Brivik v. Murray

• Decision Date: 05 October 2012
• Docket Number: Case No. 8:11-cv-2101-T-33TGW
• Citation: Brivik v. Murray, Case No. 8:11-cv-2101-T-33TGW (M.D. Fla. Oct 05, 2012)
• Parties: MARK BRIVIK, Plaintiff, v. JOSEPH MURRAY, STEVE MURRAY, JOSEPH RUSSON, RICHARD ZIMMERMAN, RONALD CARR, ANDRE PANET-RAYMOND, and ABRAHAM SMAJOVITS, Defendants.
• Court: U.S. District Court — Middle District of Florida

MARK BRIVIK, Plaintiff,

v. JOSEPH MURRAY, STEVE MURRAY, JOSEPH RUSSON, RICHARDZIMMERMAN, RONALD CARR, ANDRE PANET-RAYMOND, and ABRAHAM SMAJOVITS, Defendants.

Case No. 8:11-cv-2101-T-33TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: October 5, 2012

ORDER

This matter comes before the Court pursuant to Defendant Steve Murray's Motion to Dismiss Amended Complaint with Prejudice (Doc. # 102), which was filed on May 21, 2012. Plaintiff Mark Brivik filed a Response in Opposition to the Motion on June 29, 2012. (Doc. # 117). Also before the Court is Defendant Ronald Carr's Motion for Summary Judgment, and in the Alternative, Motion to Dismiss with Prejudice (Doc. # 105), which was filed on May 29, 2012.¹ Plaintiff filed a Response in Opposition to the Motion on June 30, 2012. (Doc. # 118). For the reasons that follow, the Court grants Murray's Motion and Carr's Motion in the Alternative, and dismissesthis action with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).

In addition, before the Court is Defendant Richard Zimmerman's Motion for Summary Judgment (Doc. # 109), filed on June 6, 2012. Plaintiff filed a Response in Opposition to the Motion on July 6, 2012. (Doc. # 121). On September 17, 2012, Zimmerman filed his Rule 56(c)(2) Objection to Evidence Cited in Opposition to Zimmerman's Motion for Summary Judgment. (Doc. # 131). Because this Court finds it appropriate to dismiss the entire action pursuant to Rule 12(b)(6), the Court denies as moot Zimmerman's Motion.

I. Background

Plaintiff Brivik entered into a real estate transaction concerning an investment property located in Bradenton, Florida, with the Defendants (collectively referred to herein as the "Co-Investors"). (Doc. # 76 at ¶¶ 37, 47). Steve Murray invested $618,750.00, Zimmerman invested $500,000.00, and Carr invested $500,000.00. Id. at ¶¶ 38, 40, 44.² However, "[y]ears after the parties' deal in the Real Estate Development closed,the Co-Investors concocted bogus criminal allegations against Mr. Brivik . . . . The Co-Investors' intention, inter alia, was to get out of a land deal that preceded a downturn in the real estate market." Id. at ¶ 50.

Plaintiff alleges that the Co-Investors met with Florida Department of Law Enforcement Officer Claudia Law on at least ten occasions and "developed false facts" leading to Plaintiff's arrest. Id. at ¶ 70. Essentially, Plaintiff contends that the Co-Investors reported to Officer Law that Plaintiff misrepresented that Plaintiff held a certain option to purchase real property imperative to the real estate transaction when in fact Plaintiff did not possess such option. Id. at ¶ 53.

Plaintiff describes the Co-Investors' allegations against him as "baseless," "false," "concocted," and "bogus." Id. at 49, 50, and 53. Nevertheless, Officer Law arrested Plaintiff, and Plaintiff spent 24 days in jail based on the following charges and claims:

a. an Organized Scheme to Defraud under Section 817.034(4)(a)1, Florida Statutes;

b. Fraudulent Securities Transactions Omission of Fact in violation of Section 517.301(1)(a)2, Florida Statutes;

c. Sale of Unregistered Shares in violation of Section 517.07(1), Florida Statutes;

d. Sale of Security by an Unregistered Issuer in violation of Section 517.12, Florida Statutes;e. Obtained $4,475,000.00 in funds from victims through misrepresentation and fraud;

f. Misrepresented the existence of an Option in property in connection with a waterfront parcel, causing the Co-Investors to be induced to invest money in the Real Estate Development;

g. Failed to advise the Co-Investors that he had an outstanding warrant against him;

h. Had an outstanding warrant against him in South Africa;

i. Received a fee of $300,000.00 at the close of

the deal in connection with the Real Estate Development; and j. Misrepresented the value of the land in the Real Estate Development.

