United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
the Court is Defendants Sawyer Smith, Ryan Doyle, and Geraldo
Olivo’s Amended Joint Motion to Dismiss (Doc. 36) along
with Defendant The Wilbur Smith Law Firm 2065 LLC’s
Motion to Dismiss (Doc. 37). Plaintiff David Hastings did not
respond to either, and the time to do so passed. For these
reasons, the Court grants the Motions.
began with a criminal case in state court. (Doc. 28).
Hastings retained Defendants to defend him in the matter. As
a result of Defendants’ negligence, says Hastings, he
was convicted. Hastings remains incarcerated and has not
received postconviction relief.
alleges these counts in the Complaint: (1) gross negligence
under Florida Statute 95.11 against Defendant Joseph Viacava
(Doc. 28 at 19-27); (2) gross negligence under Florida
Statute 95.11 against Smith, Doyle, and Olivo (Doc. 28 at
27-32); and (3) gross negligence and negligent hiring and
retention under Florida Statute 95.11 against Wilbur Smith
(Doc. 28 at 32-36).
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). “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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A facially plausible claim allows a “court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Pleadings
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.
argue Hastings cannot state a claim because he never obtained
postconviction relief. Put simply, they are right.
labels his claims as gross negligence and professional
malpractice under Florida Statute § 95.11. (Doc. 28 at
1, 19-36). That statute sets the limitation periods for
various claims, but it does not create an independent cause
of action. Hastings v. Smith, No.
2:19-cv-32-FtM-29MRM, 2019 WL 3867492, at *2 (M.D. Fla. July
19, 2019), report and recommendation adopted, 2019
WL 3858000 (Aug. 16, 2019). Yet pro se pleadings are
construed liberally. Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir. 2008). So the Court construes these as
claims for legal malpractice. See (Doc. 28 at 18
(Defendants “were grossly negligent in the defense of
Plaintiff in 2014, constituting legal malpractice.”);
see also E.P. v. Hogreve, 259 So.3d 1007,
1009-10 (Fla. Dist. Ct. App. 2018) (construing allegations of
professional negligence as legal malpractice).
are three elements to legal malpractice: “(1) the
attorney’s employment; (2) the attorney’s neglect
of a reasonable duty; and (3) the attorney’s negligence
was the proximate cause of the client’s loss.”
Steele v. Kehoe, 747 So.2d 931, 933 (Fla. 1999).
Another element applies for plaintiffs alleging malpractice
in a criminal case. E.g., Cira v.
Dillinger, 903 So.2d 367, 370-71 (Fla. Dist. Ct. App.
2005). A “convicted criminal defendant must obtain
appellate or postconviction relief as a precondition to
maintaining a legal malpractice action.”
Kehoe, 747 So.2d at 933. This “exoneration
requirement” means that a plaintiff (who was the
criminal defendant) must establish a favorable final
disposition of the underlying criminal case. Cocco v.
Pritcher, 1 So.3d 1246, 1248 (Fla. Dist. Ct. App. 2009).
This requirement rests on several policy rationale. One
reason is self-explanatory-absent relief from a conviction,
“the criminal defendant’s own actions must be
presumed to be the proximate cause of the injury.”
Kehoe, 747 So.2d at 933.
to the Complaint, the state court denied Hastings’
motion for postconviction relief from his criminal
conviction. (Doc. 28 at 18). His appeal of that denial was
also unsuccessful. (Doc. 28 at 18). Thus, from the Complaint,
Hastings has not received postconviction relief. And he
cannot maintain a legal malpractice action without it.
E.g., Kehoe, 747 So.2d at 933; see also
Garcia v. Diaz, 752 Fed.App’x 927, 932 (11th
Cir. 2018) (Defendant “obtained no ‘relief’
for his conviction and thus has no cognizable claim under
Florida law for legal malpractice.” (quoting
Kehoe, 747 So.2d at 933)); Schreiber v.
Rowe, 814 So.2d 396, 398-400 (Fla. 2002). This should
come as no shock to Hastings. Over the summer, the Court
dismissed his case against a different group of attorneys for
the same reason, among others. Hastings, 2019 WL
3867492, at *3. The Complaint, therefore, fails to state a
claim, and it is dismissed.
rule applies all the same to Wilbur Smith Law Firm even
though the claim against it is for negligent hiring and
retention. (Doc. 28 at 32-36). Like here, the Eleventh
Circuit applied the exoneration requirement to claims by a
criminal defendant against prosecutors for negligent training
and supervision. Rowe v. City of Fort Lauderdale,
279 F.3d 1271, 1285-87 (11th Cir. 2002). The Court analogized
Kehoe and held the criminal defendant must obtain
postconviction relief before pursuing these types of claims.
Id. at 1286-87. To hold Wilbur Smith Law Firm liable
for its employees’ legal malpractice, Hastings must
still make the showing of postconviction relief to establish
proximate cause. See id.; Spadaro v.
City of Miramar, 855 F.Supp.2d 1317, 1331 & n.6
(S.D. Fla. 2012) (applying Rowe and Kehoe).
In sum, there is no difference in the result.
while not discussed by the parties, one Defendant failed to
appear. Hastings filed a proof of service for Viacava, who
neglected to appear and challenge that service or otherwise
defend the action. (Doc. 35). So a clerk’s default
might be proper. See Fed. R. Civ. P. 55(a). But
ultimately, the result for the other Defendants equally
applies to Viacava. Because the claim against him is also for
legal malpractice (Doc. 28 at 19-27), Hastings cannot state a
valid claim. Kehoe, 747 So.2d at 933. And the Court
could not enter default judgment against him. Tyco Fire
& Sec, LLC v. Alcocer, 218 Fed.App’x 860, 863
(11th Cir. 2007) (requiring courts to determine whether a
complaint states a valid claim before entering default
judgment); see alsoGulf Coast Fans, Inc. v.
Midwest Elecs. Imps., Inc.,740 F.2d 1499, 1512 ...