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Gwinnett v. Southwest Florida Regional Planning Council

United States District Court, M.D. Florida, Fort Myers Division

September 16, 2019

NICHOLE GWINNETT, Plaintiff,
v.
SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, Defendant.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.

         Before 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.

         BACKGROUND [2]

         This is 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).

         Before 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).

         Now, Gwinnett sues the Council for First Amendment retaliation under 42 U.S.C. § 1983. (Doc. 1 at 5-6).

         LEGAL STANDARD

         A 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, the-defendant-unlawfully-harmed-me accusation.” 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.

         DISCUSSION

         The Motion is broken into three parts: first, a jurisdictional challenge; second, argument related to an extrinsic document; and third, the 12(b)(6) attack.

         A. Jurisdiction

         First, 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 denied.

         B. Four Corners of the Complaint

         Next, 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 ...


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