Filing# 66576547 E-Filed 01/16/2018 01:10:25 PM

IN THE CIRCUIT COURT OF THE 17TH

JUDICIAL CIRCUIT IN AND FOR BROWARD
COUNTY, FLORIDA

CASE NO.: 15-009790 (07)

JASON MORALES, individually and on

behalf of all those similarly situated,

Plaintiffs,
vs.

CITY OF MARGATE, a municipality and

DANA WATSON, in his individual and
Official capacities as Chief of Police of the
City of Margate,

Defendants.
- - - - - - - - - - - - - - -I
DEFENDANT DANA WATSON'S MOTION TO DISMISS PLAINTIFF'S SECOND
AMENDED COMPLAINT 1

The Defendant, DANA WATSON ("WATSON"), in his individual and official capacity

as Chief of Police of the City of Margate, by and through his undersigned counsel, moves the

Court for an Order dismissing Plaintiff JASON MORALES' ("MORALES") Second Amended

Complaint, and would state to the Court the following:

1. Any claim against WATSON in his official capacity is redundant to and

functionally equivalent to a claim against the CITY. Official Capacity claims against a Chief of

1
The Court entered an Order on December 11, 2017 which allowed the Plaintiff to Amend the
Complaint against Dana Watson. The allegations made against Watson in the Second Amended
Complaint are identical to those contained in the Amended Complaint and the Motion to Dismiss
all claims against Watson relies on the same legal and factual bases previously ruled on. All
defenses as to the claim against the City and the Class Action allegations are retained and not
waived, but in accordance with the Order an Answer is filed to those claims pending an
evidentiary hearing on the Class Action Claims and reserving the defenses previously raised on
behalf of the City.
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McINTOSH SCHWARTZ, P.L
888 SOUTHEAST 3RD AVENUE SUITE 20 I FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531
Police must be dismissed as duplicative. Busby v. City ofOrlando, 931 F.2d 764, 766 (11 th Cir.

1991); see also Monell v. Dep't ofSoc.Servs., 436 U.S. 658,690 n.55 (1978)

2. The allegations in the Second Amended Complaint fail to establish a cause of

action against WATSON individually, as the factual allegations are insufficient to demonstrate

that he is not entitled to the defense of qualified immunity. The Second Amended Complaint

alleges that WATSON, as Chief of Police, instituted and affirmed a blank.et policy, practice,

procedure or custom which resulted in the unlawful seizure of property in violation of the Fourth

and Fourteenth Amendments to the United States Constitution. The only factual allegations that

relate to MORALES are contained in Paragraph 8. These allegations are insufficient to state an

individual claim against WATSON as the signature by MORALES to a waiver form which

alleges that it recited a non-existent statute is insufficient to demonstrate that WATSON has any

individual liability based on the waiver form or that the use of the waiver form violated a clearly

established constitutional right. Therefore, WATSON is entitled to the defense of qualified

immunity as to the individual capacity claim.

RESERVATION OF MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

AS TO THE CITY OF MARGATE AND AS TO THE CLASS ACTION ALLEGATIONS.
3. The Amended Complaint fails to state a claim a cause of action against the CITY

as it fails to allege sufficient facts from which it can be determined that any action by or on

behalf of the CITY involving MORALES represented a custom, policy or practice of the CITY

which directly resulted in the deprivation of a constitutional right guaranteed to MORALES

either under state or federal law.

4. The allegations seeking Class Certification for Wlspecified and unnamed

individuals fails to satisfy the requirements of Fla.R.Civ.P. 1.220, for the following reasons:

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McINTOSH SCHWARTZ, P.L.
888 SOUTIIEAST 3RD AVENUE SUITE 201 FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531
 A. There is no demonstration that there is a community of interest or

commonality as required for the certification of a class. The Second Amended Complaint

alleges that others who executed waivers (either referencing a non-existent statute or the proper

statute) present questions of law and fact that are substantially related to the resolution of the

claim brought by MORALES. This is not supported by the allegations. There is no allegation

that there was any commonality as to the circumstances involving any of the other unnamed

class members or that the circumstances surrounding the execution of a waiver by them or any of

them was in any fashion similar to that circumstances relating to the waiver executed by

MORALES,

B. The requirement of predominance is not met as the resolution of the claim

brought by MORALES does not necessarily prove the unasserted claims of other Class members

nor does MORALES demonstrate that his approach presents a reasonable methodology or

provide generalized proof of class-wide as there are no allegations that any other individual even

has an interest in pursuing a claim or that the circumstances surrounding the execution of

waivers were in any way unlawful.

C. The numerosity requirement is not met by the speculative and unsupported

allegations relating to the numbers within the purported class. The CITY contends that there are

no more than eight individuals who executed waivers which contained the incorrect statute

number and no more than fifteen who executed waivers involving the correct statute number.

