Incredible Invs., LLC v. Fernandez-Rundle
| Decision Date | 03 March 2014 |
| Docket Number | Case No. 13–22678–CIV. |
| Citation | 28 F.Supp.3d 1272 |
| Parties | INCREDIBLE INVESTMENTS, LLC, Plaintiff, v. Katherine FERNANDEZ–RUNDLE, in her official capacity as State Attorney for Miami–Dade County, Florida, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Alan M. Dershowitz, Cambridge, MA, Victoria B. Eiger, New York, NY, Alan Jay Kluger, Justin Brett Kaplan, Kluger Kaplan Silverman Katzen & Levine PL, Miami, FL, for Plaintiff.
Jonathan A. Glogau, Attorney General Office, Allen C. Winsor, Office of the Attorney
General, Tallahassee, FL, for Defendant.
THIS CAUSE is before the Court on Defendant's Motion to Dismiss the Amended Complaint. (D.E. 39.)
THE COURT has considered the motion and the pertinent portions of the record, and is otherwise fully advised of the premises.
Plaintiff owns or operates one or more internet cafés where consumers may purchase the use of internet-capable terminals on a time-basis. Plaintiff claims that it promotes its sales in part through Game Promotions which have now been prohibited by Fla. Stat. §§ 849.094 & 849.16 (2013). On December 3, 2013, Plaintiff filed a 16–count Amended Complaint challenging the constitutionality of the 2013 amendments to Fla. Stat. §§ 849.094 & 849.16. Plaintiff seeks a declaratory judgment that Fla. Stat. §§ 849.094 & 849.16 are unconstitutional under the following theories1 :
(i) Fla. Stat. § 849.094, which permits nationally advertised Game Promotions or Game Promotions conducted by retailers who operate such promotions in and outside of Florida, does not allow Game Promotions that are advertised or conducted solely in Florida in violation of the Equal Protection Clause of the United States Constitution (Count I);
(ii) Fla. Stat. § 849.094 prohibits commercial speech in violation of the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution because it bans Plaintiff, a wholly local retailer, from utilizing Game Promotions as a method by which to market and promote the sale of a service, i.e., internet access and usage (Counts II & III);
(iii) Fla. Stat. § 849.16 prohibits commercial speech in violation of the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution because it contains content and speaker-based restrictions on commercial speech in so far as it restricts who may conduct Game Promotions and how the results of the Game Promotions may be communicated to customers (Counts IV & V);
(iv) Fla. Stat. § 849.16 violates the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution because it proscribes expressive conduct—here, Plaintiff's conduct of a sweepstakes promotion (Counts VI & VII);
(v) Fla. Stat. § 849.16 limits the promotion of a product, i.e., access to the internet, used to communicate information and ideas, and in so doing, violates the First Amendment of the Constitution and Art. I, Sec. 4 of the Florida Constitution (Counts VIII & IX);(vi) Fla. Stat. § 849.16 includes a rebuttable presumption that relieves the State of Florida of the burden of persuasion that the device owned, possessed or operated is a slot machine in violation of the Due Process Clause of the Fifth Amendment of the Constitution and Art. I, Sec. 9 of the Florida Constitution (Counts X & XI);
(vii) Fla. Stat. § 849.16 is overbroad in violation of the First and Fourteenth Amendments of the Constitution as well as corresponding provisions of the Florida Constitution because it defines prohibited “slot machines” in a manner that encompasses many types of electronic devices that are used to access the internet and thereby prohibits both constitutional and unconstitutional activities, including the speech engaged in by Plaintiff in the form of the sweepstakes games (Counts XII & XIII);
(viii) Fla. Stat. § 849.16 is unconstitutionally vague in violation of the Fifth Amendment of the Constitution and Art. I, Sec. 9 of the Florida Constitution because the definition of slot machine fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden (Counts XIV & XV); and
(ix) Fla. Stat. § 849.16 violates the Dormant Commerce Clause of the Constitution because it excessively regulates interstate commerce in relation to the putative local benefits (Count XVI).
