United States District Court, M.D. Florida, Fort Myers Division
CLEWISTON COMMONS LLC, a Florida limited liability company, Plaintiff,
CITY OF CLEWISTON, MALI GARDNER, AL PERRY, TRAVIS REESE, DEBBIE MCNEIL and KATHY COMBASS, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss Counts II and III (Doc. 61) filed on March 19, 2019.
Plaintiff filed a Response in Opposition (Doc. 65) on April
10, 2019, conceding that Count II for injunctive relief is an
improper standalone claim and agrees to the dismissal of
Count II. (Doc. 65, at 2). Therefore, the only claim at issue
in this Opinion and Order is Count III - Denial of Due
Process of Law. Defendant City of Clewiston filed a Reply
(Doc. 68) on April 15, 2019. For the reasons set forth below,
the Motion is granted in part.
case involves a zoning dispute over the designation of a
mobile home park in Clewiston, Florida. Plaintiff sues the
City of Clewiston (the City) and various City officials who
were involved with the zoning designation. The Court recounts
the factual background as pled in Plaintiff's Second
Amended Complaint (Doc. 60), which it must take as true to
decide whether the Second Amended Complaint states a
plausible claim. See Chandler v. Sec'y Fla.
Dep't of Transp., 695 F.3d 1194, 1198-99 (11th Cir.
2012). In 2006, Clewiston Commons LLC purchased a parcel of
property in Clewiston that was zoned residential and was
being used as a mobile home park. Plaintiff believes that
prior to his purchase the property had been used a mobile
home park for more than thirty years. (Doc. 60, ¶ 21).
In late 2006 or early 2007, Clewiston Commons sought to
rezone the property from residential to commercial. (Doc. 60,
¶ 22). Clewiston Commons claims that it premised its
request on an understanding that any change in its use would
not occur until after a feasibility study. (Doc. 60,
¶¶ 23-24). After a public hearing, the City's
Board of Commissioners passed an ordinance granting Clewiston
Commons' rezoning request. (Doc. 60, ¶ 28).
the zoning change, the economy collapsed, and Clewiston
Commons stopped its anticipated development and continued to
operate the property as a mobile home park for the next ten
years or so without issue. Every year from 2007 to 2016, the
City granted Clewiston Commons permits to operate the
property as a mobile home park. (Doc. 60, ¶ 33). That
changed in 2016 when the City began to deny Clewiston Commons
permits related to its use of the property as a mobile home
park. (Doc. 60, ¶ 40).
Commons then applied to the City for a special exception to
allow it “[t]o operate and be able to repair/replace
RV/mobile units within the park.” (Doc. 60, ¶ 44).
The Board of Commissioners denied Clewiston Commons'
application for the special exception. Thereafter, a City
code enforcement officer issued two violation
notices to Clewiston Commons dated October 12,
2017, for failure to comply with the commercial zoning
designation. (Doc. 60, ¶ 68). The Notices required
Clewiston Commons to remove all mobile homes from the
property within 180 days and stated that failure to correct
the violations could result in the issuance of a citation or
an enforcement hearing before a special magistrate. The
violations were not corrected, and Clewiston Commons filed
this lawsuit on May 14, 2018 (Doc. 1) and is currently
proceeding on a Second Amended Complaint (Doc. 60), claiming
in part that Defendants “are now attempting, under the
pretext of due process, to schedule hearings and move forward
with the enforcement of the Termination Notices through
monetary fines and other means, despite the pendency of this
action.” (Doc. 60, ¶ 74).
