Under the Florida Constitution
In Count I of the Second Amended Complaint, Nash-Tessler also purports to allege claims for money damages against the City of North Bay Village based on constitutional violations of her right to be free from unreasonable searches and seizures (wrongful arrest), and her right to worship. Nash-Tessler fails to state a cause of action against the City of North Bay Village for money damages under the Florida Constitution, however, because the waiver of sovereign immunity contained within Section 768.28 was intended to render the state and its subdivisions liable for money damages solely for traditional common law torts under state law, not for "constitutional torts." Hill v. Dept. of Corrections, 513 So.2d 129, 133 (Fla. 1987); see also Fla, Stat., § 768.28(5) ("[t]he state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances"); Gamble v. Florida Dept. of Health and Rehabilitation Servs., et al., 779 F.2d 1509, 1515 (11th Cir. 1986) (noting that the provisions of 768.28 represent only a limited abrogation of Florida's sovereign immunity; "the waiver is limited to traditional torts, i.e. to circumstances in which the state would be liable if it were a private person."); Garcia v. Reyes, 697 So.2d 549, 549-50 (Fla. 4th DCA 1997) ("the creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist").
As noted by the City in its brief, the issue before the Court in Garcia was whether or not the plaintiff had a right to bring a claim for money damages against the City of Fort Lauderdale for alleged violations of his due process rights as guaranteed by Article I, Section 9, of the Florida Constitution. In holding that such claim would be barred by sovereign immunity, the Court reasoned that
[t]o allow Garcia to bring a cause of action based on a violation of our state's constitution, where no concomitant duty arises for private citizens, would extend the waiver of sovereign immunity beyond the stated intent of the statute. It would also create a duty of care arising from the state constitution where none had previously existed.Garcia, 697 So.2d at 549-50. The Court further noted that there has never been a common law duty of care imposed on private individuals under Article I, Section 9, of the Florida Constitution, and thus, no action for money damages exists under this provision. Similarly, no common law duty and no cause of action for money damages exist under Article I, Section 12, of the Florida Constitution, which is the provision that Nash-Tessler relies on. See State v. Iaccarino, et al., 767 So.2d 470, 475 (Fla. 2d DCA 2000) (noting that implicit in the constitutional guarantee under Article I, Section 12, of the Florida Constitution to be free from unreasonable searches and seizures is the "requirement that an agent of the government perform those searches and seizures").
Therefore, all of Nash-Tessler's claims against the City of North Bay Village under the Florida Constitution are dismissed with prejudice for failure to state a cause of action. II. Nash-Tessler Has Stated Claims Under 42 U.S.C. § 1983 Against Defendants, Dorne, Manne and Kane, in their Individual Capacities, But Not in their Official Capacities
A. Nash-Tessler Has Alleged State Action Against Kane
One of the arguments raised in the individual Defendants' Motion to Dismiss is that Nash-Tessler cannot prevail against Defendant Kane under Section 1983 because Kane was not acting under color of state law, and the remedies provided by Section 1983 apply only to actions taken under color of state law. As the Eleventh Circuit of Appeals stated in Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992): "A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57 . . . (1978)." In certain circumstances, however, where the activities of private individuals are so intertwined with the activities of government officials such that the individuals' actions are "fairly attributable" to the state, those private individuals, as well as the state actors, may be held liable. The analytical methods under which state action may be established are: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. National Broadcasting Company, Inc. v. Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988).
The public function test "covers only private actors performing functions `traditionally the exclusive prerogative of the State.'" Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974)). The state compulsion test "limits state action to instances in which the government has coerced or at least significantly encouraged the action alleged to violate the Constitution." Id. The nexus/joint action test addresses whether "`the State had so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise,'" Id. at 1026-27 (citation omitted). "To charge a private party with state action under this [third test], the governmental body and private party must be intertwined in a `symbiotic relationship.'" Id. at 1027 (citation omitted).
