Opinion
Case No. 3:01-cv-471/LAC
September 10, 2002
ORDER
THIS CAUSE comes before the Court on Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment (Doc. 10). Plaintiff responded in opposition (Doc. 37). Defendants replied (Doc. 49). For the reasons stated below, Defendants' Motion to Dismiss is due to be GRANTED. Plaintiff's motion for leave to file an amended complaint is DENIED (Doc. 40). All other pending motions are DENIED as moot (Docs. 28, 30). This action is DISMISSED with prejudice.
I. STATEMENT OF CASE
A. Background
This case is the most recent of a series of cases alleging wrongdoing by government employees that took part in Plaintiff's criminal prosecution. Plaintiff DON H. PACE, a suspended Ohio attorney, proceeding pro se, was indicted on 81 counts of criminal activity, including wire fraud, subscribing to a false tax return, conspiracy to commit mail fraud, mail fraud, money laundering, engaging in monetary transactions in property derived from unlawful activity, and fraud by wire, radio, or television (Doc. 3, ¶¶ 82-83). During that action, the Government sought forfeiture of a residence owned by Plaintiff and his wife in Florida ( Id., ¶ 82). Plaintiff was convicted of two counts of wire fraud and one count of subscribing to a false tax return, and acquitted of the remaining 78 charges ( Id., ¶ 83).
In the instant complaint, Plaintiff alleges that Defendant LEONARD PLATT, a domiciliary of Arizona and an employee of the Internal Revenue Service (IRS) Criminal Investigation Division violated his constitutional rights and engaged in tortuous conduct by giving false testimony before the grand jury and writing false memoranda regarding the results of his criminal investigation of Plaintiff ( Id., ¶¶ 78-81; Doc. 10, Ex. 1, ¶ 4). Plaintiffs further contend that Defendants JOAN E. KLAR, TIMOTHY J. LEE, MARK D. COX — all domiciliaries of Arizona — and JOHN DOES 1-10 failed to properly supervise Defendant Platt and approved and authorized his request for grand jury proceedings (Doc. 3, ¶¶ 84-88).
Although, Plaintiff's complaint names ten John Doe defendants, Plaintiff has not identified the Defendants. However, two employees of the IRS, Cynthia Foster and William Shipley — both domiciliaries of California — received copies of the summons and amended complaint from a process server, but have not been named as defendants (Doc. 11, Ex. 1, ¶ 5; Doc. 16, Ex. 1, ¶ 4).
Even if Foster and Shipley had been named as defendants, the amended complaint would be dismissed against them. Therefore, the Court proceeds as if they had been named as defendants.
None of the individual Defendants own, or have ever owned, real property in the State of Florida, or have operated a business in the State of Florida (Doc. 10, Ex. 1, ¶ 4). Further, Defendants' only ties to Florida involved in Plaintiff's criminal investigation or prosecution was that Defendant Platt traveled to Florida on two occasions, consisting of a total of five or six days, in which he interviewed approximately three witnesses (out of 25) and in which he attended, but did not participate in, a court hearing in which Plaintiff was attempting to sue a witness that was to testify against him in the criminal trial in Arizona (Doc. 10, Ex. 1, ¶ 5; Ex. 2, ¶ 4; Ex. 3, ¶ 4; Ex. 4, ¶ 7; Doc. 11, Ex. 1, ¶ 6; Doc. 16, Ex. 1, ¶ 5).
B. Procedural History
Plaintiff filed a sixty-eight page, six-count amended complaint on January 9, 2002, relying on Title 28, United States Code, Sections 1343 and 1346(b) for jurisdiction (Doc. 3). The first count of the complaint, brought pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), asserts a "constitutional tort" — namely, that Defendants Platt, Klar, Lee, Cox, and John Does 1-10 allegedly violated Plaintiff's right to due process and an independent, unbiased grand jury under the Fifth Amendment of the United States Constitution. The remaining counts allege tort claims for malicious prosecution against the individual defendants (Count II); negligent hiring and supervision against Defendants UNITED STATES OF AMERICA, IRS, Klar, Lee, Lamar and Does 1-10 (Count III); respondeat superior against Defendants United States and IRS (Count IV); and intentional infliction of emotional distress against all Defendants (Count V). Plaintiff brings Counts II through V pursuant to the Federal Torts Claim Act (FTCA), Title 28, United States Code, Sections 2671 through 2680. Pursuant to Title 28, United States Code, Sections 2679(b)(2) and 2679(d)(2), this Court substituted the United States for the individual Defendants in Counts II through VI and dismissed the individual Defendants from those counts (Doc. 22). Defendants now move to dismiss all claims under various theories for want of subject matter jurisdiction, personal jurisdiction, and failure to state a claim upon which relief can be granted (Doc. 8).
