United States District Court, M.D. Florida, Ft. Myers Division
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge.
matter is before the Court on Defendant City of
Clewiston's Motion to Dismiss Count II of the Fourth
Amended Complaint (Docket No. 117), and Plaintiff Clewiston
Commons's Motion to Extend pre-trial and trial deadlines
(Docket No. 143). For the following reasons, the Motion to
Dismiss is granted and the Motion to Extend is granted in
part and denied in part.
case involves a zoning dispute over Clewiston Commons, a
mobile home park in Clewiston, Florida (“the
City”). The full factual history of the case has been
set forth previously, and the relevant facts are repeated
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. . . . In late 2006 or early 2007,
Clewiston Commons sought to rezone the property from
residential to commercial. . . . After a public hearing, the
City's Board of Commissioners passed an ordinance
granting Clewiston Commons' rezoning request. . . .
Every year from 2007 to 2016, the City granted Clewiston
Commons permits to operate the property as a mobile home
park. 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.
Clewiston 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.” 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. 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. . . .
On 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.
(Order (Docket No. 83) at 2-4 (internal citations omitted).)
The City moves to dismiss Count II of the Fourth Amended
Complaint, which alleges a violation of due process under 42
U.S.C. § 1983.
Standard of Review
survive a motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007). Although a complaint
need not contain “detailed factual allegations, ”
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Id. at 555. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, ” will not pass muster under
Twombly. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555). In
sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of
[the claim].” Twombly, 550 U.S. at 556.
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to the plaintiff.
Erickson v. Pardus, 551 U.S. 89 (2007). But
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations