from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:16-cv-81371-DMM
ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.
Denise DeMartini appeals the district court's grant of
summary judgment (1) to the defendant Town of Gulf Steam,
Florida on her First Amendment retaliation claim brought
under 42 U.S.C. § 1983 and (2) to the defendant Wantman
Group, Inc., a government contractor, on her malicious
prosecution claim brought under Florida law.
place this appeal in context, we begin with what happened in
a prior lawsuit and appeal involving the same parties here.
See Town of Gulf Stream v. O'Boyle, 654
Fed.Appx. 439 (11th Cir. 2016) (unpublished).
PRIOR LAWSUIT AND APPEAL
Town of Gulf Stream ("the Town") is a "tiny
town of under 1, 000 residents and just 17 full time
employees" in Palm Beach County, Florida. Id.
at 441. In their prior lawsuit, the Town and its contractor,
the Wantman Group Inc. ("Wantman") sued Denise
DeMartini (the plaintiff here), Martin O'Boyle, and
others under the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. §§
1962(c), 1964(c), for a fraud and extortion scheme.
Id. at 440-42.
resides in the Town. From 1984 until 1995, and then again
from 2003 to 2015, DeMartini worked for O'Boyle's
real estate company, CRO Realty, Inc. O'Boyle was
DeMartini's direct supervisor and described her as his
"left hand" woman.
direction of O'Boyle, Citizens Awareness Foundation, Inc.
("CAFI") was created as a not-for-profit
corporation, whose stated purpose included testing and
enforcing municipalities' compliance with Florida public
records law. O'Boyle was the sole funder of CAFI and he
used it as a tool to file thousands of public records
requests to the Town under Florida's public records law.
Plaintiff DeMartini worked as CAFI's Treasurer and later
Director. O'Boyle's CRO Realty paid DeMartini for her
work on behalf of CAFI.
prior lawsuit, the Town alleged that plaintiff DeMartini,
O'Boyle, and others "pummeled the town with nearly
2, 000 public records requests, many of them frivolous, with
no intention of actually reviewing the results."
Id. The Town also alleged that, if the Town failed
to timely respond then the O'Boyle Law Firm would sue the
Town, allegedly "engag[ing] in a pattern of frivolous
litigation activity." Id. at 441, 444. The
O'Boyle Law Firm was formed by O'Boyle's son,
funded by O'Boyle, and was in the same building as
O'Boyle's real estate company. Here is how
O'Boyle and DeMartini orchestrated their scheme through
First Step: Public Records Requests
first step, CAFI would issue public records requests "on
a grand scale" to the Town, pursuant to Florida's
Public Records Act, Fla. Stat. § 119.07. Id. at
444. Specifically, § 119.07 provides that a custodian of
a public record, such as the Town, (1) shall permit the
record to be inspected and copied, at any reasonable time,
under reasonable conditions, (2) must acknowledge requests to
inspect or copy records promptly, and (3) must respond to
such requests in good faith. Fla. Stat. § 119.07(1)(a),
relevant here, CAFI sent the Town "nearly 2, 000 public
records requests." Gulf Stream, 654 Fed.Appx.
at 441-42. These public records requests were deliberately
vague and ambiguous in order to induce a violation of §
119.07. See id. Our prior decision listed examples
of CAFI's requests as production of:
(1) "All email addresses created or received by the Town
of Gulf Stream";
(2)"All phone numbers in the [T]own's records";
(3)"Any and all records containing a social security
CAFI's requests went to Wantman, a contractor of the
Town. Id. at 442. Florida's public records law
applies also to private entities, such as Wantman, that
contract with government agencies. See Fla. Stat.
§ 119.0701. CAFI sent Wantman a public records request
by e-mail, which directed that a response be sent to this
e-mail address: Vendor.Contract.Publishing@gmail.com.
Citizens Awareness Found., Inc. v. Wantman Grp.,
Inc., 195 So.3d 396, 397-98 (Fla. Dist. Ct. App. 2016).
