Groover v. Polk Cnty. Bd. of Cnty. Comm'rs, Case No. 8:18-cv-02454-T-02TGW

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtWILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
Citation460 F.Supp.3d 1242
Docket NumberCase No. 8:18-cv-02454-T-02TGW
Decision Date08 May 2020
Parties Sherry GROOVER, as Personal Representative of the Estate of John Darrell Hamilton, deceased, for the benefit of his survivors and estate; Sherry Groover, individually; Julie Jacoby; and Lois Fulkerson, Plaintiffs, v. POLK COUNTY BOARD OF COUNTY COMMISSIONERS; City of Winter Haven; Jason Montgomery, individually; Timothy Christensen, individually; Cory Hart, individually; and Justin Riner, individually, Defendants.

460 F.Supp.3d 1242

Sherry GROOVER, as Personal Representative of the Estate of John Darrell Hamilton, deceased, for the benefit of his survivors and estate; Sherry Groover, individually; Julie Jacoby; and Lois Fulkerson, Plaintiffs,
v.
POLK COUNTY BOARD OF COUNTY COMMISSIONERS; City of Winter Haven; Jason Montgomery, individually; Timothy Christensen, individually; Cory Hart, individually; and Justin Riner, individually, Defendants.

Case No. 8:18-cv-02454-T-02TGW

United States District Court, M.D. Florida, Tampa Division.

Signed May 8, 2020


460 F.Supp.3d 1246

James Roscoe Tanner, Tanner Law Group, LLC, Tampa, FL, Marie A. Mattox, Marie A. Mattox, PA, Tallahassee, FL, for Plaintiffs.

Barbara W. Davis, Jonathan Barnet Trohn, Valenti, Campbell, Trohn, Tamayo & Aranda, PA, Lakeland, FL, for Defendant Polk County Board of County Commissioners.

Jenna Marie Winchester, S. Renee Lundy, William E. Lawton, Eric J. Netcher, Gail C. Bradford, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, for Defendants City of Winter Haven, Florida, Jason Montgomery, Cory Hart, Justin Riner.

Barbara W. Davis, Jonathan Barnet Trohn, Campbell Trohn Tomayo & Aranda PA, Lakeland, FL, for Defendant Timothy Christensen.

ORDER

WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

This matter comes to the Court on Defendants Polk County Board of County Commissioners ("County"), City of Winter Haven ("City"), Jason Montgomery, Timothy Christensen, Cory Hart, and Justin Riners’ Motions to Dismiss, Dkts. 107, 108, 109 & 110, Plaintiffs Sherry Groover (as representative of the estate of John Darrell Hamilton), Sherry Groover (individually), Julie Jacoby, and Lois Fulkersons’ Second Amended Complaint. Dkt. 98. Plaintiffs filed responses. Dkts. 113, 114, 115 & 116. With the benefit of full briefing, the Court grants in part and denies in part the Defendants’ Motions to Dismiss.

Statement of the Facts

For this motion, the Court accepts the factual allegations in the Second Amended Complaint as true. Early in the morning on May 3, 2014, John Hamilton suffered a heart attack. Dkt. 98 ¶ 12. Shortly after, his mother, Lois Fulkerson, called for emergency medical services. Id. During the call at 5:23 AM, Hamilton could be heard in the background, alive. Id. ¶ 14.

460 F.Supp.3d 1247

Less than ten minutes later, two emergency medical technicians ("EMTs"), Defendant Christensen and Emery Roberts,1 arrived at the scene. Id. ¶ 15. While unclear when, Defendants Montgomery, Hart, and Riner also came to provide medical care to Hamilton. Id. ¶¶ 15–16. Emory Roberts declared Hamilton dead on the scene at 5:36 AM. Id. ¶ 17. At no point during the less than five-minute window between when EMTs arrived and when Hamilton was declared dead did anyone provide any medical care to Hamilton. Id. ¶¶ 15, 17 & 20.

Plaintiffs have since investigated the circumstances of Hamilton's death and discovered discrepancies in official reports about the actions of the EMTs. These discrepancies include things like Defendant Christensen reporting that Hamilton had signs of rigor mortis when he arrived on the scene (something contradicted by later reports) and reports that CPR was done on Hamilton (something contradicted by Plaintiffs own understanding of events). Id. ¶¶ 21–25. And after months of seeking to obtain information from an EKG allegedly used on Hamilton when the EMTs arrived to give medical care, on June 22, 2016, the Polk County medical examiner's office told Plaintiffs that no EKG information exists for Hamilton. Id. ¶¶ 29–33.

Plaintiffs sued Jason Montgomery, Timothy Christensen, Cory Hart, Justin Riner (collectively, the "Individual Defendants"), the City, and the County, in state court. Dkt. 1. Defendants removed to this Court and Plaintiffs filed an Amended Complaint. Dkt. 2. This Amended Complaint was dismissed without prejudice by this Court and Plaintiffs filed a Second Amended Complaint. Dkts. 90 & 98. Defendants have now moved to dismiss this Second Amended Complaint. Dkts. 107, 108, 109 & 110.

Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). When considering a Rule 12(b)(6) motion, the Court accepts all factual allegations of the complaint as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted). Courts should limit their "consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed." La Grasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004) (citations omitted).

Discussion

1. Individual Plaintiffs

First, Defendants move to dismiss Plaintiffs Sherry Grover (in her individual capacity), Julie Jacoby, and Lois Fulkerson (collectively, the "Individual Plaintiffs") as improper parties. The Defendants argue that the Individual Plaintiffs lack standing to make the claims they allege. This Court agrees in part.

Plaintiffs must assert their own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of others. Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Other than the claims based on wrongful death, the Individual Plaintiffs instead allege claims based on alleged violations of Hamilton's constitutional rights or state law torts. This is not enough to show standing. See, e.g. ,

460 F.Supp.3d 1248

Torres v. Orange Cty., Fla. , No. CIVA6991662CIVORL19B, 2000 WL 35527256, at *1 (M.D. Fla. May 16, 2000) ("[O]nly the purported victim, or his estate's representative(s), may prosecute a section 1983 claim[.]"). Plaintiffs seemingly do not dispute this. See Dkt. 116 at 3. So Plaintiffs Sherry Groover (in her individual capacity), Lois Fulkerson, and Julie Jacoby may only recover under the wrongful death claims.

2. Wrongful Death (Counts 1, 2, 3, 4, 5, and 6) and Manslaughter (7, 8, 9, 10, 11, and 12) Claims:

In twelve separate Counts, Plaintiffs bring wrongful death and wrongful death-manslaughter claims against each of the Defendants. Defendants argue that these claims must be dismissed for various reasons including that the claims were brought outside the applicable statute of limitations, the Florida Good Samaritan Act bars the claims, and sovereign immunity bars the claims. This Court disagrees.

a. Statute of Limitations

As a preliminary point, Defendants contend that all claims for wrongful death are barred by the statute of limitations. More than two years passed between Hamilton's death on May 3, 2014 and the filing of Plaintiffs’ claims on May 3, 2018 in state court, which puts these claims outside the applicable statute of limitations. Plaintiffs argue that the statute of limitations was tolled because of actions to conceal the cause of action. But, at least at this point, it is unclear whether the statute of limitations bars these claims or has been tolled.

First, all of the wrongful death claims based on manslaughter brought against the Individual Defendants are not bound by any statute of limitations. "[A]n action for wrongful death ... brought against a natural person for an intentional tort resulting in death [manslaughter] may be commenced at any time." Fla. Stat. § 95.11(10). So these claims may proceed.

For the other wrongful death claims there is a two-year statute of limitations. Fla. Stat. § 95.11(4)(b).2 But that limitations period begins either when the incident giving rise to the claim occurred or, in the case of "fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury," when the claim "is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred[.]" Id. Plaintiffs allege that they did not discover the claims until years later because Defendants concealed the facts that gave rise to Plaintiffs claims. Dkt. 98 ¶ 33. Plaintiffs argue that the statute of limitations should not begin to run until June 22, 2016—putting this lawsuit within the statute of limitations.

Plaintiffs allege that between Hamilton's death and when they were told an EKG was not done on Hamilton, Defendants concealed actions that led to Hamilton's death. Dkt. 98 ¶ 33. Plaintiffs contend that, until the confirmation by the Polk County medical examiner's office that an

460 F.Supp.3d 1249

EKG was not done on Hamilton, they were led to believe that an EKG was done. Id. ¶¶ 29–30. Plaintiffs argue that this admission by the medical examiner's office that an EKG was not done for Hamilton allowed them to discover the subpar medical care given to Hamilton and was when the statute of limitations began to run then. At this point in the lawsuit Plaintiffs’ allegations must be accepted as true; therefore, the wrongful death and...

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    ...the employer to hire the employee in light of the information he knew or should have known.Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, '[n]egligent retentio......
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    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 17, 2021
    ...the employer to hire the employee in light of the information he knew or should have known." Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, 'negligent retentio......
  • Request a trial to view additional results
12 cases
  • S. Y. v. Best W. Int'l, Inc., Case No: 2:20-cv-616-JES-MRM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 7, 2021
    ...the employer to hire the employee in light of the information he knew or should have known.Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, '[n]egligent retentio......
  • S. Y. v. Choice Hotels Int'l, Inc., Case No: 2:20-cv-118-JES-MRM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 29, 2021
    ...the employer to hire the employee in light of the information he knew or should have known.Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, '[n]egligent retentio......
  • C.S. v. Choice Hotels Int'l, Inc., Case No: 2:20-cv-635-JES-MRM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 17, 2021
    ...the employer to hire the employee in light of the information he knew or should have known.Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, '[n]egligent retentio......
  • C.S. v. Inn of Naples Hotel, Case No: 2:20-cv-629-JES-MRM
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 17, 2021
    ...the employer to hire the employee in light of the information he knew or should have known." Groover v. Polk Cty. Bd. of Cty. Comm'rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla. 2020) (quoting Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)). "Different from negligent hiring, 'negligent retentio......
  • Request a trial to view additional results

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