Guerrero v. City of Coral Gables, 21-cv-21122-BLOOM/Otazo-Reyes

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtBETH BLOOM, UNITED STATES DISTRICT JUDGE.
Docket Number21-cv-21122-BLOOM/Otazo-Reyes
PartiesBENJAMIN GUERRERO, Plaintiff, v. CITY OF CORAL GABLES, a political subdivision of the State of Florida, LEANDRO IZQUIERDO, a resident of the State of Florida, and ALVARO ESCALONA, a resident of the State of Florida, Defendants. CITY OF CORAL GABLES, Third-Party Plaintiff, v. HILLSTONE RESTAURANT GROUP, INC., Third-Party Defendant.
Decision Date22 December 2021

BENJAMIN GUERRERO, Plaintiff,
v.

CITY OF CORAL GABLES, a political subdivision of the State of Florida, LEANDRO IZQUIERDO, a resident of the State of Florida, and ALVARO ESCALONA, a resident of the State of Florida, Defendants.

CITY OF CORAL GABLES, Third-Party Plaintiff,
v.

HILLSTONE RESTAURANT GROUP, INC., Third-Party Defendant.

No. 21-cv-21122-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

December 22, 2021


ORDER ON MOTION TO DISMISS THIRD-PARTY PLAINTIFF'S COMPLAINT

BETH BLOOM, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court upon Third-Party Defendant Hillstone Restaurant Group, Inc.'s (“Hillstone”) Motion to Dismiss the Defendant/Third-Party Plaintiff's Complaint, ECF No. [42] (“Motion”). Defendant/Third-Party Plaintiff City of Coral Gables (“Coral Gables”) filed a Response in Opposition, ECF No. [45] (“Response”), to which Hillstone filed a Reply, ECF No. [48] (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the

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applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

On August 13, 2021, Coral Gables filed its Third-Party Complaint, asserting a single count of breach of contract against Hillstone. See ECF No. [38] at 24-25. In the Third-Party Complaint, Coral Gables alleges that on or about September 26, 2018, Coral Gables and Hillstone entered into a contract (“Permit Application”), in which Coral Gables agreed to provide off-regular-duty officers to Hillstone during its operating hours. See Id. ¶ 26. The Permit Application contains the following indemnification provision:

[Hillstone] shall indemnify, hold harmless, and defend the City of Coral Gables and its elected officials, officers employees, agents and affiliates of, from and against all liability, claims, and expense, including reasonable attorney's fees, in connection with any and all claims for injunctive or equitable relief and/or damages whatsoever for personal or bodily injury or death, including loss of use, or property damage or destruction of tangible or personal property including loss thereof or expenses of every kind and character, in connection with and arising directly or indirectly out of this contract or the performance thereof

See ECF No. [38-3] at 2; see also ECF No. [38] at 24-25, ¶ 27.

On November 16, 2018, Officers Leandro Izquierdo and Alvaro Escalona (collectively “Officers”), who are sworn police officers for Coral Gables, were present at Hillstone performing their duties in accordance with the Permit Application. See Id. at 23, ¶ 18. Hillstone requested that the Officers escort Benjamin Guerrero (“Plaintiff”) off the premises at Hillstone after Plaintiff had a verbal altercation with Hillstone's Assistant Manager. See Id. at 23, ¶¶ 15-16. Plaintiff physically resisted both Officers and pushed them several times before the Officers escorted Plaintiff out of Hillstone's premises. See Id. at 24, ¶ 21. Plaintiff subsequently sued Coral Gables and the Officers for false arrest. See Id. at 24, ¶ 24. Coral Gables served Hillstone a demand to indemnify Coral

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Gables pursuant to the indemnification provision in the Permit Application, but Hillstone refused to comply, giving rise to the Third-Party Complaint. See Id. at 25, ¶ 29.[1]

