HomeMy Public PortalAboutSummary Judgment Order August 9 2017UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-81371-ClV-M lDDLEBROOKS
DENISE DeMARTINI,
Plaintiff,
Towx oF GULF STREA ,M w ANTM AN
GRoup. lx .c. RICHMAN ùREE ,R p. .A.
GERAL: F. kICHMAN, and ROBkRT h.
Sw EETAPPLE,
Defendants.
/
ORDER AND OPINION GRANTING DEFENDANTS' M OTIONS FOR SUM M ARY
JUDGM ENT
THIS CAUSE comes before the Court upon the M otions for Summary Judgment
(siMotions'') filed by Defendants Town of Gulf Stream (éitheTown''l Robert Sweetapple
(iisweetapple''), Richman Greer, P.A. (sslkichman Greer''), Gerald F. Richman tidRichmmf'l and5
Wantman Group, lnc. (tiWantman'') (together, StDefendants''). (DE 136, 140, 142, 167).
Plaintiff Denise DeMartini tlçDeMartini''l tiled responses in opposition (DE 145, 172, 175, 176),
to which Defendants replied (DE 173, 179, 185, 186). In addition, DeMartini filed a cross-
motion (idDeMartini Cross-Motion'') for partial summary judgment solely against Wantman.
(DE 132). For the reasons stated below, Defendants' Motions are granted and the DeMartini
Cross-Motion is denied.
1. BACKGROUND
As l observed in my order denying Defendants' motions to dismiss, the instant litigation
one battle in a larger war between the Town and Martin E. O'Boyle C$O'Boyle''), his
organization, Citizens Awareness Foundation, lnc. (û(CAFl''), and its associates. O'Boyle is a
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resident of the Town and (sself-described supporter of Florida's public records laws.'' (DSOF at
1 l ddition to his public records activities, O'Boyle controls and serves as president of twoT 6). n a
real estate entities, Commerce Group, lnc. (ticommerce Group'') and CRO Realty, Inc. (ItCRO
Realty''). (1d. at !! 7, 10). Since 2013, O'Boyle has submitted numerous public records requests
to the Town. (1d. at ! 6).Based on the Town's allegedly inadequate responses to these requests,
O'Boyle kifiled approximately 29 lawsuits
laws and his constitutional rights. (f#.).
against'' the Town for violating the public records
The O'Boyle Law Firm and CAFI.ln January 2014, Jonathan O'Boyle (ç4lonathan''), an
attomey then admitted to practice in Permsylvania and O'Boyle's son (id. at !! 22-23), filed an
application with the Florida Division of Corporations to register the O'Boyle Law Firm, P.C.,
Inc. (the i'O'Boyle Law Firm'' or the %$Finn'') as a foreign corporation licensed to do business in
Florida (id. at ! 2 1). Although the Parties dispute the extent to which the Firm was conceived as
a joint venture between O'Boyle and Jonathan (DSOF at ! 25; PSOF at ! 25), both sides agree
that O'Boyle funded the Firm's operations (DSOF at ! 26) and that the Firm's principal office
was located in the same building that houses the Commerce Group and CRO Realty (id. at ! 26).
The same month that Jonathan registered the Firm, CAFI was incorporated. (1d. at ! 31). As
with the O'Boyle Law Firm, CAFI shared the same address as O'Boyle's real estate ventures (id.
at !! 32, 38) and was funded by O'Boyle personally (id. at ! 37). CAFI'S blog describes the
organization as:
1 Pursuant to Local Rule 56.1(a), the Town filed a Statement of Undisputed Material Facts on the
same day that it filed the instant Motion. (DE 137). DeMartini filed a response to the Town's
statement in an exhibit attached to its Response brief (DE 145-1). Except where DeMartini
introduces additional facts or disputes those raised by the Town, the Court refers solely to the
Town's Statement, which is styled 'IDSOF'' (Defendant's Statement of Facts). DeMartini's
response, where referenced, is labeled <'PSOF'' (Plaintiffs Statement of Facts). The Town's co-
defendants also filed Statements of Fact. (DE 140 & 141). l refer to those by docket number.
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. . . a non-partisan, not-for-profh organization dedicated to the proposition that
members of the public have a right to know what their government is doing in
their name and at their expense. To that endl,l (CAFIj seeks to empower citizens
to exercise their çiright to know'' by providing free educational materials and
programs, and when appropriate, taking legal action to enforce the public's right
of access to public records and public meetings.
(DE 145 at 10 & Ex. 7).Although the Parties heavily dispute the purpose of and relationship
between CAFI and the O'Boyle Law Firm , the uncontested facts and briefing make clear that a
large part of CAFI'S activities revolved around (a) making public records requests to numerous
entities, pursuant to Florida's Public Records Act, Fla. Stat. j 1 19.07 and (b) filing lawsuits
under the Act against those entities that were deem ed to have responded insufficiently or
untimely. (See, e.g., DE 145-10, S'DeMartini Dec1.,'' at !! 5-6 (CAFI'S dtpurpose/function''
included ittesting/enforcement of agency compliance with Florida's public records laws'' by
(dfillingl lawsuits against municipalities and other state agencies''l).CAFI engaged the Firm to
litigate at least some of these suits.See, e.g.s Citizens Awareness Found, Inc. v. Florida Cï@,
191 So. 3d 471 (F1a. 3d DCA 2016) (Tab1e) (CAFI, as appellant, represented by the O'Boyle
Law Firml; Citizens Awareness Found, Inc. v.Wantman Grp., Inc., 195 So. 3d 396 (Fla. 4th
DCA 2016) (CAFI, as appellant, represented by the O 'Boyle Law Firm and co-counsel).
DeM artini's Role at 0 'Boyle 'J Organizations. DeM artini worked for O'Boyle's
organizations in several capacities since 1984. M any aspects of her work are not in dispute.
O'Boyle has referred to DeMartini as his çsleft hand'' (DSOF at ! 1 5), a characterization
DeMartini considers accurate in at least some contexts (DE 138-6 at 9-10 CiDeMartini Depo.'' at
136: 1 8- 137-1:. Between 1984 and 1 995, and then again from 2003 until 2015, she was
employed by CRO Realty. (DSOF at !
Stadministrative and paralegal work associated with managing commercial development projects
and commercial tenants,'' as well as tswhatever special projects that came about.'' (f#. at ! 14).
Since 201 1, her duties there have included
Regardless of the assignment, DeMartini billed all of her time generically to CRO Realty. (f#. at
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! 12), After the O'Boyle Law Firm was established in Florida, O'Boyle iûdirected DeMartini to
assist with the set up and operations'' of the Firm . (f#. at !! 27-28).
DeM artini attended Firm meetings in which cases were discussed.
Beyond these duties,
(f#. at ! 29). At these
meetings, by her own description, she served as an dtadministrator'' to help explain certain
ésreports.'' (f#.). DeMartini also had roles at CAFI. At the time of CAFI'S founding, the
organization's corporate filing listed her as treasurer (PSOF at !( 33) and she soon began serving
in that capacity (DSOF at ! 33).At O'Boyle's request, she also served on CAFI'S board of
directors. (f#. at !!( 35, 47). ln June of 2014, DeMartini became CAFI'S director. (1d. at ! 73).
Before becoming director herself, DeMartini assisted Joel Chander (Etchandler'), then-director of
CAFI, with performing his job functions (id. at ! 45), including managing the workflow between
himself and the O'Boyle Law Firm, participating in CAFI planning, and ensuring that his
expense reports were properly processed (id. at ! 46). Nonetheless, DeMartini was not involved
''in the preparation or submission'' of any of CAFI'S underlying public records requests, nor was
she involved in the dtpreparation or filing'' of CAFI'S public records lawsuits. (f#. at ! 49).
DeMartini also did not participate in any of CAFI'S educational or publicity activities. (f#.).
CRO Realty compensated DeMartini for work performed on behalf of CAFI and the Firm. (1d.
at !! 30, 48).
