Filing # 29802420 E-Filed 07/17/2015 03:41:23 PM

IN THE CIRCUIT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 15-08342 CA 08
DR. JAMES McDONOUGH,
Plaintiff
vs.
ALEJANDRO MURGUIDO, LUIS GOMES
AND ALEXANDER MURGUIDO,
Defendants.
______________________________________/
DEFENDANT, ALEJANDRO MURGUIDO’S, MOTION TO DISMISS AMENDED
COMPLAINT AND INCORPORATED SUPPORTING MEMORANDUM OF LAW
Defendant, ALEJANDRO MURGUIDO, (“MURGUIDO”), by and through undersigned
counsel and pursuant to Rule 12(b)(6), Florida Rules of Civil Procedure, files this Motion to
Dismiss the First Amended Complaint, and states as follows:
INTRODUCTION
Plaintiff filed this pro se complaint for slander and intentional infliction of emotional
distress against two police officers and MURGUIDO’s adult son. The gist of the complaint is
that they falsely accused him of committing certain crimes to the Miami Dade Police Department
which led to his arrest. The first amended complaint specifically alleges that MURGUIDO is a
Homestead police officer, see ¶ 5; that Defendant Luis Gomes is a Monroe County Deputy
Sheriff, see ¶ 6; that that they falsely accused Plaintiff of certain crimes, which were false,
defamatory and injurious to his professional and personal reputation, see ¶ 2 & 3; and that he was
arrested as a result by a Miami Dade County Police Officer. It is worth noting at the outset that

W E I S S S E R O T A H E L F M A N C O L E & B I E R M A N , P . L.

 Plaintiff entered a PTI diversion program as a result of the criminal arrest, which prevents the
Plaintiff from making any good faith argument to avoid the legality of his arrest. A copy of the
clerk’s docket from the criminal case is attached hereto.
The instant amended complaint alleges that MURGUIDO made four separate false and
defamatory statements, to wit: July 27, 2012, February 15, 2013, March 4, 2013 and April 9,
2013, see ¶ 31-33.
This lawsuit was filed on April 13, 2015, more than two years after the date of the last
alleged defamatory statement.

For the reasons set forth below, Plaintiff’s claims against

MURGUIDO are time barred, fail to sufficiently plead malice or bad faith, both required
elements, and otherwise fail to state a claim for slander and/or intentional infliction of emotional
distress. Accordingly, the First Amended Complaint must be dismissed with prejudice.
MEMORANDUM OF LAW
I.

PLAINTIFF’S CLAIM OF SLANDER PER SE IS BARRED BY THE
STATUTE OF LIMITATIONS.

According to the First Amended Complaint, MURGUIDO uttered defamatory statements
on four dates, to wit: July 27, 2012, February 15, 2013, March 4, 2013, and the last such
statement on April 9, 2013, see ¶ 31-33. The Complaint was filed on April 13, 2015, which is
more than two years after the date of the last alleged defamatory statement. The statute of
limitations for a claim based on slander is 2 years. See, Fla.Stat. 95.11(4)(g). Accordingly, from
the face of the complaint, the statute of limitations has expired.
Accordingly, Count 1 must be dismissed with prejudice.
II.

THE COMPLAINT DOES NOT SUFFICIENTLY PLEAD MALICE OR
BAD FAITH AND THEREFORE IT FAILS TO STATE A CAUSE OF
ACTION AGAINST MURGUIDO IN HIS INDIVIDUAL CAPACITY.

The First Amended Complaint fails to sufficiently allege malice or bad faith to state a