On September 10, 2021, Hillstone filed the instant Motion to Dismiss. See ECF No. [42]. In the Motion, Hillstone argues that Coral Gables failed to state a claim against Hillstone because the indemnification provision does not clearly and unequivocally express that Hillstone will indemnify Coral Gables for liability arising from Coral Gables' and its employees' misconduct and because Coral Gables did not set forth the necessary allegations to state a claim for relief. See generally id. Hillstone requests that this Court dismiss the Third-Party Complaint, or alternatively, require a more definitive statement. See Id. at 12. Coral Gables responds that it is not required to allege at this stage of the proceedings that the indemnification provision covers Coral Gables' and its employees' negligence, and that the Third-Party Complaint satisfactorily sets forth the necessary allegations to state a plausible claim for relief. See generally ECF No. [45].

II. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678

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(quoting Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which requests dismissal for failure to state a claim for which relief can be granted.

When reviewing a motion under Rule 12(b)(6), the court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).

III. DISCUSSION

A. Validity of the Indemnification Provision

Hillstone first argues that Coral Gables has failed to state a claim for which relief can be granted because the indemnification provision does not expressly require Hillstone to indemnify or defend Coral Gables for Coral Gables' and its employees' wrongful acts, negligence, and

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intentional torts. See ECF No. [42] at 7. Hillstone contends that Florida courts disfavor attempts to hold a party harmless from its own negligence through indemnity contracts and have enforced such contracts only when the intent to indemnify or defend is expressed in clear and unequivocal terms. See Id. at 7-9 (citing Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487, 489 (Fla. 1979); Repor Bros., Inc. v. Moore, 83 So.3d 903 (Fla. 3d DCA 2012); Skidmore, Owings and Merrill v. Volpe Constr. Co., Inc., 511 So.2d 642, 645 (Fla. 3d DCA 1987); Cox Cable Corp. v. Gulf Power Co., 591 So.2d 627, 629 (Fla. 1992); Univ. Plaza Shopping Center v. Stewart, 272 So.2d 507, 510 (Fla. 1973); Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015); Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc., 133 So.3d 1108, 1111 (Fla. 3d DCA 2014); State Dept. of Transp. v. Fla. Keys Elect. Co-Op. Ass'n, 831 So.2d 713, 714 (Fla. 3d DCA 2002); and SEFC Bldg. Corp. v. Block Five Ventures, Inc., 645 So.2d 1116, 1117 (Fla. 3d DCA 1994)).[2] Because the indemnification provision does not expressly state that Hillstone will indemnify or defend Coral Gables' and its employees' wrongful acts, negligence, or intentional torts, Hillstone argues that the indemnification provision is inapplicable and that the Third-Party Complaint thus fails to state a claim for which relief can be granted. See ECF No. [42] at 7-9. Coral Gables responds that Hillstone's reliance on Charles Poe and its progeny is unpersuasive because those cases involved summary judgments or post-trial orders, not orders on motions to dismiss. See ECF No. [45] at 9. Therefore, Coral Gables argues that it is not required to allege the validity of the indemnification provision at this stage of the proceedings. See Id. The Court agrees with Coral Gables.

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Coral Gables need not plead the validity of the indemnification clause at this stage of the proceedings. See Osorio v. State Farm Bank, F.S.B., 857 F.Supp.2d 1312, 1315 (S.D. Fla. 2012). In Osorio, the third-party defendant filed a motion to dismiss a third-party complaint in which the third-party plaintiff sought indemnification pursuant to a contract. See Id. at 1313, 1315. In the motion to dismiss, the third-party defendant argued that the third-party complaint did not sufficiently allege that the third-party defendant had to indemnify the third-party plaintiff. See Id. The court in Osorio denied the motion to dismiss, finding that the allegations in the third-party complaint were sufficient to raise a “right to relief under a theory of contractual indemnification above a speculative level.” Id. In considering the motion to dismiss, the court in Osorio did not require the third-party plaintiff to allege whether the indemnification provision...

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