United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Southwest Florida Regional Planning
Council's (the “Council”) Motion to Dismiss
(Doc. 14) and Plaintiff Nichole Gwinnett's response in
opposition (Doc. 17). The Court ordered supplemental briefing
(Doc. 18), and those responses are here (Docs. 22; 23). For
these reasons, the Court grants the Motion.
a First Amendment retaliation case. (Doc. 1). The case is not
about a citizen's freedom of speech, rather it concerns a
public employee's right not to speak about private
matters. (Doc. 1 at 5).
last year, Gwinnett worked at the Council without incident.
(Doc. 1 at 3). Then, Gwinnett and a coworker went to an
out-of-town work conference. (Doc. 1 at 3). After the
conference ended, the coworker was assaulted. (Doc. 1 at 3).
She confided the details of the incident to Gwinnett before
contacting the police. (Doc. 1 at 3). When the police
arrived, Gwinnett's supervisor from the Council called
and insisted on an explanation of the incident. (Doc. 1 at
3). But Gwinnett refused, directing the supervisor to the
police. (Doc. 1 at 3). The supervisor continued pressing
Gwinnett for information without success. (Doc. 1 at 4).
Eventually, the supervisor demanded Gwinnett disclose the
intimate details of the incident or be fired. (Doc. 1 at 4).
Still, Gwinnett refused to speak because it was a private
matter unrelated to work. (Doc. 1 at 4). At that point,
Gwinnett resigned. (Doc. 1 at 4).
Gwinnett sues the Council for First Amendment retaliation
under 42 U.S.C. § 1983. (Doc. 1 at 5-6).
complaint must recite “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard
“does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). A facially plausible claim allows a
“court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. So the pleading must contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
Motion is broken into three parts: first, a jurisdictional
challenge; second, argument related to an extrinsic document;
and third, the 12(b)(6) attack.
the Council takes aim at jurisdiction. (Doc. 14 at 3-5). But
it misses the mark. Because there is not diversity and
Gwinnett fails to allege a sufficient claim, says the
Council, there is no jurisdiction. Yet on its face, the
Complaint invokes federal question jurisdiction by alleging a
First Amendment violation under § 1983. Grable &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 312 (2005) (“[F]ederal-question
jurisdiction is invoked by and large by plaintiffs pleading a
cause of action created by federal law (e.g., claims
under 42 U.S.C. § 1983).”). So diversity is
irrelevant. And the balance is an attack on the sufficiency
of the claim under Rule 12(b)(6), not jurisdiction under Rule
12(b)(1). E.g., Howard v. Wilkinson, 305
F.Supp.3d 1327, 1334 (M.D. Fla. 2018) (“A Rule 12(b)(6)
motion to dismiss tests the legal sufficiency of the
plaintiff's complaint.”). To the extent the Council
moves to dismiss for lack of jurisdiction, the Motion is
Four Corners of the Complaint
the Council points to Gwinnett's formal grievance and a
text message, which are outside the Complaint. (Doc. 14 at
5-8; 14-1). That is usually a no-no at the motion to ...