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 cause of action against MURGUIDO in his individual capacity. Significantly, the Complaint
identifies Murguido as a Homestead police officer, who chased him down, detained him without
reasonable suspicion or probable cause, and caused his arrest based upon the false and
defamatory statements. To avoid MURGUIDO’s statutory immunity set forth in Florida Statute
§ 768.28(9) (a), the instant complaint attempts to impose individual liability based on conduct
either not in his official capacity and/or committed in bad faith and/or with malicious intent.
However, the instant complaint fails to avoid immunity because it fails to allege sufficient
ultimate facts to establish malice or bad faith as a matter of law.
Florida Statutes § 768.28(9)(a) provides:
No officer, employee, or agent of the state or of any of its subdivisions shall be held
personally liable in tort or named as a party defendant in any action for any injury or
damage suffered as a result of any act, event or omission of action in the scope of her or
his employment or function, unless such officer, employee, or agent acted in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.
Dismissal is appropriate at the motion to dismiss stage where the operative pleading provides
only conclusory allegations of bad faith, maliciousness, or wanton disregard. See Brivik v. Law,
545 F. App'x 804, 807 (11th Cir. 2013) (plaintiff’s allegation that Officer Law acted maliciously
and in bad faith is conclusory and therefore insufficient to survive a motion to dismiss because
threadbare recitals of the elements of a cause of action supported by mere conclusory statements
do not suffice.); Comimtzis v. Pinellas Cnty. Sch. Bd., 508 So. 2d 750, 753-54 (Fla. 2d DCA
1987) (allegations of bad faith were insufficient to state cause of action against principal and
teacher, whose action or inaction, occurred within the scope of their employment).
In the alternative to his statutory immunity, MURGUIDO is also entitled to common law
immunity which provides even greater protection for public officials, shielding them from all
statements made within the scope of their authority, “however false or malicious or badly

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 motivated” the statement may be. Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970); Albritton v.
Gandy, 531 So.2d 381, 387 (Fla. 1st DCA 1988) (holding that common law immunity attaches
“no matter how false or malicious or badly motivated a statement may be as long as the
statements or actions fall within ‘the scope of duty’ of the public official”). As with statutory
immunity, a plaintiff seeking to pierce a common law immunity defense has the burden of proper
pleading. See Medberry, 937 So.2d at 814. To escape a motion to dismiss on the ground of
common law immunity, the plaintiff has the affirmative obligation to allege the defendant acted
outside the scope of her duties. 1 A conclusory allegation of malicious conduct will not save the
complaint in the face of common law immunity protection.
Perhaps more significant for present purposes, however, is that if it attaches, both
statutory immunity and common law immunity provide immunity from suit. Willingham v. City
of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006). Common law immunity also protects public
officials from both liability and suit. McNayr v. Kelly, 184 So.2d 428, 429 (Fla.1966); Stephens,
702 So.2d at 521 (“[A]bsolute and qualified immunity for public officials are not merely
defenses to liability; as the terms themselves imply, they protect a public official from having to
defend a suit at all. This entitlement is lost if the defendant is required to go to trial; having been
forced to defend the suit, the public official cannot be reimmunized after-the-fact.”).

Thus, it

makes little sense to afford a shield of immunity from suit to a public official and then fail to
enforce it at the earliest moment when enforcement is appropriate. For this reason, the Court
must carefully examine the pleadings and dismiss the complaint when it is clear on the face of
1

The language used sometimes varies slightly. See McNayr v. Kelly, 184 So.2d 428, 429 (Fla.1966) (stating that the
immunity shields officials acting “within the orbit of [their] duties and responsibilities.”). However, it may be stated,
the purpose and intent of Florida common law immunity is to broadly shield “[all] government officials acting in
connection with their official duties” Goetz, 652 So.2d at 1205. (Recognizing the Supreme Court's “liberal
interpretation” of the scope of the immunity in McNayr.) The intent is to ensure that complaints regarding the
propriety of governmental action can be remedied without need for litigation regarding the government's
middleman.

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 the complaint that the government official is entitled to statutory or common law immunity.
Alfino v. Dep't of Health & Rehabilitative Services, 676 So.2d 447, 449 (Fla. 5th DCA 1996)
(holding a motion to dismiss a complaint was proper when defendant was protected by
government immunity).
Herein, MURGUIDO is entitled to immunity from liability and immunity from suit
because the First Amended Complaint fails to allege facts to overcome Plaintiff’s strict burden of
piercing his immunity.

It bears noting that the colorful adjectives used to describe

MURGUIDO’s conduct regarding his reporting Plaintiff to the Miami Dade Police Department,
along with his protestations of innocence, do not satisfy the pleading requirement to avoid the
officer’s statutory immunity.