This case is before the Court for a second time on a Motion to Dismiss. On November 13, 2013, the Court granted Defendant's Motion to Dismiss the Original Complaint because Plaintiff failed to allege sufficient facts to state a constitutional claim under the First, Fifth and Fourteenth Amendments, the corresponding Florida Constitution provisions, and the Dormant Commerce Clause. 984 F.Supp.2d 1318 (S.D.Fla.2013). In great detail, the Court outlined the standard for each constitutional claim, how Plaintiff had failed to meet that standard, and information that would be helpful in determining whether Plaintiff's Game Promotions and Game Displays were protected forms of speech. The Court granted leave to amend the Original Complaint and on December 3, 2013, Plaintiff filed an Amended Complaint. On December 19, 2013, Defendant moved to dismiss the Amended Complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). The motion is now fully briefed and ripe for review.
On a Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim, the Court takes the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir.2010). Conclusory allegations will not suffice; the complaint must allege sufficient facts to state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( ). This means that the factual content of the complaint must “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Dismissal for failure to state a claim is proper if the factual allegations are not ‘enough to raise a right to relief above the speculative level.’ ” Edwards, 602 F.3d at 1291 (quoting Rivell v. Private Health Care Systems, Inc., 520 F.3d 1308, 1309 (11th Cir.2008) ).
With respect to all claims, Plaintiff seeks relief under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. For the reasons set forth in the Court's Order dated November 13, 2013, the Court concludes that the Federal Declaratory Judgment Act applies and that the allegations are sufficient to satisfy the actual controversy requirement of 28 U.S.C. § 2201. See 984 F.Supp.2d at 1323–25.
In addition, Plaintiff seeks relief under 42 U.S.C. § 1983 with respect to all claims arising under the United States Constitution. To state a Section 1983 claim, a plaintiff must allege that the defendant acted under color of state law to deprive the plaintiff of a federal right. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) & Flagg Bros. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) ). “To constitute state action, the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible, and the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. at 49, 108 S.Ct. 2250. (internal quotation marks and citations omitted). “State employment is generally sufficient to render the defendant a state actor.” Id. (internal quotation marks and citations omitted). The “under color of state law” requirement is satisfied here because Fla. Stat. §§ 849.16 & 849.094 were enacted and amended by the Florida Legislature and as the State Attorney for Miami–Dade County, FL, the Defendant is charged with enforcing the statutes.
The facts that a plaintiff must plead in order to allege the violation of a federal right depend upon the right allegedly violated—here, the Plaintiff alleges violations of the First, Fifth and Fourteenth Amendments as well as the Dormant Commerce Clause. See, e.g., Iqbal, 556 U.S. at 676, 129 S.Ct. 1937 (). The Court will address each count alleged in the Amended Complaint in turn.
Counts II through IX and Counts XII through XIII raise claims arising under the First Amendment of the Constitution or Article I, Section 4 of the Florida Constitution. For the reasons below, the Court finds that Plaintiff again has failed to allege sufficient facts to state a claim to relief and as a result, these claims will be dismissed.
Count II
In Count II, Plaintiff alleges that its “Game Promotions constitute commercial speech in that they are a form of advertising or marketing designed to promote the sale of a product or service and to motivate customers to buy that product or service, to wit access to the internet.” (Am. Compl. ¶ 76.) According to the Plaintiff, Fla. Stat. § 849.094, as amended, permits “retailers that operate game promotions in Florida and elsewhere (or entities that nationally advertise)” to conduct Game Promotions in Florida, but “bans the Plaintiff from utilizing Game Promotions as a method by which to market and promote the sale of the goods and services” because its commercial activities are wholly intrastate. (Am. Compl. ¶¶ 79–80.) Plaintiff further alleges that the “ban unconstitutionally infringes on protected commercial...
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