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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. 2017-002056-CA-01 (11) FLAGSTONE ISLAND GARDENS, LLC, ‘Delaware limited liability company, FLAGSTONE MIAMI HOLDINGS, LLC, ‘Delaware limited liability company, Plaintifs, ‘STEPHEN E, HERBITS, COALITION ‘AGAINST CAUSEWAY CHAOS, INC,, ‘and JOHN DOE NOS. 1-5, JANE DOE NOS.1-5,, Defendants Seeecey ORDER DENYING PLAINTIFFS’ MOTION FOR LEAVE TO AMEND. ‘THIS CAUSE, has come before this Court on Plaintiffs’ “Motion for Leave to File a ‘Second Amended Complaint.” The Court, having reviewed the motion and the response in “opposition, having reviewed the record, heard the argument of counsel on August 2, 2018, and being otherwise fully advised in the premises, hereby inds as follows: 1. In 2014, Defendant Stephen Herbits, along with other residents whose homes are located along the causeways between Miami Beach and Miami, sued the City of Miami, in an ‘ction styled Herbits v. City of Miani, ease number 14-024334 CA 02, for allegedly Violating its Charter when it approved new lease agreements fora proposed mega-yacht ‘marina, Flagstone, the developer ofthe project, was not sued in the action, but intervened inthe action. The Herbits case was dismissed for lack of “special injury” standing, 12, Flagstone subsequently filed the instant cas, alleging that the Defendants conspired to maliciously prosecute a claim against Flagstone when the filed Herbits case against the City of Miami. lagstone’s suit also claimed that Defendant Stephen Herbits breached a feitlement agreement from a prior lawsuit and that Defendants tortiously interfered with the contract between Flagstone and the Cty of Miami. (Case No, 2017-002086 CA 11 3, A predecessor judge granted a motion to dismiss the original complaint inthis action. The onder granting dismissal found that, because the Herbits suit was dismissed on standing «grounds, and not on its merits it could not form the basis of a malicious prosecution claim, ‘The Cour also found that Flagstone's breach of contract claim failed because the operative covenant not to sue permitted Herbits to challenge changes made to the project after execution of the covenant. It found that Flagstone's claim for tortious interference with a business relationship failed because the filing of a lawsuit against the City - and related actions - are afforded absolute immunity under the litigation privilege; thatthe numerous public record requests were & constitutional and statutory right of every citizen; and Flagstone provided no authority that an individual could be found to have tortiously interfered with a busines relationship by exercising that right, 4, The Plaintiffs fled an amended complaint and now have moved to file a second amended ‘complaint. The proposed second amended complaint again includes a claim for tortious imerference with contractual relations (Count 1); adds a count for civil conspiracy to intentionally interfere with contractual relations (Count I); adds a “Civil Conspiracy ~ Independent Tort” count (Count II); separates out its defamation claim asa separate count (Count IV); and again asserts a breach of contract claim (Count VI). The proposed second amended complaint also seeks to add attomey Samuel Dubbin, who represented Stephen erbits and Coalition Against Causeway Chaos, and two individual members of the Coalition Against Highway Chaos. 5. Although leave to amend a complaint should usually be granted, an exception exists when amendment would be futile. See Venezia Lakes Homeowner's Ass'n v. CSX Transp. In. 43 So, 34.93, 95 (Fla. 3d DCA 2010). Ifthe Counts set forth in the proposed second ‘amended complain do not allege proper causes of action, then amendment would be futile COUNT I: TORTIOUS INTERFERENCE. 1H CONTRACTUAL RELAI 6. Asthe order dismissing the original complaint inthis action explained, Flagstone’s tortious interference theory is based on the Defendants’ exercise of theit Consttutionally protected rights 7. The filing of lawsuits against @ City and against City officials are afforded absolute immunity under the litigation privilege. See Levin, Middlebrooks, Mabie, Thomas, Mayes «& Mitchell, PA. v. US. Fire Ins, Co., 639 So. 24 606, 608 (Fla. 1994) (tortious interference With business relationship claim failed under the litigation privilege because “absolute immunity must be afforded to any act occurring during the course ofa judicial proceeding, regardless of whether the act involves a defamatory statement, or other tortious behavior. 180 fong asthe act has some relation tothe proceeding,” 8. The right of a citizen to request public records from his or her govemment is a constitutional and statutory right of every citizen inthis State under Article 1, Secton 24 of the Florida Constitution and Section 119.07(1}a), Florida Statutes. See Cury’v. State, B11 So. 2d 736, 741-42 (Fla. 4* DCA 2002) ("A citizen's request for public records involves “legitimate purpose,’ ... [and tte motivation ofthe person secking the records (Cae No, 2017-002086 CA 11 ‘does not impact the person’s right to see them ...."). As the predecessor judge set forth in his order of dismissal, allowing claims based upon requesting public records would undermine a citizen's right tothe freedom of information from his government. 9. Complaints regarding the conduct of public officials are protected by the right to petition the government. The Supreme Court has “recognized the “right to petition {for redress of rievances) as one of the most precious of the liberties safeguarded by the Bill of Rights.” Lozman v. City of Riviera Beach, Fla, 138. Ct, 1945, 1954-55 (2018) (quoting BE & K Constr, Co, v. NERB, 536US. $16,524, 122 S.Ct. 2390, 153 L-Fd.24-499 (2002) ‘MeDonaid v. Smith, 472 US. 479, 486 (1985) (Brennan, J., concurring) (“As with the freedoms of speech and press, exercise ofthe right to petition ‘may well include vehement, ‘caustic, and sometimes unpleasant sharp attacks on goverament and public official{-]") (citation omitted); Borough of Duryea, Pa. v. Guarnieri, 64 U.S. 379, 387 (2011) (“The right to petition allows citizens to express their idexs, hopes, and concems to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy"), COUNT II: CIVIL CONSPIRACY — INTENTIONAL INTERFERENCE ‘CONTRACTUAL RELATIONS 4 10. As stated in Phelan v. Lawhon, 229 So. 34 853, 858 (Fla. 34 DCA 2017): “A civil conspiracy requires: (a) an agreement between two or more parties, (6) to do an unlawful actor to-do a lawful act by unlawful means, (c) the doing of some overt actin pursuance ofthe conspiracy, and () damage to plaintitasa result ofthe ats done under the conspiracy” Raimi v. Furlong, ‘702 So.2d 1273, 1284 (Fla. 34 DCA 1997). The alleged conspiracy must demonstrate “an actionable underlying tortor wrong.” and that independent tort or wrong must “constitate a cause of action ifthe wrong were done by fone person.” Id (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.24 949, 951 (Fla, 3d DCA 1984)) 11. Count Il, which is @ count for evil conspiracy to intentionally interfere with contractual relations fils because the underlying tortious interference claim is deficient as matter of law. See, ¢.g, Banco de los Trabajadores v. Cortez Moreno, 237 So. 31127, 1136 (Fla. 34 DCA 2018) (holding civil conspiracy isnot a “freestanding tort."); Beck v. Lipkind, 681 So. 24 794, 795 (Fla. 34 DCA 1996) (affirming summary judgment because plaintitT did not allege or prove defamation, “a necessary predicate to a cause of action for conspiracy todefame") COUNT IMI: CIVIL CONSPIRACY — INDEPENDENT TORT 12, [Although the general rue is that “an act which constitutes no ground of faction against one person cannot be made the basis fora civil action for conspiracy,” in certain circumstances mere force of numbers acting in ‘unison may comprise an actionable wrong. In essence, .. ordinarily there 3