2

The fact remains that he was arrested and charged with a

criminal act by the Miami Dade Police Department, and later entered a PTI diversion program to
avoid prosecution. See City of Miami v. Nelson, 186 So. 2d 535, 538 (Fla. 3d DCA 1966) (as to
existence of probable cause, the fact that the person arrested has not actually committed the
crime or that no crime of any sort has been committed makes no difference if the circumstances
are such as to lead a law enforcement officer to reasonably believe that a crime has been
committed and that the person he or she is about to arrest or apprehend is the person who
committed the crime).
This Court’s role as the proverbial “gatekeeper” requires the immediate termination of
the individual liability claims where it is shown that the Plaintiff has not met his strict burden of
overcoming MURGUIDO’s entitlement to immunity. Willingham, 929 So.2d at 48) (trial judge
must act as a gatekeeper and should terminate civil proceedings when the immunity applies. The

2

But as an aside, it is significant that Plaintiff elected a pretrial diversion program in response to the criminal
charges and therefore is foreclosed from challenging the legality of the arrest. Heck v. Humphrey, 512 U.S. 477,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); and otherwise cannot establish any theory of malicious prosecution no
matter how it is couched in the complaint. DeMarie v. Jefferson Stores, Inc., 442 So.2d 1014 (Fla. 3d DCA 1983).

5

 trial judge should ask whether a reasonable trier of fact could possibly conclude that the conduct
was willful and wanton, or would otherwise fall within the exceptions to the statutes).
Plaintiff has failed to meet his strict burden of proof of piercing their immunity which
MURGUIDO is clothed in light of his status as a governmental employee. A careful examination
of the First Amended Complaint reveals the absence of any ultimate facts to demonstrate the bad
faith exception to individual immunity.

Rather, the allegations in paragraph 16 -18 that

MURGUIDO (as the alleged victim), falsely reported to the Miami Dade Police Department that
Plaintiff had committing Corruption Through Threats, Stalking and Trespassing on his property,
all of which were false and defamatory and done with malicious intent, do not satisfy the
pleading requirement to avoid the officer’s statutory immunity.
Notably absent are any specific allegations of ultimate fact to support the required
allegations to assert individual liability and pierce his immunity. It is the Plaintiff, not the
defendant, who bears the strict burden to overcome the immunity from suit by showing that a
reasonable trier of fact could possibly conclude that the conduct was willful and wanton, or
would otherwise fall within the exceptions to the statutes. Willingham, 929 So.2d at 48. It is not
enough to allege conclusory terms, i.e., the actions were with malice, in describing the conduct
of the employees as “outside the course and scope of her or his employment or committed in bad
faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.” Medberry v. McCallister, 937 So.2d 808, 814 (Fla. 1st DCA 2006)
(conclusory allegations that defendant acted outside the scope of his employment or in bad faith
failed to satisfy heightened pleading requirement requiring dismissal as a matter of law);
McClelland v. Cool, 547 So.2d 975, 977 (Fla. 2d DCA 1989) (upholding dismissal of claims
against individual defendants because the allegations did not satisfy the greater degree of

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 culpability required by section 768.28(9)(a)).
Even construing MURGUIDO’s conduct, separate from his status as an off-duty
Homestead police officer, i.e., as a private citizen, Florida law still requires a showing of
sufficiently pled bad faith. In Bank of America Corp. v. Valladares, 141 So.3d 714(2014) the
Third District recently reversed a jury verdict in a similar type case holding that private citizens
cannot be liable for slander for falsely reporting a crime absent sufficiently pled bad faith. The
court also held that simply calling the police to report a crime does not rise to the level of a tort
unless the reporter acts maliciously, meaning the reporter either knows the report is false or
recklessly disregards whether the report is false. See also Pokorny v. First Federal Sav. & Loan
Ass'n of Largo, 382 So.2d 678 Fla. 1980) (plaintiff contending that he had been improperly
arrested as the result of negligence in swearing out a warrant must bear the burden of
establishing malice and want of probable cause); Valdes v. GAB Robins North America, Inc.,
924 So.2d 862 (Fla. 3rd DCA 2006) (affirming dismissal of false arrest claim against a nonpolice officer holding that bare and conclusory allegations of bad faith, without any ultimate
factual allegations that Defendants purportedly "either directly or indirectly procured [Plaintiff's]
arrest or detention", are insufficient as a matter of law).
Accordingly, Count 1 should be dismissed
III.

THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The Plaintiff fails to allege conduct that supports his claims for intentional infliction of
emotional distress. The key element of an intentional infliction of emotional distress claim is that
the outrageous conduct is “so extreme in degree” as to go “beyond all bounds of decency, and to
be regarded as odious and utterly intolerable in a civilized community.” Hendricks v. Rambosk,
2001 WL 1429646, *4 (M.D. Fla. 2011), citing Gollogly v. Rodriguez, 970 So. 2d 470, 471 (Fla.

7

 2d DCA 2007) and Byrd v. BT Foods, Inc., 948 So. 2d 921, 928 (Fla. 4th DCA 2007). 3 This
standard is “extremely high.” Id., citing State Farm Mut. Autho. Ns. Co. v. Novotny, 657 So. 2d
1210, 1213 (Fla. 5th DCA 1995)(“It is not enough that the intent is tortious or criminal; it is not
enough that the defendant intended to inflict emotional distress; and it is not enough if the
conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive
damages for another tort.”). Whether the conduct satisfies this high standard is a legal question
for the Court to decide as a matter of law. Id.
Here, the allegations that MURGUIDO falsely reported to the Miami Dade Police that
Plaintiff had committed a crime is not sufficient to support this type of tort claim. Under Florida
law, this is not deemed sufficiently “outrageous” to state a cause of action for intentional
infliction of emotional distress. Id. (dismissing claim for intentional infliction of emotional
distress where defendants intentionally lied under oath to the authorities in falsely implicating
plaintiffs for crimes they did not commit); see also, Valdes v. GAB Robins N. Am., Inc., 924 So.
2d 862, 866 (Fla. 3d DCA 2006)(investigating and then making false statements to state agency
which lead to plaintiff's arrest was “not the type of conduct that is so outrageous in character and
extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a
civilized society.”);

Legrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. 3d DCA

2004)(clergyman falsely branded a thief in front of parishioners failed to state claim of
intentional infliction of emotional distress); Southland Corp. v. Bartsch, 522 So. 2d 1053 (Fla.
5th DCA 1988)(7–Eleven pressing charges for theft of gum by a 6 year old, although charges
later dropped, not found to be outrageous). Accordingly, Count 4 should be dismissed.

3

The elements are: (1) the wrongdoer’s conduct was intentional or reckless, that is, knowing
that behavior would cause emotional distress; (2) the conduct was outrageous; (3) the conduct
caused emotional distress; and (4) the emotional distress was severe. Id.
8

 WE HEREBY CERTIFY that a true and correct copy of the foregoing was emailed to
James McDonough, 32320 SW 199th Avenue, Homestead, FL 33030 (phd2b05@gmail.com) and
to John A. Jabro, Esq., Attorney for Defendant, Luis Gomez, 90311 Overseas Hwy Ste B,
Tavernier, FL 33070-2301 jjabro@aol.com , on July 17, 2015.
WEISS SEROTA HELFMAN COLE & BIERMAN, P.L.
Attorneys for Defendant, Alejandro Murguido
200 East Broward Blvd.
Suite 1900
Fort Lauderdale, Florida 33301
Telephone: (954) 763-4242
BY:
/s/ Eric Stettin
ERIC L. STETTIN, ESQ.
FLA. BAR NO: 0831697

9

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Court Case No.: B­13­020835

** This case is not eligible to be paid online. For more information, please contact the Clerk's Office at (305) 275­1155 **

 Case Information
State Case No.: 13­2013­MM­020835­0001­XX

Name: MCDONOUGH, JAMES ERIC

Date Filed: 05/15/2013

Date of Birth: 11/29/1977

Date Closed: 01/09/2014

Assessment Amount: $0.00

Balance Due: $0.00

Stay Due Date:

Court Room: REGJB ­ JUSTICE BUILDING, ROOM No.: 4­9
Address: 1351 N.W. 12 ST
Previous Case: F­13­008832

Next Case:

Judge: WOLFSON, ANDREA RICKER
File Section: M001

Defense Attorney: GREENSTEIN, ALAN
File Location: FILE ROOM

Box No:

Defendant in Jail: N
Defendant Release to: SIMS/USS CHG ONE,
 (https://www2.miami­dadeclerk.com/cjis/CaseSearch.aspx#)
Bond Amount: $0.00

Bond Status:

 Charges

Total of Charges:3

Seq No.

