Norkin v. Fla. Bar

311 F.Supp.3d 1299

Jeffrey NORKIN, individually and as assignee of David Beem, Plaintiff,

v.THE FLORIDA BAR, a Florida Trade Association, Randi Lazarus, Bronwyn Miller, et. al., Defendants.

CASE NO. 18–60153–CV–DIMITROULEAS

United States District Court, S.D. Florida.

Signed April 26, 2018

Jeffrey Norkin, Pompano Beach, FL, pro se.

Sanford L. Bohrer, Scott D. Ponce, and Annelise Del Rivero of Holland & Knight, LLP, Miami, FL, for Defendant Miami New Times, LLC.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Shane Weaver, Senior Assistant Attorney General, West Palm Beach, FL, for Defendants Jorge Labarga, Barbara J. Pariente, R. Fred Lewis, Peggy A. Quince, Charles T. Canady, Ricky Polston, James E.C. Perry, Bronwyn Miller, and Eric Hendon.

Michael Moody, Greenberg Traurig, P.A., Tallahassee, FL, for Defendants The Florida Bar and Randi Lazarus.

OMNIBUS ORDER GRANTING MOTIONS TO DISMISS

WILLIAM P. DIMITROULEAS, United States District Judge

THIS CAUSE is before the Court on Defendant Miami New Times' Motion to Dismiss Plaintiff's Amended Complaint [DE 31], the Motion to Dismiss filed by Defendants Chief Justice Jorge Labarga, Justice Barbara J. Pariente, Justice R. Fred Lewis, Justice Peggy A. Quince, Justice Charles T. Canady, Justice Ricky Polston, Justice James E.C. Perry, Judge Bronwyn Miller, and Judge Eric Hendon (collectively, the "Judicial Defendants") [DE 32], and The Florida Bar's and Randi Lazarus' Motion to Dismiss [DE 33]. The Court has carefully considered the Motions, the Responses, the Reply,¹ and is otherwise fully advised in the premises.

I. Background

Plaintiff is a former attorney who was suspended for two years in 2013 and permanently disbarred in 2015 when he continued representing his former client, David Beem, despite the suspension. ¶ 1, 3, 27, 75.² The operative pleading is the Amended Complaint ("AC") [DE 20], filed herein on March 12, 2018. The AC alleges numerous federal and state law claims against all those who prosecuted and adjudicated the disciplinary cases, including the Judicial Defendants (made up of the Florida Supreme Court Justices, and two Miami–Dade Circuit Judges appointed as referees by the Florida Supreme Court), The Florida Bar, and Bar counsel (Lazarus). The AC also brings claims against The Miami New Times ("MNT"), which published two articles reporting Plaintiff's disciplinary history. ¶ 220. Plaintiff seeks to invalidate his disbarment and obtain damages for himself and his former client, Beem.

The AC contains eleven counts against Defendants: Count I for Abuse of Process against the Florida Bar and Lazarus; Count II for Fraudulent Concealment and Misrepresentation against the Bar Defendants;³ Count III for Unconstitutional Deprivation of Property and Liberty against the Bar Defendants; Count IV for Obstruction and Perversion of Justice against the Bar Defendants; Count V for Tortious Interference with an Advantageous Business Relationship against the Bar Defendants; Count VI for Deprivation of the Right to Contract against the Bar Defendants; Count VII for Deprivation of Access to the Courts against the Florida Bar and Lazarus; Count IX for Defamation/False Light against MNT; Count X for violation of the Americans with Disabilities Act against Miller, Labarga, Pariente, Lewis, Quince, Canady, Polston, and Perry; and Count XI for Declaratory and Injunctive Relief against The Florida Bar and Lazarus.

Defendants move to dismiss all claims contained in the AC for a variety of reasons. The Court finds that the AC is subject to dismissal with prejudice for the reasons stated herein.

II. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A pleading that asserts mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. And "on the assumption that all the allegations are true (even if doubtful in fact)," the factual allegations pleaded "must be enough to raise a right to relief above the speculative level." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " Id. (brackets in original) (quoting Fed. R. Civ. P. 8(a)(2) ). "The Supreme Court has employed a ‘two-pronged approach’ in applying the foregoing principles: first, a reviewing court should eliminate any allegations in the complaint that are merely legal conclusions; and second, where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’ " Boyd v. Warden, Holman Correctional Facility , 856 F.3d 853, 864 (11th Cir. 2017) (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).

III. Discussion

A. Defendant MNT's Motion to Dismiss is Granted

Defendant MNT published two articles about Plaintiff's disciplinary history with the Florida Bar and the Florida Supreme Court. ¶¶ 220–21; [DE 20 at 138–184]. The first article is entitled Is Jeffrey Norkin Florida's Most Obnoxious Lawyer? The State Supreme Court Seems to Think So, published December 10, 2013. The second article is entitled Florida Supreme Court Disbars Obnoxious Attorney Jeffrey Norkin for ‘Debasing the Constitutional Republic We Serve [,]’ published October 16, 2015. See [DE 31–1].⁴ The AC asserts a single claim against MNT, Count IX for defamation/false light. Defendant MNT argues that Count IX is subject to dismissal as time-barred. The Court agrees.

As an initial matter, though Plaintiff labels his claim as defamation/false light, his claim sounds in defamation. Florida law does not recognize a cause of action for false light invasion of privacy. Jews For Jesus, Inc. v. Rapp , 997 So.2d 1098, 1114 (Fla. 2008). Plaintiff's claim for the non-existent tort of false light is properly subsumed by his claim for defamation. Florida has a two-year statute of limitations for libel or slander. See Fla. Stat. § 95.11(4)(g). "Defamation encompasses both libel and slander[.]." Klayman v. Judicial Watch, Inc. , 22 F.Supp.3d 1240, 1247 n. 2 (S.D. Fla. 2014), aff'd (Feb. 17, 2015) (quoting Fortson v. Colangelo , 434 F.Supp.2d 1369, 1378 n. 11 (S.D. Fla. 2006) ).The limitations period begins running from the time the cause of action accrues. Fla. Stat. § 95.031. A cause of action for defamation accrues on the date of publication, not the date of discovery. Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan , 629 So.2d 113 (Fla. 1993) ; see also Fla. Stat. § 770.07 ("The cause of action for damages founded upon a single publication or exhibition or utterance, as described in s. 770.05, shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state.").

Plaintiff makes three arguments against dismissal: (1) the claim did not become ripe until he informed MNT of the allegedly defamatory articles; (2) the statute of limitations clock starts running anew each day that the articles are available on the internet through MNT's website; and (3) that Plaintiff's claim for injunctive relief takes his claim outside the two-year statute of limitations.

None of Plaintiff's arguments are persuasive, and Count IX is subject to dismissal as time-barred. First, this Court is not aware of any precedent, and Plaintiff cites none, indicating that a defamation claim ripens only after Defendant has been informed of the allegedly defamatory content. Pre-suit notice to Defendant MNT under Fla. Stat. § 770.01 did not start the statute-of-limitations clock. Instead, publication of the articles started the clock. Second, Courts considering the argument presented by Plaintiff—a multiple publication rule applicable to articles available on the internet—have routinely rejected that argument. There is a single publication rule in Florida involving "any one edition of a newspaper, book, or magazine," with a statute of limitations that accrues at the time of the first publication. See Fla. Stat. §§ 770.05, 770.07. "Every state court that has considered the question applies the single-publication rule to information online." Pippen v. NBCUniversal Media, LLC , 734 F.3d 610, 615–16 (7th Cir. 2013) (collecting cases). "And those federal courts that have addressed the topic have concluded that the relevant state supreme court would agree." Id. (citing Shepard v. TheHuffingtonPost.com, Inc. , 509 Fed.Appx. 556 (8th Cir.2013) (Minnesota law) (non-precedential); In re Philadelphia Newspapers, LLC , 690 F.3d 161, 174–75 (3d Cir.2012) (Pennsylvania law). These decisions are not binding but nonetheless instructive. This Court declines Plaintiff's invitation to depart from the...