The allegations of the Second Amended Complaint are sufficient to charge Defendant Kane with state action under all three tests. Nash-Tessler alleges a conspiracy among Mayor Dorne, Commissioner Manne, the City of North Bay Village Police Department, and Kane to wrongfully arrest Nash-Tessler and to publicize false information about her with the purpose of ensuring that she would lose her election to Kane. The determination of whether there is probable cause for an arrest is traditionally a function of the government. State action therefore exists under the public function test with respect to the claims arising from Nash-Tessler's alleged wrongful arrest. It is further alleged, in connection with the defamation claims, that the funds for the printing and publication of the Flyer came from Kane's campaign fund. Thus, Kane is undeniably "intertwined" with this alleged scheme to defame that involved state actors and is alleged to have been entered into at the direction of, and with significant encouragement from, the state actors. Accordingly, Nash-Tessler has sufficiently pled state action in her Section 1983 claims against Kane.
B. Dorne and Manne are Not Entitled to Qualified Immunity; However, First (Practice of Religion) and Ninth Amendment Claims are Nonetheless Dismissed
Kane does not raise a qualified immunity defense, presumably because he is not a public official.
Defendants, Dorne and Manne, are sued both in their individual and official capacities in Counts II and V. "When a plaintiff sues a municipal officer in the officer's individual capacity for alleged civil rights violations, the plaintiff seeks money damages directly from the individual officer" Busby v. City of Orlando, et al., 931 F.2d 764, 772 (11th Cir. 1991). A municipal officer may raise an affirmative defense of "qualified immunity" when he or she is sued in his or her individual capacity. Id.
Defendants, Dorne and Marine, argue that they are entitled to qualified immunity from the Section 1983 claims. The Court's inquiry in determining whether a government official is entitled to qualified immunity from individual liability under Section 1983 focuses on two questions: (1) whether plaintiffs allegations, if true, establish some underlying constitutional violation; and (2) whether the law or right the public official is alleged to have violated was clearly established at the time the incidents giving rise to the Section 1983 action occurred, such that a reasonable person would have known they were violating federal law. Cagle v. Sutherland, 334 F.3d 980, 988 (11th Cir. 2003); Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003).
Accepting Nash-Tessler's allegations as true, the undersigned finds that Nash-Tessler has sufficiently pled clearly established constitutional violations of her First Amendment right to run for political office and her Fourth Amendment right to be free from unreasonable searches and seizures unsupported by probable cause. Therefore, Defendants, Dorne and Manne, are not entitled to qualified immunity from individual liability for these claims at the motion to dismiss stage. However, Nash-Tessler's allegations concerning violations of her Ninth Amendment rights, and her First Amendment right to practice religion, are deficient. She fails to specifically allege which of her right(s) guaranteed by the Ninth Amendment were infringed by Defendants' actions. She also fails to state facts to support her claim that her right to practice religion was infringed. Indeed, nowhere in the Second Amended Complaint does Nash-Tessler allege that Defendants took any actions based on her religion. Accordingly, Nash-Tessler's claims against Dorne and Manne, in their individual and official capacities, arising under the Ninth Amendment, and her First Amendment claims based on her right to practice religion, are subject to dismissal. For the same reasons, such claims against Kane in his individual capacity are also subject to dismissal.
C. The Official Capacity Claims Against Dorne and Manne are Subject to Dismissal
The claims against Dorne and Manne in their official capacities, for violations of Nash-Tessler's First Amendment right to run for political office and her Fourth Amendment right to be free from unreasonable searches and seizures, are essentially Section 1983 claims against the City of North Bay Village. "[W]hen an officer is sued under Section 1983 in his or her official capacity, the suit is simply `another way of pleading an action against an entity of which an officer is an agent. . . . Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents." Busby, 931 F.2d at 776 (if the claims against the City are dismissed, the claims against the officers in their official capacity are also necessarily dismissed; and if the claims against the City remain, then the official capacity claims are "redundant"). In order to recover against a municipality for a Section 1983 claim, a plaintiff must establish that the alleged wrongful conduct occurred pursuant to a custom or policy of the municipality. Id. Accordingly, Section 1983 claims against municipalities are subject to dismissal unless the complaint alleges that the civil rights violations resulted from a formal or final municipal policy addressing the subject area in question, or a municipal practice or custom that is so pervasive as to be the functional equivalent of policy adopted by a final policymaker. See, e.g., Cannon v. Macon County, et al., 1 F.3d 1558, 1565 (11th Cir. 1993) (affirming district court's dismissal of complaint against a county where there were no allegations of facts to indicate that the alleged violation of due process rights resulted from a county policy or practice).