Charge

Charge Type

Disposition

1

STALKING

MISDEMEANOR

NOLLE PROS­COMP PTI

2

TRESPASS/PROPERTY

MISDEMEANOR

NOLLE PROS­COMP PTI

3

TRESPASS/PROPERTY

MISDEMEANOR

NOLLE PROS­COMP PTI

 −

 Dockets
 DISCLAIMER: Official Records of Criminal Cases prior to July, 2004 may not be available online.
Total of Dockets:21

Seq. No.

Date

Book/Page

  

−

Docket

27

01/09/2014

CLOSING JUDGE WOLFSON, ANDREA RICKER

26

01/09/2014

MEMO RE: DEFERRED PROSECUTION PROGRAM NOLLE PROSSE

25

06/26/2013

MEMO RE: DEFERRED PROSECUTION PROGRAM ACCEPTANCE

file:///W:/Wdocs/CLIENTS/2/2.1126/00059177.HTML

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 7/17/2015

Miami­Dade County Clerk Criminal Justice

24

06/17/2013

PRETRIAL DIVERSION REFERRAL FORM S/C ­ STAY AWAY FROM (20298 SW 324 ST HOMESTEAD FL)

23

06/10/2013

MOTION TO COMPEL FILED 06/13/2013 ORAL SET FOR 06/13/2013 AT 10:00 NO RULING

21

05/28/2013

DEMAND FOR NOTICE OF ALIBI

20

05/28/2013

DISCOVERY

19

05/21/2013

MOTION TO/FOR: STRIKE REQUEST FOR NOTICE OF ALIBI

18

05/21/2013

MOTION TO/FOR: STATEMENT OF PARTICULARS

17

05/21/2013

MOTION TO/FOR: TAKE DEPOSITION

15

05/23/2013

E­SUBPOENA: ALVAREZ, CARLOS ID: 030­07563 FOR: TRIAL ON 06/17/2013 AT 09:45 ISSUED BY: CJIS
SENT: 05/23/2013 RECD/NOTFD: 05/23/2013 ACKN: 05/27/2013 M

14

05/23/2013

E­SUBPOENA: WALTON JR, EMANUEL ID: 030­05535 FOR: TRIAL ON 06/17/2013 AT 09:45 ISSUED BY: CJIS
SENT: 05/23/2013 RECD/NOTFD: 05/23/2013 ACKN: 05/25/2013 M

13

05/23/2013

E­SUBPOENA: MARTI, WILFRED ID: 030­03605 FOR: TRIAL ON 06/17/2013 AT 09:45 ISSUED BY: CJIS
SENT: 05/23/2013 RECD/NOTFD: 05/23/2013 ACKN: 05/27/2013 M

12

05/23/2013

E­SUBPOENA: MURGUIDO, ALEJANDRO ID: 010­00649 FOR: TRIAL ON 06/17/2013 AT 09:45 ISSUED BY: CJIS
SENT: 05/23/2013 RECD/NOTFD: 05/23/2013 ACKN: 05/29/2013 M

11

05/22/2013

TRIAL HEARING SCHEDULED FOR 06/17/2013 AT 09:45

9

05/21/2013

DEMAND FOR DISCOVERY

8

05/21/2013

WRITTEN PLEA OF NOT GUILTY DEMAND FOR JURY TRIAL

7

05/21/2013

NOTICE OF APPEARANCE ALAN GREENSTEIN; ESQ.

5

05/21/2013

DEFENSE ATTY PRIV/PUBLIC DEFENDER APPOINTMENT, AS

2

05/15/2013

ORDER OF TRANSFER­FILED IN COUNTY COURT

1

05/15/2013

TRANSFERRED FROM CIRCUIT COURT­CASE # F13008832

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