Plaintiff does not allege that Counts IV and V are brought pursuant to the FTCA (Doc. 3, pp. 68-69). Thus, if the Court were not to construe the claims as having been brought under the FTCA, then this Court would lack subject matter jurisdiction over the claims. But since the Court's result remains unchanged, the Court construes Counts TV and V as though they had been brought under the FTCA.
Defendants also move to dismiss the complaint for insufficiency of service of process. Because the complaint is dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction, and for failure to state a claim for which relief can be granted, the Court need not address these arguments.
Plaintiff asserts in his opposition memorandum he may amend his amended complaint without leave of the Court or written consent of the adverse party because Defendants have not filed a "responsive pleading." While Plaintiff is correct that Defendants have not filed a "responsive pleading," he is incorrect in that leave of the Court or written consent of the adverse party is not necessary for him to amend his complaint after having already filed an amended complaint (Doc. 3). See FED. R. CIV. P. 15(a). Perhaps recognizing this error, Plaintiff also moves for leave to amend his complaint claiming that Defendants' motion "assert[s] technical pleading issues not going to the merits" (Doc. 40). Defendants oppose the motion, arguing that the issues in the motion go to the merits and are not "technical pleading issues" that can be resolved by a second amended complaint, and that justice does not require Plaintiff be granted leave to amend his complaint because Plaintiff's proposed second amended complaint does not cure the issues presented in the motion to dismiss (Doc. 44). After reviewing the proposed pleading and the applicable law, the Court agrees with Defendants and Plaintiff's motion for leave to amend his complaint is DENIED.
II. MOTION TO DISMISS
A. StandardA motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is designed to eliminate complaints or claims over which this Court lacks subject matter jurisdiction. As the party seeking this Court's jurisdiction, Plaintiffs have the burden of alleging facts sufficient to show federal jurisdiction is appropriate. See McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 188-89, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Plaintiffs carry the burden throughout the litigation and must support their allegations of jurisdiction with sufficient facts if challenged by Defendants or the Court. See id. "A federal court must always dismiss a case upon determining that it lacks subject matter jurisdiction, regardless of the stage of the proceedings, and facts outside of the pleadings may be considered as part of that determination." Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n. 6 (11th Cir. 2001).
A motion to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure is designed to eliminate defendants over which the Court does not have personal jurisdiction. The plaintiff bears the burden of proving "by affidavit the basis upon which jurisdiction may be obtained" only if the defendant challenging jurisdiction files "affidavits in support of his position." Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999) (quoting Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989)). When the court does not conduct a discretionary hearing on a motion to dismiss for lack of personal jurisdiction, the plaintiff must establish a prima facie case of personal jurisdiction over a non-resident defendant. Robinson v. Giarmarco Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996); Mandara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990); Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). A prima facie case is established if the plaintiff presents sufficient evidence to withstand a motion for a directed verdict. Robinson, 74 F.3d at 255; Mandara, 916 F.2d at 1514. Where the plaintiff's complaint and the defendant's affidavits conflict, the court must construe all reasonable inferences in the plaintiff's favor. Robinson, 74 F.3d at 255; Mandara, 916 F.2d at 1514.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is designed to eliminate counts or complaints that fail to state a claim upon which relief can be granted. As such, this Court must accept all allegations of the complaint as true and construe those allegations in the light most favorable to Plaintiffs. See Lopez v. First Union Nat'l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir. 1997). A count may not be dismissed with prejudice for failure to state a claim unless it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claim which would entitled them to relief. See id. "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Quality Foods de Centro Am. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir. 1983).