The Town 's Investigation. In April of 20 14, the Town retained Sweetapple, an attorney,
to respond to public records requests and defend it against lawsuits based on those requests. (/#.
at ! 60). It later retained Richman, also an attorney, to investigate Sweetapple's suspicion that
Jonathan was engaged in the unlicensed practice of law. (1d. at !! 61-62). Around this time,
Richman and his firm, Richman Greer, became aware of CAFI through their representation of
Wantman, a for-profk company (Compl. at ! 3), in a public records lawsuit brought by CAFI
(DSOF at ! 63).
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The Town's investigation of CAFI grew considerably when, on June 30, 2014, Chandler
resigned as CAFI'S director.(1d. at ! 59). Shortly thereafter, Chandler emailed Sweetapple (in
addition to media outlets) to reveal that he believed O'Boyle and the Firm were ldvictimizgingl''
the Town. (ld. at !! 65-66), Chandler met Sweetapple in person on July 23, 2014. (f#. at !! 68,
70). At that meeting, Chandler delivered documents and made a sworn video statement (Cdvideo
Statemenf') detailing perceived Ssfraudulent conduct'' (id. at T 70) based on d'his involvement
with O'Boyle, CAFI, and the O'Boyle Law Firm'' (id. at ! 68; see DE 138-14 (transcript of
Video Statementl). On October 27, 2014, Chandler signed an afûdavit (the Stchandler
Affidavit''), drafted by Sweetapple (PSOF at ! 70), which recapitulated the allegations of his
Video Statement. (DSOF at ! 70; see DE 138-15).
In his Affidavit, Chandler avers that O'Boyle recruited him to become CAFI'S director
(DSOF at ! 39); that prior to accepting the position, Chandler was concerned about CAFI
becoming a (tvehicle for abuse'' (/#. at ! 42), but that he was reassured after O'Boyle agreed to
give him discretion to determine what litigation to pursue and which law firms to engage (id. at
!! 43-44). Chandler declares that while serving as CAFI'S director, his fears regarding CAFI
were confirmed. He became convinced that CAFI (swas being used for improper pumoses'' and
iiwas engaged in potentially fraudulent and illegal activities.'' (1d. at ! 50). Specifically, he
believed that O'Boyle was using CAFI to further Gipersonal vendettas'' (id. at ! 51(a)); that CAFI
was required to bring a1l litigation tllrough the O'Boyle Law Firm (id. at ! 51(b)); that AFl had
submitted certain public records requests and filed certain lawsuits without his approval (id. at !!
51(c)-(d)); and that CAFI was itself a cog in an Stimproper scheme'' for the Finn to collect
' f s (id at ! 51(e)).2 Sweetapple testified at deposition that, afterexcessive attorney s ee .
2 According to Chandler, each iteration of this alleged S'windfall scheme'' began with CAFI
issuing a 'çdeliberately vague and ambiguous public records request'' to a given entity, which was
designed to ensure that the entity would fail to respond or respond untimely. (DSOF at ! 53).
5
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comparing the claims elicited in the Video Statement with his own investigation, he concluded
that Chandler was a Skcredible witness.'' (1d. at ! 72).
Both the Video Statement and the Chandler Aftidavit discuss DeM artini's involvement
with CAFI and the Firm at several points. (1d. at ! 7 1). In the Video Statement, Chandler
describes DeMartini as one of O'Boyle's two most im portant associates (DE 138-14 at 83), as
well as his ''direct supervisor'' or issuperior'' (id. at 83, 1 17). He relates his growing discomfort
with DeMartini's dual role as CAFI board member and administrator for the Firm. (1d. at 83-
95). He took particular umbrage with the fad that DeMm ini was, in his view, ûçrunning ()
meetinglsl'' of the Firm's attorneys at which he was present, during which she solicited status
updates on various cases - included non-CAFl litigation. (1d. at 85-87). Chandler also claims he
became disturbed when DeM artini began to chastise him for not supplying enough cases to the
Firm. (Id. at 92, 10 1-02, 1 13).ln addition, Chandler states that when he requested that CAFI be
allowed to refer litigation to other firms, William Ring ($1Ring''), another CAFI board member,
responded that he had tdtalked about it'' with DeMartini and they had rejected the idea. (f#. at
95). Nonetheless, DeMartini was, according to Chandler, involved in calling a meeting of Firm
attorneys during which it was falsely represented that Chandler had agreed to the tdwindfall
scheme.'' (1d. at 141-42). Chandler claims in his Video Statement that he expressly disagreed
with CAFI'S new policy that would have permitted DeM artini, along with two other non-director
individuals, to authorize public record requests and litigation. (Id. at 105). Finally, Chandler
claims that at a certain point DeMartini resigned from the CAFI board to work at the Firm 111-
time, which he believed improperly blurred the lines between the two entities. (Id. at 146-47).
The Chandler Affidavit repeats these allegations in broad strokes. He states he resigned from
CAFI because of what he 'dbelievels) may be criminal, fraudulent and unethical'' conduct on the
Once this nominal violation occurred, the Finn would demand fees and costs above and beyond
amounts actually expended in exchange for avoiding litigation. (1d.).
6
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part of DeMartini, as wellas O'Boyle, Jonathan, and Ring. (DE 138-15 at 3, ! 18). He
summarizes witnessing DeMartini conduct Firm meetings (j#. at 4-5, ! 31), his perception that
she was maintaining incompatible roles between CAFI and the Firm (id. at 6, ! 40), her
insistence that CAFI file a certain quota of lawsuits (id. at 6, ! 41), and her affirmation to Firm
attorneys that Chandler had authorized the (lwindfall scheme'' (id. at 7, ! 47).
On September 2014, Sweetapple held a conference with
(k'O'Hare'') another5 public records litigant, and severalother attorneys to discuss possibly
3 At that(DE 140 at !! 39-43).
Christopher O'Hare
settling O'Hare's public records lawsuits against the Town.
meeting, Sweetapple made certain statements about O 'Boyle and DeM artini, the contents of
which are explored more fully below.
The Town 's Legal Actions against DeM artini. On October 10, 2014, the Town held a
regular meeting of its commissioners, during which they discussed filing a lawsuit under the
Racketeer lntluenced and Corrupt Organizations Act C$RlCO''). (DSOF at ! 76). At this
meeting, Richman advocated fling such a suit against the Firm, CAFI, and certain dtindividuals.''
(1d. at !! 80-8 1). The Commission then voted to retain Richman as special counsel. (1d. at !(
83). Between September 2014 and February 20 15, Richman was interviewed by several print
and television media outlets regarding the Town's potential claims against O'Boyle and O'Hare.
(DE 141 at ! 27). Those interviews are also discussed in greater detail below.
Beginning on January 13, 2015, the Town named DeMartini, among others, as defendants
in third party claims - styled as t'counterclaims'' - while responding to pending public records
' Sweetapple's Factual Statement describes a meeting held on July 24, 2014. (DE 140 at ! 39).
O'Hare testified about one held on September 3, 2014. Since the relevant evidence cited by
DeM artini comes from O'Hare's description of the Scptember 3 meeting, 1 assume that was the
meeting at issue.
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lawsuits before Florida state courts. 4 Then on February 12, 2015, the Town(DSOF at ! 86). ,
and Wantman (SIRICO Plaintiffs'') filed a complaint in this Court against O'Boyle, DeMartini,
CAFI, and others for civil RICO violations. (1d. at ! 85; see also Town ofGulfstream, et al. v.