CAFI's request was sent to the e-mail address of Robin
Petzold, the consultant on the government contract, with the
additional language "DidTheyReadIt.com" attached at
the end of her e-mail address, rendering the e-mail address
unrecognized by Wantman's computer network. Id.
at 397-98, 401. The subject line of the e-mail stated that
it was a public records request, and it indicated that it was
sent from "An Onoma." Id. at 398. The
e-mail's suspicious appearance led Petzold to believe
that it was illegitimate and spam, and she did not respond to
it. Id. at 401.
Second Step: State Lawsuits Filed
second step of CAFI's strategy involved the O'Boyle
Law Firm's filing many lawsuits. If the Town or Wantman
did not respond promptly or adequately to the public records
requests, CAFI, through the O'Boyle Law Firm, would
threaten litigation, or actually file a lawsuit, against the
Town or another entity. CAFI, through the O'Boyle Law
Firm, would demand unreasonable settlements, which included
excessive amounts of attorney's fees and costs. Gulf
Stream, 654 Fed.Appx. at 441. The demands were based on
threats that CAFI would initiate expensive and burdensome
litigation or make pending litigation more expensive and
burdensome. Id. The end game of the scheme was not
to have the Town's public records actually released, but
to obtain attorney's fees for the O'Boyle Law Firm.
regard, Florida's Public Records Act, Fla. Stat. §
119.12, contains an attorney's fees provision that
potentially applied when CAFI filed its lawsuits against the
Town to enforce the production of public records. Section
119.12 provides that the state court shall award the
reasonable costs of enforcement, including reasonable
attorney's fees, against the custodian if the state court
determines that: (a) the custodian unlawfully refused to
permit a public record to be inspected or copied; and (b) the
complainant provided written notice identifying the public
record request to the custodian at least five business
days before filing the civil action. Fla. Stat. §
119.12(1)(a), (b). "Unlawful refusal under [§]
119.12 includes not only affirmative refusal to produce
records, but also unjustified delay in producing them."
Yasir v. Forman, 149 So.3d 107, 108 (Fla. Dist. Ct.
App. 2014) (quotation omitted). In short, if the Town or Wantman
did not promptly respond in five days, CAFI would file a
lawsuit and demand attorney's fees. And it was the policy
and practice of the O'Boyle Law Firm to demand settlement
of cases with a provision for attorney's fees in excess
of the fees actually incurred by the O'Boyle Law Firm for
example of the abusive litigation, in May 2014, when Wantman
failed to respond to CAFI's e-mail request for records
within the required time frame, CAFI filed suit after waiting
merely 18 days and demanded several thousand dollars to
settle the claim. Citizens Awareness, 195 So.3d at
401. After the suit was filed, Wantman voluntarily provided
the requested records. Id. at 398. Nevertheless,
CAFI persisted with the lawsuit. Id. at 397. The
Florida state court concluded that Wantman's delay in
providing the records was not so unjustifiable that it
amounted to an unlawful refusal to provide the records to
justify an award of attorney's fees. Id. at 397,
401. Affirming the trial court's ruling, the Florida
appellate court noted that Wantman believed the request was
"illegitimate" and stated that "[t]he public
records law should not be applied in a way that encourages
the manufacture of public records requests designed to obtain
no response, for the purpose of generating attorney's
fees." Id. at 401.
Joel Chandler's Role in CAFI
January 2014, O'Boyle recruited Joel Chandler to be
CAFI's Executive Director. While acting as CAFI's
Executive Director, Chandler became convinced that CAFI was
being used for improper purposes and that the organization
was engaged in potentially fraudulent and illegal activities.
As a result, Chandler resigned from CAFI in June 2014,
approximately five months after he accepted the position.
a few days after resigning from CAFI, Chandler contacted
Robert Sweetapple, who was the Town's special counsel
handling the public records requests. Chandler told counsel
Sweetapple that he believed CAFI, O'Boyle, and the
O'Boyle Law Firm were victimizing the Town with their
public records activities, and that those activities involved
criminal, fraudulent, and unethical conduct. Chandler also
disclosed this information to the Town's attorney, Joanne
O'Connor, as well as to the media.