Moreover, the total amount involved in the two categories is $9,897.00 for the eight individuals

who executed the waiver alleged by MORALES (including MORALES) and $41,483.00 for the

15 individuals who executed a waiver bearing the correct statute number. The allegation that

there are hundreds of separate claimants (Paragraph 22); that "Members of Class are so

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McINTOSH SCHWARTZ, P.L.
888 SOUTHEAST 3RD AVENUE SUITE 201 FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-953 l
 numerous that separate joinder of each Class member is impractical; that Defendants have made

"forfeitures" of hundreds of putative Class members' property using the disputed waiver form;

and that the number of persons who are putative members of the Class exceeds 220 (Paragraph

23) are incorrect. Prior to determination as to the propriety of Class Certification an evidentiary

hearing should be conducted. lnPhyNet Contracting Services, Inc., 33 So.3d 766, 770 (Fla. 4th

DCA (2010); see also Sosa v. Safeway Premium Finance Company, 73 So.3d 91, 114, (Fla.

2011)

D. The Second Amended Complaint fails to allege facts that would establish

the requirement of typicality. Typicality requires that the Class representative possess the same

legal interest and has endured the same legal injury as the other Class members. While mere

factual differences between the Class representative's claims and the claims of Class members

will not defeat typicality, there nevertheless must be a strong similarity in the legal theories upon

which the claims are based and also a demonstration that the claims are not antagonistic to one

another. There is no demonstration that any of the other members of the putported Class have

suffered any injury at all or that any of these individuals has any desire to pursue any claim based

on the same legal theories as that asserted by MORALES.

E. The Second Amended Complaint fails to alleges facts from which it can

be determined that MORALES is a proper Class representative based on the requirement of

adequacy. Even assuming that counsel's representations that he possesses requisite skill and

resources to conduct this litigation, there are no allegation that the Class representative,s interests

may not be antagonistic to the interest of the Class members. There are no factual allegations

that demonstrate that any of the members of the Class have any claim or the desire to make any

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MclNTOSH SCHWARTZ, P.L.
888 SOUTIIEAST 3RD AVENUE SUITE 201 FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531
claim based on their own particular facts and circumstances involving the waiver of the

requirements under the statute or that any of them in fact have sustained a wrong.

F. There are insufficient allegations to demonstrate that the requirement of

superiority has been met. It is not shown that this action is the only economically viable remedy

for other Class members nor is it empirically demonstrated that the individual claims justify

separate litigation and/or whether a class action is manageable. Based on the disparity between

the actual numbers of individuals and actual amounts in controversy from those contained in the

Amended Complaint it is clear that MORALES' burden bas not been met.

5. The request for a declaratory judgment and/or for injunctive relief is duplicative

to the relief sought and should apply if at all to MORALES' claim. The claim brought by

MORALES will be determined by the direct action, under proper allegations. No additional

relief would be afforded to MORALES in a declaratory judgment action based on his specific

allegations as to the circumstances surrounding the alleged seizure of $4,620.00 on or about

September 6, 2013 following MORALES' execution of a waiver. In no event should any claim

for declarative relief relate to any claim beyond the claim presented by MORALES.

For all the foregoing reasons, DANA WATSON prays that the Court enter an order of

dismissal as to all claims against him. The Court has previously ruled that an evidentiary hearing

must be scheduled on the issue of Class Certification.

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McINTOSH SCHWARTZ, P.L.
888 SOUTHEAST 3RD AVENUE SUITE 20 I PORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Defendant Dana Watson's

Motion to Dismiss the Second Amended Complaint was furnished this lk.fb day of January,
2018 with the Florida Courts E-Filing Portal and a true and correct copy of the foregoing was

sent via electronic mail on the aforementioned date to: ALL COUNSEUINDIVIDUALS

LISTED ON THE ATTACHED SERVICE LIST.

McINTOSH SCHWARTZ, P.L.

Attorneys for Defendants
888 Southeast Third Avenue, Suite 201
Fort Lauderdale, Florida 33316
Telephone: (954) 660-9888
Direct: (954) 556-1483
Facsimile: (954) 760-9531
E-mail: rhs@mcintoshschwartz.com
ncorey@mcintoshschwartz.com

av MJ,.J~ROBERT H. SCHWARTZ
FLORIDA BAR NO. 0301167

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McINTOSH SCHWARTZ, P.L.
888 SOUTIIEAST 3RD AVENUE SUITE 201 FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531
 Morales v. City of Margate and Dana Watson

Case No.15-009790 (07)

Service List

kevinkulik.law@gmail.com
Kevin J. Kulik, Esquire
Kevin J. Kulik, P.A.
500 Southwest Third A venue
Fort Lauderdale, Florida 33315
Telephone: (954) 761-9411
Facsimile: (954) 767-4750
FBN: 475841

Richard Perlini
315 S.E. 7'11 Street, Suite 300
Fort Lauderdale, Florida 33301
Telephone: {954) 773-5138
Facsimile: (954) 337-0277
FBN: 201782
Email: Richard.perline5 l@gmail.com
Co-Counsel for Plainti,ff

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McINTOSH SCHWARTZ, P.L.
888 SOUTHEAST 3RD AVENUE SUITE 201 FORT LAUDERDALE, FL 33316 TELEPHONE (954) 660-9888 FAX (954) 760-9531