Antoine v. State Farm Mut. Auto. Ins. Co., Case No. 3:08-cv-787-J-12TEM.

662 F.Supp.2d 1318

Kim ANTOINE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

Case No. 3:08-cv-787-J-12TEM.

United States District Court, M.D. Florida, Jacksonville Division.

August 12, 2009.

COPYRIGHT MATERIAL OMITTED

Gordon Fenderson, The Fenderson Law Firm, Jacksonville, FL, for Plaintiff.

Reed W. Grimm, Taylor, Day, Currie, Boyd & Johnson, PA, Jacksonville, FL, for Defendant.

ORDER

HOWELL W. MELTON, Senior District Judge.

This cause is before the Court on Defendant's Motion to Dismiss Plaintiffs Third Amended Complaint With Prejudice (Doc. 49) (motion to dismiss), filed May 28, 2009. Plaintiffs Opposition to Defendant's Motion to Dismiss Third Amended Complaint (Doc. 54), was filed on June 15, 2009. On July 1, 2009, the Court conducted a hearing on the motion. For the reasons set forth below, the Court will grant Defendant's motion to dismiss and dismiss Counts I, III, IV, V, and VI of Plaintiffs Third Amended Complaint (Doc. 47) with prejudice and Counts II and VII without prejudice.

Plaintiff's Third Amended Complaint (Doc. 47) attempts to assert seven causes of action arising from the Defendant's alleged erroneous attempt to collect a state court judgment against the Plaintiff. The Court will discuss the viability of each count in turn, applying the familiar standard of review for motions to dismiss under Fed.R.Civ.P. 12(b)(6). For purposes of deciding the motions to dismiss, the Court accepts the allegations in Plaintiffs Third Amended Complaint (Doc. 47) as true and views the facts in the light most favorable to the Plaintiff. See, e.g., Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003); Quality Foods de Centro Amer. v. Latin Amer. Agribusiness Dev. Corp., 711 F.2d 989, 994-95 (11th Cir.1983). "To survive dismissal, the complaint's allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed." James River Ins. Co. v. Ground Down Engineering, Inc., 540 F.3d 1270, 1274 (11th Cir.2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted).

Count I—Malicious Prosecution

In order to establish a cause of action for malicious prosecution under Florida law, the Plaintiff must establish that: 1) an original civil or criminal 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 present plaintiff suffered damages as a result of the original proceeding. See, e.g., Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994); Zivojinovich v. Ritz Carlton Hotel Co., LLC, 445 F.Supp.2d 1337, 1346 (M.D.Fla.2006).

Plaintiff contends that Defendant State Farm initiated a lawsuit in state court against defendants Kim Austin and Berneka Lashonda Glover. Doc. 47 at ¶ 4 and Exh. A. Plaintiff states that she was not named in that complaint nor did she receive proper notice of the complaint or hearing date. Id. at ¶ 6. The Final Judgment in the state court action names Kim Austin as a co-defendant, but shows at the bottom of the page that a copy was furnished to Kim Austin Antoine at an address where the Plaintiff has never resided. Id. at Exh. B and ¶¶ 8 and 11. Plaintiff asserts that "[t]his appears to be the first time Kim Austin Antoine was engaged in the litigation." Id. at ¶ 9. Plaintiff also maintains that she was not involved in the car accident that gave rise to the state court litigation. Id. at ¶ 12. Plaintiff asserts that Defendant used the state court Final Judgment to attempt to collect the debt owed by Kim Austin from Plaintiff, Kim Alston Antoine, and hired Hiday & Ricke, P.A. to continue collection efforts. Id. at ¶¶ 10 and 14.

Defendant State Farm's position is that the Plaintiff cannot state a claim for malicious prosecution against it under these facts, because the original civil action was commenced against Kim Austin, not against the present Plaintiff, Kim Alston Antoine. The Defendant argues that Plaintiffs admissions that she was not named in the state court complaint and that the first time Kim Austin Antoine appears to have become involved in the state court litigation is when a copy of the Final Judgment was mailed, are fatal to this cause of action. See Id. at ¶¶ 6 and 8-9.