2014, Chandler met with Sweetapple, the Town's special
counsel, and provided Sweetapple with documents and a sworn
statement detailing CAFI's fraudulent conduct. Chandler
also gave Sweetapple a sworn video statement concerning his
involvement with CAFI, O'Boyle, and the O'Boyle Law
Firm. Chandler advised Sweetapple about CAFI's two-step
"windfall scheme" of (1) issuing deliberately vague
and ambiguous public records requests to the Town and other
entities and (2) then demanding excessive amounts of
attorney's fees and other costs to settle the dispute
when the Town or other entities failed to respond to the
public records requests in a timely manner.
informed counsel Sweetapple that O'Boyle had orchestrated
hundreds of public records requests and directed the
O'Boyle Law Firm to file numerous lawsuits on behalf of
CAFI, many times without Chandler's authorization.
Chandler reported that the O'Boyle Law Firm had settled
cases on behalf of CAFI without having fee arrangements or
contingency agreements in place, without closing statements,
and without providing any accounting of the settlements to
also explained that he became uneasy with DeMartini's
close rapport with O'Boyle as well as her dual roles at
the O'Boyle Law Firm and as a director of CAFI.
Chandler's grievances against DeMartini included the
following: (1) she chastised him for not supplying the
O'Boyle Law Firm with sufficient cases from CAFI; (2) she
worked with another employee to reject Chandler's pitch
to refer CAFI's litigation to law firms besides the
O'Boyle Law Firm; (3) CAFI adopted a policy that
permitted DeMartini-a non-lawyer-to authorize public records
requests and litigation; and (4) she demanded that Chandler
produce a "minimum of 25 lawsuits" per week for the
O'Boyle Law Firm.
obtaining Chandler's sworn statement, Sweetapple compared
it to the information he had already obtained through his own
investigation and concluded that Chandler's account of
CAFI's "windfall scheme" was credible.
RICO Civil Suit
all of this information in hand, the Town decided to take
action. In October 2014, the Town held a regular meeting of
its Commission to consider specific ways to thwart
O'Boyle's "malicious and frivolous lawsuits and
public records requests." At the October 2014 meeting,
the Town's attorney, Joanne O'Connor, advised the
Commission that: (a) more than 1, 500 public records requests
had been submitted to the Town since August 27, 2013; (b) the
Town believed that an overwhelming majority of those requests
were submitted by O'Boyle, one other prolific requester,
or entities that they controlled; (c) these requests resulted
in 36 lawsuits against the Town; and (d) the requests had
"barraged" the small town staff and, since January
2014, the Town had spent $370, 000 in legal fees in defending
those actions and responding to those requests.
October 2014 meeting, Scott Morgan, the Town's Mayor,
explained that the Town was considering filing a RICO action
and retaining attorney Gerald Richman and his law firm,
Richman Greer, as special counsel. At the meeting, Richman
introduced himself, explaining to the Town that he was a past
president of the Florida bar and an active trial lawyer with
experience in RICO lawsuits. Richman encouraged the Town to
file a RICO action against the O'Boyle Law Firm, CAFI,
and certain individuals. Richman stated that the "best
way to counteract" O'Boyle's operation was to
"file a RICO action in federal court." Richman
explained that the RICO action would seek injunctive relief
and damages against the O'Boyle Law Firm, CAFI, and the
Morgan asked special counsel Richman about damages, and
Richman responded that a successful RICO action would provide
for attorney's fees and damages related to the costs of
defending the public records lawsuits. After Richman
discussed his fee arrangement, Thomas Stanley, a Town
Commissioner, asked Richman about other litigation costs.
Richman explained that there would be costs for depositions,
interrogatories, and experts as the case progressed, but
initially the costs would be related to the complaint,
service, and class certification. Joan Orthwein, another Town
Commissioner, asked special counsel Richman what the overall
cost of the RICO litigation would be, and Richman estimated
that it would cost between $20, 000 and $25, 000 in fees the
first few months. Donna White, also a Town Commissioner,
asked Richman how long the RICO action would last, but
Richman did not speculate.
Morgan stated that the Town "ha[d] suffered enough"
by expending funds, time, resources, and morale and was
encountering "difficulties [with] retaining and hiring
employees as a result of the scandalously malicious and
frivolous lawsuits and public records requests filed by . . .