B. Discussion
1. Subject Matter Jurisdiction
Defendants argue that this Court lacks subject matter jurisdiction over a number of Plaintiff's claims because (1) Congress has not waived sovereign immunity over the IRS and (2) Plaintiff has failed to exhaust his administrative remedies under the FTCA, divesting the Court of jurisdiction over Counts II through V. "[T]he United States, as a sovereign, `is immune from suit, save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). Any statutory waiver of sovereign immunity must be strictly construed in favor of the United States. See United States v. Nordic Villiage, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992); Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir. 1996). When the United States has not consented to suit, the action must be dismissed for lack of subject matter jurisdiction. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). Moreover, Plaintiff, as the party suing the United States, bears the burden of pointing to an "unequivocable waiver of immunity." Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).
Plaintiff argues that this issue is moot because this Court has already ordered the United States be substituted. However, this Court has not issued such an order with regard to the IRS, only with regard to the individual Defendants (Doc. 22). Accordingly, the Court proceeds to the issue.
Plaintiff has sued the IRS as a defendant in this action. However, Congress has not authorized suit against the IRS. Therefore, it lacks the capacity to be sued. See Blackmar v. Guerre, 342 U.S. 512, 514, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952); Castleberry v. Alcohol, Tobacco Firearms Div., 530 F.2d 672, 673 n. 3 (5th Cir. 1976); Washburn v. Shapiro, 409 F. Supp. 3, 8 (S.D. Fla. 1976); Krouse v. U.S. Dept. of Treasury, Internal Revenue Serv., 380 F. Supp. 219, 221 (C.D. Cal. 1974); Baumohl v. Columbia Jewelry Co., 127 F. Supp. 865 (D. Md. 1955). Accordingly, this Court lacks subject matter jurisdiction over suits against the IRS. Therefore, Defendants' motion is GRANTED to that extent and the IRS is DISMISSED with prejudice from this action.
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981.
b. FTCA Exclusion for Assessment or Collection of Taxes
Defendants argue that Plaintiffs' claims under Counts II through V are specifically exempted from the FTCA and, therefore, that this Court lacks subject matter jurisdiction over those claims. The FTCA specifically excludes "[a]ny claim arising in respect to the assessment or collection of any tax . . . ." 28 U.S.C.A. § 2680(c) (West 1994). "Section 2680(c) has been interpreted broadly by the courts to preclude suits for damages arising out the alleged tortious activities of IRS agents when those activities were in any way related to the agents' official duties." Capozzoli v. Tracey, 633 F.2d 654, 658 (5th Cir. 1981) (citing Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975); Broadway Open Air Theatre v. United States, 208 F.2d 257, 259 (4th Cir. 1953); Pugh v. I.R.S., 472 F. Supp. 350, 352-353 (E.D. Pa. 1979); Paige v. Dillon, 217 F. Supp. 18, 20 (S.D.N.Y. 1963)).
Plaintiff's amended complaint raises claims that arise out of an IRS criminal tax investigation and his subsequent prosecution. Such claims "arise in respect to the assessment or collection of any tax . . . ." 28 U.S.C.A. § 2680(c) (West 1994); see Jones v. United States, 16 F.3d 979, 980-981 (8th Cir. 1994) (finding IRS's "rough and tumble, no-holds-barred" criminal investigation, including "telephone wire taps, personal interviews with acquaintances and business contacts, and searches of and seizures from the [Plaintiff's] home and business locations" that did not culminate with a successful prosecution was excepted from FTCA waiver of sovereign immunity as "arising in respect to the assessment or collection of any tax"). Therefore, Defendants' motion must be GRANTED as to Counts II through V, and those counts must be DISMISSED with prejudice.
