Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
CLEWISTON COMMONS LLC, a
Florida limited liability company,
Plaintiff, v. Case No.: 2:18-cv-339-FtM-38MRM CITY OF CLEWISTON, MALI
GARDNER, AL PERRY, TRAVIS
REESE, DEBBIE MCNEIL and
KATHY COMBASS,
Defendants.
/ ORDER [1]
This matter comes before the Court on Defendant City of Clewiston’s Motion to Dismiss Count II of Plaintiff’s Third Amended Complaint (Doc. 94) filed on July 19, 2019. Plaintiff filed a Response in Opposition (Doc.101) and Defendant replied (Doc. 106). For the reasons below, the Motion is denied without prejudice to Plaintiff filing a Fourth Amended Complaint.
This case involves a zoning dispute over the designation of a mobile home park in Clewiston, Florida. Plaintiff sues the City of Clewiston (the City) and various City officials who were involved with the zoning designation. The Court previously directed *2 Plaintiff to file a Third Amended Complaint that specifically stated whether it was bringing a procedural or substantive due process claim, or, if bringing both, to include each alleged constitutional violation in a separate count. (Doc. 83). Plaintiff filed a Third Amended Complaint (Doc. 89), alleging a claim for procedural due process (Count II). The City moves to dismiss Count II for failure to state a claim.
Under Count II Plaintiff alleges that it was denied procedural due process of law guaranteed by both the United States and Florida Constitutions. (Doc. 89 at ¶ 93). In its Motion to Dismiss, the City states that it is only moving to dismiss the federal claim brought under 42 U.S.C. § 1983, and that it is not contesting any claim brought under the Florida Constitution, Art. I, sec. 9. (Doc. 94 at n.1). Because the federal and state law constitutional claims under Count II are being treated separately by the parties and constitute different theories of recovery under the law, Plaintiff is directed to file a Fourth Amended Complaint that separates the procedural due process claims into two counts.
The Court will otherwise deny Defendants’ merits arguments without prejudice, with leave to refile a similar motion, if appropriate, after the Fourth Amended Complaint is filed.
Accordingly, it is now
ORDERED:
(1) Count II is dismissed without prejudice to filing a Fourth Amended Complaint in accordance with this Order on or before September 24, 2019 . If no Fourth Amended Complaint is filed this case will proceed on the Third Amended Complaint absent Count II .
(2) Defendant City of Clewiston’s Motion to Dismiss Count II of Plaintiff’s Third Amended Complaint (Doc. 94) is denied without prejudice.
DONE and ORDERED in Fort Myers, Florida this 10th day of September, 2019. Copies: All Parties of Record
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