Courthouse News Serv. v. Forman, Case No.: 4:22cv106-MW/MAF

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtMark E. Walker, Chief United States District Judge
Citation601 F.Supp.3d 1236
Parties COURTHOUSE NEWS SERVICE, Plaintiff, v. Brenda D. FORMAN, et al., Defendants.
Docket NumberCase No.: 4:22cv106-MW/MAF
Decision Date04 May 2022

601 F.Supp.3d 1236

Brenda D. FORMAN, et al., Defendants.

Case No.: 4:22cv106-MW/MAF

United States District Court, N.D. Florida, Tallahassee Division.

Signed May 4, 2022

601 F.Supp.3d 1240

Daniela Abratt, Thomas & LoCicero, Fort Lauderdale, FL, Jonathan Eric Ginsberg, Bryan Cave LLP, New York, NY, Mark Richard Caramanica, Carol Jean LoCicero, Thomas & LoCicero PL, Tampa, FL, for Plaintiff.

Amy Marie Wessel Jones, Shutts & Bowen LLP, Fort Lauderdale, FL, Sidney Charles Calloway, Shutts & Bowen LLP, Miami, FL, for Defendant Brenda D. Forman.

Gregory Thomas Stewart, Kirsten H. Mood, Lynn Miyamoto Hoshihara, Elizabeth Desloge Ellis, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Florida E-Filing Authority.

Elizabeth Desloge Ellis, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Karen E. Rushing.


Mark E. Walker, Chief United States District Judge

Plaintiff brings this First Amendment case against Brenda Forman in her official capacity as the Broward County Clerk, the Florida E-Filing Authority, and Karen Rushing in her official capacity as chair of the E-Filing Authority. Now, Defendants Rushing and Forman move to dismiss Plaintiff's claims. ECF No. 24; ECF No. 26. Defendant Rushing argues that Plaintiff's claim against her duplicates its claim against the E-Filing Authority and is thus redundant. Defendant Forman argues (1) that Plaintiff's claim against her does not comport with Monell v. Department of Social Services of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), (2) that section 1983 bars injunctive relief against her, (3) that Plaintiff failed to join indispensable parties, and (4) that this Court must abstain from resolving Plaintiff's claim. For the reasons set out below, Defendant Rushing's motion is GRANTED in part and DENIED in part and Defendant Forman's motion is DENIED .

601 F.Supp.3d 1241


The relevant facts as alleged by Plaintiff, which this Court accepts as true, are as follows. Plaintiff is a nationwide news service that covers civil litigation in state and federal courts. ECF No. 1 ¶ 28. Plaintiff's Florida reporters cover every state circuit court, "including Broward County's Seventeenth Judicial Circuit." Id. ¶¶ 33–34.

The Florida E-Filing Authority—created by agreement between all circuit court clerks and the clerk of the Florida Supreme Court—owns and governs Florida's e-filing portal. Id. ¶¶ 17, 47. E-filing through the portal is largely mandatory. Id. Defendant Rushing is the Authority's chair. Id. ¶ 18.

Defendant Forman "is the elected Broward County Clerk of Courts." Id. ¶ 15. As the clerk of courts, Defendant Forman administers "public access to court records, including new non-confidential Seventeenth Judicial Circuit of Florida civil complaints." Id.

To find newsworthy cases, Plaintiff's reporters scour newly filed complaints. Id. ¶ 39. A delay in Plaintiff's ability "to obtain and review new complaints necessarily creates a delay in its ability to inform subscribers and the public" about the complaints. Id. ¶ 40. And "[t]he newsworthiness of a new filing quickly declines with time." Id. ¶ 70. Historically, Plaintiff's reporters reviewed new civil complaints in person the day they were filed and before they were docketed. Id. ¶ 41.

But in Broward County, "access delays ... have been a chronic problem." Id. ¶ 53. "Most new complaints" are "withheld from public view for at least one day and often longer." Id. This is because Broward County has a policy of "withholding public access to complaints until clerical processing is completed." Id. ¶ 57. From a technical standpoint, providing same-day access to civil complaints would be easy. Id. ¶ 64. Despite multiple entreaties, however, Defendants have refused to act to reduce delays. Id. ¶¶ 65–69. Unable to reach an agreement with Defendants, Plaintiff filed this suit, alleging that Defendants are violating its First Amendment right of access to public court records by withholding civil complaints from public view until after clerical processing is completed. Id. ¶ 75.

With these factual allegations in mind, this Court addresses each motion to dismiss in turn.