In its Order (Doc. 39) dismissing Plaintiffs Amended Complaint, the Court noted that:

[i]t appears to the Court that in order to maintain a cause of action against Defendant State Farm for malicious prosecution, the Plaintiff must either be able to establish that she was the intended original defendant from the onset of the original subrogation litigation, or that Florida law would support extending such cause of action to a situation involving the alleged malicious or erroneous attempt to collect the Final Judgment.

The Plaintiff did not attempt to reassert her cause of action for malicious prosecution in her Second Amended Complaint (Doc. 40), but has included it in her Third Amended Complaint (Doc. 47).

The Plaintiff argues that although the original state court lawsuit was not instituted against her, original judicial proceedings concerning the collection of the judgment were instituted or continued against her, such that she is entitled to maintain a cause of action for malicious prosecution under Florida law. The allegations in Count I of her Third Amended Complaint (Doc. 47) upon which Plaintiff relies to state her claim for malicious prosecution include: 1) that the state court set aside its Final Judgment as to the Plaintiff, Kim Alston Antoine, and directed that no further collection efforts be made against her (¶ 36 and Exh. E); 2) the Defendant filed a voluntary dismissal as to Kim Austin (¶ 37 and Exh. F); 3) the Defendant had no probable cause to proceed with collection efforts against Plaintiff due to knowledge of her different name, address and social security number (¶ 38); 4) with knowledge that Plaintiff was not Kim Austin, the Defendant filed an Affidavit in state court utilizing the Plaintiffs social security number and address stating that Kim Austin was also known as Kim L. Alston (¶ 39 and Exh. C); 5) the Defendant's continuation of process against her after receiving information establishing she was not Kim Austin could be viewed as malicious (¶ 40); 6) the Defendant obtained the Plaintiffs personal information under the misrepresentation that it would be used to establish that she is not Kim Austin (¶ 41); and 7) the Defendant utilized her personal information to have her drivers' license suspended (¶ 42).

Plaintiff admits that she was not the original intended defendant in the original state court action. See Doc. 47 at ¶¶ 6 and 8-9. The state court so noted in its Order (Doc. 47, Exh. E) setting aside the state court Final Judgment as to the Plaintiff when it stated that "the facts presented by Kim Alston Antoine exonerates [sic] her of all allegations and charges showing her not to be the co-defendant alleged in Plaintiff's [State Farm's] original complaint dated March 3, 2002." As a result, she must establish that Florida law would support extending a cause of action for malicious prosecution on the basis of Defendant State Farm's alleged attempt to collect the state court judgment against her.¹

Primarily at issue is the first required element of a cause of action for malicious prosecution that "an original civil or criminal judicial proceeding against the present plaintiff was commenced or continued." See, e.g., Alamo Rent-A-Car, 632 So.2d at 1355; Zivojinovich., 445 F.Supp.2d at 1346. In support of her position, the Plaintiff relies on Rushing v. Bosse, 652 So.2d 869, 874 (Fla. 4th D.C.A.1995), which holds that "[n]one of the earlier supreme court opinions nor prior opinions of this court hold that the plaintiff in the malicious prosecution action must be actually named as the defendant in the first proceeding ... although this would logically follow in most types of civil and criminal proceedings (emphasis added)." She asserts that this case demonstrates that Florida law would support her cause of action for malicious prosecution even though she was not named in the original state court suit because judicial collection proceedings stemming from it were continued against her.

The Court disagrees. The plaintiff in the malicious prosecution action in the Rushing case was the child involved in a contested adoption proceeding. Although the child was not the defendant in the adoption proceeding, the court in Rushing found that the person who is a victim of an unfounded original proceeding, such as an adoption proceeding or a proceeding for a declaration of insanity, may maintain an action for malicious prosecution, as these types of proceedings involve the person's involuntary seizure or deprivation of liberty. 652 So.2d at 874. The Rushing court also noted that the child was the actual subject of the adoption, was named in the caption, and that "the commencement and continuation of the adoption proceeding had the effect of removing the child from her home, allegedly resulting in harm." Id. at 875.

Even though she was not the named defendant in the original civil judicial proceeding, the child who sought to assert a claim for malicious prosecution was clearly the intended object of both the original and continued proceedings in that case. The Rushing case simply does not support extending Florida law to the present situation involving an original civil proceeding commenced against one person and the attempt...