USCA11 Case: 22-11542 Document: 27-1 Date Filed: 03/01/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11542
Non-Argument Calendar
____________________
WING KEI HO,
HO YEH KAREN,
Plaintiffs-Appellants,
versus
CITY OF BOYNTON BEACH,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-81023-DMM
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2 Opinion of the Court 22-11542
____________________
Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Wing and Karen Ho, proceeding pro se, appeal the district
court’s dismissal of their amended complaint against the City of
Boynton Beach alleging claims under Florida and federal law based
on the City’s planned demolition of their building. On appeal, the
Hos assert the district court erred in dismissing their amended
complaint (in part without prejudice and in part with prejudice) for
failure to state a claim. They also argue that the district court
should not have denied their motion for an extension of time to file
a second amended complaint and dismissed the action with preju-
dice for failure to timely file a second amended complaint. After
careful review, we affirm.
I
The Hos first assert that the district court should not have
dismissed their amended complaint because, according to them,
their complaint was not a shotgun pleading and they have evidence
that their property is safe and should not be foreclosed. The Hos
challenge the district court’s ruling on each of the following claims
presented in their amended complaint — (1) discrimination, (2)
negligence, (3) unjust enrichment, (4) commercial bad faith, (5) in-
tentional infliction of emotional distress, (6) tortious interference
with a business relationship, and (7) request for a preliminary in-
junction.
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22-11542 Opinion of the Court 3
We review de novo the dismissal of a complaint for failure
to state a claim under Fed. R. Civ. P. 12(b)(6). Glover v. Liggett
Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006). We accept factual
allegations in the complaint as true and construe them in the light
most favorable to the plaintiff.
Id. Though pro se parties are held
to a less stringent pleading standard, they still must suggest some
factual basis for a claim. Jones v. Fla. Parole Comm’n,
787 F.3d
1105, 1107 (11th Cir. 2015).
Rule 8 requires pleadings to contain “a short and plain state-
ment of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). While detailed factual allegations are not
required, a pleading that offers “labels and conclusions or a formu-
laic recitation of the elements of a cause of action will not do.” Ash-
croft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation marks omitted).
To survive dismissal under Rule 12(b)(6), a complaint must contain
facts that allow the court to draw a reasonable inference that the
defendant is liable for the misconduct alleged.
Id. The
two-pronged approach that a court should follow in evaluating the
sufficiency of a complaint is as follows: (1) eliminate any allegations
in the complaint that are merely legal conclusions, and (2) assume
the veracity of the well-pleaded factual allegations and determine
whether they plausibly suggest an entitlement to relief.
Id. at 680–
82.
The Civil Rights Act of 1964 prohibits discrimination in var-
ious areas such as public accommodations, public education, feder-
ally assisted programs, and employment. 42 U.S.C. §§ 2000a,
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4 Opinion of the Court 22-11542
2000c, 2000d, 2000e. Likewise, Florida law prohibits discrimination
in education, employment, and public accommodations.
Fla. Stat.
§ 760.07.
The Equal Protection Clause of the Fourteenth Amendment
prohibits states from denying people the equal protection of the
laws, which means “all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439
(1985) (quotation marks omitted). To state an equal protection
claim, a plaintiff must show (1) that he is similarly situated to others
who have received more favorable treatment and (2) that the state
engaged in invidious discrimination against him based on race, re-
ligion, national origin, or some other constitutionally protected in-
terest. Sweet v. Sec’y, Dep’t of Corr.,
467 F.3d 1311, 1318–19 (11th
Cir. 2006).
The elements of negligence under Florida law are: (1) a duty
to the plaintiff, (2) defendant’s breach of that duty, (3) legal or prox-
imate cause, and (4) actual damages. Wallace v. Dean,
3 So. 3d
1035, 1046 & n.18 (Fla. 2009). Florida courts have recognized that
a governmental entity’s enforcement of laws and protection of
public safety, including building inspection and condemnation, do
not create a common law duty of care. Trianon Park Condomin-
ium Ass’n, Inc. v. City of Hialeah,
468 So. 2d 912, 919–20 (Fla.
1985).
The elements of an unjust enrichment claim under Florida
law are: (1) the plaintiff conferred a benefit on the defendant, who
has knowledge thereof; (2) the defendant voluntarily retained the
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22-11542 Opinion of the Court 5
benefit; and (3) the circumstances are such that it would be inequi-
table for the defendant to retain the benefit. Tooltrend, Inc. v.
