Zivojinovich v. Ritz Carlton Hotel Co., LLC, 2:05-cv-263-FtM-29SPC.

445 F.Supp.2d 1337

Alex ZIVOJINOVICH; Justin Zivojinovich; Michelle Zivojinovich, Geddy Lee Weinrib, Neil Peart, 113696 Canada Limited, By-Tour, Inc., S.R.O. Management, Inc., LDP Entertainment, Lerxst Music, Inc., Dirk Music, Inc., Pratt Music, Inc., and The Anthem Entertainment Group, Inc., Plaintiffs, v. The RITZ CARLTON HOTEL COMPANY, LLC d/b/a The Ritz Carlton Naples, Frank Barner, Christopher Knott, Scott Russell and Amy Stanford, Defendants.

No. 2:05-cv-263-FtM-29SPC.

United States District Court, M.D. Florida, Fort Myers Division.

August 1, 2006.

COPYRIGHT MATERIAL OMITTED

Michael R.N. McDonnell, McDonnell Trial Lawyers, Naples, FL, for Plaintiffs.

Rebecca J. Martel, Holland & Knight LLP, Orlando, FL, Richard A. Giuffreda, Purdy, Jolly, Giuffreda & Barranco, PA, Paul G. Finizio, Finizio & Finizio, P.A., Fort Lauderdale, FL, for Defendants.

OPINION AND ORDER

STEELE, District Judge.

On December 31, 2003, a New Year's Eve function was sponsored by The Ritz Carlton of Naples at its hotel in Collier County, Florida. According to the Amended Complaint, this event "consisted of dinner, music, dancing, alcoholic beverages and party favors at a significant cost per person." (Doc. # 45, ¶ 8.) Events not on the evening's agenda have now resulted in a thirty-four count civil complaint by thirteen plaintiffs against five defendants alleging both federal civil rights violations and assorted state law claims.

This matter comes before the Court on three Motions to Dismiss: (1) Defendants Knott, Russell, and Stanford's Motion to Dismiss Count XXXIV of the Amended Complaint (Doc. # 50); (2) plaintiff/counter-defendant Alex Zivojinovich's Motion to Dismiss the counterclaim (Doc. # 52), to which a Response (Doc. # 56) was filed; and (3) Defendants Ritz-Carlton and Barner's Motion to Dismiss Amended Complaint (Doc. # 53), to which a Response (Doc. # 60) was filed.

I.

In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint or counterclaim as true, and take them in the light most favorable to plaintiff. Christopher v. Harbu , 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). A complaint or counterclaim should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir.2001)(en banc). To satisfy the pleading requirements of Fed. R.Civ.P. 8, a complaint or counterclaim must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The Court must limit its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint or counterclaim, and matters judicially noticed. La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004). Dismissal is warranted however if, assuming the truth of the factual allegations of the pleading, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir.1992). The Court need not accept unsupported conclusions of law or of mixed law and fact in a complaint or counterclaim. Marsh, 268 F.3d at 1036 n. 16.

II.

The facts set forth in the Amended Complaint, which are accepted as correct at this stage of the proceedings, are as follows: On December 31, 2003, plaintiffs Alex Zivojinovich ("Alex,"), his son Justin Zivojinovich ("Justin"), Justin's wife Michelle ("Michelle"), Geddy Lee Weinrib ("Weinrib"), and Neil Peart ("Peart") were attending a New Year's Eve function sponsored and conducted by defendant Ritz Carlton Hotel Company, LLC d/b/a/ Ritz Carlton Naples ("the Ritz"). Twice during the celebration Justin went on stage where the musicians were performing. Defendant Frank Barner ("Barner"), the managing agent in charge of the event and an employee of the Ritz, asked Justin to refrain from getting on stage again or he would be asked to leave the premises. The Amended Complaint alleges Justin complied with this instruction, but Barner nonetheless had the Collier County Sheriffs Office called to evict Justin. The Amended Complaint further asserts that employees of the Ritz falsely told the Sheriffs Office that Justin was engaged in dangerous and destructive behavior.

The Amended Complaint alleges that defendants Christopher Knott ("Deputy Knott") and Amy Stanford ("Deputy Stanford") were the first officers to arrive on the scene. Barner informed the deputies that Barner wanted Justin removed from the premises. Deputy Knott told Justin to gather his belongings because he was to be escorted off the premises. Deputies Knott and Stanford physically restrained Justin and escorted him out through a back hallway and stairwell leading to a service entrance. While escorting Justin, Deputies Knott and Stanford applied illegal, unjustified, and excessive force, causing Justin severe discomfort and pain. As the group began to descend the stairs, Justin pulled his right arm from Deputy Stanford's grasp. Deputies Knott and Stanford then took Justin to the floor "with excessive force," and Deputy Knott and defendant Scott Russell ("Deputy Russell") used a Taser gun on Justin on multiple occasions. Justin was then arrested and handcuffed by Barner, who was acting in concert with Deputies Knott, Stanford, and Russell.