c. FTCA Exhaustion
Assuming arguendo that Counts II through V were not dismissed for the reasons set forth above, those claims still must be dismissed for Plaintiff's failure to properly allege that he exhausted his administrative remedies. Under the FTCA, Congress waived sovereign immunity and granted consent for the United States government to be sued for acts committed by any "employee of the Government while acting within the scope of his office or employment." 28 U.S.C.A. § 1346(b) (West Supp. 2001). However, a procedural prerequisite for such a suit is that "[a]n action . . . not be instituted . . . unless the claimant [has] first presented the claim to the appropriate Federal agency and his claim [has] been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C.A. § 2675(a) (West 1994). The filing requirement is satisfied if the claimant "(1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim." Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980). A claim is "finally denied" when there has been a formal denial or when the agency fails to "make final disposition of a claim within six months." Id. This exhaustion prerequisite to suit is a jurisdictional requirement that cannot be waived and Plaintiff must provide proof that he satisfied this requirement to institute suit against the United States. See Lykins v. Pointer, Inc., 725 F.2d 645, 646-47 (11th Cir. 1984); Employee Welfare Comm. v. Daws, 599 F.2d 1375, 1378 (5th Cir. 1978). Accordingly, this Court does not have jurisdiction over a prematurely filed suit. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1983, 124 L.Ed.2d 21 (1993).
The purpose of this requirement is "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States." Brown v. United States, 838 F.2d 1157, 1160 (11th Cir. 1998) (quoting Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980); S. REP. NO. 1327, 89th Cong., 2d Sess. 6, reprinted in 1966 U.S.C.C.A.N. 2515, 2516).
In the instant case, Plaintiff's sole allegation of satisfying the administrative exhaustion requirement is that "Plaintiff has duly made demand upon the [IRS] and has received no response" (Doc. 3, ¶ 9). This allegation is insufficient to fulfill Plaintiffs' procedural prerequisite. Plaintiff does not allege that he instituted this action either six months after filing an administrative claim or after a formal denial of relief on his administrative claim. Therefore, Plaintiff has not sufficiently averred or established proof of jurisdiction for Counts II through V. Accordingly, if the Court had reached this issue, Counts II through V would still have been dismissed.
Plaintiff argues that this issue could be resolved by permitting him leave to file his second amended complaint (which he has incorrectly labeled as "First Amended Complaint"). However, the proposed complaint states:
Plaintiff duly made demand upon the Internal Revenue Service and provided details of the claim under the Federal Tort Claim Act on August 10, 2001. The six-month period expired on February 10, 2002 and Plaintiff had not received a response. On March 25, 2002, Plaintiff served the US Attorney Civil Process Clerk with the Complaint in this action. By letter dated June 14, 2002, the IRS denied the claim.
(Doc. 40, Attach., ¶ 10). However, the initial complaint in this case was filed on December 14, 2001, so Plaintiff "instituted" suit well before the six-month period expired.
The Supreme Court has held, "In its statutory context, we think the normal interpretation of the word `institute' is synonymous with the words `begin' or `commence.' The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process." McNeil, 508 U.S. at 112, 113 S.Ct. at 1983-84 (emphasis added). The judicial process is invoked when a complaint is filed, not when a defendant is served. Cf. Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998) (requiring exhaustion before "filing . . . claims in federal court"); Ivey v. United States, 873 F. Supp. 663 (N.D. Ga. 1995) (relying on filing of complaint as institution of suit). Accordingly, Plaintiff's suit is premature — a defect that could not be cured by allowing Plaintiff leave to file a second amended complaint — and this Court lacks subject matter jurisdiction. See McNeil v. United States, 508 U.S. at 113, 113 S.Ct. at 1983.
2. Failure to State a Claim for which Relief Could be Granted
Defendants claim that Plaintiff fails to state a claim for which relief can be granted because Defendants are immune from suit. First, Defendants assert that Defendant Platt's testimony before the grand jury is absolutely immune from suit. Second, Defendants assert that the individual Defendants are qualifiedly immune from suit on Count I. The Court discusses each argument in turn.