CMT Utensili, SRL,
198 F.3d 802, 805 (11th Cir. 1999). Unjust en-
richment is a form of implied or quasi-contract.
Id.
“In Florida, sovereign immunity is the rule, rather than the
exception.” Pan-Am Tobacco Corp. v. Dep’t of Corr.,
471 So. 2d
4, 5 (Fla. 1984). Florida law waives sovereign immunity for the
state and its subdivisions for tort liability but not contractual liabil-
ity.
Id. (citing
Fla. Stat. § 768.28). The Florida Supreme Court has
found that sovereign immunity is not a defense to express contract
claims.
Id. at 4–5. But Florida courts have held that sovereign im-
munity is a defense to implied contracts. See City of Fort Lauder-
dale v. Israel,
178 So. 3d 444, 447 (Fla. Dist. Ct. App. 2015).
Despite a waiver of tort immunity, Florida law bars munici-
pal liability for acts by its agents “committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.”
Fla. Stat.
§ 768.28(9)(a). We have explained that Florida courts have held
that claims of intentional infliction of emotional distress are barred
under this statute. Weiland v. Palm Beach Cnty. Sheriff’s Off.,
792
F.3d 1313, 1330 (11th Cir. 2015).
The elements of tortious interference with a business rela-
tionship are: (1) the existence of a business relationship,
(2) knowledge of the relationship on the part of the defendant,
(3) an intentional and unjustified interference with the relationship
by the defendant, and (4) damage to the plaintiff as a result of the
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6 Opinion of the Court 22-11542
breach of the relationship. Ethan Allen, Inc. v. Georgetown
Manor, Inc.,
647 So. 2d 812, 814 (Fla. 1994). A contract is not re-
quired, but “the alleged business relationship must afford the plain-
tiff existing or prospective legal or contractual rights.”
Id. The el-
ements for tortious interference with contract are the same, but a
contract is required. See Smith v. Ocean State Bank,
335 So. 2d 641,
643 (Fla. Dist. Ct. App. 1976).
To obtain a preliminary injunction, plaintiffs must show: (1)
they have a substantial likelihood of success on the merits; (2) ir-
reparable injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if is-
sued, the injunction would not be adverse to the public interest.
Wreal, LLC v. Amazon.com, Inc.,
840 F.3d 1244, 1247 (11th Cir.
2016). A preliminary injunction is an extraordinary and drastic
remedy.
Id. The movant bears the burden of persuasion.
Id. An
injury is irreparable only if it cannot be undone through monetary
remedies. Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v.
City of Jacksonville,
896 F.2d 1283, 1285 (11th Cir. 1990).
Due process requires notice and the opportunity to be heard
before the deprivation of property at the hands of the government.
Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003). A proce-
dural due process claim requires a showing of: (1) a constitutionally
protected liberty or property interest, (2) state action, and (3) con-
stitutionally inadequate process.
Id.
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22-11542 Opinion of the Court 7
Here, the district court did not err in dismissing the Hos’
amended complaint in part with prejudice and in part without prej-
udice for failure to state a claim. Glover,
459 F.3d at 1308.
First, the Hos failed to allege sufficient facts to state a claim
of discrimination based on federal or state discrimination statutes
or the Constitution. Their claims of discrimination do not fall un-
der either the federal or Florida civil rights laws because those stat-
utes only cover discrimination in education, employment, and
public accommodations, not based on the deprivation of property.
42 U.S.C. §§ 2000a, 2000c, 2000d, 2000e;
Fla. Stat. § 760.07. Their
claims of an equal protection violation also fail. Even liberally con-
strued, the Hos did not allege that the other owner whose land the
City bought was similarly situated to them simply by stating that
land was “compatible.” Sweet,
467 F.3d at 1318–19; Jones,
787 F.3d
at 1107. Neither the amended complaint nor the attached exhibits
make clear that they are similarly situated landowners. Sweet,
467
F.3d at 1318–19; Griffin Indus., 496 F.3d at 1205–06.