First, Defendant Rushing moves to dismiss Plaintiff's "official capacity" suit against her as redundant. ECF No. 24. Because Plaintiff can sue local government entities like the E-Filing Authority, Defendant Rushing argues, Plaintiff need not bring an official capacity action against her. See Busby v. City of Orlando , 931 F.2d 764, 776 (11th Cir. 1991) (explaining that "there no longer exists a need to bring official-capacity actions against local government officials").

Plaintiff retorts that "Clerk Rushing has been sued in in this action because of her unique role in governance over the Portal." ECF No. 41 at 3. As chair, Defendant Rushing "has significant power and authority to act on behalf of the Authority." Id. Thus, says Plaintiff, all Defendants—including Defendant Rushing—"are indispensable." Id. at 4.

Plaintiff further argues that section 1983 suits for prospective relief are properly brought against "individuals sued in their official capacity." Id. at 5 (citing Ex parte Young , 209 U.S. 123, 159–60, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ). Plus, Plaintiff argues, the authority Defendant Rushing cites "does not specifically forbid suing officials in their official capacity in all circumstances

601 F.Supp.3d 1242

when the government entity is also sued." Id. at 6.

Plaintiff misses the point; either the E-filing Authority or Defendant Rushing is the proper party, but it cannot be both. If the E-Filing Authority is a local government entity, Plaintiff should sue it directly. On the other hand, if the E-filing Authority is a state agency, Plaintiff cannot sue it, and must sue Defendant Rushing instead. Thus, to determine the proper party, this Court must decide whether the E-Filing Authority is a local or state entity. To do so, this Court begins by briefly describing the E-Filing Authority and its genesis.


In 2009, the Florida Legislature asked "the [Florida] Supreme Court [to] set statewide standards for electronic filing," Ch. 2009-61, § 16, Laws of Fla., which the court then issued, see Administrative Order No. AOSC09-30. The next year, the various Florida clerks of court and the clerk of the Florida Supreme Court entered into an interlocal agreement under section 163.01, Florida Statutes, to create the Florida E-Filing Authority. ECF No. 41-1 at 3 (recognizing "the Legislative directive and recognition by the Florida Supreme Court of a need to develop and implement a system for statewide electronic filing"). Under the agreement, the Authority "exercise[s] exclusive jurisdiction, control and supervision over the E-Filing Court Records Portal and ... make[s] and enforce[s] ... rules and regulations for the maintenance, management, upgrade and operation of the E-Filing Court Records Portal." Id. at 11.

In short, the E-Filing Authority is an independent entity tasked with operating Florida's e-filing system that was created by agreement between the circuit clerks of court and the clerk of the Florida Supreme Court.


To distinguish between local and state entities, this Court typically considers (1) how state law defines an entity, (2) what degree of control the state maintains over the entity, (3) the source of the entity's funds, and (4) who bears financial responsibility for judgments entered against the entity. Manders v. Lee , 338 F.3d 1304, 1309 (11th Cir. 2003).

But this Court need not take that detour here. Applying Manders , several courts have determined that Florida circuit court clerks are arms of the state. See, e.g., Pasek v. Kinzel , 566 F.Supp.3d 1307, 1315-18, No. 2:21-CV-20-JLB-NPM, (M.D. Fla. Oct. 14, 2021). Indeed, in its response to Defendant Forman's motion to dismiss, Plaintiff expressly argues that circuit court clerks are state actors. ECF No. 42 at 22. And, without question, the clerk of the Florida Supreme Court is an arm of the state as well. So the E-Filing Authority is an entity with statewide authority created by an agreement solely between arms of the state. This Court can scarcely imagine any cogent theory that would transform such an entity into a municipal entity for Eleventh Amendment purposes. In short, the E-Filing Authority is an arm of the state.

The upshot is that Plaintiff cannot sue the E-Filing Authority. See Grizzle v. Kemp , 634 F.3d 1314, 1319 (11th Cir. 2011) ("Pursuant to the Eleventh Amendment, a state may not be sued in federal court unless it waives its sovereign immunity or its immunity is abrogated by an act of Congress ...."). On the other hand, when a plaintiff seeks only injunctive relief, "[a] state official is subject to suit in his official capacity when his office imbues him with the responsibility to enforce the law or laws at issue in the suit." Id. at 1319.

601 F.Supp.3d 1243

Defendant Rushing fits the bill. As the E-Filing Authority's chair, Defendant Rushing "shall take all such actions, have all such powers and sign all documents on behalf of...

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