NAEH Media Group LLC, et al v. City of Lauderhill, Florida

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11022
Non-Argument Calendar
____________________
NAEH MEDIA GROUP LLC,
TK ENTERPRISES, INC.,
Plaintiffs-Appellants,
versus
CITY OF LAUDERHILL, FLORIDA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-61270-RKA
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2 Opinion of the Court 23-11022
____________________
Before R OSENBAUM , NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Two businesses located in Lauderhill, Florida, sued the City
government under 42 U.S.C. § 1983 for procedural-due-process vi-
olations after the City forced them to close for tax and certification
issues. The businesses alleged that the City failed to provide ade-
quate notice or a meaningful opportunity to be heard. The district
court granted summary judgment to the City, reasoning that the
businesses’ complaint failed to allege a City custom or policy that
caused their alleged constitutional injury and that they could not
amend their complaint through argument at summary judgment.
Because we conclude that the complaint provided fair notice of the
custom or policy on which the businesses relied at summary judg-
ment, we vacate the judgment and remand for further proceedings.
I.
Plaintiffs NAEH Media Group LLC (a news publication) and
TK Enterprises, Inc. (a catering company), sued the City, a “Florida
municipality,” under 42 U.S.C. § 1983 and state law, alleging viola-
tions of their procedural-due-process rights under the federal and
Florida constitutions.
In February 2021, according to the complaint, the City, fac-
ing COVID-pandemic-related revenue shortfalls, began “blan-
ket[ing] the municipality with notices threatening business closures
if certificates of use (and associated fees paid) were not updated and
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23-11022 Opinion of the Court 3
local business taxes were not paid by the offending commercial op-
erations.” On February 24, 2021, a City code enforcement officer
posted a notice at Plaintiffs’ shared office stating that they were
“subject to immediate closure” if the certificate of use and tax vio-
lations were not corrected within 24 hours of the notice. The next
day, City code- and law-enforcement officers entered Plaintiffs’ of-
fice, ordered employees to depart immediately, and hired a lock-
smith to change the locks. The complaint continues, “[I]n its rush
to increase revenue, however,” the City failed to inform Plaintiffs
of the notice and hearing procedures outlined in City ordinances,
which required at least ten days’—not 24 hours’—advance notice,
and also provided a right to a due-process hearing.
In Count I, Plaintiffs alleged that the City violated their “fed-
eral due-process rights by removing and excluding Plaintiffs from
the companies’ office space and business property without provid-
ing notice and an opportunity to be heard as explicitly required by
Sections 12-3(c)(1), 12-33(d) and 12-7(c) of the City of Lauderhill,
Florida, Code of Ordinances and implicitly demanded by the Four-
teenth Amendment to the United States Constitution.” Count II
made the same basic claim under the Florida Constitution. The
City answered the complaint and then, following discovery,
moved for summary judgment. Plaintiffs filed a cross-motion for
summary judgment, and the parties filed various responses and re-
plies.
In relevant part, the City argued that summary judgment
was appropriate because the complaint failed to plead a claim of
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4 Opinion of the Court 23-11022
municipal liability under § 1983 and instead sought to hold the City
vicariously liable for the allegedly unconstitutional conduct of its
employees, which was not a valid basis for § 1983 liability under
Monell v. Department of Social Services, 436 U.S. 658 (1978). The City
also contended that Plaintiffs lacked a protected property interest
and failed to utilize available post-deprivation procedures.
The Plaintiffs responded that a “reasonable evaluation of the
Complaint demonstrates it contains sufficient factual allegations to
satisfy Monell pleading standards,” and that the other issues raised
by the City did not warrant summary judgment. Plaintiffs also ar-
gued in their own motion for summary judgment that the evidence
otherwise sufficed to establish that an unofficial policy or custom
of closing businesses on only 24 hours’ notice, in violation of City
ordinances and due process, caused their injuries. Specifically, they
cited the testimony of April Skinner, the City’s Chief of Code En-
forcement, who stated that Lauderhill Code Enforcement had been
issuing 24-hour notices to businesses rather than providing 10 days’
notice “since [she’s] been working for the City of Lauderhill,”
which had been close to 18 years.