O'Boyle under related entities." The Mayor explained
that the Town could "either take the approach of
defending these individual cases as they come in, and bleed
to death by a thousand cuts, or . . . take steps necessary to
stop those cases by advancing this case." The Mayor
commented that there was a "conspiracy . . . to advance
actions that essentially do nothing other than shake down
municipal agencies and related contractors for funds"
and "all the talk of open public access . . . is
nonsense." He explained that "by putting a stop to
it with this RICO action, we then put a stop to the
individual lawsuits on the public records requests." The
Mayor was "confident" that the RICO lawsuit would
stop the individual lawsuits and public records requests.
Orthwein responded, "I agree, because I don't see an
end just defending one by one. I think we have to take it all
as a group and go forward because just defending is not doing
anything. . . . I think it's very important that we just
don't bleed to death, we protect ourselves."
the discussion, the Commission voted to retain Richman and
his law firm, Richman Greer, as special counsel to represent
the Town and to commence the civil lawsuit. Richman also
contacted Wantman about whether it would join the RICO
lawsuit. Richman had previously represented Wantman in other
matters, including a prior public records lawsuit involving
CAFI. Based on discussions with Richman, Wantman decided to
join the Town in the RICO civil suit.
October 27, 2014, Sweetapple, as the Town's special
counsel, obtained Chandler's affidavit, which outlined
the existence of O'Boyle's "windfall
scheme" and DeMartini's participation.
February 2015, attorney Richman filed a civil complaint on
behalf of the Town and Wantman against O'Boyle, CAFI,
DeMartini, and others, alleging violations of RICO, 18 U.S.C.
§§ 1962(c), 1964(c). In their complaint filed in
federal district court, the Town and Wantman, as named
plaintiffs on behalf of a putative class, alleged that the
defendants (1) filed large numbers of frivolous public
records requests, which were often intentionally
inconspicuous, (2) then filed lawsuits when the requests were
not addressed on time or otherwise, and (3) then extorted
their victims by demanding settlements, including payment of
their allegedly incurred attorney's fees and costs, or
face protracted litigation and additional frivolous public
records requests and lawsuits. The complaint alleged the
defendants' pattern of frivolous public records requests
and frivolous lawsuits was extortionate under the Hobbs Act,
18 U.S.C. § 1951. The complaint also alleged that
DeMartini was the self-appointed "key employee" for
all of O'Boyle's companies, and that she
"direct[ed] the flow of litigation" and
"call[ed] the shots."
motion to dismiss by the defendants, the federal district
court dismissed the Town and Wantman's class action RICO
complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). The district court concluded that
the defendants' filing lawsuits, or even threatening to
sue, did not constitute a predicate act under RICO. In so
ruling, the district court relied on Eleventh Circuit
precedent in Raney v. Allstate Ins. Co., 370 F.3d
1086, 1087-88 (11th Cir. 2004) (holding that the filing of a
lawsuit did not state a claim for extortion as a predicate
act under RICO), and United States v. Pendergraft,
297 F.3d 1198, 1207 (11th Cir. 2002) (holding that neither
the threat to litigate nor the fabrication of evidence behind
the threat of a lawsuit made the action "wrongful"
within the meaning of the Hobbs Act, and, thus, could not be
a predicate act under RICO).
appeal, the Town and Wantman attempted to distinguish our
above precedent based on CAFI's thousands of abusive
public records requests, the large volume of lawsuits
actually filed or threatened to be filed, and the systematic
use of those lawsuits as part of the O'Boyle-led scheme
to defraud with the intent to deceive. Gulf Stream,
654 Fed.Appx. at 444. This Court assumed that the defendants
had "engaged in a pattern of frivolous litigation
activity while abusing, on a grand scale, their statutory
right to request public documents from the government."
Id. Ultimately, however, this Court affirmed the
district court's dismissal of the Town and Wantman's
complaint. Id. at 445. We stressed that the law
encourages citizens to use the courts to redress wrongs and
enforce rights, including to resolve public records disputes.
Id. at 443-44. Moreover, citizens have a
constitutional right to petition the government for redress
under the First Amendment. Id. This Court concluded
that, regardless of the scope and scale of the public records
litigation, the courts are equipped with procedures to deal
with parties who file frivolous litigation. Id.
Therefore, this Court determined that a threat to file
litigation against the government does not trigger liability
under the Hobbs Act. Id. at 443. Nonetheless, this
Court characterized the activities of CAFI, O'Boyle, and
the O'Boyle Law Firm as "troubling."
Id. at 441.
Mayor Morgan sent a letter to town residents regarding the
Town's operating budget, including a planned increase in
the Town's budget for legal fees. After describing the
status of the RICO civil lawsuit, Mayor Morgan said, "I
have stated numerous times that if the litigants will
discontinue their lawsuits, I will recommend discontinuing
our RICO action." And when the Town lost on
appeal, Mayor Morgan conceded during a
public hearing held in July 2016 that the Town's RICO
suit was "new to the law." In filing the RICO suit,
the Town knew that it "would either prevail or expose
the case." But "something had to be done to try to
stop the public record lawsuits that at that time numbered 53
against the Town." Mayor Morgan also reported that the
Town had not had a public records lawsuit since the RICO
action was filed.
DeMartini's § 1983 Retaliation Case
two months after this Court affirmed the district court's
dismissal of the Town and Wantman's RICO civil action,
DeMartini filed the instant § 1983 action against them.
In relevant part, DeMartini's amended complaint alleged
that the Town and Wantman's RICO lawsuit constituted
unlawful retaliation against her. Her amended complaint
contained: (1) a First Amendment retaliation claim under
§ 1983 against the Town; and (2) a malicious prosecution
claim under Florida law against Wantman.
her § 1983 First Amendment retaliation claim, DeMartini
alleged that the speakers at the Town's October 2014
Commission meeting made clear that the Town was not concerned
with the merits of its RICO lawsuit or its likelihood of
success. Rather, the Town's sole motivation in voting for
the RICO lawsuit was to stop CAFI's filing of public
records lawsuits. DeMartini noted that, after this Court
affirmed the dismissal of the Town's RICO complaint,
Mayor Morgan admitted at a July 2016 Commission meeting that
the Town's RICO lawsuit served its purpose because new
public records lawsuits had not been filed, which "was
exactly what we tried to accomplish."
contended that she engaged in speech that was
constitutionally protected by associating with CAFI, which
had filed the multiple public records lawsuits against the
Town. DeMartini alleged that: (1) the filing of these public
records lawsuits against the Town, at her direction,
constituted constitutionally protected activity; (2) the Town
retaliated against her protected activity by filing the RICO
lawsuit; and (3) the Town's retaliatory conduct adversely
affected her protected activity and caused her to incur
substantial damages, primarily due to the loss of her
her Florida malicious prosecution claim against Wantman,
DeMartini alleged that Wantman disliked her petitioning the
government by using Florida's public records law and
weaponized the RICO suit as a means to punish her for that
expression. She claimed that Wantman sued her without having
any evidence that she had any involvement or participation in
the extortionate scheme alleged in the RICO complaint.
district court denied the defendants' motions to dismiss.
Later, the defendants moved for summary judgment on all
claims and DeMartini filed a cross-motion for partial summary
judgment against Wantman. The district court granted the
defendants' motions for summary judgment and denied
DeMartini's cross-motion against Wantman. The district
court concluded the defendants had probable cause to initiate
a civil RICO lawsuit which precluded plaintiff's §
1983 First Amendment retaliation claim and her Florida
malicious prosecution claim. DeMartini timely
SECTION 1983 FIRST AMENDMENT RETALIATION CLAIM
constitutional claim brought pursuant to § 1983 must
begin with the identification of a specific constitutional
right that has allegedly been infringed." Paez v.
Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). Plaintiff
DeMartini alleges that the defendants violated her First
Amendment rights-to make public records requests and to bring
lawsuits-by filing the RICO civil action against her in
retaliation for her exercising those First Amendment rights.
First Amendment provides that "Congress shall make no
law . . . abridging the freedom of speech, or . . . the right
. . . to petition the government for a redress of
grievances." U.S. Const. Amend. I. The Amendment
protects "not only the affirmative right to speak, but
also the right to be free from retaliation by a public
official for the exercise of that right." Suarez
Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.
