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Alicea v. Mallard

United States District Court, M.D. Florida, Orlando Division

March 2, 2018

JOHN CRUZ ALICEA, Plaintiff,
v.
BRIAN MALLARD, JEFFREY BROUGH and HOUSE OF BLUES ORLANDO RESTAURANT CORP., Defendants.

          ORDER

          GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE

          This 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.

         I. Factual Background and Procedural History

         On 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.

         The 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.

         II. Legal Standards

         A party 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).

         When a 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”).

         III. Analysis

         An 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 ...

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