O 'Boyle, et al., 9: 1 5-cv-80182-KAM (Marra, J.) (the t'RICO Action''), DE 1). The complaint in
the RICO Action alleged that DeMartini Sdmanaged the operations of the (1 (tqhe O'Boyle Law
Firm'' (RICO Action, DE 1at ! 13)) that she did sowhile Sisimultaneously'' serving as an
Ssofficer'' of CAFI (id. at ! 26); that she was involved with other conspirators in planning to
i'activate'' several comorations and non-protks as fifrontlsl'' to 'sdefraud and extort'' class
member plaintiffs (id. at !! 63-64); that she and the other conspirators planned that CAFI would
be represented exclusively by the Firm in order to obtain windfall settlements on the latter's
behalf (id. at ! 72); that she told Chandler t'that she was (q O'Boyle's key employee'' and that she
Siwould be directing the flow of litigation to the (Firm) and that she would be calling the shots''
(ï#. at ! 90); that she attended Firm meetings with Chandler which involved review of non-CAFI
matters, made Sfpersonnel decisions'' for the Firm, and managed its finances (/#. at ! 9 1); that she
û'demanded'' Chandler 'dproduce an minimum quota of 25 new lawsuits'' per week for the Firm
(id. at ! 92) and often expressed frustration when he did not meet this standard (id. at !! 95, 97);
that she notified Chandler she had 'ifull access'' to the Firm's Clinternal records and client files''
(id. at ! 93); and that she, along with the othcr defendants, was tsoperating a RICO (elnterprise''
(id. at ! 99) (see generally ! 124(e)).
4 An exhibit attached to the Town's Statement of Facts incorporates one such S'counterclaim.''
(DE 1 38-31 at 1 3-32). The Town sought a declaratory judgment, requesting, inter alia, that the
state court find Counter-Defendants (DeMartini included) to have engaged in a conspiracy $ito
subvert the lawful operation of the Town's clerk's office'' through their public records requests
and to have abused process to ldforce the Town to concede to (Third Party Defendant
Christopherj O'Hare's roofing application and generate legal fees for the purported O'Boyle
Law Firm.'' (1d. at 28).
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ln essence, the RICO Plaintiffs' legal theory sought to distinguish settled Eleventh
Circuit precedent, see United States v. Pendergrajt, 297 F.3d 1 198 (1 1th Cir. 2002); Raney v.
Allstate lns. Co., 370 F.3 1086 (1 1th Cir. 2004), which held that the sling, or threat of filing, a
lawsuit, çseven if done maliciously, cannot form a predicate act under RICO.'' (RICO Action, DE
47 at 5). In response to the defendants' motion to dismiss the RICO Action, the RICO Plaintiffs
argued that these cases did not extend to circumstances, supposedly present there, where the
threatened or actual litigation was but one part of a larger scheme of extortion. (DE 136 at 18;
5see also RICO Action, DE 34 at 8-1 3). What supposedly made the scheme larger and more
complicated was the combination of a ttpattern'' of litigation with a itpattern'' of ddfrivolous public
records requests.'' RICO Action, DE 34 at 13. The RICO Plaintiffs also portrayed the
defendants' lawsuits as unconnected to their demands for money, since the settlement demands
ohen preceded filing public records requests. (1d. at 9, 1 1).
ln granting the motion to dismiss, Judge Marra rejected each of these claimed
distinctions. Judge M arra found that the cases relied upon by the RICO Plaintiffs were idall
factually inapposite and from other districts.'' RICO Action, DE 47 at 6. Further, the act of
filing public records requests could not be a predicate act because Florida law provided
defendants the Siabsolute right'' to make such requests and sue on the basis of resulting violations.
1d. at 7, Judge Marra acknowledged that, taking the allegations as true, the dlinundatlionl'' of
public records requests certainly placed the RICO Plaintiffs ûdin a very difficult situation.'' f#. at
4, Nonetheless, all of the RICO Plaintiffs' theories for predicate acts were tsultimately dependent
upon the threat of filing lawsuits or the actual filing of lawsuits'' and therefore foreclosed by
5 I take judicial notice of a1l filing and orders from prior, related cases, since these are ç'public
records . . . not subject to reasonable dispute'' that are S'capable of accurate and ready
determination by resort to sources whose accuracy could not be questioned.'' Horne v. Potter,
392 F, App'x 800, 802 (1 1th Cir. 2010) (quoting Fed. R. Evid. 201(b)) (quotation marks
omitted).
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Raney. 1d. at 6. The RICO Plaintiffs appealed Judge Marra's ruling to the Eleventh Circuit. At
the appellate level, their brief stressed the complexity of the defendants' combined activity.
They also introduced the new argument that Pendergra.jt and Raney applied only when çsthere
were no allegations of an intent to deceive.'' Initial Brief of Appellant, 2015 W L 5915680 at
# 12. The Eleventh Circuit affirmed Judge Marra's ruling on June 21, 2016. See T/wn ofGulf
Stream v. O 'Boyle, 654 F. App'x 439 (1 1th Cir. 2016). The opinion acknowledged that the
RICO Complaint described a dspattern of frivolous litigation activity'' and (labusgej, on a grand
scale, (of the) statutory right to request public documents from the government.'' 1d. at 444.
Yet, said the Eleventh Circuit, the only (imaterial difference between this case and Pendergrajt or
Raney is the number of times the defendants allegedly threatened to file a lawsuit or actually
sued in an effort to extort money.'' O 'Boyle, 654 F. App'x at 444.The same overriding policy -
which favors recourse to the courts to resolve pubic records disputes - and the constitutional
right to petition government apply equally to patterned activity as to one-off suits. f#.
DeM artini's Claims. DeM artini's association with CA FI and the O'Boyle Law Firm
ended when her employment with CRO Realty terminated in June of 201 5, while the RICO
Action was pending. (DSOF at ! 88).DeMartini tsled her Complaint in the instant action on
August 2, 2016 (DE 1), about a month and a half after the RICO Action concluded in her favor.
She amended her complaint once, the same day. (DE 10). The Amended Complaint
Cscomplaint'') contains four counts, corresponding to tllree causes of action;
Amendment retaliation by the Town under 42 U.S.C. j 1983for DeMartini's participation or
First
perceived participation in constitutionally protected activity (id. at !! 83-92)9 (2) common law
malicious prosecution by Wantman, Richman Greer, and Richman (1d. at !! 93-108); and (3)
common 1aw slander per se by Sweetapple (/#. at !! 109-1 16) and Richman (id. at !! 1 17-124).
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Al1 tlve Defendants moved to dismiss. On December 22, 2016, I issued a consolidated order
denying each motion to dismiss. (DE 79). The instant Motions followed.
II. LEGAL STANDARD
's-fhe court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.'' Fed.
R. Civ. P. 56(a). The movant t'always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of Sthe pleadings, dtpositions,
answers to intenogatories, and admissions on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact.'' Celotex Corp. v. Catrett,
417 U,S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)(1)(A)). Where the non-moving party
bears the burden of proof on an issue at trial, the movant may simply (Ggpoint) out to the district
court g) that there is an absence of evidence to support the nonmoving party's case.'' 1d. at 325.
After the movant has met its burden under Rule 56(c), the burden shifts to the non-moving party
to establish that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., L /2 v.
Zenith Radio Corp., 475 U.S. 574, 585 (1986).
Although a11 reasonable inferences are to be drawn in favor of the non-moving party,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the non-moving party ttmust do more
than simply show that there is some metaphysical doubt as to the material facts.'' Matsushita,
475 U.S. at 586. The non-moving party may not rest upon the mere allegations or denials of the
adverse party's pleadings, but instead must come forward with û'specific facts showing that there
is a genuine issuefor trial.', Id at 587 (citing Fed. R. Civ. P. 56(e)). (tWhere the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party, there is no
(genuine issue for trial.''' 1d. $iA mere Sscintilla' of evidence supporting the opposing party's
position will not suffice; there must be enough of a showing that the jury could reasonably tsnd
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for that party.'' Walker v. Darby, 91 1 F.2d 1573, 1577 (1 1th Cir. 1990). lf the non-moving party
fails to make a suffcient showing on an essential element of her case on which she has the
burden of proof, the moving party is entitled to a judgment as a matter of law. Celotex Corp.,
477 U.S. at 323.
111. DISCUSSION
,4. Count It # 1983 Claimfor FirstAmendment Retaliation against the Town
The Town presents three grounds for granting summary judgment: (1) that DeMartini did
not engage in any activity protected by j 1983, or else that the Town never intended to curb such
activity; (2) that the RICO Action was based on probable cause; and (3) that there is no causal
connection between any protected activity and the filing of the RICO Action or state court
counterclaims. Because her civil rights claim can be resolved on the second ground, 1 assume for
f this Motion that DeMartini engaged in protected activity by associating with CAFl6purposes o
and that this association motivated the Town to initiate legal proceedings against her. Even
under this scenario, DeMartini carmot succeed on a j 1983 claim based on a retaliatory lawsuit.
That is because she must - but on the record cnnnot - show that the Town lacked probable cause
to name her in the RICO Action or state court third party claims.
DeM artini argues that to require her to prove the absence of probable cause would
impose an element on a First Amendment retaliation claim that the Eleventh Circuit does not
recognize. I disagree. Both Parties acknowledge that tdltlo state a claim for retaliation under the
First Amendment, a plaintiff must demonstrate that (1) (slhe engaged in protected speech; (2) the
defendant's conduct adversely affected the protected speech; and (3) a causal connection exists
between the speech and the defendant's retaliatory actions.'' Bailey v. Wheeler, 843 F.3d 473,
481 (1 1th Cir. 2016) (citing Bennet v. Hendrix, 423 F.3d 1247, 1250 (1 1th Cir. 2005)). But this
6 Or, alternatively, that she was not engaged in protected activity but that the Town perceived her
to be engaged in activities that the Eleventh Circuit ultimately found to be protected.
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formulation states the claim's elements only at the highest level of abstraction. lt does not
preclude the need to establish additional elements when particular forms of retaliation are
alleged. For instance, federal courts have repeatedly held that a plaintiff alleging a j 1983 claim
premised on a retaliatory criminal prosecution (imust plead and prove . the absence of
probable cause supporting the prosecutor's decision.'' Rehberg v.Paulk, 61 1 F.3d 828, 849
(1 1th Cir. 2010) (citing Hartman v. Moore, 547 U.S. 250, 265 (2006)); see also Wood v. Kesler,
323 F.3d 872, 883 (1 1th Cir. 2003) (collecting cases for proposition that a ûkretaliatory
prosecution claim g) is () defeated by the existence of probable cause'). See also Dahl v. Holley,
312 F.3d 1228, 1236 (1 1th Cir. 2002) (finding probable cause defeated j 1983 claim that
plaintiff was arrested in retaliation for exercise of First Amendment rights). Thus, in First
Amendment retaliation claims arising out of a criminal prosecution or arrest, the plaintiff must
prove the absence of probable cause.
It is trtze, as DeM artini points out, that the Eleventh Circuit has never expressly extended
7 B t that is only because, to my knowledge, it has never facedthis language to the civil setting. u
this precise issue. There is good reason to believe that a failure to prove the absence of probable
cause is equally fatal to a retaliation claim based on a civil proceeding.First, other circuits have
stated or implied as much. In Johnson v. f ouisiana Department ofAgriculture, a plaintiff farmer
brought a j 1983 suit alleging that the state Department of Agriculture attempted to ç'stifle'' his
isfree expression of speech'' in declining the agency commissioner's solicitation of political
contributions. Johnson v. f a. Dep 't ofAgric. , 18 F.3d 318, 320 (5th Cir. 1994). The department
supposedly retaliated by bringing civil charges of pesticide law violations before an
? W hile RICO also permits governments to institute criminal proceedings, the Supreme Court has
specifically rejected the notion that a civil RICO cause of action should be understood as any
harsher or more serious than other civil claims. See Sedima, S.P.R.L . v. Imrex Co. , 473 U,S. 479,
492 (1985) ($ia civil RICO proceeding leaves no greater stain than do a number of other civil
proceedings'').
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administrative body, leading to sanctions against the plaintiff. 1d. at 3 19-20. The Fihh Circuit
construed the claim as Sione for malicious prosecution in violation of gthe plaintiff s) First
Amendment rights.'' 1d. at 320. To succeed on such a theory, a plaintiff tsmust not only allege a
deprivation of a constitutional right, but must also establish a1l of the elements of the common
law tort action'' for malicious prosecution.
F.3d 310, 315 (2d Cir. 2004) (isgallthough j1983 provides plaintiffs with a federal cause of
See also Washington v. Cly. of Rockland, 373
action, generally we borrow the elements of the underlying malicious prosecution from state
'' 8 lm ortantly, a lack of probable cause to institute the underlying suit is an element of alaw ). p
9 i 1 every jurisdiction, including Florida. See, e.g. , Prof'l Realmalicious prosecution tort n near y
Estate lnv 'r, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 63 (1993) (ssthe absence of
probable cause is an essential element of the tort (of wrongful civil proceedings) kandl the
' The Johnson Court questioned whether a malicious prosecution claim based on civil
proceedings even itraisegs) a constitutional issue'' for which a civil right suit might provide a
remedy. /#. at 320-2 1 & n.2. At least one circuit holds that bringing a civil proceeding cannot
support a malicious prosecution claim under j 1983. See Cloutier v. Ftlwn ofEpping, 714 F.2d
1 1 84, 1 190 (1st Cir. 1 983). However, the trend among the circuits is to constnle the statute more
broadly. See C/y. of Rockland, 373 F.3d at 316 (çito sustain a j 1983 malicious prosecution
claim, there must a seizure or other tperversion of proper legal procedures' implicating the
claimant's personal liberty and privacy interests under the Fourth Amendmenf); Spiegel v.
Rabinovitz, l21 F.3d 251, 255 (7th Cir. 1997) ($sin the absence of incarceration or other palpable
consequences,'' such as Sçdischarge from a job,'' Sçmalicious prosecution should not be actionable
as a constitutional wronf') (citation and quotation marks omitted); Bretz v. Kelman, 77? F.2d
1026, 1031 (9th Cir. 1985) Csan exception exists to the general rule'' that a Gçmalicious
prosecution does not constitute a deprivation of liberty'' when it is itconducted with the intent to
deprive a person of equal protection of the 1aw or is othem ise intended to subject a person to a
denial of constitutional rights'). Since DeMartini alleges a violation of her associational rights
and a resulting adverse impact on her employment prospects, I assume without deciding that her
claim is facially viable.
9 W hen applied to the civil context, the tort is often referred to as Ssthe wrongful use of civil
proceedings'' or idprocess'' rather than a i'malicious prosecution.'' See Ban.y A. Lindahl, Misuse
ofL egal Process.. Malicious Prosecution, Malicious Use ofcivil Process and Abuse ofprocess
Compared, MODERN TORT LAW: LIABILITY AND LITIGATION j 40:1 (2d ed. 2017). Federal courts
sometimes do not make this distinction when explaining the relationship between malicious
prosecution and civil rights claims. Florida consolidates both kinds of claims under the general
category of Simalicious prosecution.'' See L evine v. Hunt, 932 So. 2d 1292, 1293 (F1a. 2d DCA
2006) (first element of malicious prosecution claim is 'sthe commencement or continuation of an
original civil or criminal judicial proceeding').
14
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existence of probable cause is an absolute defense''); Rivernider v. Meyer, 174 So. 3d 602, 604
10(Fla. 4th DCA 2015).
Another circuit
criminal case dealing with the application of qualified immunity, the Second Circuit noted in
dicta that:
also suggested a similar conclusion. ln Smith v. Garretto, itself a
. . . (tlhe 1aw with respect to retaliatory initiation of litigation has developed with
distinct requirements, not directly analogous to the context of other retaliatory
actions, such as employment discharges. With retaliatory lawsuits, at least in the
civil context, a showing that the retaliatory suit isjbivolous seems to be required.
147 F.3d 91, 95 (2d Cir. 1998) (emphasis added) (citing Greenwich Citizens Comm., lnc.
Counties of Warren & Washington lndus. Dev. Agency 77 F,3d 26, 3 1, n.5 (2d Cir. 1996)
(holding that to prove retaliatory intent component of First Amendment claim's causation prong,
plaintiff might raise, among other things, Sfwhether the (underlying claimsj were frivolous''l).