2000). "The First Amendment right to petition the
government for a redress of grievances includes a right of
access to the courts." Bank of Jackson Cty. v.
Cherry, 980 F.2d 1362, 1370 (11th Cir. 1993); see
Cal. Motor Transp. Co., v. Trucking Unlimited, 404 U.S.
508, 510, 92 S.Ct. 609, 612 (1972) (stating "[t]he right
of access to the courts is indeed but one aspect of the right
of petition"). The right to petition the government for
a redress of grievances is "one of the most precious of
the liberties safeguarded by the Bill of Rights," and is
"high in the hierarchy of First Amendment values."
Lozman v. City of Riviera Beach, Fla., 585 U.S.___,
___, 138 S.Ct. 1945, 1954-55 (2018) (internal quotation marks
omitted) (quoting BE & K Const. Co., v. NLRB,
536 U.S. 516, 524, 122 S.Ct. 2390, 2395 (2002)); see also
Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684,
1689 (1983). The right to petition the government for redress
of grievances is such a fundamental right as to be
"implied by '[t]he very idea of a government,
republican in form."' BE & K Const.,
536 U.S. at 524-25, 122 S.Ct. at 2396 (quoting United
States v. Cruikshank, 92 U.S. 542, 552 (1875)). In
short, a citizen's public records requests and lawsuits
against the government can clearly constitute protected First
Elements of Retaliation Claim
state a § 1983 First Amendment retaliation claim, a
plaintiff generally must show: (1) she engaged in
constitutionally protected speech, such as her right to
petition the government for redress; (2) the defendant's
retaliatory conduct adversely affected that protected speech
and right to petition; and (3) a causal connection exists
between the defendant's retaliatory conduct and the
adverse effect on the plaintiff's speech and right to
petition. Bennett v. Hendrix, 423 F.3d 1247, 1250
(11th Cir. 2005).
§ 1983 First Amendment retaliation cases, the Supreme
Court has recognized that retaliatory animus by a
governmental actor is a subjective condition that is
"easy to allege and hard to disprove." See
Nieves v. Bartlett, 587 U.S.___, ___, 139 S.Ct. 1715,
1725 (2019) (internal quotation marks omitted) (quoting
Crawford-El v. Britton, 523 U.S. 574, 585, 118 S.Ct.
1584, 1590 (1998)); see also Hartman v. Moore, 547
U.S. 250, 257, 126 S.Ct. 1695, 1702 (2006) (The defendant
inspectors argue that "a plaintiff can afflict a public
officer with disruption and expense by alleging nothing more,
in practical terms, than action with a retaliatory animus, a
subjective condition too easy to claim and too hard to defend
against."). For this reason, courts have identified two
general approaches to retaliation claims against governmental
actors, with the particular approach chosen dependent on the
type of alleged retaliation at issue. One approach, typically
used when a governmental employee claims that he was fired
because he engaged in First Amendment activity, looks to
whether the defendant governmental employer's retaliatory
motivation was the but-for cause of the adverse employment
decision. If not-that is, if the defendant would have taken
the same action had there not also been a retaliatory animus
motivating that conduct-then the defendant is not liable.
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76 (1977); see
Lozman, 585 U.S. at___, 138 S.Ct. at 1955.
second approach-taken when the governmental defendant has
utilized the legal system to arrest or prosecute the
plaintiff-has been to require the plaintiff to plead and
prove an absence of probable cause as to the challenged
retaliatory arrest or prosecution in order to establish the
causation link between the defendant's retaliatory animus
and the plaintiff's injury. Nieves, 587 U.S. at,
139 S.Ct. at 1726; Hartman, 547 U.S. at 260-61,
265-66, 126 S.Ct. at 1704, 1706-07.
four major Supreme Court precedents-Mt. Healthy,
Hartman, Lozman, and Nieves-expand
upon the causal connection requirement in First Amendment
retaliation cases and are necessary background to our
ultimate conclusion. We start with the First Amendment
retaliation decisions in Mt. Healthy and
Mt. Healthy: "But-For" Test When
Retaliatory Employment ...