Nash-Tessler fails to cite to any formal or informal policy or practice of the City of North Bay Village upon which the individual Defendants' actions were based. She fails to cite to any municipal code section, policy or custom authorizing Mayor Dorne and Commissioner Marine to order city police officers to pursue criminal investigations and make arrests without probable cause, to disseminate official police investigation reports, or to prepare and publish political flyers. Therefore, the Section 1983 claims against Dorne and Marine, in their official capacities, are dismissed with leave to amend.
III. Nash-Tessler Has Stated Claims for Libel and Libel Per Se Against Defendants, Dorne, Manne and Kane
Defendants, Dorne and Manne, argue that they are entitled to an absolute privilege from liability for libel. Under Florida law, public officials, including municipal mayors and commissioners, are granted an absolute privilege from liability for defamation, but only when the alleged statements are made in connection with the duties and responsibilities of their office. McNayr v. Kelly, 184 So.2d 428, 430-31 (Fla. 1996). "[T]he controlling factor in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was within the scope of the officer's duties." City of Miami v. Wardlow, 403 So.2d 414, 416 (Fla. 1981). Here, the absolute privilege does not extend to Defendants, Dorne and Manne, because participating in the preparation of, and publishing, a political flyer, are actions that are not within the scope of their duties and responsibilities as Mayor and Commissioner of the City of North Bay Village.
Defendants also argue that Nash-Tessler has failed to state libel and libel per se claims because she has failed to specify the words alleged that would indicate malice by Defendants, and did not plead the nature of Defendants' requisite knowledge that the material published in the Flyer was false. A public figure plaintiff, like Nash-Tessler, must establish "actual malice" on behalf of the publisher in order to maintain a defamation action. Mile Marker, Inc. v. Petersen Publishing, LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002) (citing New York Times, 376 U.S. 254) (1964)). To show actual malice, a public figure plaintiff must establish that the disseminator of the information either knew the alleged defamatory statements were false, or published them with reckless disregard despite awareness of their probable falsity. Id. Furthermore, the plaintiff must prove the existence of actual malice by clear and convincing evidence. Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666, 668 (Fla. 3d DCA 1981). By attaching the allegedly libelous Flyer as an exhibit to the Second Amended Complaint, Nash-Tessler has alleged sufficient circumstances showing actual malice to survive a motion to dismiss. Accordingly, Nash-Tessler states causes of action for libel and libel per se against the individual Defendants.
Candidates for public office such as Nash-Tessler are deemed "public figures" under Florida law. Barnes v. Horan, 841 So.2d 472, 476 n. 4 (Fla. 3d DCA 2002).
A publication is libelous per se if it subjects one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in her trade or profession, or if it imputes to another conduct, characteristics, or a condition incompatible with proper exercise of her lawful business, trade, profession or office. Barry College v. Hull, 353 So.2d 575, 578 (Fla. 3d DCA 1978). Because the Flyer attributes a crime to Nash-Tessler, it is considered libel per se. See, e.g., Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 634 (Fla. 5th DCA 1983).
