DENISE DEMARTINI, Plaintiff-Appellant, versus TOWN OF GULF STREAM, WANTMAN GROUP, INC., ROBERT A. SWEETAPPLE, Defendants-Appellees, RICHMAN GREER, P.A., GERALD F. RICHMAN, Defendants.
No. 17-14177
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
November 21, 2019
D.C. Docket No. 9:16-cv-81371-DMM; [PUBLISH]
(November 21, 2019)
HULL, Circuit Judge:
Plaintiff Denise DeMartini appeals the district court‘s grant of summary judgment (1) to the defendant Town of Gulf Stream, Florida on her First Amendment retaliation claim brought under
To 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 See Town of Gulf Stream v. O‘Boyle, 654 F. App‘x 439 (11th Cir. 2016) (unpublished).
I. PRIOR LAWSUIT AND APPEAL
The 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“),
At the 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.
In the 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 CAFI.1
A. First Step: Public Records Requests
As its first step, CAFI would issue public records requests “on a grand scale” to the Town, pursuant to Florida‘s Public Records Act,
As relevant here, CAFI sent the Town “nearly 2,000 public records requests.” Gulf Stream, 654 F. App‘x at 441-42. These public records requests were deliberately vague and ambiguous in order to induce a violation of
- “All email addresses created or received by the Town of Gulf Stream“;
- “All phone numbers in the [T]own‘s records“; and
- “Any and all records containing a social security number.”
One of 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
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, 401.2 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.
B. Second Step: State Lawsuits Filed
The 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
In that regard, Florida‘s Public Records Act,
As an 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.4 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.
C. Joel Chandler‘s Role in CAFI
Within 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.
In July 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
Chandler 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 CAFI.
Chandler 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.
D. RICO Civil Suit
With 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.
At the 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.
Mayor 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.
Mayor 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
Commissioner 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.”
After 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,
On 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.
In 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,
Upon 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
On 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 F. App‘x at 444. This Court assumed that the defendants had “engaged in a pattern of frivolous litigation activity while abusing,
Meanwhile, 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
E. DeMartini‘s § 1983 Retaliation Case
Approximately 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.6
As to 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
DeMartini 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 employment.
As to 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.
The 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
II. SECTION 1983 FIRST AMENDMENT RETALIATION CLAIM
A. First Amendment
“A 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.
The 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.”
B. Elements of Retaliation Claim
In § 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 (1998)); see also Hartman v. Moore, 547 U.S. 250, 257 (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
The 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.
C. 1977 Mt. Healthy: “But-For” Test When Retaliatory Employment Actions are Alleged
Mt. Healthy involved a government employer‘s discharge of a public employee. Mt. Healthy, 429 U.S. at 276, 97 S. Ct. at 570. Specifically, in Mt. Healthy, a city board of education (the “school board“) decided not to rehire an untenured school teacher after various incidents indicating unprofessional demeanor. Id. at 281–83, 97 S. Ct. at 573–74. One incident was a telephone call the teacher made to a local radio station to report on a new school policy. Id. at 282, 95 S. Ct. at 573. The plaintiff teacher sued the school board, claiming that the board‘s refusal to renew his employment contract violated his
After a bench trial, the district court awarded reinstatement with backpay to the plaintiff teacher. Id. at 276, 97 S. Ct. at 570. The Supreme Court vacated the district court‘s favorable judgment for the plaintiff teacher because, as to causation, the district court should have gone on to determine whether the school board had shown that “it would have reached the same decision as to [the plaintiff‘s] reemployment even in the absence of the [plaintiff‘s] protected [speech].” Id. at 285–87, 97 S. Ct. at 575–76. Although the plaintiff had shown that his conduct (the call) was protected speech and that his conduct was a substantial or motivating factor in the school board‘s decision not to rehire him, the school board was not liable if it showed it would have reached the same decision in the absence of the plaintiff‘s protected speech. See id.