a. Absolute Immunity
Defendants assert that Defendant Platt's grand jury testimony is absolutely immune from suit. It is well-settled that a law-enforcement officer witness is entitled to absolute immunity from civil liability for grand jury testimony, even if false. Scarbrough v. Myles, 245 F.3d 1299 (11th Cir. 2001); Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir. 1999); Strength v. Hubert, 854 F.2d 421 (11th Cir. 1988); see also Broscoe v. LaHue, 460 U.S. 325, 345-46, 103 S.Ct. 1108, 1121, 75 L.Ed.2d 96 (1983); Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir. 1994). Plaintiff argues that Platt should not be entitled to absolute immunity for allegedly false testimony before the grand jury and that Platt, as a "complaining witness" is not entitled to absolute immunity. The Eleventh Circuit has expressly rejected these arguments. Jones v. Cannon, 174 F.3d 1271, 1287 n. 10 (11th Cir. 1999). Accordingly, Defendants' motion to dismiss is due to be GRANTED and Plaintiff's claims are DISMISSED with prejudice to the extent they complain of Platt's grand jury testimony. b. Qualified Immunity
The Supreme Court cases relied upon by Plaintiff are clearly distinguishable. In Malley v. Briggs, 475 U.S. 335, 337, 340-41, 106 S.Ct. 1092, 1094, 1096, 89 L.Ed.2d 271 (1986), the Supreme Court considered the issue of whether a defendant police officer was immune "when presenting a judge with a complaint and a supporting affidavit which failed to establish probable cause," not grand jury testimony. Additionally, Plaintiff both misquotes and entirely misrepresents Estelle v. McGuire, 502 U.S. 62, 72-75, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991), in which the Supreme Court reviewed a federal habeas corpus petition and set forth the standard of review of a petite jury instruction as "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process."
Had the Court not dismissed Counts II and V for lack of subject matter jurisdiction, it would have dismissed them with prejudice, to the extent that they rely upon Platt's grand jury testimony, for the same reasons.
Defendants also raise the defense of qualified immunity. Although an affirmative defense such as qualified immunity generally will not support a Rule 12(b)(6) motion to dismiss for failure to state a claim, qualified immunity may be granted on such a motion when, under the most favorable version of the facts as alleged by the plaintiff, the defendant's actions do not violate clearly established law. Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993). The plaintiff must show that the constitutional right's contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [i]n the light of pre-existing law the unlawfulness must be apparent." Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 2515, ___ L.Ed.2d ___ (2002) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Immunity should be granted if, at the time of the official's actions, the law was unclear or the official could have reasonably believed his actions were lawful. See Edwards v. Gilbert, 867 F.2d 1271, 1273 (11th Cir. 1989). Both the Supreme Court and the Eleventh Circuit have stated that "a plaintiff cannot strip a . . . defendant of his qualified immunity by citing to general rules or abstract rights." See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39; Walker v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir. 1997), cert. denied, 523 U.S. 1117, 118 S.Ct. 1794, 140 L.Ed.2d 935 (1998). Rather, "[q]ualified immunity focuses on the actual, specific details of concrete cases." Id.
Plaintiff asserts that Defendant Platt prepared allegedly false memoranda recommending Plaintiff's prosecution. Plaintiff also asserts that Defendants Klar, Lee, Cox, Foster, and Shipley approved Defendant Platt's request for initiation of grand jury proceedings. However, Plaintiff has failed to demonstrate that such actions violate a clearly established constitutional right. Plaintiff does not direct the Court to anything more than the general, abstract right to an unbiased grand jury in support of these claims. Further, the Court cannot locate a case that provides that an official's preparation of allegedly false memoranda recommending prosecution or a supervisor's approval of a request for grand jury proceedings violates clearly established rights. Thus, Defendant has not met his burden on these claims and demonstrated that he could strip Defendants of their immunity.
Rather, the general principles applicable to the instant case counsel towards the opposite conclusion. See, e.g., Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 806, 812, 127 L.Ed.2d 114 (1994) (plurality opinion) (no substantive due process right to be free from prosecution without probable cause).
Plaintiff also alleges that the individual Defendants conspired to violate his rights to an impartial grand jury by engaging in the same activities that are outlined above, essentially by conspiring to have Defendant Platt present false incriminating testimony to the grand jury. The Court finds this count does not survive a motion to dismiss. First, "allegations of a conspiracy must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action." See Crabtree ex rel. Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990). Plaintiff's complaint is devoid of such a factual basis as it fails to allege facts demonstrating an agreement or concerted action among the individual Defendants.
