United States District Court, M.D. Florida, Tampa Division
JOANNA ERICKSON and STEVEN ERICKSON, husband and wife, and THE CHURCH WITHOUT LIMITS, INC. d/b/a/ NO LIMITS LEARNING ACADEMY, a Florida not-for-profit company, Plaintiffs,
MANATEE COUNTY SHERIFF'S DEPARTMENT and the MANATEE COUNTY CHILD PROTECTIVE SERVICES DIVISION OF THE MANATEE COUNTY SHERIFF'S DEPARTMENT, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFFS' THIRD AMENDED COMPLAINT
BARBER UNITED STATES DISTRICT JUDGE
matter is before the Court on “Defendant Rick
Wells' Motion to Dismiss Plaintiff's Third Amended
Complaint and Supporting Memorandum of Law, ” filed by
counsel on October 2, 2019. (Doc. # 31). On November 11,
2019, Plaintiffs, through counsel, filed a response in
opposition to the motion. (Doc. # 37). After reviewing the
motion, response, court file, and the record, the Court finds
Steven and Joanna Erickson are the husband and wife pastors
of The Church Without Limits, who previously owned and
operated a daycare/preschool known as No. Limits Learning
Academy. On or around July 6, 2017, an incident occurred at
the school where a six-year-old boy asked a four-year-old
girl to pull her pants down, and she did (the children were
observed by teachers as the boy was in the process of pulling
his pants down). After the incident, the Director of the
Academy informed Joanna Erickson that she had reported the
incident to the authorities and was resigning.
from the Department of Children and Families
(“DCF”) and Child Protection Services
(“CPS”) visited the Academy and gathered incident
reports. On July 11, 2017, DCF cited the Academy for the
incident. On July 18, 2017, Lisa Montera, a duly authorized
CPS Investigator, went to the daycare accompanied by a
Manatee County Sheriff's Department deputy and served
Joanna Erickson and the Academy with a “Denial of
Access to Daycare” form pursuant to section 39.302,
Florida Statutes. As a result of this action, the
Academy was immediately evacuated, and Plaintiffs allege
“chaos ensued.” Plaintiffs also claim that after
the evacuation, the media learned of the event, which
resulted in a media frenzy. The Academy remained closed until
August 2, 2017, when the investigation was completed.
Plaintiffs claim that Montera's actions continue to haunt
the Academy, which has now permanently closed.
originally filed a three-count complaint in state court
seeking damages for a violation of § 39.302(2)(a),
F.S. (Count I), defamation (Count II), and negligent
supervision (Count III). On May 2, 2018, the state court
entered an order dismissing the complaint without prejudice.
On December 21, 2018, Plaintiffs filed an amended complaint,
asserting four claims for relief - a violation of section
39.302(2)(a), F.S. (Count I), defamation (Count II),
defamation per se (Count III), and negligent supervision
(Count IV). On March 15, 2019, the state court entered an
order dismissing with prejudice Count I, and dismissing
without prejudice Count IV.
April 1, 2019, Plaintiffs filed their second amended
complaint, asserting four claims for relief against Defendant
Rick Wells, in his official capacity as Sheriff of Manatee
County, Florida, and Dennis Romano, in his official capacity
as Captain of the Child Protection Services of the Manatee
County Sheriff's Office - defamation (Count I),
defamation per se (Count II), negligent supervision (Count
III), and a violation of 42 U.S.C. § 1983 (Count IV).
Subsequently, the action was timely removed by Defendants. In
a detailed opinion outlining the deficiencies of the second
amended complaint, this Court dismissed Counts I and II with
prejudice, all claims against Defendant Dennis Romano with
prejudice, and Counts III and IV without prejudice.
filed their third amended complaint on September 24, 2019,
reasserting the prior complaint's remaining causes of
action - violation of § 1983 (Count I) and negligent
training and supervision (Count II). (Doc. # 30). Sheriff
Wells filed the instant motion to dismiss on October 2, 2019.
(Doc. # 31). On November 11, 2019, Plaintiffs filed their
response in opposition to the motion to dismiss. (Doc. # 37).
Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim
showing the [plaintiff] is entitled to relief.”
Fed.R.Civ.P. 8(a). “Although Rule 8(a) does not require
‘detailed factual allegations,' it does require
‘more than labels and conclusions'; a
‘formulaic recitation of the cause of action will not
do.'” Young v. Lexington Ins. Co., No.
18-62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018),
report and recommendation adopted, No. 18-62468-CIV,
2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to
survive a motion to dismiss, factual allegations must be
sufficient “to state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. at
deciding a Rule 12(b)(6) motion, review is generally limited
to the four corners of the complaint. Rickman v.
Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla.
1995). Furthermore, when reviewing a complaint for facial
sufficiency, a court “must accept [a] [p]laintiff's
well pleaded facts as true, and construe the [c]omplaint in
the light most favorable to the [p]laintiff. Id.
(citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). A district court should grant the plaintiff one
opportunity to amend its complaint before dismissing the case
with prejudice, when a more carefully drafted complaint might
state a claim. Eiber Radiology, Inc. v. Toshiba Am. Med.
Sys., Inc., 673 Fed.Appx. 925, 929 (11th Cir. 2016).
However, after a court provides a plaintiff with instructions
concerning deficiencies and the plaintiff squanders that
opportunity, the court is under no duty to give the plaintiff
a second bite at the apple, especially when the plaintiff is
represented by counsel. See Id. (“We have
never required district courts to grant counseled plaintiffs
more than one opportunity to amend a deficient complaint, nor
have we concluded that dismissal with prejudice is
inappropriate where a counseled plaintiff has failed to cure
a deficient pleading after having been offered ample
opportunity to do so.”).
August 22, 2019, Order Granting Defendant's Motion to
Dismiss Plaintiffs' Second Amended Complaint, this Court
specifically identified numerous deficiencies that Plaintiffs
needed to cure to state a valid claim. (Doc. # 26). Sheriff
Wells argues that Plaintiffs ...