First Amendment —Retaliatory Criminal Prosecution Claims Require the Absence of Probable Cause
After adopting the “but for” test when a public employee alleges retaliation by the governmental employer based on the employee‘s protected
The plaintiff in Hartman engaged in an extensive lobbying campaign opposing a particular postal service policy. Id. at 252–53, 126 S. Ct. at 1699–1700. The Postal Service criminally prosecuted the plaintiff for violating federal statutes in that lobbying. Id. at 253–54, 126 S. Ct. at 1700. After being acquitted, the plaintiff filed a
In reaching this conclusion, the Supreme Court reasoned that when the claimed retaliation for protected
As to causation, the Supreme Court in Hartman explained that in retaliatory criminal prosecutions, the causal connection is more complex because it “is not merely between the retaliatory animus of one person and that person‘s own injurious action, but between the retaliatory animus of one person [the postal inspector] and the action of another [the prosecutor].” Id. at 262, 126 S. Ct. at 1705. The Supreme Court also emphasized that “to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor‘s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking.” Id. at 263, 126 S. Ct. at 1705. The Supreme Court concluded that the absence of probable cause was needed to “bridge the gap between the nonprosecuting government agent‘s [the postal inspector] motive and the prosecutor‘s action, and to address the presumption of prosecutorial regularity.” Id. at 263, 126 S. Ct. at 1706.10 Thus,
Ultimately, the Supreme Court in Hartman concluded: “Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost,11 it makes sense to require such a showing as an element of a plaintiff‘s case, and we hold that it must be pleaded and proven.” Id. at 265–66, 126 S. Ct. at 1707. Under Hartman, if there is probable cause for the underlying criminal prosecution, then the
E. 2018 Lozman: Holding That, Given the Unique Facts of the Case, the Existence of Probable Cause Did Not Bar Lozman‘s First Amendment Retaliatory Arrest Claim
More recently, in Lozman, the Supreme Court examined whether the existence of probable cause will also defeat a
The Court first reviewed its own prior decisions in both Mt. Healthy and Hartman and its prior stated reasons for them. See id. at __, 138 S. Ct. at 1952–53. After doing so, the Court concluded that “[o]n facts like these, Mt. Healthy provides the correct standard for assessing a retaliatory arrest” and plaintiff “Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City.” Id. at __, 138 S. Ct. at 1955. The Supreme Court cautioned, however: “The Court need not, and does not, address the elements required to prove a retaliatory arrest claim in other contexts.” Id. The Supreme Court added “whether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case.” Id. at __, 138 S. Ct. at 1954. The Court explained the reason
Because the “unique” facts in Lozman drove that decision, we detail them. See id. In Lozman, the plaintiff Lozman had filed a previous civil lawsuit contending that the City violated the state‘s open-meetings laws. Id. at __, 138 S. Ct. at 1949. In June 2006, the City Council held a meeting at which Councilmember Wade suggested the City use its resources to “intimidate” Lozman, who had filed the open-meeting lawsuit. Id. A different Councilmember asked whether there was “a consensus of what Ms. Wade [was] saying” and others responded in the affirmative. Id. Lozman alleged this formed an official plan to retaliate against him. Id. On the other hand, the City maintained that the only consensus reached during the meeting was to invest the money and resources necessary to prevail in the litigation against it. Id.
Five months later, in November 2006, plaintiff Lozman came to a City council meeting and gave remarks about the recent arrest of a former county official. Id. When Councilmember Wade directed Lozman to stop, he continued speaking, this time about the arrest of a former city official in West Palm Beach. Id. Councilmember Wade directed a police officer to “carry him out“—i.e., arrest him. Id. at __, 138 S. Ct. at 1949–50. Before the Supreme Court, there was no
Nonetheless, plaintiff Lozman alleged that the high-level City policymakers in advance of the meeting had devised a retaliatory plan to arrest him because of his open-meetings lawsuit against the City and prior public criticism of public officials. Id. Pursuant to that alleged official policy, when Lozman spoke up at the next council meeting, Councilmember Wade directed police officers to arrest him. Id. at __, 138 S. Ct. at 1949–50. After a 19-day trial, the jury returned a verdict for the City on all claims. Id. at 1950.
