United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
Matter comes before the Court on the Motion for Summary
Judgment (Doc. 28) filed by the House of Blues, the Response
(Doc. 30) filed by the Plaintiff, and the Reply (Doc. 31)
filed by the House of Blues.
Factual Background and Procedural History
December 23, 2013, the Plaintiff was visiting the House of
Blues at Downtown Disney. At that time, Deputy Brian Mallard
and Corporal Jeffrey Brough of the Orange County
Sheriff's Office were providing off-duty security
services to the House of Blues. Around 2:05 AM, after the
House of Blues had closed, Mallard and Brough were attempting
to clear guests out of the House of Blues area, as well as
the adjacent Downtown Disney area. The Plaintiff alleges
that, when he attempted to get Mallard's attention in
order to ask if he could take a picture of his friends,
Mallard attacked him, and Brough later joined in on the
physical altercation. Doc. 28-1 at 14-15.
Plaintiff filed his Complaint on July 25, 2016. Doc. 2. House
of Blues Orlando Restaurant Corp. (“HOB”) moved
for summary judgment on September 15, 2017. Doc. 28. The
Plaintiff filed a Response on October 12, 2017, and HOB filed
a Reply on October 23, 2017. Docs. 30, 31.
is entitled to summary judgment when the party can show that
there is no genuine issue as to any material fact and that
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56. Which facts are material depends on the
substantive law applicable to the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party bears the burden of showing that no genuine
issue of material fact exists. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
party moving for summary judgment points out an absence of
evidence on a dispositive issue for which the nonmoving party
bears the burden of proof at trial, the nonmoving party must
“go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 324-25 (1986) (internal
quotations and citation omitted). Thereafter, summary
judgment is mandated against the nonmoving party who fails to
make a showing sufficient to establish a genuine issue of
fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than
conclusory statements or allegations unsupported by facts.
Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th
Cir. 1985) (“conclusory allegations without specific
supporting facts have no probative value”).
employment relationship must exist in order to find HOB
vicariously liable for Brough and Mallard's actions. HOB
argues that the Plaintiff's claims fail as a matter of
law because HOB did not have such an employment relationship
with Brough and Mallard, and thus, HOB had no control over
Brough and Mallard's involvement in the altercation with
the Plaintiff. See Doc. 28 at 8. Florida courts use
a list of nonexclusive factors to determine whether an
employment relationship exists. Perkins v. Tolen,
No. 3:10-cv-851-J-37TEM, 2012 WL 1656772, at *2 (M.D. Fla.
May 10, 2012). These factors are as follows:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or ...