Although the Second Circuit employed the concept of frivolity, and then only in dicta, the upshot
is the same as in the aforementioned criminal cases: any civil rights claim alleging retaliation
through legal proceedings must demonstrate that the underlying claims lacked a sufficient basis
1 lin 1aw or fact.
IQ See also R.P. Davis, Annotation, Necessity and Suy ciency ofAllegations in Complaint for
Malicious Prosecution or Tort Action Analogous thereto that Defendant or Defendants Acted
without Probable Cause, 14 A.L.R. 2d 264 (1950) (dsgtlhere is no doubt manifested in any of the
cases as to the absolute necessity of pleading want of probable cause generally in actions for
malicious prosecution and actions of a similar nature.''); Restatement (Second) of Torts:
Wrongful Use of Civil Proceedings j 674 (Am. Law lnst. 1977) (to be subject to liability,
defendant must Siactg) without probable cause'').
11 (ûIAI prosecution for a criminal offense is not justified'' on a Sçgmlere suspicion or belief, even
if reasonable.'' Restatement (Second) of Torts: Wrongful Use of Civil Proceedings j 674,
comment e (Am. Law Inst. 1977). Conversely, ç$a reasonable belief in the yossibility that the
claim may be held valid is sufficient . . . for the initiation of civil proceedlngs.'' Prof'l Real
Estate 1nv 'r, 508 U.S. at 62-63. In other words, the standard for showing probable cause in the
civil setting is lower than in the criminal. M arc G . Perlin & Steven H. Blum, Malicious
Prosecution Actions - In General, Mass. Prac. j 39:1 (6th ed. 2016). The inverse of this
principle is that one alleging the wrongful initiation of civil proceedings bears a heavier burden
15
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Accordingly, to survivt summary judgmtnt, DtMartini must cite to evidence which, if
construed in her favor, could lead a reasonable factfinder to
probable cause to file the RICO Action and state counterclaims.
conclude that the Town had no
Probable cause in the civil arena is ($a reasonable belief that there is a claim may be held
valid upon adjudication.'' Prof'l Real Estate 1nv 'r, 508 U.S. at 62-63 (quoting Restatement
(Second) of Torts: j 674, comment e).Florida has a similar defnition of probable cause: the
iiinstigator of agn) gunderlyingq lawsuit'' need not have been ''certain of the outcomc,'' but must
have kihad a reasonable belief, based on facts and circumstances known to him, in the validity of
'' Wright v. Yurko, 446 So. 2d 1 162 1 166 (Fla. 5th DCA 1984).12 That meansthe claim. ,
conducting a kûreasonable investigation of the facts'' before tiling suit and holding a kdreasonable
honest belief in a tenable claim,'' 1d. (quoting Cent. Fla. Mach. Co. v. Williams, 424 So. 2d 201,
203 (Fla. 2d DCA 1983)).
DeM artini argues that she can show an absence of probable cause, or at least a genuine
factual dispute as to whether there was an absence of probable cause. She contends that the
information known to the Town's investigators at the time, consisting only of her official titles at
CAFI and Chandler's Affdavit and Video Statement, did not support nnming her as a defendant
in the RICO Action.
to prove the absence of probable cause than for the initiation of criminal proceedings. Because
the Eleventh Circuit requires proof of lack of probable cause for a malicious prosecution claim
arising from criminal proceedings, it would be illogical not to require proof of lack of probable
cause in a malicious prosecution claim arising from civil proceedings.
12 DeMartini points to cases that suggest probable cause may be absent when a dscautious man''
would believe further evidence is necessary or where the conduct at issue could be ççexplained
innocently.'' See Harris p. Lewis State #Jnk, 482 So. 2d 1378, 1382 (F1a. 1st DCA 1986);
Alterra Heathcare Corp. v. Campbell, 78 So. 3d 595, 602 (Fla. 2d DCA 201 1). However,
because both of these cases involve underlying crim inal proceedings, they are not necessarily
authoritative on the lack of probable cause standard for underlying civil proceedings.
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DeM artini does not dispute that Chandltr contacted the Town's attorneys. Nor does she
contest the particulars of the allegations that Chandler lodged against CAFI and the Fil'm .
l3
Instead, she offers sevtral reasons why Chandler's testimony must be ignored. First, she argues
that evidence stemming from Chandler's Affidavit or Video Statement is inadmissible hearsay.
However, the Town does not offer Chandler's statements for their truth, but for the impression
their conveyance had on the Town's investigators, w ho relied on them as probable cause to file
the RICO Action. See Tuccio v. Papstein, 307 F. App'x 545, 546 (2d Cir. 2009) (in j 1983 false
arrest case, statements in officer's affidavit not hearsay when Stoffered to show the information
he had when applied for the arrest warrant'' rather than to prove statements' underlying veracity);
United States v. Moore, 61 1 F. App'x 572, 578 (1 1th Cir. 2015) (investigating agent's testimony
about informant's statements not hearsay because offered only to establish investigators' belief
14in probable cause to apply for wiretap).
Next, DeM artini argues that Chandler's affidavit, alone, l'is insufficient to conclusively
establish probable cause . . . such that summaryjudgment would be appropriate.'' (DE 145 at 21)
(citing Hudson v. City ofAtlanta, F. App'x , 2017 W L 1352086, at *3 (1 1th Cir. 2017)).
However, in Hudson, the plaintiff presented objective competing evidence of the arresting
officer's version of the events, which, if believed, would support a finding of lack of probable
13 DeMartini seizes on documents obtained in discovery suggesting that the Town's agents and
attorneys gave far more attention to and expended m ore time researching how to hold O'Boyle
and O'Hare liable than they did investigating her individually. But even if that were true, it
would not negate Chandler's testimony regarding DeM artini specifically. This argument also
presupposes, without basis, that a litigant may not sue an individual perceived to play a
supporting, rather than central, role in a fraudulent enterprise.
14 Even assuming the Chandler Afffidavit is submitted for its truth and is hearsay, l may consider
the Affidavit at summary judgment because Chandler could testify at trial. See Macuba v.
Deboer, 193 F.3d 1316, 1324 (1 1th Cir. 1999) (citation omitted) (explaining that while
inadmissible hearsay may not be considered at summary judgment, diotherwise admissible
evidence'' that has been submitted in an Esinadmissible form'' may be considered). Additionally,
Chandler would be permitted to testify about conversations he had with DeMartini while he was
CAFI'S director, since these constitute opposing party statements. Fed. R. Evid. 801(d)(2).
17
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cause. Hudson, 2017 W L 1352086, at #3. Unlike the plaintiff in Hudson, DeMartini points to
no objective evidence refuting Chandler's testimony, but instead relies on her own subjective
affidavit, which affirms her benign intentions in associating with CAFI and does not challenge
15that the statements in the Chandler Affidavit or Video Statement were provided to the Town.
Finally, DeM artini questions whether the Town could have reasonably found Chandler's
testimony credible because it contradicted statements he made championing CAFI while he was
still its diredor. This argument is meritless. Under DeM artini's theory, no professed
whistleblower could ever be trusted if he was previously a loyal agent of the entity he later
sought to expose. But the entire premise of whistleblowing is that someone who is loyal enough
to become privy to an entity's operations can credibly expose those operations to the public.
Accordingly, consideration of the Chandler Affidavit and Video Statement is appropriate.
Viewing the facts in the light most favorable to DeM artini, the record demonstrates that
the Town's investigators had a reasonable basis to believe that the facts alleged against
DeM artini in the RICO Action and state counterclaim s would be born out through discovery.
Even before communicating with Chandler, the Town w as familiar with O'Boyle's individual
practice of filing numerous public records and the fact that his son, Jonathan, had established a
1aw 51%1 to handle these types of claims. Publicly available documents showed that DeM artini
was an officer of CAFI. M ost importantly, Chandler's testimony provided credible insight from
a key former insider into how the various O'Boyle-funded entities interacted with each other.
