CITY OF JASPER AGAIN REQUESTS MOTION TO DISMISS IN THE WILLIAMS CASE

Charles L. Williams, Plaintiff
v
    City of Jasper, Darnell Lumpkin, Jennifer Hightower, Yvetta Hightower and Margie Geddes

 

MOTION TO DISMISS AMENDED COMPLAINT BY CITY OF JASPER

 

The City of Jasper Florida moves the Court to enter an order dismissing Plaintiff’s Amended Complaint for failure to state a cause of action.   The City moves the Court for an Order directing Williams to provide a more definite statement and moves to strike immaterial allegations from the Amended Complaint.  This motion is based on the following grounds:

 

  1. former City Manager claims he was a victim of a “wrongful termination on May 21, 2018”
  2. Five defendants are named.  Yvetta Hightower and Margie Gedess are not city employees.
  3. The Amended Complaint asserts five counts against the following defendants  (Whistleblower Statute – City of Jasper)  (Defamation – both Hightowers, Lumpkin and Geddes)   (Civil Conspiracy (Both Hightowers and Geddes)  (Negligent Supervision and Retention – City of Jasper)   (Loss of Consortium for Ms. Williams  – All 5 defendants)
  4. The Second Amended Complaint fails to assert clarity as to what facts relate to which claim and which defendant.  This lack of clarity renders the amended complaint too vague for the City to form a response and for the Court to assess each defendant’s liability.  The appropriate time to correct pleading deficiencies is at the pleading stage to avoid confusion in discovery, in motion practice and at trial.
  5. Plaintiff’s (Williams’ Amended Complaint should be dismissed because it fails to comply with the minimal pleadings requirements set forth in Rule 1.110 of the Florida Rules of Civil Procedure which requires “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief”
  6. The Amended Complaint fails to comply with Rule 1.110(f) which requires that claims “shall be made in consecutively numbered paragraphs, the contents of which shall be limited as far as practicable to the statement of a single act of circumstances”.  Further “Each claim founded upon a separate transaction or occurrence…..shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth:”
  7. COUNT I – FLORIDA PUBLIC WHISTLEBLOWER ACT    – Plaintiff sues the City pursuant to Florida Statute §, the Florida Public Whistleblower’s Act (FWBA).  That statute provides protection to employees who disclose certain protected information in either a written and signed complaint who are requested to participate in an investigation or who refuse to participate in any adverse action prohibited by §112.3187.
  8. The allegations of Count I are deficient because they do not allege exactly what Plaintiff reported when he blew the whistle, when that report was made and to whom he made the report.  This lack of clarity renders Count I vague and prevents the City from providing a response.
  9. In paragraph 39, Williams alleges that he attempted to report and disclose violations of state rules, regulations and laws to a person who had the authority to investigate, police, manage and otherwise remedy the reported malfeasance, misfeasance and other acts specifically outlined in section 112.3187 *5) et seq. Florida Statutes.  This allegation is deficient and fails to state a claim on which relief may be granted.
  10. The FPWA protects employees who disclose violations of state rules, regulations and laws 112.3187 (4) (a).  It does not protect employees who ATTEMPT to disclose violations.
  11. The Amended Complaint fails to allege to whom the plaintiff “blew the whistle” (or attempted to disclose the violations) in conjunction with FPWA claim Fla. Stat §112.3187 (6)..the information must be disclosed to a chief executive officer as defined in s. 447.203(9) or other appropriate local official.
  12. In paragraph 43, Plaintiff Williams asserts, reports were conveyed in writing (but destroyed as a result of HIGHTOWER and LUMPKIN removing the report in written form and/or were made to supervisiors and/or other persons within the CITY OF JASPER who could remedy the violations.  After WILLIAMS reported these matters to the CITY OF JASPER, adverse actions were taken against him and he was constructively discharge.   Paragraph 43 is too vague.  This allegation is that a written report was “conveyed” but fails to allege to whom it was conveyed.  It alleges that HIGHTOWER and LUMPKIN removed “the report from its written form”)which makes little sense.  How is a report conveyed in writing and removed from its written form?  To whom were the written reports submitted?   The Plaintiff, Williams, was the City Manager with only one supervisor as a matter of law – a City Council.  It is impossible for the Plaintiff to not know to whom he made his “reports”.  If he made his reports to “supervisiors and/or other persons” within the City of Jasper, who could remedy the violations” he has a duty to name them in the Amended Complaint.
  13. The allegations of Count I are deficient because they do not allege exactly what Williams reported when he blew the whistle or where that report was made.  This lack of clarity also renders Count I vague, thereby preventing the City from providing a response.
  14. The Amended Complaint fails to allege that the  Plaintiff timely complied with the presuit requirements of §112.3187 (8)(b) or (c).  According to that subsection, a prospective Plaintiff must file a complaint with the local government authority if it has etablished, by ordinance, an administrative procedure for handling such complaints 112.3187(8) Florida Statutes.  This must be done before filing suit.   If the local government has not established an administrative procedure by ordinance or contract for handling whistleblower complaints, then the aggrieved employee may file his complaint in Circuit Court “witin 180 days after the action prohibited by this section”  These facts must be pleaded so that the Court can determine whether the claims are ripe to be heard by the Court and whether the Court has jurisdiction over the claims.
  15. To the extent that Williams claims he filed a written complaint (the asserted prerequisite to filing this lawsuit), the Complaint fails to comply with the requirements set out in Fla.R.Civ.P. 1.130(a)(“…all documents on which action may be brought….material to the pleadings, must be incorporated in or attached to the pleading”).  The written complaint on which Mr. Williams’ present FWBA claim is based should be attached to the Complaint so that the Court may discern the timeliness of filing this lawsuit and whether it has jurisdiction over the dispute.