During the trial, the district court charged the jury that plaintiff Lozman must “prove that the arresting officer was himself motivated by impermissible animus against Lozman‘s protected speech and that the officer lacked probable cause to make the arrest.” Id. The district court “allowed the jury to decide whether there was probable cause to arrest [Lozman] for the public-disturbance offense.” Id. On appeal, this Court affirmed the verdict for the City because the existence of probable cause defeated Lozman‘s
For purposes of its discussion, the Supreme Court assumed Lozman‘s “arrest was taken pursuant to an official city policy,” but added “whether there was such a policy and what its content may have been are issues not decided here.” Id. at __, 138 S. Ct. at 1951. Even though there was probable cause for Lozman‘s arrest, the Court ultimately concluded that the “unique” facts of the case warranted allowing Lozman to proceed on his claim that the City had engaged in an “official” policy of retaliation against him based on his
Explaining its reasoning, the Court identified five considerations that justified allowing Lozman‘s
Although holding that plaintiff Lozman could sue for retaliatory arrest “[o]n facts like these,” the Supreme Court emphasized that its holding was limited to the alleged facts of Lozman‘s case and cautioned that it was not deciding whether, as a general matter, the causation standard in Mt. Healthy or the lack-of-probable-cause element in Hartman applied to retaliatory arrest claims. Id. at __, 138 S. Ct. at 1954–55. The Supreme Court also left it to this Court on remand to decide whether Lozman “is ultimately entitled to relief or even a new trial.” Id. at __, 138 S. Ct. at 1955. Because the Supreme Court had only assumed that there was an official retaliatory policy and that the arrest was taken pursuant to that official city
(1) whether any reasonable juror could find that the City actually formed a retaliatory policy to intimidate Lozman during its June 2006 closed-door session; (2) whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City; and (3) whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus—for example, if Lozman‘s conduct during prior city council meetings had also violated valid rules as to proper subjects of discussion, thus explaining his arrest here.
F. 2019 Nieves: First Amendment Retaliatory Arrest Claims Generally Require the Absence of Probable Cause
Shortly after Lozman, the Supreme Court had an opportunity to decide the question that it had left open in that case: which standard, the Mt. Healthy standard or the Hartman standard, should govern a
Officer Weight stated that, several minutes later, Bartlett approached him in an aggressive manner while Officer Weight was questioning a minor about underaged drinking, stood between Officer Weight and the minor, and yelled with slurred speech that Officer Weight should not speak with the minor. Id. When Bartlett stepped toward him, Officer Weight pushed Bartlett back. Id. Officer Nieves saw the confrontation and initiated Bartlett‘s arrest. Id. at __, 139 S. Ct. at 1720–21. When Bartlett was slow to comply, the officers forced him to the ground and threatened to tase him. Id. at __, 139 S. Ct. at 1721. Bartlett denied being aggressive and claimed that he stood close to Officer Weight in order to speak over the music and was slow to comply because he did not want to aggravate a back injury. Id. After being handcuffed, Bartlett claimed that Officer Nieves said: “Bet
Subsequently, in a
In Nieves, the Supreme Court reversed the Ninth Circuit and held “[b]ecause there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.” Nieves, 587 U.S. at __, 139 S. Ct. at 1728. The Court acknowledged that retaliatory arrests cases do not present a “presumption of
In addition, the Supreme Court in Nieves reasoned that, “[l]ike retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case.” Id. at __, 139 S. Ct. at 1724 (quoting Reichle, 566 U.S. at 668, 132 S. Ct. at 2095). “And because probable cause speaks to the objective reasonableness of an arrest, its absence will—as in retaliatory prosecution cases—generally provide weighty evidence that the officer‘s animus caused the arrest, whereas the presence of probable cause will suggest the opposite.” Id. (internal citation omitted).