Chandler had served as CAFI'S director and was intimately involved in the process of making
public records requests and fling lawsuits pursuant to the Public Records Act. He engaged in
:5 In addition, Chandler is not an çiinterested'' ofticer as was the officer in Hudson because
Chandler is not a defendant here. lnformation from alleged witnesses and victims may be relied
upon to support probable cause. See (7/y ofclearwater v. Williamson, 938 So. 2d 985, 990 (F1a.
2d DCA 2006); Weissman v. K-Mart Corp., 396 So. 2d 1 164, 1 167 (F1a. 3d DCA 1981) (dsFirst
hand knowledge by an officer is not required; the receipt of information from someone who it
seems reasonable to believe is telling the truth is adequate.'').
18
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rtgular and direct communication with DeM artini and other alleged conspirators. Further, his
testimony to Sweetapple came on tht heels of his resignation from CAFI and was often
supported by specific citations to email communications between himself and DeM artini.
Chandler painted a picture - reasonably believable to the Town at the time - of an organizational
structure in which DeM artini was only nominally an officer of CAFI, where her role in practice
was to act as an intermediary between the non-profit and the Firm , and where she did so in order
to enforce the interests of the Firm and O'Boyle over Chandler's understanding of CAFI'S
mission. Given Chandler's precise testimony, the Town filed its federal and state claims with a
sufficient belief that further discovery would confirm its factual assertions about her role in the
alleged scheme.
The Town not only had a reasonable basis in fact but also a Sdreasonable honest belief in a
tenable'' legal theory to support liability. Yurko, 446 So. 2d at 1 166. The Town lost the RICO
Action at the motion to dismiss stage because, even accepting the facts as alleged, those
1le ations could not make out predicate acts of RICO violations.l6 Although the Town's legala g
theory was unsuccessful, it was not untenable. As discussed above, the Town sought to
distinguish the Pendergrap and Raney line of cases on several grounds, isolating particular
language in those decisions that could arguably sustain narrower holdings. Had this Court or the
Eleventh Circuit approved these distinctions, the case may have gone forward. It was not
unreasonable for the Town to believe that a federal court would endorse these proffered
distinctions. Restatement (Second) of Torts: j 675, comment e; see also Anderson v. Smithheld
Foods, lnc. , 353 F.3d 912, 915-16 (1 1th Cir. 2003) (reversing district court's award of Rule 1 1
16 The Parties do not discuss the outcome of the Town's state court third party claims.
Accordingly, DeM artini fails to allege or produce evidence that the Town lacked probable cause
to name her in these suits. ln addition, she has not even established that these proceedings
terminated in her favor, another necessary element to a malicious prosecution claim. See
Rivernider v. Meyer, 174 So. 3d at 604.
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sanctions to defendant after it dismissed RICO complaint). Distinguishing case 1aw is a
quintessential aspect of good faith legal practice. To hold otherwise would be to condemn
litigants and their attorneys for engaging in the creative aspect of legal argumentation that is
necessary for doctrine to develop.
ln sum, the absence of probable cause is a necessary element of a j 1983 claim alleging
First Amendment retaliation through a civil lawsuit, Because DeM artini cannot raise a genuine
issue of material fact as to lack of probable cause - and indeed, the Town affirmatively proves its
existence - summaryjudgment is awarded in the Town's favor as to Count 1.
#. Count 11: M alicious Prosecution Claim against Richman, Richman Greer * Wantman
Lack of probable cause is an element of a common law malicious prosecution claim.
Rivernider, 174 So. 3d at 604. As discussed above, DeMartini fails to cite evidence from which
a reasonable jury could infer that the Town lacked probable cause to sue her on its RICO theory.
Afortiori, DeMartini cannot show that the individual attorney (Richman), firm (Richman Greer),
17 ble cause to advocate or join in that suit. Indeed, as theor co-plaintiff (Wantman) lacked proba
17 DeMartini believes that the undisputed facts support summary judgment against Wantman.
(See DE 132), DeMartini argues W antman lacked probable cause to sue her, relying on David
Wantman's (Wantman's principal) deposition testimony where he refused to reveal W antman's
reason for naming her as a defendant in the RICO Action. However, probable cause is an
objective inquiry which turns on the judgment of a hypothetical reasonable individual, given the
facts and circumstances known at the time. See Kmart Corp. v. Cullens 693 So. 2d 1038, 1039
(F1a. 3d DCA 1997) (dsonce objective acts themselves justify a reasonable belief that a party had
the intent to commit a crime, the complaining party does not have an obligation'' to further
investigate.). 1 have already found that probable cause existed, based on the factual allegations
elicited from Chandler. DeM artini establishes, at m ost, that W antman did not actively
participate in the investigation conducted by its co-plaintiff, the Town, and relied entirely on the
Town's conclusions, But DeM artini does not cite any case law suggesting that a co-plaintiff may
not so rely. M oreover, the inference that W antman decided to sue DeMartini without adequately
understanding her role in the alleged RICO scheme goes to its subjective intent - and thus an
tiactual malice'' theory of the malice prong to a m alicious prosecution claim. But proof of actual
malice does not necessarily prove lack of probable cause. Prof'l Real Estate 1nv 'r, 508 U.S. at
63 C$a showing of malice alone will neither entitle the wrongful civil proceedings plaintiff to
prevail nor permit the factfinder to infer the absence of probable cause''). Therefore,
DeMartini's Cross-M otion is denied.
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Richman Defendants point out, Florida courts hold that fithe standard for showing the absence of
probable cause is even higher in an action against an attorney, because of the lawyer's duty to the
client.'' 1d. at 605 (citing Endacott v. 1nt 1 Hospitality, Inc., 910 So. 2d 91 5-920-21 (F1a. 3d
DCA 2005)), Therefore, summary judgment is granted in favor of Defendants Richman,
Richman Greer, and W antman as to Count l1.
C. Counts III and IV: Slander Per Se Claims against Sweetapple and Richman
Counts II1 and IV of the Amended Complaint allege slander per se against Sweetapple
and Richman, respectively.(Compl. at !! 109- 124). ln Florida, ddlsllander is a spoken or oral
defamation of another.'' Scott v. Busch, 907 So, 2d 662, 666 (F1a. 5th DCA 2005). ln turn, a
claim of defamation must prove four elements:that ç((1) the defendant published a false
statement (2) about thv plaintiff (3) to a third party and (4) that the falsity of the statement caused
injury to the plaintiff.''Valencia v. Citibank Int 'l, 728 So. 2d 330, 330 (F1a. 3rd DCA 1999).
Slander per se is distinguished from slander per quod in that the content of the statement in
question is Stactionable on its face,'' while the latter içrequires additional explanation'' to infer a
çddefnmatory meaning.'' Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 457 (F1a. 5th DCA
1999). Following the Restatement of Torts, Florida recognizes four subjects of oral
communication that are actionable on their face, Campbell v. Jacksonville Kennel Club, 66 So.
2d 495, 497 (F1a, 1953), only one of which is relevant here: slander per se liability can be
triggered by imputing to another $ça criminal offense amounting to a felony.'' 1d.; see also
Shah'an v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (diWhen a statement charges a
person with committing a crime, the statement is considered defnmatoryrer se.''4.
W ith respect to Count 111, Sweetapple argues, among other things, that his statements
were qualifiedly privileged because he delivered them in an appropriate setting and within the
proper scope of his authority as the Town's agent - that is, while talking to O'Hare and his
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lawyer during sdtltment negotiations. DeM artini responds that the occasion did not permit
Sweetapple's comments and he did not ad within the scope of his authority while making them.
She adds that even if those factors were satisfied, there is still a question of fact as to whether
Sweetapple acted with express malice.