Second, even assuming that Plaintiff had set forth such allegations, Plaintiff's claims are not actionable. In Mastroianni v. Bowers, 173 F.3d 1363, 1367 (11th Cir. 1999), the Eleventh Circuit determined that a witness's absolute immunity from liability for testifying forecloses any use of that testimony as evidence of the witness's membership in a conspiracy prior to his taking the stand. Plaintiff's claim of conspiratorial conduct avers exactly what Mastroianni prohibits: that Platt's absolutely immune testimony before the grand jury demonstrates and is the product of conspiratorial conduct by the individual Defendants. Therefore, because even under the most favorable version of the facts as alleged by Plaintiff, Defendants are immune from suit, Defendants' motion to dismiss is due to be GRANTED on this ground and Count I of Plaintiff's complaint must be DISMISSED with prejudice in its entirety.
The Eleventh Circuit has explained the rationale for this rule as follows:
Allowing the use of absolutely immune false testimony as evidence of conspiratorial conduct that is not immune would weaken the shield of immunity that protects witnesses from liability, a shield essential to the presentation of testimony. If getting on the stand to testify exposed a witness to liability, the absolute immunity extended to a witness would be illusory, and that is true even if the exposure was limited to liability for a conspiracy proven through use of the testimony. Thus a witness must be immune from having her testimony used to show a conspiracy.Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1282 (11th Cir. 2002).
3. Lack of Personal Jurisdiction
However, even assuming that subject matter jurisdiction existed and Defendants were not immune from suit, Plaintiff still would not be able to obtain relief because he has failed to establish the existence of personal jurisdiction. When damages claims are asserted individually against a federal employee seeking recovery against personal resources, a plaintiff is required to plead facts establishing that the court has personal jurisdiction over the defendant with respect to the claims. See Gilbert v. DaGrassa, 756 F.2d 1455, 1459 (9th Cir. 1985); James v. Reno, 1999 WL 615084 (D.C. Cir. 1999); Ecclesiastical Order of Islam of Am., Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988). The parties do not dispute that the individual defendants are foreign residents (Doc. 10, Ex. 2, ¶ 3; Ex. 3, ¶ 3; Ex. 4, ¶ 6, Doc. 11, Ex. 1, ¶ 5; Doc. 16, Ex. 1, ¶ 4). Defendants maintain that the individual defendants are not subject to personal jurisdiction under Florida's long arm statute. See FLA. STAT. ANN. § 48.193 (West Supp. 2002).
In determining whether personal jurisdiction over a non-resident party exists, the Court must engage in a two-part analysis. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996); Mandara, 916 F.2d at 1514. The first question is whether jurisdiction can be assessed under the long-arm statute of the forum state. Cable/Home Comm. Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990); Mandara, 916 F.2d at 1514. If a basis for jurisdiction under the long-arm statute is found, the second inquiry is whether sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that "maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Cable/Home Comm., 902 F.2d at 855. Personal jurisdiction is only satisfied if both of the prongs are satisfied. Mandara, 916 F.2d at 1514.
a. Florida's Long Arm Statute
Because the reach of Florida's long-arm statute is a question of Florida law, this Court must construe it as would the Florida Supreme Court. Id. Moreover, Florida's long-arm statute must be strictly construed, and the burden of proving facts which justifies its application lies with the plaintiff. Oriental Imports Exports, Inc. v. Maduro Curiel's Bank, N.V., 701 F.2d 889, 890-91 (11th Cir. 1983). Florida's long-arm statute provides, in relevant part:
(1) Any person, whether or not a citizen or resident of this state, who . . . does any of the acts enumerated in this subsection, thereby submits himself or herself . . . to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
. . .
(b) Committing a tortious act within this state.
. . .
FLA. STAT. ANN. § 48.193 (West Supp. 2002) (emphasis added).