The district court granted summary judgment to the City.
The court agreed with the City’s argument that the complaint
failed to adequately plead a Monell claim, so the court did not ad-
dress the City’s remaining arguments on the merits of the claims.
In particular, the court found that the complaint was fatally defi-
cient with regard to any potential Monell claim because it failed to
“allege[] that the City caused the (purported) deprivation of the
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23-11022 Opinion of the Court 5
Plaintiffs’ constitutional rights in any of the three ways the Elev-
enth Circuit outlined in Hoefling [v. City of Miami, 811 F.3d 1271,
1279 (11th Cir. 2016)].” Rather, in the court’s view, the complaint
was “expressly limited to the City’s (purported) violation of the
Plaintiffs’ constitutional rights.”
Although the district court acknowledged that Plaintiffs had
presented evidence of an unofficial, 24-hour notice policy or cus-
tom at summary judgment, the court found this evidence insuffi-
cient for two reasons. First, the court stated, Plaintiffs “forfeited
any such argument” by failing to present it in response to the City’s
motion for summary judgment, instead of its own motion for sum-
mary judgment only. And second, in the court’s view, the evidence
should be disregarded, in any case, “because a party cannot use its
summary-judgment briefing to amend its complaint,” which did
not identify the alleged 24-hour notice policy or any supporting ev-
idence.
Accordingly, the district court granted summary judgment
to the City on Plaintiffs’ § 1983 claim. Having resolved the sole
federal claim, the court declined to exercise supplemental jurisdic-
tion over the remaining state-law claim.
II.
We review the grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in favor of the
nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th
Cir. 2017). Summary judgment is appropriate if “the movant
shows that there is no genuine dispute as to any material fact and
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6 Opinion of the Court 23-11022
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
III.
In Monell and later cases, the Supreme Court held that, while
local governments are subject to liability under § 1983, a plaintiff
cannot rely upon the doctrine of respondeat superior, or vicarious
liability, to hold the government liable. Monell v. Dep’t of Social
Servs., 436 U.S. 658, 693–94 (1978); City of Canton v. Harris, 489 U.S.
378, 385 (1989); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403 (1997). Rather, the Court has “required a plaintiff seeking
to impose liability on a municipality under § 1983 to identify a mu-
nicipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”
Brown, 520 U.S. at 403. This requirement is “to ensure that the mu-
nicipality is held liable only for its own conduct.” Id. at 404; see
McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004).
A plaintiff can establish the requisite degree of culpability in
several ways. “A municipality can be liable for an official policy
enacted by its legislative body (e.g., an ordinance or resolution
passed by a city council).” Hoefling, 811 F.3d at 1279. “Municipal
liability may also attach if final policymakers have acquiesced in a
longstanding practice that constitutes the entity’s standard operat-
ing procedure.” Id.
A.
The district court granted summary judgment to the City
because it found that Plaintiffs failed to plead a Monell claim in the
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23-11022 Opinion of the Court 7
complaint. As a result, the court declined to consider Plaintiffs’ ev-
idence of a custom or policy at summary judgment.1
The federal pleading rules require “a short and plain state-
ment of the claim,” Fed. R. Civ. P. 8(a), which “give[s] the defend-
ant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests,” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (cleaned
up). “This simplified notice pleading standard relies on liberal dis-
covery rules and summary judgment motions to define disputed
facts and issues and to dispose of unmeritorious claims.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513–14 (2002).
“Despite the liberal pleading standard for civil complaints,
plaintiffs may not raise new claims at the summary judgment
stage.” White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200
(11th Cir. 2015) (quotation marks omitted). The proper procedure
for plaintiffs to assert a new claim is to amend the complaint in ac-
cordance with Rule 15, Fed. R. Civ. P. Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
1 The district court also reasoned that this argument was forfeited because
Plaintiffs failed to raise it in response to the City’s summary-judgment motion.