The Supreme Court therefore concluded that “[t]he presence of probable cause should generally defeat a
Examining specifically the arrest of the plaintiff Bartlett, the Supreme Court in Nieves concluded that, “[b]ecause there was probable cause to arrest [plaintiff] Bartlett, his retaliatory arrest claim fails as a matter of law.” Id. at __, 139 S. Ct. at 1728. In reaching this conclusion, the Supreme Court examined the two “common law torts that provide the closest analogy to retaliatory arrest claims“: false imprisonment and malicious prosecution. Id. at __, 139 S. Ct. at 1726 (internal quotation marks omitted). Although the parties disputed which tort was the better analog, the Supreme Court concluded that both common law torts suggested the same result, which is that a plaintiff must show the absence of probable cause. Id. The Supreme Court explained that “[i]t has long been settled law that malicious prosecution requires proving the want of probable cause.” Id. (internal quotation marks omitted). And for a false imprisonment claim, “the presence of probable cause was generally a complete defense for peace officers.” Id.13 Relying in part
One final observation about Nieves. Although probable cause defeated plaintiff Bartlett‘s retaliatory arrest claim, the Supreme Court issued a caveat, albeit in dicta, about that holding. The Supreme Court explained that, although probable cause generally defeats a retaliatory arrest claim, “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at __, 139 S. Ct. at 1727.14 In those types of cases, “an unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Id. (internal quotation marks omitted). Therefore, in Nieves the Supreme Court carved out a narrow exception to
G. Other Circuit Precedent
We have located only three circuit decisions involving
For example, in Greenwich, the plaintiffs filed a state court lawsuit against a county government and other defendants in an effort to stop a waste incinerator project. Greenwich, 77 F.3d at 28. The plaintiffs’ lawsuit caused the market for the municipal bonds (to fund the project) to deteriorate. Id. The defendants filed various state tort counterclaims against the plaintiffs. Id. at 29. The Greenwich plaintiffs then filed a separate
As to causation, the Second Circuit concluded that the
Similarly, in evaluating the plaintiffs’ First Amendment retaliation claim in Harrison, the Eighth Circuit considered whether the defendant‘s counterclaim was frivolous. Harrison, 780 F.2d at 1424. The plaintiffs had sued the defendant Sewer Commission in state court for injunctive relief and damages from sewage
Reversing the district court‘s dismissal, the Eighth Circuit held that the plaintiffs had stated a
In Bell, the Fourth Circuit similarly considered whether the defendant school board‘s prior civil action was a legitimate or “genuine” strategy in assessing a plaintiff‘s subsequent
Affirming the district court‘s dismissal of plaintiff‘s
III. ISSUES ON APPEAL
The parties primarily focus on two issues: (1) whether plaintiff DeMartini in her
DeMartini argues that her
Alternatively, even if Hartman and Nieves‘s probable cause requirement applies, DeMartini argues that the Town lacked probable cause for its RICO lawsuit. DeMartini contends that the Town‘s RICO action was “baseless” and frivolous given Eleventh Circuit precedent that a threat to file a civil lawsuit is not a valid RICO predicate.
Not surprisingly, the Town responds that the “causation landscape” here is more similar to that in Hartman because attorneys here functioned in the same role as that of a prosecutor in Hartman. Just as the dual actors in Hartman, the individuals filing the civil lawsuit (outside counsel) were not the same individuals allegedly harboring the animus (the Town‘s Commissioners). The Town also stresses, however, that the Supreme Court limited Lozman to its unique factors, several of which are missing here. And like the Supreme Court did in Nieves, this Court should look to the closest common law analog to DeMartini‘s First Amendment retaliation claim based on a civil lawsuit, which is a claim for “wrongful institution of legal process” and also requires proving the want of probable cause.