October 30, 2018, a special magistrate ordered the removal of
all mobile homes and that Clewiston Commons cease its use of
the property as a mobile home park within 180 days, which was
April 28, 2019. The special magistrate did not determine
whether the mobile home park could continue to operate as a
non-conforming use. Plaintiff appealed the special
magistrate's order to the Twentieth Judicial Circuit in
and for Hendry County pursuant to Fla. Stat. § 162.11,
styled City of Clewiston, Florida v. Clewiston Commons,
LLC, Case No: 2018-CA-0777 (the “Underlying
Appeal”). The Underlying Appeal remains pending but was
stayed by the state court at the joint request of the parties
pending the outcome of this litigation. The fact that the
case was stayed was not addressed by the parties in the
initial briefing on the Motion to Dismiss and because it
could have an impact on Defendant's procedural due
process arguments, the Court requested supplemental briefing
on how the stay might affect the claim, if at all. (Doc. 78).
The parties have filed their supplemental briefs. (Docs. 79,
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept all factual
allegations as true and view them in a light most favorable
to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This consideration is limited “to the
pleadings and exhibits attached thereto[.]”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (quotations omitted). However, a complaint
must list more than mere “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 554, 555 (2008). Likewise, “[f]actual allegations
that are merely consistent with a defendant's
liability” are insufficient. Chaparro v. Carnival
Corp, 693 F.3d 1333, 1337 (11th Cir. 2012) (internal
quotations and citations omitted).
contrast, the Court will not dismiss a complaint where the
Plaintiff pleads facts that make the claim facially
plausible. See Twombly, 550 U.S. at 570. A
claim is facially plausible when the court can draw a
reasonable inference, based on the facts pleaded, that the
opposing party is liable for the alleged misconduct.
See Iqbal, 556 U.S. at 678. This
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.(internal quotation marks omitted) (citing
Twombly, 550 U.S. at 557). Thus, when the complaint
contains “well-pleaded allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
argue in part that it is not entirely clear whether Plaintiff
is raising a substantive or procedural due process claim
under Count III, simply labeling the count “Denial of
Due Process of Law.” (Doc. 60). The Court agrees.
Federal Rule of Civil Procedure 10(b) requires that a
plaintiff state “[e]ach claim founded upon a separate
transaction or occurrence ... in a separate count ...
whenever a separation facilitates the clear presentation of
the matters set forth.” A pleading that lumps multiple
claims together in one count is considered a shotgun
pleading. Ledford v. Peeples, 605 F.3d 871, 892
(11th Cir. 2010) (vacated on other grounds). Courts in the
Eleventh Circuit “roundly, repeatedly, and consistently
condemn” shotgun pleadings. Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir.
2008). When a plaintiff files a shotgun pleading, district
courts should require the plaintiff to replead. See
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117,
1127-28 (11th Cir. 2014) (criticizing the district court for
not policing shotgun pleadings).
although Plaintiff does specifically state “procedural
due process” in paragraphs 103 and 104 of the Second
Amended Complaint, any claim for substantive due process is
not sufficiently pled. Plaintiff states in its brief (Doc.
65) for the first time that the City's actions were
arbitrary and capricious, violating fundamental rights under
federal law. However, there are no allegations in Count III
(or in the paragraphs incorporated into the Count) to this
effect. To the extent that Plaintiff seeks to raise more than
one constitutional violation pursuant to section 1983
(i.e., a substantive due process violation and a
procedural due process violation), it is directed to include
each alleged constitutional violation in a separate count,
with the requisite supporting factual allegations in the
Third Amended Complaint. See Arenal v. City of
Punta Gorda, Fla., 932 F.Supp. 1406, 1413 (M.D. Fla.
1996) (noting that substantive and procedural due process are
distinct causes of action); Arroyo v Judd,
8:10-cv-911-T-23TBM, 2010 WL 2465173 (M.D. Fla. June 15,
2010); Holder v. Gualtieri, 8:14-cv-3052-T-33TGW,
2015 WL 1880782, *6-7 (M.D. Fla. Apr. 24, 2015) (citing
Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir.
2002) (distinguishing substantive and procedural due process
Court will otherwise deny Defendants' merits arguments
without prejudice, with leave to refile a similar motion, if
appropriate, after the Third Amended Complaint is filed. If
no Third Amended Complaint is filed this case ...