IV. Nash-Tessler's Claims Under 42 U.S.C. § 1985 Fail to State a Cause of Action
In Counts II, IV and V, Nash-Tessler attempts to state causes of action under 42 U.S.C. § 1985(3) against Defendants, Dorne, Manne, and Kane, in their individual and official capacities. Section 1985 is the federal civil rights statute prohibiting conspiracies to deprive any person or class of persons of equal protection of the laws. The elements of a cause of action under Section 1985(3) are "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627-28 (11th Cir. 1992); see Cromer v. Crowder, 2003 WL 21731284, *6 (S.D. Fla. 2003).
"[T]he second element requires a showing of `some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Lucero, 954 F.2d at 628 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)) (emphasis added); see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993) (holding that whatever the precise meaning of "class" may be, it "unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors."); Colon v. Lomelo, 575 F. Supp. 664, 668 (S.D. Fla. 1983) ("a person must possess some immutable characteristics to be a member of the class"). The Eleventh Circuit has recognized that "[t]his narrow intent requirement erects a significant hurdle for section 1985(3) plaintiffs, Section 1985(3) actions often stand or fall on the plaintiffs ability to establish the specific type of discriminatory animus behind the conspirators' actions." Burrell v. Board of Trustees of Ga. Military College, et al., 970 F.2d 789, 794 (11th Cir. 1992). That is, a plaintiffs failure to "allege facts demonstrating that the Defendants conspired against him [or her] because of his [or her] membership in a class and that the criteria defining the class were invidious," will result in dismissal of claims under Section 1985(3). Colon, 575 F, Supp. at 668 (dismissing complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim where plaintiff failed to show that there was a racial or otherwise class-based invidiously discriminatory animus behind defendants' actions).
In this case, the undersigned need not, and does not, decide whether Nash-Tessler has established any other element of a Section 1985(3) claim other than the second element.
The Supreme Court established in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), that a conspiracy motivated by the invidiously discriminatory intent of racial bias is actionable under Section 1985(3). The Eleventh Circuit has also applied Section 1985(3) to gender-based discrimination, but has never specifically addressed whether the Section applies to discrimination based on political beliefs or activities. Courts have been wary to extend Section 1985(3) to non-racial contexts due to the Supreme Court's admonition that the statute should not be read so broadly as to turn it into "a general federal tort law" that would "apply to all tortious, conspiratorial interferences with the rights of others." Griffin, 402 U.S. at 101-02. The Eleventh Circuit has limited protection under Section 1985(3) to two types of classes: "(1) classes having common characteristics of an inherent nature — i.e., those kinds of classes offered special protection under the equal protection clause, and (2) classes that Congress was trying to protect when it enacted the Ku Klux Klan Act [ 42 U.S.C. § 1985]." Childree v. UAP/GA AG Chem, Inc., 92 F.3d 1140, 1147 (11th Cir. 1996).
See Lyes v. City of Riviera Beach, Florida, 166 F.3d 1332, 1336-39 (11th Cir. 1999) (holding that women are protected by Section 1985(3) from conspiracies against them motivated by gender-based animus, at least where the conspirators are acting under color of state law).
In Colon, the Court addressed whether allegations of a conspiracy against an individual political opponent were sufficient to state a claim under Section 1985(3). In that case, plaintiff was a city councilman who had been involved in several political disagreements with the defendant mayor. The complaint alleged that in retaliation for plaintiff publicly questioning the validity of the defendant's mayoral re-election, defendant set in motion a chain of events that ultimately cost plaintiff his job as a claims adjuster for an insurance company. Specifically, plaintiff claimed that, pursuant to the mayor's instructions, two city police officers visited him at the insurance company where he worked to inform his manager that plaintiff was under official investigation for the unauthorized use of the company's postage meter for personal mail. The insurance company discharged plaintiff, and plaintiff maintained that his employer's decision to fire him was based on the allegedly conspiratorial actions of the mayor, the police officers, and the city. The Court noted that "the underlying dispute here is nothing more than a political feud masquerading as a legal claim." Colon, 575 F. Supp. at 668. The Court also dismissed the Section 1985(3) claims against defendants, finding that plaintiff had failed to allege class-based discrimination of any kind, and thus, failed to allege a racial or otherwise class-based invidiously discriminatory animus. Id.