If DeMartini is correct that the Town lacked probable cause to file its civil RICO lawsuit, we would not have to address whether the presence of probable
IV. TOWN‘S PROBABLE CAUSE FOR ITS CIVIL LAWSUIT
“Probable cause to institute civil proceedings requires no more than a ‘reasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon adjudication.‘” Prof‘l Real Estate Inv‘rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 62-63, 113 S. Ct. 1920, 1929 (1993) (alternations in original) (quoting Restatement (Second) of Torts § 675, cmt. E (Am. Law Inst. 1977)). Therefore, “it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, but rather that he had a reasonable belief, based on the facts and circumstances known to him, in the validity of the claim.” Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010) (quotation marks omitted). This standard, which requires less certainty than probable cause as defined in the criminal context, is “not a high bar to meet.” Id. at 1218.
To establish a RICO violation under
Importantly, prior to filing its RICO action, the Town obtained substantial information that supported a reasonable belief that CAFI, O‘Boyle, the O‘Boyle Law Firm, and other individuals—including DeMartini—had committed fraud through their participation in an extortionate scheme involving fraudulent public records requests, false settlement demands, and subsequent multiple lawsuits designed to obtain attorney‘s fees as opposed to the requested records. See Mee, 608 F.3d at 1211. Specifically, upon resigning as Executive Director of CAFI, Chandler provided sworn testimony to Sweetapple, the Town‘s special counsel, indicating that CAFI, O‘Boyle, the O‘Boyle Law Firm, and DeMartini were engaged in a fraudulent and unlawful effort to extort money from the Town via a public records litigation “windfall scheme.” As described by Chandler, the scheme involved two steps: (1) pummeling the Town with voluminous and intentionally vague public records requests that were designed to elicit either no response, an incomplete response, or an untimely response, and then (2) demanding that the
Furthermore, Chandler specifically implicated DeMartini in the scheme, describing to special counsel Sweetapple her key role within CAFI and the O‘Boyle Law Firm, her importance to O‘Boyle‘s operations, and her direct participation in the extortionate activities.
DeMartini does not dispute that employees of CAFI and the O‘Boyle Law Firm dumped thousands of public records requests on the Town—costing the Town $370,000 in attorney‘s fees. For a Town of about 1,000 people, those attorney‘s fees equaled about $370 per resident. Nor does DeMartini contest that the Town had hired an attorney—Gerald Richman—who investigated the O‘Boyle-led scheme for over a year. Nor does DeMartini contest that the Town‘s investigation kicked into high gear when Chandler left his post as CAFI‘s Executive Director and reported his concerns about CAFI‘s fraudulent scheme to Town officials in extensive written and videotaped statements. And DeMartini does not dispute that Chandler gave detailed insight into the scheme, including that CAFI was deliberately making vague public records requests so that the O‘Boyle Law Firm could garner thousands of dollars in attorney‘s fees.
Instead, DeMartini makes two primary objections to the district court‘s finding that the Town had probable cause to file its civil RICO lawsuit: (1) the Town should not have relied on Chandler‘s sworn testimony because he might not be viewed as a credible witness in the case; and (2) settled precedent in the Eleventh Circuit clearly established that frivolous litigation can never serve as a Hobbs Act violation, even if the plaintiff was using the litigation for extortionate purposes. Neither contention has merit.
As to the first objection, while it is true that the Town might rightly have considered how a jury might view Chandler‘s testimony in a RICO lawsuit—given
As to DeMartini‘s second objection, she argues that this Court‘s precedent in Pendergraft and Raney precluded the Town‘s theory that a RICO action could be based on DeMartini‘s litigation activity, and thus eliminated any probable cause it may have had for asserting a RICO claim. We reject DeMartini‘s argument. Pendergraft and Raney made it unlikely, but not impossible, for the Town to succeed. The Town had a reasonable belief that there was a legitimate and material distinction between their RICO claim and the ones that came before it in that O‘Boyle, DeMartini, and others had abused their statutory right to request
Moreover, distinguishing existing precedent is the essence of good lawyering. See Armco, Inc. v. S. Rock, Inc., 778 F.2d 1134, 1138 (5th Cir. 1985) (finding that the defendant had probable cause to file a civil lawsuit because, even though it suspected “it would eventually lose,” the defendant plausibly distinguished existing case law). The Town had a mountain of fraudulent and extortionate conduct to present in the hopes of creating an exception to the general rule in Pendergraft and Raney. Consequently, there is no merit to DeMartini‘s contention that the Town lacked a reasonable belief that it might prevail in the RICO lawsuit.