O'Hare testified at deposition that on September 3, 2014, he met with Sweetapple with
the initial pumose of negotiating settlements of certain of O'Hare's public records suits that were
pending against the Town. (DE 175-6, i'O'llare Depo.'', 17:13-22, 20:3-21..7, 22:24-25:3). His
lawyers and others representing the Town were present. (1d. at 19:8-1 1). During the meeting,
and also afterwards in the vestibule of Sweetapple's office, Sweetapple allegedly asserted that
O'Boyle, the lawyers at the O'Boyle Law Firm, CAFI, and DeMartini were içengaged in criminal
activity, extortion, and fraud.'' (1d. at 24:17-19, 37:4- 10). O'Hare claims Sweetapple also
referred to DeMartini, along with the other alleged Sûco-conspirators,'' as dtcriminallsl,
extortionistlsl, andg) racketeergsl.'' (1d. at 33:22-34:5). Notably, O'Hare explained that
Sweetapple never singled out DeMartini's conduct. t$(H1e didn't use her name by itself in the
sentence. Her name was used with the other people that M r. Sweetapple planned on going after .
. . (H)er name was used just in conjunction with Martin O'Boyle, Jon O'Boyle, attorneys at the
O'Boyle law firm.'' (1d. at 35:14-22).
Accepting O'Hare's testimony as true, Sweetapple's characterization of DeM artini was
not slanderous. In certain cases, a false statement of fact is not actionable because the publisher
communicated its content for good reason and through a proper method, See Axelrod v.
Calfano, 357 So. 2d 1048, 1051 (F1a, 1st DCA 1978) (citing 20 Fla. Jr. Libel and Slander j 61)).
ln such instances, speakers may assert the defense of qualified privilege. A communication is
qualifiedly privileged when the following five elem ents are present: $é1) ggqood faith; 2) an
22
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interest to be upheld; 3) a statement limited in its scope to this purpose; 4) a proper occasion; and
5) publication in a proper manner.'' 1d. 1 construe DeMartini to dispute all but the fifth element.
The first questions are what interest Sweetapple was upholding and whether his
assertions regarding DeM artini were limited to it. 1d. Sweetapple claims that his settlement
negotiations with O'Hare were part of a larger goal of investigating and defending public records
requests and lawsuits against the Town. (DE 140-17,ttsweetapple Depo.'', 61 :1). He also
testised that he contemplated inducing O'Hare to testify against O'Boyle. (f#. at 61 :1-2).
O'Hare corroborates this. He also believed Sweetapple tiwas focusing on me to somehow turn
evidence and cooperate with him to go against O'Boyle, DeMartini, (CAFI), and the other co-
defendants.'' (O'Hare Depo. 36:25-37:3). Since the evidence in his possession at the time
indicated to Sweetapple that DeM artini was involved in a public records û'scheme,'' discussing
the scheme's perceived architects was, in his view,within the scope of his duty. I concur.
Sweetapple could reasonably have expected to enlist O'Hare and combat the O'Boyle entities'
suits by convincing him that his fellow public records requesters potentially faced legal
consequences. DeM artini accepts Sweetapple's overall pup ose but contends that any reference
specifically to her went beyond that scope because the Town did not liformally expandgl'' the
investigation to include her. (DE 175 at 12).This is not a material objection. There is no rule
that, in order for a speaker to acquire a valid interest to uphold, his principal must have
separately authorized him to further investigate each discrete person who, in the course of a
broad inquiry, raises the speaker agent's suspicions.
The next question is whether Sweetapple communicated his claims on a Stproper
occasion.'' Axelrod, 357 So. 2d at 1051 .Sweetapple cites to DelMonico v, Trayner, 1 16 So. 3d
1205 (Fla. 2013), for the proposition that the qualified privilege applies to dtex-parte, out-of-court
questioning of a potential, nonparty witness in the course of investigating a pending lawsuit.''
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(DE 140 at 15), But, as DeMartini points out, htr claim against Sweetapplt does not involve
statements made duïingpending litigation. The filing of the RICO Complaint was, at the time of
the settlement conference, still several months away. Nonetheless, in Pledger v. Burnup to Sims,
the Fourth District Court of Appeals held that pre-litigation S'settlement negotiations . . . have the
benefit of a qualified privilege.''423 So. 2d 1323 1327 (Fla. 4th DCA 1983).18 The court's
rationale was that such negotiations are iiin the interest of society to reach equitable and mutually
satisfactory resolution of disputes without the necessity of suit'' - a device which imposes
substantial costs. 1d. Therefore, Sweetapple conveyed his statement on a proper occasion.
Accordingly, I find elements two through five of qualified privilege are satisfied.
Once a defamation defendant establishes the last four elements of qualified privilege, hc
is entitled to $$a presumption of good faith'' - the privilege's first element. Nodar v. Galbreath,
462 So. 2d 803, 8 10 (F1a. 1 984). The burden of proof then switches to the plaintiff to prove
tiexpress malice - that is, malice in fact.'' 1d. Thus, while DeMartini is correct that the existence
of malice is a question of fact, it is she who must come forward with facts supporting her
position. In demonstrating malice, a plaintiff may point to the language the speaker used or to
extrinsic circumstances. 1d.But the use of Silsltrong, angry, or intemperate words'' alone will
not suffice. 1d. at 8 1 1. isl-l-lhere must a showing that the speaker used his privileged position to
gratify his malevolence.'' 1d. (citation omitted); see also Randolph v. Beer, 695 So. 2d 401, 404
(F1a. 5th DCA 1997) (evidence must show that speaker achieved dtsome personal satisfaction in
harming'' subject of statement).
DeMartini has cited no evidence from which a reasonably jury could find that
Sweetapple's description of DeM artini as an isextortionist'' and çdracketeer'' was made with
malice in fact. DeM artini's argument rests entirely on the supposed irrelevance of Sweetapple's
18 And just as is the case here, Pledger involved the communication of otherwise defnmatory
statements about a third party who did not participate in the negotiations. 1d. at 1325.
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allegations of criminal conduct to his role of defending the Town in public records lawsuits. But,
as discussed above, there was a direct relevance between Sweetapple's comments and the task
for which he was retained. The undisputed evidence from both protagonists in the settlement
conference was that Sweetapple tried to entice O'Hare to cooperate with the Town by
hi hlighting the potential legal liability of other public records requesters.lg w ere that strategyg
successful, O'Hare would have dropped his lawsuits and, at the same time, helped build the
Town's case against the O'Boyle group.W hat is more, there is no evidence that Sweetapple had
any personal animus against DeM artini, He did not appear to know her personally. And, as
DeM artini take pains to show, the Town's lawyers viewed her as ancillary to their main target -
O'Boyle. They included her in the RICO Complaint mainly on the strength of Chandler's
testimony. Finally, I am loath to search for inklingsof malice in the context of settlement
discussions, a forum where litigants regularly hurl strong claims at each other to puff up their
respective positions. Accordingly, l find that the qualified privilegeapplies to Sweetapple's
remarks about DeM artini at the September 3, 2014 settlement conference.
Even if Sweetapple's statement was not qualifiedly privileged,it was still not a false
statement of/lc/. Read in context, Sweetapple delivered a statement of çipure opinion, which (isl
protected by the First Amendment and, thus, not actionable as defamation.'' F/wn ofsewall 's
Point v. Rhodes, 852 So. 2d 949, 950 (F1a. 4th DCA 2003). The rationale for this protection is
that an ill-informed opinion has constitutional value because it competes with better opinions to
expose the truth. Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998) (quoting Ger/z v.
Robert Weich, lnc., 418 U.S. 323, 339-40 (1974)). Conversely, as they do not contribute to
1d. Florida case 1awpublic debate, i'there is no constitutional value in false statements of fact.''
.9 The facts here are distinguishable from those in Pledger, where the court ultimately reversed a
finding of summary judgment in the defendant's favor because there was competing testimony
about the underlying purpose of the document containing the allegedly defamatory statements.
Pledger, 432 So.2d at 1328.
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therefore distinguishes between pure opinions, which are protected, and Skmixed expressions'' of
opinion and fact, which are not. 1d. The diffkrence is:
Pure opinion is based upon facts that the communicator sets forth in a publication,
or that are otherwise known or available to the reader or the listener as a member
of the public. M ixed opinion is based upon facts regarding a person or his
conduct that are neither stated in the publication nor assumed to exist by a party
exposed to the communication. Rather, the communicator implies that a
concealed or undisclosed set of defamatory facts would confrm his opinion.