Some federal courts that have addressed the issue of whether politically-based discrimination is actionable under Section 1985(3) have found that it is only actionable where the political animus is directed at a political party or group, and not where it is only directed at a particular individual based on that individual's political activities Other federal courts have extended the protection of Section 1985(3) to a class of "supporters of a political candidate."
See, e.g., Keating v. Carey, 706 F.2d 377, 386-87 (2d Cir. 1983) (holding that Republicans are a protected class under Section 1985(3), and thus, complaint alleging that civil servant was terminated from his position due to his affiliation with the Republican party stated a cause of action); Fantroy v. Greater St. Louis Labor Council, AFL-CIO, 478 F. Supp. 355, 357 (E.D. Mo. 1979) (finding that Section 1985(3) supports a claim of discrimination against a person as a member of a group with certain political beliefs). But see Harrison v. KVAT Food Management, Inc., 766 F.2d 155, 156-67 (4th Cir. 1985) (holding that Republicans as a class are not protected by Section 1985(3)); Reyes v Municipality of Guaynabo, 59 F. Supp.2d 305, 308-09 (D. P.R. 1999) (being a member of a political party does not constitute a protected class under Section 1985(3)); Rodriguez v. Nazario, 719 F. Supp. 52, 56-57 (D.P.R. 1989) (granting defendant's motion to dismiss plaintiffs Section 1985(3) claim on the ground that being a member of a political party did not constitute a protected class under the statute).
See, e.g., Kyle v. Morton High School, 144 F.3d 448, 457-58 (7th Cir. 1998) (holding that terminated teacher could not maintain a Section 1985(3) claim based on his allegation that school board and school board members conspired with unnamed individuals to injure teacher in retaliation for his political advocacy, finding no racial or other class-based discriminatory animus); Gleason v. McBride, 869 F.2d 688, 695 (2d Cir. 1989) (holding that a particular plaintiffs hostility to the policies of the dominant political party is not sufficient to make him a member of a protected class under Section 1985(3) because "`the intended victims [of discrimination] must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular class'"); Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975) (in action brought by former state political party chairman who charged that former governor, attorney general and others suppressed evidence and manipulated administrative processes in an effort to destroy plaintiffs political career by generating adverse publicity and procuring his indictment, claims under Section 1985(3) were vitiated by the fact that plaintiff established no class-based invidiously discriminatory animus); Blankman v. County of Nassau, 819 F. Supp. 198, 205-06 (E.D. N.Y. 1993) (holding that individuals who claimed they were discriminated against on the basis of opposition to the policies of county officials and their political associations when county officials favored their political supporters in the leasing of public property were not cognizable "class" protected under Section 1985(3), where plaintiffs did not allege that they were discriminated against because they were Republicans or Democrats; indeed, they did not even reveal their party affiliations).
See, e.g., Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973) (a plaintiff states a cause of action under Section 1985(3) if he can show that he was denied the protection of the law because he was a member of a class of supporters of a particular political candidate); Perez v. Cucci, 725 F. Supp. 209, 239 (D.N.J. 1989) (holding that city police officer's membership in political group that supported unsuccessful mayoral candidate placed him within a class entitled to protection under Section 1985(3)); Puentes v. Sullivan, 425 F. Supp. 249, 252-53 (W.D. Tex. 1977) (holding that a conspiracy to deprive a person of his right to free expression merely because he is a member of a group advocating an unpopular position or supporting the election of an unpopular candidate can be classified as a conspiracy based on an invidiously discriminatory animus, as required by Section 1985(3)).
In this case, Nash-Tessler's Section 1985(3) claims are based on her contention that the individual Defendants violated her right to run for political office. Admittedly, the right to run for political office is a right protected by the First Amendment to the United States Constitution. See, e.g., Holley v. Seminole County School District, 755 F.2d 1492, 1500 (11th Cir. 1985). Nonetheless, Nash-Tessler has failed to state a cognizable claim under Section 1985(3) against any of the Defendants because she is not alleged to be a member of any class. Her claim that her candidacy for a city commission seat was sabotaged because city officials opposed her candidacy is not the equivalent of the necessary allegation that she is a member of a clearly defined class whose rights have been compromised by Defendants' actions. She has not alleged that she was discriminated against based on her race, gender, political beliefs or associations to apolitical party. What she alleges amounts to Defendants' personal animosity toward her political campaign, and therefore, Nash-Tessler's Section 1985 claims are dismissed with leave to amend.
The Court does not comment on the contours of that right, or whether it is significant or "fundamental."
V. Nash-Tessler's Second Amended Complaint Fails to Satisfy the Requirements of Rule 10 of the Federal Rules of Civil Procedure
The Second Amended Complaint violates the one-claim-per-count rule. Fed.R.Civ.P. 10(b). In Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364, 366-67 (11th Cir. 1996), the court, concerned about the ramifications of cases proceeding on the basis of "shotgun" pleadings, noted:
Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.See also Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996); L.S.T., Inc. v. Crow, 49 F.3d 679, 684 (11th Cir. 1995). This problem arises where myriad factual allegations and legal theories are often consolidated into a single count, or into one set of "general allegations" which, in turn, are incorporated by reference wholesale into every count of the complaint. Such "shotgun" pleading imperils fundamental principles of due process.
The Eleventh Circuit has expressed increased frustration with district courts that allow a case to proceed despite such shotgun pleadings. See Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001). The Byrne court sought to avoid having district courts undergo the time-consuming process of "rearranging the pleadings and discerning whether the plaintiff has stated a claim, or claims, for relief, and whether the defendant's affirmative defenses are legally sufficient." Id. at 1129, The Byrne panel also counseled, "Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be heard." Id. at 1131. Accordingly, each of Nash-Tessler's claims that is not dismissed with prejudice as indicated above, is dismissed with leave to amend.
The purpose and effect of this Order are limited. The Order is intended to require that the Second Amended Complaint be brought into compliance with Rule 10(b) and the provisions of this Order. In redrafting the complaint, counsel must be mindful of the rule that a well-pleaded complaint contains only one claim per count, and of the due process concerns articulated above. Counsel is required to ensure that each legal claim advanced is set forth in a separate count, e.g., if Nash-Tessler alleges a Section 1983 claim, a Section 1985 claim, and a libel claim against a single defendant, each of those claims requires a separate count. However, if Nash-Tessler alleges a Section 1983 claim against more than one defendant, that claim against defendants maybe set forth in one count. Further, each count shall state with specificity both the factual and legal bases for the claim it sets forth.
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows.
1. Defendant, City of North Bay Village's Motion to Dismiss Second Amended Complaint ( D.E. 37) is GRANTED. Counts I and VI are DISMISSED with prejudice as to the City of North Bay Village, including the claims against the City of North Bay Village Police Department, All claims in Counts II and V against Alan Dorne and Jay Manne, in their official capacities, under Sections 1983 and 1985, which are actually claims against the City, are DISMISSED with leave to amend.
2. Defendants, Alan Dorne, George Kane, and Jay Marine's Motion to Dismiss Plaintiff's Second Amended Complaint ( D.E. 38) is GRANTED in part. The libel and conspiracy claims in Counts II, V and VI against Defendants, Dorne and Manne, acting in their official capacity, are DISMISSED with prejudice. The remaining claims against Defendants, Dorne, Manne and Kane, are dismissed with leave to amend.
3. Nash-Tessler shall have twenty (20) days from the date of this Order to file a Third Amended Complaint that comports with this Order. No further amendments to the complaint will be permitted after the filing of the Third Amended Complaint. Defendants shall have twenty (20) days from the date of service of the Third Amended Complaint to file a response.DONE AND ORDERED in Chambers at Miami, Miami-Dade County, Florida, this30 day of September, 2003.