Signature Pharmacy, Inc. v. Soares

• Decision Date: 10 June 2010
• Docket Number: Case No. 6:08-cv-1853-Orl-31GJK
• Parties: SIGNATURE PHARMACY, INC., Robert Stan Loomis, Kenneth Michael Loomis, Naomi Loomis, Kirk Calvert and Tony Palladino, Plaintiffs, v. P. David SOARES, Christopher B. Baynes, Albany County District Attorney's Office, Mark Haskins, City of Orlando, Florida and Alex Wright, Defendants.
• Court: U.S. District Court — Middle District of Florida

717 F.Supp.2d 1276

SIGNATURE PHARMACY, INC., Robert Stan Loomis, Kenneth Michael Loomis, Naomi Loomis, Kirk Calvert and Tony Palladino, Plaintiffs,

v.P. David SOARES, Christopher B. Baynes, Albany County District Attorney's Office, Mark Haskins, City of Orlando, Florida and Alex Wright, Defendants.

Case No. 6:08-cv-1853-Orl-31GJK.

United States District Court,

M.D. Florida,

Orlando Division.

June 10, 2010.

Amy S. Tingley, Robert J. Stovash, Scott A. Livingston, Stovash, Case & Tingley, PA, Frank M. Townsend, Frank Townsend, Brian T. Wilson, Dellecker, Wilson, King, McKenna & Ruffier, LLP, Orlando, FL, for Plaintiffs.

Mae A. D'Agostino, Mia D. Vanauken, Arete K. Sprio, D'Agostino, Krackeler, Baynes & Maguire, PC, Menands, NY, Robert E. Bonner, Meier, Bonner, Muszynski, O'Dell & Harvey, PA, Longwood, FL, David A. Jones, Min K. Cho, Holland & Knight, LLP, Austin L. Moore, Bruce R. Bogan, Deborah I. Mitchell, Hilyard, Bogan & Palmer, PA, Nicholas A. Shannin, Page, Eichenblatt, Bernbaum & Bennett, PA, Orlando, FL, for Defendants.

ORDER

GREGORY A. PRESNELL, District Judge.

This matter came before the Court upon consideration of Defendant's, Alex Wright ("Wright"), Motion for Summary Judgment (the "Motion") (Doc. 129), Plaintiffs' response in opposition thereto (Doc. 202), Defendant's reply (Doc. 221), and Plaintiffs' sur-replies (Docs. 230 and 250). The Court heard oral argument and held an evidentiary hearing on May 19 and 21, 2010 (Doc. 257).

I. Overview

In November 2005, authorities began investigating Signature Pharmacy, Inc. ("Signature") and its principals ¹ for violations of federal and Florida statutes restricting the sale of anabolic steroids and human growth hormone. The investigation was carried out by multiple federal and state law enforcement agencies ² in Florida and New York and included, inter alia: a wiretap of Signature's phones; grand jury proceedings before a New York County Court; and search warrants authorized by a Florida Circuit Court.

The investigation came to a head on February 27, 2007, when agents in Florida executed three search warrants and arrested Signature's principals. During the raids, which were highly publicized and conducted in the presence of the media, agents seized virtually everything on Signature's premises and "perp walked" certain Plaintiffs. A week later, Plaintiffs were transported to Albany, New York for arraignment.

Despite the wiretap and seizure of voluminous amounts of physical and documentary evidence, Plaintiffs were never tried for any criminal wrongdoing. All of the New York indictments were dismissed, the State of Florida formally declared that it would not prosecute, and the property seized during the search warrants was ordered to be returned to Signature.³

On September 24, 2008, Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 [hereinafter, "§ 1983"]. (Doc. 3).

II. Procedural Posture

Litigation arising out of or related to Signature has proceeded on multiple fronts.⁴ In this § 1983 action, Plaintiffs sued the City of Orlando ("City"); Wright, an employee of the Orlando Police Department ("OPD") and an agent with the Metropolitan Bureau of Investigation ("MBI"); ⁵ the Albany County, New York District Attorney's Office and its district and assistant district attorneys, P. David Soares ("Soares") and Christopher B. Baynes ("Baynes"), respectively; and Mark Haskins ("Haskins"), a peace officer with the New York Bureau of Narcotics Enforcement (collectively, "Defendants"). To effectively manage this case, the Court has focused first on the Florida Defendants (the City and Wright) ⁶ and will address the claims against the remaining Defendants by separate order. This Order, in particular, concerns Plaintiffs' claims against Wright only.⁷

In their Amended Complaint, Plaintiffs assert five groups of claims against Wright.⁸ Specifically, Plaintiffs allege that Wright: (1) illegally seized Plaintiffs' property without probable cause and outside the scope of any valid search warrant, in violation of the Fourth Amendment (the "Unlawful Seizure" claims). (Doc. 3, ¶¶ 30 and 119); (2) deprived Plaintiffs of their right not to be arrested or detained without probable cause, in violation of the Fourth Amendment (the "Unlawful Arrest" claim) (Doc. 3, ¶¶ 117-118); (3) caused Plaintiffs to be indicted withoutprobable cause in violation of the Fourth and Fourteenth Amendments (the "Malicious Prosecution" claim) (Doc. 3, ¶ 120); ⁹ (4) engaged in a negative and false media campaign to destroy Plaintiffs' protected business interests in violation of the Fourteenth Amendment (the "Defamation" claim) (Doc. 3, ¶ 115); ¹⁰ and (5) conspired with Soares, Baynes and Haskins to violate their rights under the Fourth and Fourteenth Amendments (the "Unlawful Conspiracy" claim) (Doc. 3, ¶¶ 129-133).