Although the district court and this Court ultimately rejected the Town‘s proffered distinction, its argument was not unreasonable, as probable cause may be based on “an objectively ‘good faith argument for the extension, modification, or reversal of existing law.‘” See Prof‘l Real Estate Inv‘rs, 508 U.S. at 65, 113 S. Ct. at 1930-31. Consequently, the Town had a reasonable basis to believe its claim was valid.19
Indeed, while this Court affirmed on appeal the district court‘s dismissal of the Town and Wantman‘s civil RICO complaint, we denied the defendants’ motion for sanctions under
V. WHETHER PROBABLE CAUSE DEFEATS DEMARTINI‘S RETALIATION CLAIM
Because the Town had probable cause to file its civil RICO lawsuit, we must answer the final question: whether the existence of probable cause for a civil lawsuit defeats a
Based on the factors discussed in the Supreme Court‘s Hartman and Nieves decisions, we conclude that, as with
In a First Amendment claim predicated on a retaliatory civil lawsuit by the government, the causation landscape is akin to that in Hartman because an attorney (whether in-house or outside counsel) has filed the underlying civil lawsuit. Notably, before taking action here, the Town engaged attorneys to investigate CAFI, O‘Boyle, and DeMartini‘s public records scheme. The involvement of counsel widens the causation gap between any alleged retaliatory animus by the Town and DeMartini‘s injury. Counsel‘s pivotal role in advising the Town that it had a good faith basis to sue supports a requirement that DeMartini show the absence of probable cause for the Town‘s underlying lawsuit in order to establish that the Town‘s alleged animus caused DeMartini‘s injury. Like the prosecutor in Hartman who filed the criminal action, the individuals recommending and filing the civil lawsuit here (counsel) were not the same individuals who allegedly harbored the retaliatory animus (the Town‘s Commissioners).
In fact, two separate outside attorneys, Robert Sweetapple and Gerald Richman, conducted investigations, evaluated the facts, and only then independently recommended the filing of the civil RICO lawsuit. Like the prosecutor in Hartman, Sweetapple and Richman were obligated to exercise their own individual judgment and were bound by the Florida Rules of Professional
Counsel‘s investigation, legal recommendation, and filing of the RICO lawsuit widen the causal gap between the Town‘s alleged animus and DeMartini‘s injury. At bottom, as in Hartman, difficulty in proving the more complex chain of causation here supports a conclusion that a lack of probable cause is a necessary element in DeMartini‘s
In addition, in
To that end, it is clear that: (1) CAFI had filed nearly 2,000 public records requests and 36 lawsuits; (2) its requests were not designed to actually obtain the records but to enable CAFI to obtain money through settlements and excessive attorney‘s fees; and (3) the Town had spent $370,000 in attorney‘s fees in
Further, that DeMartini‘s protected speech was a “wholly legitimate consideration” for the Town when deciding to file the civil RICO lawsuit also renders the causation landscape more complex, just like it did in Nieves. Indeed, as the Supreme Court recognized in Nieves, where protected speech is a “wholly legitimate consideration” for the government when deciding to act, as when a subject‘s speech is itself a proper basis for the arrest, “the causal inquiry is complex,” such that, generally speaking, probable cause is a necessary element of a retaliatory arrest claim. See Nieves, 587 U.S. at ___, 139 S. Ct. at 1723-24 (internal quotation marks omitted). Here, in considering its available litigation responses to DeMartini, the Town necessarily had to consider her record requests and
This type of First Amendment retaliation case—one predicated on an underlying civil lawsuit that the government had probable cause to bring—requires our Court to address the intersection of (1) the fundamental principles that prohibit the government from retaliating against a citizen for exercising her First Amendment rights to free speech and to petition the government for redress; and (2) other principles that define a government‘s access to the court to file lawsuits to remedy wrongs on behalf of its citizens. That CAFI‘s fraudulent scheme involved conduct protected by the First Amendment does not, in and of itself, mean that
Lastly, we must discuss whether there are possible exceptions to this general rule. To date, the Supreme Court has not identified any exceptions to the no-probable-cause requirement in
We recognize, however, that the Supreme Court has, in two cases, identified potential exceptions to the no-probable-cause requirement in
Whatever role these exceptions, articulated in a retaliatory arrest context, might play in a case in which the plaintiff is alleging that a retaliatory civil lawsuit has been filed against her, it is clear they play no role here. As to any Nieves exception, there is no claim or evidence that other individuals engaged in similar conduct, without ramifications, as did DeMartini and CAFI when they carried out the fraudulent public records request scheme.