Second, the district court properly dismissed their negli-
gence claim because they failed to allege sufficient facts to show
that the City owed the Hos a duty of care. Wallace,
3 So. 3d at
1046. Florida law recognizes that governmental entities do not
owe a duty of care when they inspect buildings and enforce laws,
so any action in condemnation or enforcing liens did not create a
duty of care. Trianon Park Condominium Ass’n,
468 So. 2d at 919–
20.
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8 Opinion of the Court 22-11542
Third, the district court properly dismissed their unjust en-
richment claim because unjust enrichment is a quasi-contractual
theory and sovereign immunity is a defense to an implied contract
under Florida law. Tooltrend, 198 F.3d at 805; Israel, 178 So. 3d at
447.
Fourth, the district court also properly dismissed the Hos’
“commercial bad faith” claim because there is no indication such a
claim exists under Florida law.
Fifth, the district court properly dismissed their intentional
infliction of emotional distress claim because it is barred by sover-
eign immunity under Florida law. Weiland,
792 F.3d at 1330.
Sixth, the district court properly dismissed the Hos’ tortious
interference claim because they did not allege that they had an ex-
isting business relationship or contract with which the City inter-
fered. Ethan Allen,
647 So. 2d at 814; Smith,
335 So. 2d at 643. In-
stead, they simply stated that they would like to use the space for a
Buddha Temple or civil rights office but made no mention of a con-
tract or existing relationship.
Lastly, the district court properly dismissed their request for
a preliminary injunction to prevent demolition. The Hos did not
allege facts sufficient to show their Fourth, Fourteenth, or Fifth
Amendment rights were violated, so it is unlikely that they would
prevail on the merits. Wreal,
840 F.3d at 1247. Moreover, even if
they had alleged facts sufficient to show they could prevail on the
merits, the district court correctly denied their request for a
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22-11542 Opinion of the Court 9
preliminary injunction because the Hos did not show any harm
was irreparable.
Id. They asked for monetary damages in addition
to their injunctive relief, indicating that monetary damages were
adequate. Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am.,
896 F.2d at 1285.
Accordingly, the court properly concluded that the Hos’
amended complaint failed to state a claim for which relief could be
granted, and we affirm as to this issue.
II
The Hos next argue that dismissal with prejudice was too
severe a sanction and that the district court should have allowed an
extension of time to file a second amended complaint.
We review a district court’s dismissal for failure to comply
with the rules of court for abuse of discretion. Betty K Agencies,
Ltd. v. M/V MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005). We
will not disturb the district court’s decision unless we find the dis-
trict court made a clear error of judgment or applied the wrong
legal standard. Guideone Elite Ins. Co. v. Old Cutler Presbyterian
Church,
420 F.3d 1317, 1325 (11th Cir. 2005).
A district court has inherent power to manage its docket.
Betty K Agencies,
432 F.3d at 1337. A district court may also dis-
miss a case for the failure to prosecute or comply with a court or-
der.
Id. (citing Fed. R. Civ. P. 41(b)). A court may extend the time
a party has to act for good cause if a motion is made after the time
to act has passed because of excusable neglect. Fed. R. Civ. P.
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10 Opinion of the Court 22-11542
6(b)(1)(B). The fact that a party is proceeding in a matter pro se
does not excuse their failure to comply with procedural rules.
Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007).
A dismissal with prejudice is an extreme sanction that may
only be imposed when (1) a party engages in a clear pattern of delay
or willful contempt and (2) the district court specifically finds that
lesser sanctions would not suffice. Betty K Agencies,
432 F.3d at
1337–38. Consideration of lesser sanctions may be implicit or ex-
plicit. Gratton v. Great Am. Commc’ns,
178 F.3d 1373, 1374 (11th
Cir. 1999). “While dismissal is an extraordinary remedy, dismissal
upon disregard of an order, especially where the litigant has been
forewarned, generally is not an abuse of discretion.” Moon v. New-
some,
863 F.2d 835, 837 (11th Cir. 1989).
Here, the district court did not abuse its discretion in deny-
ing the Hos’ motion for an extension of time to file a second
amended complaint regarding their claims that were dismissed
without prejudice and dismissing the action with prejudice. The
Hos exhibited a pattern of delay in missing deadlines and failing to
comply with discovery requests after multiple warnings by the dis-
trict court, and the court explicitly found that lesser sanctions
would not suffice. Accordingly, we also affirm as to this issue.
AFFIRMED.
