LST INC. v. Crow

Decision Date05 October 1993
Docket NumberNo. 90-1483-CIV-T-17.,90-1483-CIV-T-17.
PartiesL.S.T. INC., individually and dba Kokomo, etc., et al., Plaintiffs, v. Lawrence CROW, Sheriff of Polk County, etc., et al., individually and in their official capacities, Defendants.
CourtU.S. District Court — Middle District of Florida

Richard D. Mars, Bartow, FL, for plaintiffs.

Charles T. Canady, Donald Gunnar Jacobsen, Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobsen, P.A., Lakeland, FL, Lawrence David Shearer, McDonald & Shearer, Lakeland, FL, for defendants.

William Haynes, pro se.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on the following:

1. Motion to dismiss by the Defendants, Lawrence Crow, et al., claims of conspiracy asserted by Plaintiffs to have arisen under 42 U.S.C. § 1985 (Docket No. 87-1);

2. Motion by the Defendants, Lawrence Crow, et al., to dismiss the claims for deprivation of privileges and immunities of the Second and Third Counts as to Plaintiff, L.S.T., Inc. (Docket No. 87-1);

3. Motion by the Defendants, Lawrence Crow, et al., to dismiss the claims of denial of the right to assemble asserted by the Plaintiffs in the First Count (Docket No. 87-1);

4. Motion by the Defendants, Lawrence Crow, et al., to dismiss the defamation claims of the Thirteenth Count of the Plaintiffs' Complaint (Docket No. 87-1);

5. Motion by the Defendants, Lawrence Crow, et al., to dismiss the allegation of negligence contained in Paragraph One (1) of the Jurisdiction section of the Plaintiffs' Complaint (Docket No. 87-1);

6. Motion by the Defendants, Lawrence Crow, et al., to dismiss the pendant state claims of Plaintiffs, L.S.T. Inc., Miller, Upthegrove, Hadden and Galvez for failure to comply with the notice requirements of Florida Statutes, section 768.28(6)(a) (Docket No. 87-1);

7. Motion by the Defendants, Lawrence Crow, et al., to dismiss the claims of tortious interference with business of the Twelfth Count as to the Plaintiff, L.S.T., Inc., for failure to comply with the notice requirements of Florida Statutes, section 768.28(6)(a) (Docket No. 87-1);

8. Motion by the Defendants, Lawrence Crow, et al., to dismiss the claims of lost profits of the Twelfth Count as to Plaintiffs, Steve Adams and Harvey Adams for lack of standing (Docket No. 87-1);

9. Motion by the Defendants, Lawrence Crow, et al., to dismiss the false imprisonment and malicious prosecution claims of the Sixth, Seventh and Eight Counts of the Plaintiffs' Complaint (Docket No. 87-1);

10. Motion by the Defendants, Lawrence Crow, et al., to dismiss the false imprisonment and malicious prosecution claims of the Fourth and Tenth Counts of the Plaintiffs' Complaint (Docket No. 87-1);

11. Motion by the Defendants, Lawrence Crow, et al., for summary judgment on the claim of a policy, custom or practice to violate the Plaintiffs' civil rights of the First, Second and Third Counts (Docket No. 87-2);

12. Motion by the Defendants, Lawrence Crow, et al., for summary judgment on the claims of false imprisonment and malicious prosecution of the Fourth through Eleventh Counts of the Plaintiffs' Complaint (Docket No. 87-2);

13. Motion by the Defendants, Lawrence Crow, et al., to strike Plaintiffs' response to Defendants' motion for summary judgment (Docket No. 90);

14. Motion by the Defendants, Lawrence Crow, et al., for hearing on their motion for summary judgment (Docket No. 91);

15. Motion by the Defendants, Lawrence Crow, et al., to continue the filing of all dispositive motions until June 30, 1993 (Docket No. 85);

16. Motions by Defendant, William Haynes, to:

A. Dismiss the claims of conspiracy asserted by Plaintiffs to have arisen under 42 U.S.C. § 1985 (Docket No. 88-1);
B. Dismiss the claims of deprivation of privileges and immunities of the First, Second and Third Counts as to Plaintiff, L.S.T., Inc. (Docket No. 88-1);
C. Dismiss the claims of Plaintiff, L.S.T., Inc., for lack of jurisdiction (Docket No. 88-1) D. Dismiss the claim of denial of the right to assemble asserted by the Plaintiffs in the First Count (Docket No. 88-1);
E. Dismiss the pendant state claims of Plaintiff, Galvez for failure to comply with the notice requirements of Florida Statutes, section 768.28(6)(a) (Docket No. 88-1);
F. Dismiss the claims of tortious interference with business of the Twelfth Count as to the Plaintiff, L.S.T., Inc., for failure to comply with the notice requirements of Florida Statutes, section 768.28(6)(a) (Docket No. 88-1);
G. Dismiss the claims of the Twelfth Counts as to Plaintiffs, Steve Adams and Harvey Adams for lack of standing (Docket No. 88-1);
H. Dismiss the defamation claims of the Thirteenth Count of the Plaintiffs' Complaint (Docket No. 88-1);
I. Dismiss the allegation of negligence contained in Paragraph One (1) of the Jurisdiction section of the Plaintiffs' Complaint (Docket No. 88-1);
J. Summary judgment on the claim of a policy, custom or practice to violate the Plaintiffs' civil rights of the First, Second and Third Counts (Docket No. 88-2);
K. Summary judgment on the claims of false imprisonment, malicious prosecution and battery of the Eleventh Count of the Plaintiffs' Complaint (Docket No. 88-2).

The Court notes that Defendants, Lawrence Crow, et al., and Defendant, William Haynes, have each filed separate motions entitled: motion to dismiss, or in the alternative, motion for summary judgment. Although so entitled, each motion has distinct sections requesting dismissal and summary adjudication respectively. Therefore, for the purposes of this Order, the Court shall consider the motions to dismiss and the motions for summary judgment as distinct motions. Additionally, for the purposes of this Order, the motions of all Defendants will be considered together unless otherwise indicated.

Plaintiffs assert jurisdiction of this Court pursuant to their claims against Defendants under 42 U.S.C. § 1983 and 42 U.S.C. § 1988. In addition to the federal claims, Plaintiffs assert several Florida state law claims pursuant to this Court's pendant jurisdiction over claims arising from a common nucleus of operative facts as the federal claims.

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Additionally, when considering a motion to dismiss, a court must consider the plaintiff's allegations as true. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

1. Defendants allege that the claims of conspiracy to deny Plaintiffs of various constitutional and federal rights must be dismissed for failure to state a claim under 42 U.S.C. § 1985. Plaintiffs have alleged, but failed to plead, that the claims advanced in the Third Count fall under the jurisdiction of 42 U.S.C. § 1985. In its Order of September 12, 1991, this Court granted Plaintiffs "twenty (20) days to amend their Complaint regarding any claims that may have arisen under 42 U.S.C. § 1985." Plaintiffs have failed to make such an amendment. Therefore, the Court grants Defendants' motion to dismiss any and all claims which may have arisen under 42 U.S.C. § 1985. As such, the Court finds it unnecessary to address whether Plaintiffs possessed a cognizable action under 42 U.S.C. § 1985.

2. Defendants assert that Plaintiff, L.S.T., Inc., is not a "citizen" for the purposes of the privileges and immunities clause, and thus lacks standing to bring an action for the deprivation of rights arising thereunder. In Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), the Court held that only natural persons are entitled to the rights guaranteed by the privileges and immunities clause of the Fourteenth Amendment. As a Florida corporation, Plaintiff, L.S.T., Inc., is not a natural person as defined in Hague. Accordingly, the Court grants the Defendants' motion to dismiss the claims of Plaintiff, L.S.T., Inc., for failing to state a claim cognizable under 42 U.S.C. § 1983 regarding this issue.

3. Defendants assert that Plaintiffs have failed to plead sufficient facts to support a claim of denial of the right to assemble in the First Count, and thus, the Court should dismiss the claim. The Court agrees. In Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430, reh'g denied, 323 U.S. 819, 65 S.Ct. 557, 89 L.Ed. 650 (1945), the Court held that the rights of free speech and press, and the right to peaceably assemble and petition for redress of grievances were inseparable, cognate rights united under the First Amendment. Regarding the right to assemble, the Plaintiffs' sole allegation is contained in Paragraph Fourteen (14) of the First Count, and states: "plaintiffs have been deprived of their right to assemble ... to wit: the patrons and visitors establishing plaintiff's clientele." Plaintiffs have failed to support this claim with any other factual allegations qualifying the alleged deprivation as protected by the First Amendment. In civil rights actions, conclusory allegations are insufficient to withstand a motion to dismiss absent specific factual allegations. See, e.g., Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir.), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979). Further, although Plaintiffs have filed a memorandum in opposition to Defendants' multi-issued motion to dismiss, Plaintiffs have not opposed the pending motion on this issue. Accordingly, the Court grants Defendants' motion to dismiss any and all...

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  • Hall v. Burger King Corp.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
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    ...A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723, at 64 (2d ed. 1983); accord L.S.T. Inc. v. Crow, 834 F.Supp. 1355, 1361 (M.D.Fla.1993) ("Legal memoranda are not sufficient to create issues of fact capable of defeating an otherwise valid motion for summary......
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    ...States District Court for the Middle District of Florida denying their motion for summary judgment founded upon qualified immunity, 834 F.Supp. 1355. For the reasons stated below, we I. BACKGROUND During the early morning hours of April 15, 1990, the Polk County Sheriff's Department receive......
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    • Court of Appeal of Florida (US)
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