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Case 8:12-cv-01755-EAK-TBM Document 19 Filed 11/12/13 Page 1 of 5 PageID 177

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID RIGGINS,

Plaintiff,

v.

CASE NO. 8:12-CV-1755-T-17TBM

POLK COUNTY, etc.,

Defendant.

This cause is before the Court on:

ORDER

Dkt. 14 Motion to Dismiss Amended Complaint
Dkt. 15 Motion to Strike
Dkt. 16
Dkt. 17

Response
Response

Plaintiff David Riggins filed an Amended Complaint (Dkt. 11), in which Plaintiff
alleges discrimination based upon race and gender in the award of Polk County quote

12-037, in that Plaintiff was the lowest qualified bidder but failed to receive the contract
award due solely to his race and gender in violation of Title Vll of the Civil Rights Act of

1964, as amended.

I. Standard of Review

A. Fed. R. Civ. P. 12(b)(6)

"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short

and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed

factual allegations" are not required, Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007),

Case 8:12-cv-01755-EAK-TBM Document 19 Filed 11/12/13 Page 2 of 5 PageID 178

Case No. 8:12-CV-1755-T-17TBM

but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to

relief that is plausible on its face," ]g\, at 570. A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. kL, at 556. Two working principles

underlie Twombly. First, the tenet that a court must accept a complaint's allegations as

true is inapplicable to threadbare recitals of a cause of action's elements, supported by

mere conclusory statements, hi, at 555. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. Determining whether a complaint

states a plausible claim is context-specific, requiring the reviewing court to draw on its

experience and common sense. icL at 556. A court considering a motion to dismiss

may begin by identifying allegations that, because they are mere conclusions, are not

entitled to the assumption of truth. While legal conclusions can provide the complaint's

framework, they must be supported by factual allegations. When there are

well-pleaded factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.

Igbal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twombly. 550 U.S. 544

(2007).

B. Pro Se Plaintiff

"Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed." Tannenbaum v. United States,

148 F.3d 1262, 1263 (11th Cir.1998) (per curiam). Pro se litigants are required to
comply with procedural rules. Albra v. Advan. Inc.. 490 F.3d 826, 829 (11lh Cir. 2007).

The Court notifies Plaintiff Riggins that Plaintiff is subject to the Federal Rules of

Civil Procedure, and the Local Rules of the Middle District of Florida.

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Case No. 8:12-CV-1755-T-17TBM

II. Discussion

Defendant Polk County moves to dismiss because there is no

employer/employee relationship, and alternatively because the documents filed by

Plaintiff with his Complaint contradict Plaintiff's allegation of discrimination on the basis

of race. The contract was awarded to a business owned by a white female, and

Plaintiff is a white male.

A. Title Vll

The Notice of Right to Sue states that the EEOC is closing its file on Plaintiff

claim, as the relationship between Plaintiff and Polk County is "[n]ot an

employer/employee relationship." (Dkt. 11, Exh. 3). Defendant moves to dismiss

because Title Vll is directed to and protects only employees or potential employees.

Plaintiff does not allege that there was an employer/employee relationship between

Plaintiff and Polk County; Plaintiff was seeking to become an independent contractor for

Polk County.

In response, Plaintiff argues that his Amended Complaint is intended to include

claims under the Civil Rights Act of 1964, as amended, and the Fourteenth Amendment

to the U.S. Constitution, which provides for Equal Protection of the Laws. Plaintiff cites

Engineering Contractors Association of South Florida. Inc. v. Metropolitan Dade
County. 122 F.3d 895 (11* Cir. 1997).

The gravamen of Plaintiff's Amended Complaint is that D.C. Riggins, Inc. was

the lowest qualified bidder in the competitive bid process for the contract for Pump

Station Maintenance, but the contract was awarded to American Hydraulics, Inc., the

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second lowest qualified bidder, a registered W/MBE, pursuant to Polk County

Ordinance 10-005. The Court understands that Plaintiff is challenging the

constitutionality of Polk County Ordinance 10-005, as applied to the bid process in

which D.C. Riggins, Inc. participated.

After consideration, the Court grants Defendant's Motion to Dismiss the

Amended Complaint as to the Title Vll claim, with leave to file a Second Amended

Complaint within fourteen days which excludes the Title Vll claim and which includes

specific allegations as to Plaintiff's equal protection claim.

B. Fed. R. Civ. P. 17(a)

Fed. R. Civ. P. 17(a) provides that an action must be prosecuted in the name of

the real party in interest.

Plaintiff signed the Amended Complaint in his capacity as

President of D.C. Riggins, Inc. (Dkt. 11, p. 11). Given the factual allegations in the

Amended Complaint, the real party in interest is D.C. Riggins, Inc.

The Court directs Plaintiff's attention to Local Rule 2.03(e): A corporation may

appear and be heard only through counsel admitted to practice in the Court pursuant to

Rule 2.01 or Rule 2.02.

After consideration, the Court grants leave to Plaintiff to file an Amended

Complaint which includes D.C. Riggins, Inc. as Plaintiff, within fourteen days. Upon the

filing of the Second Amended Complaint, D.C. Riggins, Inc. shall comply with Local

Rule 2.03(e).

C. Motion to Strike

Plaintiff moves to strike Dkts. 8 and 9 because Plaintiff did not receive them.

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Case No. 8:12-CV-1755-T-17TBM

Plaintiff requests an order directing Defendant to serve Plaintiff via certified mail.

Defendant responds that copies of the Motions were mailed to Plaintiff, and

Defendant moved to amend the case management report before the Court issued its

scheduling Order.

Plaintiff is proceeding p_ro se and therefore does not receive service via CM/ECF.

Defendant has served Plaintiff with documents via U.S. Mail in the past, and will

continue to do so.

After consideration, the Court denies the Motion to Strike.

Plaintiff may

consent to receive service via e-mail by providing an e-mail address for electronic

confirmation of delivery; otherwise, Defendant shall continue to mail documents to

Plaintiff via U.S. Mail. Accordingly, it is

ORDERED that Defendant's Motion to Dismiss is granted; Plaintiff shall file a

Second Amended Complaint within fourteen days as specified above. The Motion to

Strike is denied.

DONE and ORDERED in Chambers, in Tampa, Florida on this

12th day of November, 2013.

N

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