And, in any event, Lozman is so materially different from this case that its five-pronged exception would not apply either. Pivotal factual ingredients to Lozman‘s holding are missing here. In Lozman, the speech allegedly retaliated against—the prior open meeting lawsuit and criticisms of city officials—occurred five months earlier and was not the same conduct that, the defendant City claimed, gave rise to Lozman‘s arrest. See id. at __, 138 S. Ct. at 1949, 1954-55. The Lozman Court found this fact persuasive because it circumvented the difficulties in
Because the speech the Town allegedly retaliated against here—the public records requests and subsequent lawsuits—was the same protected speech for which the Town filed a civil lawsuit supported by probable cause, DeMartini‘s retaliation claim is precisely the type of claim that the Supreme Court in Lozman was concerned would prove indecipherable for purposes of proving causation and therefore would create a serious risk of “dubious” First Amendment retaliatory claims. See id.
In addition, the Supreme Court assumed for purposes of its decision that the City‘s ordering of Lozman‘s arrest was not a legitimate response to Lozman‘s five-months-earlier open meetings lawsuit and criticisms. As the Supreme Court explained, “it is difficult to see why a city official could have legitimately considered [at the time of arrest] that Lozman had, months earlier, criticized city officials or filed a lawsuit against the City.” Id. at __, 138 S. Ct. at 1954. In contrast, the Town here had a legitimate, non-retaliatory litigation purpose in
Accordingly, because the factual circumstances in Lozman are so materially distinguishable from this case and because the Supreme Court carefully limited its Lozman decision to its “unique facts,” we conclude that Lozman‘s exception to the no-probable cause requirement does not help DeMartini‘s First Amendment retaliation claim, even if it were potentially applicable.
For all of these reasons and under the totality of the circumstances, we conclude that DeMartini has not shown that the district court erred in granting summary judgment to the Town on her
Our conclusion—that probable cause generally defeats a First Amendment retaliation claim predicated on an underlying civil lawsuit—is also confirmed by common-law doctrine. The Supreme Court has instructed that, “[w]hen defining the contours of a claim under
The Supreme Court has told us that when
Similarly, in DeMartini‘s case, there was no common-law tort for a First Amendment retaliatory civil lawsuit claim when
The closest analogy to DeMartini‘s
One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without
probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and (b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
§ 674 (Am. Law. Inst. 1977) (emphasis added).
It has long been settled law, and DeMartini does not dispute, that wrongful civil proceedings claims require proving the absence of probable cause. See T. Cooley, Law of Torts 187-89 (1879); Prof‘l Real Estate Inv‘rs, 508 U.S. at 63, 113 S. Ct. at 1929 (“Because the absence of probable cause is an essential element of the tort, the existence of probable cause is an absolute defense.” (citing Crescent City Live Stock Co. v. Butchers’ Union Slaughter-House Co., 120 U.S. 141, 149, 7 S. Ct. 472, 476 (1887)). Our holding here—that probable cause defeats DeMartini‘s
VI. FLORIDA MALICIOUS PROSECUTION
On appeal, DeMartini also argues that the district court erred in granting summary judgment to Wantman on her malicious prosecution claim under Florida law. Although DeMartini agrees that the “lack of probable cause” is a necessary element of a Florida malicious prosecution claim, she nevertheless argues that Wantman lacked such probable cause to file the civil RICO lawsuit against her.