In his Motion, Wright contends that he is entitled to qualified immunity on each of the foregoing claims.¹¹ Wright also argues that Plaintiffs had no reasonable expectation of privacy in Signature's stores and therefore lack standing to assert their Unlawful Seizure claims; that Plaintiffs have failed to adduce sufficient evidence in support of their Malicious Prosecution and Defamation claims; and that Plaintiffs have failed to allege their Unlawful Conspiracy claim with particularity. (Doc. 129 at 1-2). In addition, then, to qualified immunity, Wright contends that he is entitled to a judgment as a matter of law on Plaintiffs' Unlawful Seizure, Malicious Prosecution, Defamation and Unlawful Conspiracy claims.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

III. Background ¹²

In November 2005, the U.S. Drug Enforcement Agency (the "DEA") and Florida Office of Statewide Prosecutor Anne Wedge-McMillen ("Wedge-McMillen") approached MBI about assisting in their investigation of Signature (Doc. 247 at 1). MBI agreed to join the investigation and Wright was made the lead agent for the case.¹³ (Doc. 247 at 1). Wright's initial investigation consisted of pulling trash from Signature's dumpsters, interviewing Signature's customers, conducting undercover operations, and surveilling Signature's premises. (Doc. 247 at 3-4). From the outset, however, Wright's primary task was to prepare an affidavit in support of an application for a wiretap of Signature's phone and fax lines. (Doc. 247 at 2).

In May 2006, Wright attended a briefing given by the DEA in Dallas, Texas. (Doc. 247 at 3). At the briefing, Wright met Baynes and Haskins for the first time; they apparently had flown down from New York in connection with an unrelated case that involved the unlawful sale of prescription drugs. (Doc. 247 at 2-3). After learning that the DEA and MBI were attempting to build a case against Signature, Baynes and Haskins agreed to join the investigation. (Doc. 247 at 3). After the meeting, Wright, Baynes and Haskins agreed to share information about Signature on a weekly basis. (Doc. 246 at 3).

On August 4, 2006, Wright and Wedge-McMillen presented Wright's 144-page wiretap application, and probable cause affidavit in support thereof,¹⁴ to the Honorable John Marshall Kest, a judge on the Ninth Circuit Court, in and for Orange and Osceola Counties, Florida (the "Florida State Court"). (Doc. 246 at 4 and Doc. 247 at 4). According to Plaintiffs, the wiretap application contained no fewer than 21 false or misleading material statements or omissions and, in the absence/presence of these statements, the application lacked probable cause and otherwise failed to comply with Florida law. (Doc. 247 at 4-8). The Florida State Court entered an order approving the wiretap that same day and Signature's phone and fax lines were monitored for the next 60 days. (Doc. 129-10 at 17).

On September 25 and 26, 2006, Wright, Wedge-McMillen, Soares, Baynes, Haskins and others met at MBI's offices in Orlando to formulate a plan to take down Signature. (Doc. 247 at 8). At the meeting, Soares promised to "shut the operation down" and imprison anyone involved, (Doc. 184-3 at 26), and everyone agreed that:

[A]lthough there [had] been a significant federal presence in the case ... the case would be prosecuted and handled primarily by Florida and New York. The tentative plan would be for N.Y. [to] prepare their Enterprise Corruption case and indict everyone involved. Shortly thereafter[,] when Florida [was] prepared to execute their search and seizure warrants ... the indictments in the NYS case would be unsealed and everyone arrested and brought to New York. This would divide [Signature's] resources and force them to conduct two difficult cases on different fronts without any possibility of a double jeopardy issue because the case in New York would be based solely on acts committed in New York and not the [S]tate of Florida.

(Doc. 184-3 at 27-28).

In the fall of 2006, Defendants began a public relations campaign by attempting to connect Signature to professional athletes who were allegedly taking steroids and made deals with various media outlets to scoop the story. (Doc. 247 at 8). In December 2006, Wright and Haskins traveled to Pennsylvania and met with the Pittsburgh Steeler's team doctor.¹⁵ (Doc. 247 at 8). That same month, Wright, Haskins and Baynes met with Brendan Lyons, a reporter with the Albany Times Union, and another reporter from Sports Illustrated,at Soares' office in Albany, New York. (Doc. 247 at 8-9). They agreed to give Lyons the scoop on the Signature case and the Albany Times Union later published its exclusive article minutes before the raids on Signature's premises. (Doc. 247 at 9).

For several weeks in the latter part of December 2006 and January 2007, Baynes appeared before a grand jury at the County Court in and for Albany County, New York (the "New York State Court"). People v. Calvert, No. 2-1311, slip op. at 2 (N.Y.Co.Ct. Sept. 11, 2008), aff'd, in significant part, sub nom. People v. Loomis, 70 A.D.3d 1199, 896 N.Y.S.2d 208 (N.Y.App.Div.2010); (Doc. 247 at 10). On January 25, 2007, the grand jury...