While each individual alleged conspirator is not required to have minimum contacts — as defined by Florida law — in order to be subjected to the jurisdiction of Florida court's under Florida's long-arm statute, Avent, Inc. v. Nicolucci, 679 So.2d 7, 8 (Fla. 2d DCA 1996), rev., denied, 690 So.2d 1300 (Fla. 1997), the alleged activities of the conspiracy must still fall under the provisions of the long-arm statute. In the instant case, Plaintiff has utterly failed to allege any facts showing that the individual Defendants are subject to jurisdiction in this state. Furthermore, Plaintiff does not demonstrate how the alleged tortious conduct of which he complains "arises from" the individual Defendants' contacts with Florida. Wendt v. Horowitz, ___ So.2d ___, 2002 WL 1290902, *7 (Fla. 2002). Accordingly, dismissal would be appropriate on each of these grounds alone. See Parham v. Lamar, 1 F. Supp.2d 1457, 1459 (M.D. Fla. 1998).
b. Due Process
When a plaintiff has demonstrated that a defendant falls under the Florida long-arm statute, the district court's inquiry typically ceases. However, the Court continues to proceed arguendo, as though subject matter jurisdiction existed, Plaintiff stated a claim for which relief could be granted, and Defendants had fallen under Florida's long-arm statute, to the issue of whether exercising personal jurisdiction over Defendants would comport with due process. Due process requires that "`minimum contacts' exist between [Defendants] and Florida and exercising jurisdiction does not offend `traditional notions of fair play and substantial justice.'" Posner, 178 F.3d at 1220; see Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., 480 U.S. 102, 108-14, 107 S.Ct. 1026, 1030-33, 94 L.Ed.2d 92 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); Int'l Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158.
Minimum contacts can give rise to either "specific" personal jurisdiction or "general" personal jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). General jurisdiction requires a showing of "continuous and systematic general . . . contacts between the defendant and the forum state." Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir. 2002). Plaintiff does not argue that general jurisdiction applies to the instant case. Therefore, any exercise of personal jurisdiction must be specific jurisdiction. Specific jurisdiction is appropriate when the suit arises out of, or is related to, a party's isolated contacts with the forum state. See Helecopteros Nacionales, 466 U.S. at 414, 104 S.Ct. at 1872. The Eleventh Circuit has adopted a tripartite test to determine whether such minimum contacts are met.
Moreover, the record makes clear that general jurisdiction would not apply to this case.
First, the contacts must be related to the plaintiff's cause of action . . . . Second, the contacts must involve some act by which the defendant purposely avails itself of the privilege of conducting activities within the state. Third, the defendant's contacts must be such that the defendant should reasonably anticipate being haled into court in the forum state.Posner, 178 F.3d at 1220 (citing Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546 (11th Cir. 1993)).
Plaintiff has failed to demonstrate how Defendant Platt's conducting three interviews in Florida and his attendance, but not participation, at a legal hearing in Florida are related to Plaintiff's claims. Further, the nature of Defendant Platt's contacts are so remote that he should not have reasonably anticipated that he would be haled into court in Florida as a result. Id. Therefore, had the Court reached the issue, it would have found that minimum contacts are not present and that Defendants' motion to dismiss for lack of personal jurisdiction is due to be granted and the case should be dismissed on that ground.
III. SUMMARY
The Court's ruling in this matter may be summarized as follows, and it is hereby ORDERED:
1. Plaintiff's Motion for Leave to File an Amended Complaint (Doc. 40) is DENIED.
2. Defendants' Motion to Dismiss (Doc. 10) is GRANTED and Plaintiff's First Amended Complaint (Doc. 3) is DISMISSED with prejudice.
3. Plaintiff's Motion for Continuance Under Rule 56(f) of Consideration of Motion of Defendants Klar, Lee, Cox, Foster, and Shipley (Doc. 28) is DENIED as moot.
4. Plaintiff's Motion to Extend Time for Service as to Certain Defendants (Doc. 30) is DENIED as moot.
5. The Clerk of the Court is directed to enter judgment in favor of Defendants and against Plaintiff and to close this file. Plaintiff takes nothing by this action and goes without day.