Hay v. Indep. Newspapers, Inc. , 450 So. 2d 293, 295 (F1a. 2d DCA 1984) (citations omitted).
The Court, which is tasked with drawing this distinction as a matter of law, must consider not
only the terms used by the speaker but also içall of the circumstances surrounding the statement,''
including Ssthe audience to which it is published.'' Morse, 707 So. 2d at 922 (citation omitted).
ln this case, O'Hare - the audience to whom Sweetapple's statement was addressed -
was hardly ignorant of the factual basis for the extortion and racketeering claims. O'Hare
himself is a serial public records litigant (O'Hare Depo. at 41:5-42:15) and had apparently
engaged the O'Boyle Law Firm to represent him in some capacity (id. at 24:20-22). Indeed, the
very reason O'Hare had met with Sweetapple that day was to discuss his own public records
cases against the Town. Further, O'Hare already suspected that the Town viewed his and
O'Boyle's public records requests and suits as vexatious activity. At a June 13, 2014 meeting of
the Town Commission, O'Hare raised the issue of a recent letter from M ayor Scott M organ to
residents which described 'dover 20 lawsuits'' and 'iover 800 public records requests filed by (Mr.
O'Boyle and Mr. O'Hare1'' as having Sslittle pumose other than to harass and financially damage
our Town.'' (DE 185-3). O'Hare disputed whether the problems referenced in the letter çûare
being caused by certain residents in Gulf Stream,'' attributing them instead to $$a lack of
'' b the Town's leadership towards the public. (DE 185-4 at 2).20 Finally,communication y
20 Scott M organ's letter and O'Hare's meeting response were not part of the initial record but
were instead attached to Sweetapple's Reply in support of his M otion for Summary Judgment.
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O'Hare acknowledged at his deposition that Sweetapple made these accusations while explaining
that he was preparing to file the RICO Action against O'Boyle and perceived co-conspirators;
that the RICO action would be based on information he had gleaned from Chandler; and that
O'Hare could avoid being named a defendant in the forthcoming action if he dismissed his
'H Depo. at 25:16-24).21lawsuits. (0 are
On these facts, it is clear that at the time of the meeting, O'Hare knew about the
controversy surrounding public records requests/lawsuits and understood Sweetapple to be
offering his opinion about the legal significance of such activities. Moreover, by O'Hare's
admission, Sweetapple applied the ''extortionist'' and t'racketeer'' labels to DeM artini only in
connection with the public records activities of O'Boyle and his subordinates. Thus, there was
no confusing these labels with other undisclosed or implied acts. Since O'Hare understood the
factual basis for Sweetapple's claims about DeM artini, the statement is Cdpure opinion'' and not
actionable. Hay 450 So. 2d at 295. Summary judgment is granted in favor of Sweetapple on
Count 111.
The slander claim against Richman is even weaker. Count IV fails because there is no
evidence in the record thatRichman made a statement about DeMartini. In her Response,
DeM artini points to two online articles in which Richman characterizes the practice of filing
Under the Local Rules, a movant may attach to a reply exhibits containing fifacts not previously
mentionedy'' so long as these facts are used only to rebut tdelements of the opposition
memorandum and do not raise wholly new factual issues.'' Giglio Sub s.n.c. v. Carnival Corp. ,
No. 12-21680. 2012 WL 4477504, at *2 (S.D. Fla. Sept. 26, 2012) (Rosenbaum, J.), aff'd 523 F.
App'x 651 (1 1th Cir. 2013). Here, Sweetapple relies on these exhibits to rebut DeMartini's
argument that there was no evidence O'Hare was already familiar with the facts supporting his
statement. Therefore, 1 may consider the letter and the Town's meeting minutes.
2: Specifically, O'Hare said: isgsweetapplel told me that he had hired Gerry Richman; that
Richman was working for him to create this RICO; that he had a 40-page indictment ready to go
against O'Boyle and everyone else; that Joel Chandler was helping him nail O'Boyle; and
Chandler told him al1 about his operations. And that if I was to stay out of it, l would need to
cooperate with him and dismiss a1l my lawsuits and stop making record requests.'' (O'Hare
Depo. at 25:16-24). With respect to DeMartini, O'Hare said, dsghler name was used with the
other people that Mr. Sweetapple planned on going ajter.'' (Id. at 35: 15-16) (emphasis added).
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voluminous public records requests followed up by lawsuits as S'extortion'' or as having the goal
çsto extort fees.'' (DE 176 at 10; Ex. 12-13 thereto). The Response and the factual counter-
statement also invoke a local news interview, in which Richman made similar comments. (DE
141 , Ex. 2 1). An inspection of these articles and videos reveals, however, that Richman never
referred to DeM artini. In fact, he never even referred to a tdgroup'' of alleged co-conspirators.
'B le and O'Hare,22 If anything,A1l three media reports focus on two individual defendants, O oy
they give the impression that those two were the only defendants in the RICO Action. And in
only one article - the one by the Coastal Star - can Richman even arguably be construed to
connect the alleged itextortion'' to individual actors. (See DE 177-13 at 3) (isRichman . . .
accuses the tsvo nAen(0'Boyle and O'Harel of engaging in predatory Sscorched-earth' tactics
intended to intimidate and collect settlements. dlt's extortion, plain and simple,' he said.'').
Florida follows the Restatement in recognizing a narrow class of slander claims premised
on defaming a group or class of persons. Thomas v. Jacksonville Television, Inc., 699 So. 2d
800, 804 (Fla. 1st DCA 1997) (quoting Restatement (Second) of Torts, j 564). But that kind of
claim does not apply here.In each of the cited reports, Richman referred abstractly to the effect
of burdensome records requests and suits on municipalities and/or speciscally to O'Boyle and
O'Hare. He never mentioned a group or class of serial requesters. DeM artini simply did not
figure into his statements, either expressly or by implication.
DeMartini also observes that the televised news report tûprominently'' displayed the tlrst
page of the RICO Complaint, where her name isfeatured in the case caption, isfor several
seconds,'' (DE 1 76 at 10). But this is immaterial to her slander claim against Richman for two
reasons. First, it was the news station's decision to show a copy of the complaint, not
Richman's. Second, the RICO Complaint was a pleading in a then-active federal case. 1ts
22 The articles also mention Jonathan and cast him as a supporting player in the alleged scheme.
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contents were a matterof public record and were protected by the litigation privilege. See
DelMonico, 1 16 So. 3d at 12 17 (absolute litigation privilege attaches to statements made in
ilpleadings or documents filed with the coulf'l. Since DeMartini offers no evidence that
Richman made any statement about DeMartini, summary judgment as to Count IV is granted in
Richman's favor.
lV. CONCLUSION
For rcasons stated above, Defendants areentitled to summary judgment on a11 of
DeM artini's claims, Although 1 am not convinced that resolution of this case will end the cycle
of litigation between the Parties, l am hopeful that it does. Accordingly, it is hereby ORDERED
and ADJUDGED as follows:
(1) Defendant the Town of Gulf Stream's Motion for Summary Judgment (DE 136) is
GRANTED;
(2) Defendant Robert Sweetapple's Motion for Summary Judgment (DE 140) is
GRANTED;
(3) Defendants Richman Greer, P.A. and Gerald F. Richman's Motion for Summary
Judgment (DE 142) is GRANTED;
(4) Defendant Wantman Group, lnc.'s Amended Motion for Summary Judgment (DE
167) is GRANTED;
(5) Plaintiff Denise DeMartini's Motion for Partial Summary Judgment against Wantman
Group, lnc. (DE 132) is DENIED; and
(6) Final judgment will be entered by separate order.
DONE AND ORDERED in Chambers at W est Palm Beach, Florida, this 9th day of
August, 2017.
. .,V
DONALD M . M IDDLEBROOKS
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of Record
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