To prevail on a common-law tort of malicious prosecution under Florida law, a plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (emphasis added); Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002); see Paez, 915 F.3d at 1291-92 (discussing these same elements of the common-law tort of malicious prosecution available under Florida law). The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution. Mancusi, 632 So. 2d at 1355. Thus, as a necessary element, the existence of probable cause will defeat a claim for malicious prosecution. Id.
Under Florida law, to show probable cause to initiate a civil proceeding, “it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding, but rather that he had a reasonable belief, based on facts and circumstances known to him, in the validity of the claim.” Wright v. Yurko, 446 So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). Stated another way, “the instigator must have had ‘[a] reasonable ground of suspicion, supported by circumstances
In the context of a civil suit, probable cause is “measured by a lesser standard than in a criminal suit.” Wright, 446 So. 2d at 1166. And the Florida Supreme Court has explained that “[w]hat facts and circumstances amount to probable cause is a pure question of law,” while the existence of those facts or circumstances “in any particular case is a pure question of fact.” City of Pensacola v. Owens, 369 So. 2d 328, 330 (Fla. 1979) (internal quotation marks omitted).
Here, the district court properly granted summary judgment to Wantman on DeMartini‘s malicious prosecution claim because Wantman, like the Town, had probable cause to file the RICO suit against her. It is undisputed that: (1) Gerald Richman represented the Town and Wantman in the lawsuit; (2) Richman investigated CAFI‘s fraudulent scheme at length; (3) Richman called Wantman about the lawsuit; and (4) Wantman agreed to join the Town in filing the lawsuit based on discussions with Richman. Indeed, based on a year-long investigation,
We recognize that DeMartini stresses that Wantman‘s President and
Arising from their attorney-client relationship, Wantman and Richman had a principal and agent relationship. See Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 916 (11th Cir. 1982) (explaining that an attorney is his client‘s agent and
VII. CONCLUSION
For the foregoing reasons, we affirm the district court‘s grant of summary judgment to the Town on DeMartini‘s
AFFIRMED.
I concur in much of the panel‘s well-reasoned opinion. I write separately to address the Majority Opinion only to the extent that it might be understood to suggest that probable cause supporting the filing of a civil lawsuit predicated on prior civil litigation may be all that is ever required to defeat a
Presumably, the Majority Opinion bases any suggestion that a finding of probable cause may be all that is ever required in a case such as this one on Hartman v. Moore, 547 U.S. 250 (2006), since that is the sole alleged retaliatory criminal-prosecution case it discusses. But Hartman does not stand for the proposition that a showing of probable cause justifying a criminal prosecution necessarily forecloses a First Amendment retaliation claim in all cases. To the contrary, Hartman expressly explains that the showing of probable cause supporting a criminal prosecution “is not necessarily dispositive.” Id. at 265. That is so because “showing . . . [the] presence [of probable cause] does not guarantee that [retaliation] was not the but-for fact in a prosecutor‘s decision.” Id. Indeed, Hartman notes that “[a] prosecutor‘s
But criminal prosecutions can result in the loss of liberty, can affect reputation, and can be costly to the person prosecuted. As a result, they can be an effective way to punish a speaker with whom the government disagrees and to chill and slow down others who would consider voicing their discontent with the government. So Hartman explicitly leaves the door open for First Amendment retaliation claims based on probable-cause supported criminal actions that would not have been brought but for an intent on the part of the government to retaliate against the defendant for engaging in protected First Amendment activity.
The same is true of civil lawsuits. Probable cause supporting the filing of a civil lawsuit predicated on prior civil litigation may, as a general rule, be all that is required to defeat a
To ensure that the government is never permitted to weaponize litigation to punish and chill protected speech, in every
Notes
On appeal, the Fifth Circuit analyzed plaintiff Johnson‘s