Id. at ¶¶ 60, 77.

According to Plaintiff, all charges were dropped when "an Assistant State Attorney, after reviewing the allegations, determined that each allegation was absent a proper legal and factual basis." Id. at ¶ 51. Plaintiff further alleges, "the prosecution terminated in a manner that was indicative of Mr. Brivik's innocence as to all the charges leveled against him." Id. at ¶ 52.

Plaintiff initiated this action against the Co-Investors as well as Officer Law on September 15, 2011, alleging false arrest and malicious prosecution charges pursuant to federal and state law. (Doc. # 1). After finding that Officer Law was protected by the federal doctrine of qualified immunity and the state doctrine of sovereign immunity, the Court dismissedPlaintiff's claims against Officer Law with prejudice on April 5, 2012. (Doc. # 70).

The Court permitted Plaintiff to file an amended complaint against the Co-Investors, which he filed on April 18, 2012. (Doc. # 41, 76). Therein, Plaintiff once again sues the remaining Co-Investors for false arrest and malicious prosecution under federal and state law. In counts one and two, brought pursuant to 42 U.S.C. § 1983, Plaintiff contends that, in joint action with Officer Law, the Co-Investors conspired, acted in concert, and reached an understanding to violate Plaintiff's Fourth Amendment rights. (Doc. # 76 at ¶¶ 61-68). In counts three and four, for malicious prosecution and false arrest, Plaintiff contends that the Co-Investors "conspired to falsify information as to Mr. Brivik" leading to his arrest and incarceration. (Doc. # 76 at ¶ 101).

Through various dispositive motions, the Co-Investors seek the dismissal of this action. After reviewing the parties' submissions, the Court determines that it is appropriate to dismiss the action with prejudice pursuant to Rule 12(b)(6).

II. Legal Standard

On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in thelight most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) ("On a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true.").

However, the Supreme Court explains that:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). In addition, courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Furthermore, "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

As a threshold matter, the Court notes that the Motion to Dismiss has not been converted into a motion for summary judgment because the Court has not considered matters outsidethe pleadings.³ "Rule 7(a) defines 'pleadings' to include both the complaint and the answer, and Rule 10(c) provides that '[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.'" Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (quoting Fed. R. Civ. P. 7(a) and 10(c)).

III. Section 1983 Analysis

To obtain relief under § 1983, a plaintiff must demonstrate that he was deprived of a federal right by a person acting under color of state law. Patrick v. Floyd Med. Center, 201 F.3d 1313, 1315 (11th Cir. 2000). It has long been recognized that § 1983 is not a source of substantive federal rights. Whiting v. Taylor, 85 F.3d 581, 583 (11th Cir. 1996). Instead, to maintain a § 1983 action, a plaintiff must point to a violation of a specific federal right. Id. Here, Plaintiff asserts that the Defendants violated his Fourth Amendment rights.

Generally, the "under color of state law" requirement excludes from § 1983's reach merely private conduct, no matterhow wrongful. Am. Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). For Plaintiff to bring this § 1983 action against the Defendants, who are private citizens, he must demonstrate that the conduct allegedly causing the deprivation of his Fourth Amendment rights is fairly attributable to the state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

Private parties are state actors for § 1983 purposes "only in rare circumstances." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). For Defendants to be deemed state actors, one of the following conditions must be met:

(1) The State coerced or at least significantly encouraged the action alleged to violate the Constitution ("State compulsion test"); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State ("public function test"); or (3) the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise ("nexus/joint action test").

Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). In the context of the present suit, only the joint action test applies. "To charge a private party with State action under the [joint action test], the governmental body and the private party must be intertwined in a 'symbiotic relationship.' . . . [T]he symbiotic relationship must involve the specific conductof which the plaintiff complains." Id. at 1348 (internal quotations and citations omitted).

A. Providing Information to Officer Law

Generally, Plaintiff alleges that the Co-Investors provided false information to Officer Law, and that such...