The Amended Complaint further alleges that Michelle verbally complained about the excessive force used against her husband, and was arrested by Deputy Russell without probable cause or legal authority. Alex, in fear for the safety of his son, went to Justin's assistance and was battered by the three deputies and tased multiple times.

The thirty-four count Amended Complaint alleges, pursuant to 42 U.S.C. § 1983, violations of the Fourth, Fifth and Fourteenth Amendment rights of Alex, Justin and Michelle, and alleges state law claims of negligence, battery, false imprisonment, and malicious prosecution. In Count XXXIV of the Amended Complaint, plaintiffs Geddy Lee, Neil Pert, 113696 Canada Limited, By-Tour, Inc., S.R.O. Management Inc., LDP Entertainment, Lerxst Music Inc., Dirk Music Inc., Pratt Music Inc., and The Anthem Entertainment Group, Inc. seek damages for loss of business revenue resulting from the injuries suffered by Alex as alleged in the Amended Complaint.

Defendants Knott, Russell, and Stanford filed a Partial Answer and Defenses to the Plaintiffs' Amended Complaint (Doc. # 49). Included is a Counterclaim by Deputy Knott against Alex for a state-law battery claim based upon Alex's spitting blood on Deputy Knott's face.

III.

Deputy Knott's counterclaim (Doc. # 49) alleges battery against Alex for intentionally spitting blood on Deputy Knott's face, mouth, eyes and nose during Alex's lawful arrest process. The Counterclaim alleges that Deputy Knott was seriously injured and suffered physical pain and mental anguish as a result of this intentional battery. Deputy Knott further states that he underwent monthly testing in order to determine whether he had contracted a blood born disease as a result of the spitting, and that he was unable to have any contact with his wife, who was pregnant at the time.

Alex moves to dismiss a portion of this counterclaim. Alex concedes, as he must, that spitting bodily fluids constitutes a battery. E.g., Mohansingh v. State, 824 So.2d 1053 (Fla. 5th DCA 2002); Jenkins v. State, 884 So.2d 1014, 1018 n. 1 (Fla. 1st DCA 2004). Alex argues, however, that Deputy Knott cannot recover damages based upon the medical testing, isolation from his wife, and mental anguish based upon his fear of contracting the AIDS virus. Alex relies upon Wilson-Watson v. Dax Arthritis Clinic, Inc., 766 So.2d 1135 (Fla. 2nd DCA 2000) and Coca-Cola Bottling Co. v. Hagan, 750 So.2d 83 (Fla. 5th DCA 2000). Neither case supports dismissal.

Wilson-Watson was a negligence case, not a claim of an intentional battery, and addressed "the elements of a negligence cause of action for fear of contracting AIDS." Wilson-Watson, 766 So.2d at 1135. Additionally, the procedural posture was at the summary judgment stage, not on a motion to dismiss. The Hagan decision relied upon in Wilson-Watson and by Alex in this case was quashed by the Florida Supreme Court in Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234 (Fla.2001). In any event, that case also did not involve a battery charge, but rather a negligence claim of infliction of emotional distress. Further, Hagan addressed the issue after a jury trial, not on a motion to dismiss.

The Court cannot say at this stage of the proceedings that Deputy Knott will be unable to put forth any set of facts which would allow recovery of these damages in his battery claim. The Court concludes that Alex's Motion to Dismiss must be denied because he has not satisfied the federal dismissal standard summarized above.

IV.

Count XXXIV of the Amended Complaint is titled "Loss of Business Revenue" and is brought by plaintiffs Geddy Lee, Neil Pert, 113696 Canada Limited, By— Tour, Inc., S.R.O. Management Inc., LDP Entertainment, Lerxst Music Inc., Dirk Music Inc., Pratt Music Inc., and The Anthem Entertainment Group, Inc. against all defendants. This count asserts that Alex was "a key performer and key employee of the internationally known entertainment group `RUSH' ." (Doc. # 45, ¶ 191), and that the injuries caused to Alex as set forth in his § 1983 and state-law claims reduced the group's touring performances and recording sessions and thus resulted in a loss of revenue to these plaintiffs. Defendants Knott, Russell, and Stanford assert that Count XXXIV must be dismissed because these plaintiffs lack...