  16. Count I incoporates the allegations of paragraph 1-34 of the Amended Complaining; however, most of these paragraphs do not relate to a FWBA claim.  For example, the allegations contained in paragraphs 19-21, 24-26, 32-34 (Hightower didn’t place the item on the agenda, she and Geddes approached HCSO, the HCSO report by Geddes states Williams was verbgally agressive and yelling at Hightower, with hand on his gun case; Williams created a hostile work environment; Hightower reported this to the Mayor Lumpkin, That the City should have known Hightower previously made false allegations against City Managers;  The City knew or should have known that Hightower should have been terminated from her position and Hightower, Hightower and Geddes, the City of Jasper and Lumpkin engaged in actions causing Barbara Williams to Suffer) have no relevance to any claim under 112.3187,; therefore, they should be removed from incorporation into Count I..
  17. The allegations contained in Paragraphs 11  (Williams instructions to Hightower), 16-20 (advising Hightower he was placing it on the agenda, Hightower falsely accused him of threats with a firearm, Williams has a concealed weapon, etc for protection of utility payments,  Hightower and Witnesses contacted the Police, JCPD refused to take action and Hightower and Geddes approached Hamilton County Sheriff’s office)  do not appear to be related to the FWBA claim and should be removed from incorporation into Count I.
  18. COUNT IV – NEGLIGENT SUPERVISION AND RETENTION AGAINST THE CITYthis count violates rule 1.110(f) because it combines two separate claims into one count; the elements of negligent supervision of an employee differ from the elements of negligent retention of an employee. 
  19. A negligent supervison claim is similar to a negligent hiring claim  The Amended Complaint vaguely alleges in paragraph 64 “The City knew or should have known that the failure to appropriately evaluate, assess and intervene in the improprer actions and misconduct HIGHTOWER engaged against Williams, would result in damages to Williams, particularly because HiGHTOWER had engaged in similar behaviors in the past with prior City Managers.”   This allegation states nothing about the specific “Improper actions and misconduct” that Hightower engaged in which would have placed the City on notice of the need to intervene.  Unlike the Malicki case, where the plaintiffs alleged that the Defendants “either knew or should have known that Malicki had the propensity to commit sexual assaults and molestations” the Amended Complaint here alleges only conclusory allegations without stating specifically, what “improper actions and misconduct” Ms. Hightower committed and how the “improper actions and misconduc t” put the City on notice that more supervision or different supervision of HIGHTOWER was necessary.  Nothing is alleged placing the City on notice that Ms. Hightower’s actions would likely result in Mr. Williams’ resignation.  “The core predicate for imposing libility is one of reasonable foreseeability – the cornerstone of our tort law”.  Plaintiff’s Williams’ Amended Complaint fails to meet this predicate.
  20. A negligent retention “occurs when during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated her unfitness and the employer failes to take further action such as investigating, discharge or reassignment.  “In order to allege facts sufficient to show breach of the duty to exercise reasonable care in retention of an employee, the plaintiff must allege facts sufficient to show that once an employer received active or constructive notice of problems with an employee’s fitness, it was unreasonable for the employer not to investigate or  to take corrective action such as discharge or reassignment.  The Amended Complaint fails to allege facts to establish a prima facie case for negligent retention.
  21. Count IV, Like Count I, incorporates numerous paragraphs that are unrelated to any duty owed by the City for the two claims asserted in Count IV; therefore, those unrelated allegations should be removed from incorporation into Count IV.
  22. COUNT V – CONSORTIUM – The allegations of Count V against all defendants fail to outline the legal duty each defendant owed to Mrs. Williams and fails to separate each the claims in accordance with Rule 1.110(f) among the defendants.
  23. Mrs. Williams fails to allege that she has met all conditions precedent to suing a City.
  24. Count V  improperly incorporates all allegations from paragraphs 1-34 without identifying each paragraph’s relevance to her specific claim of consortium; therefore, those unrelated allegations should be removed from incorporation into Count V.
  25. IMPROPER CO-MINGLED REMEDIES – The Amended Complaint fails to separate the remedies requested according to each cause of action.  It would be proper to have a WHEREFORE cause outlining the correct remedies for each count and to not co-mingle the requested remedies into one remedy claim at the end of the Complaint.  The remedies available for the FPWA differ from the remedies available for negligence or the defamation claim.  Separating the remedies is necessary and required to meet basic pleading requirements.
  26. Plaintiff Williams has failed to state a valid claim for injunctive relief against the City or in the alternative to clarify the basis for an injunction.
  27. The demand for Attorney’s fees on Page 16 is not specific enough and fails to state the statutory or contractual basis that supports that recovery of such fees.
  28. MORE DEFINITE STATEMENTIn the event the Court is not inclined to dismiss the Amended Cmplaint, a more definite statement is requested.  If a “pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before  interposing a responsive pleading.  Plaintiff’s Complaint is both vague and ambiguous.  The City is unsure what written document forms the basis for his claim, whether this lawsuit is timely and to whom the complaint was made.  Thus, if dismissal is not granted, Williams shold file a more definite statement and indicate the proper disignation.  The City respectifully requests that the Court grant this Motion, dismiss Plaintiff’s Amended Complaint, and provide any further relief deemed just and proper.

 

 

 

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