But the City’s motion did not seek summary judgment for lack of sufficient
evidence of a custom or policy, so Plaintiffs had no reason or obligation to
raise the evidence in their response. Plus, Plaintiffs’ response clearly disputed
the City’s argument that the complaint failed to allege a Monell claim based on
an alleged 24-hour-notice policy. And as the court itself noted, Plaintiffs ar-
gued the evidence in other summary-judgment filings, to which the City had
the opportunity to respond. We see no grounds for forfeiture on these facts.
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8 Opinion of the Court 23-11022
But no amendment is required if the complaint “put [the de-
fendant] on notice” of the claim. White, 789 F.3d at 1200. In that
regard, “[a] complaint need not specify in detail the precise theory
giving rise to recovery. All that is required is that the defendant be
on notice as to the claim being asserted against him and the
grounds on which it rests.” MSP Recovery Claims, Series LLC v.
United Auto. Ins. Co., 60 F.4th 1314, 1319 (11th Cir. 2023) (quotation
marks omitted). At bottom, the complaint must identify any “basis
for liability” relied on at summary judgment. See MSP Recovery
Claims, 60 F.4th at 1319–20 (claim based on a settlement agreement
was forfeited where the complaint failed to allege “that the settle-
ment agreement served as a basis for liability”); see also Hurlbert v.
St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006)
(claim based on a “separate statutory basis for entitlement to leave”
than alleged was not properly raised at summary judgment because
it “effect[ed] a fundamental change” in the nature of the claim); Gil-
mour, 382 F.3d at 1315 (“Gates had no notice of a contract claim
based on the tort claims set forth in the complaint.”).
B.
Here, the district court erred in determining that Plaintiffs
raised a new claim at summary judgment. According to the com-
plaint, Plaintiffs sought to hold the City, a “Florida municipality,”
liable under § 1983 for causing the closure of their business on 24-
hour notice. The complaint asserted that this conduct violated
Plaintiffs’ procedural-due-process rights and City ordinances,
which required at least 10 days’ advance notice and provided for a
due-process hearing. The complaint also indicated that Plaintiffs’
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23-11022 Opinion of the Court 9
alleged constitutional injury was not isolated, but rather was part
of a city-wide campaign—“blanket[ing] the municipality with no-
tices threatening business closures”—undertaken in a “rush to in-
crease revenue” following pandemic-related budget shortfalls.
Although the complaint did not expressly cite Monell or use
the terms “custom” or “policy,” it put the City on notice that Plain-
tiffs sought to prove that the City itself—not simply individual ac-
tors employed by the City—was the moving force behind the al-
leged constitutional injury. See Hoefling, 811 F.3d at 1279–80; White,
789 F.3d at 1200. In particular, it provided notice that the basis for
liability was the allegedly deficient 24-hour notice Plaintiffs and
other businesses received from the City. Thus, evidence that City
Code Enforcement had an unofficial 24-hour-notice custom or pol-
icy, even if it preceded the pandemic, does not present a new basis
for liability. See MSP Recovery Claims, 60 F.4th at 1319. In other
words, the evidence is better characterized as “additional facts as-
serted in support of the [municipal liability] claim already pled in
[the] complaint,” not a “fundamental change” in the nature of the
claim. Hurlbert, 439 F.3d at 1297. In our view, no amendment of
the complaint was necessary for Plaintiffs to argue this evidence at
summary judgment.
Notably, if the City believed the complaint alleged vicarious
liability only, which is not actionable against a municipality, see Mo-
nell, 436 U.S. at 693–94, it could have moved to dismiss the com-
plaint for failure to state a claim under Federal Rule of Civil Proce-
dure 12(b)(6). But it didn’t. Instead, the City answered the
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10 Opinion of the Court 23-11022
complaint, engaged in discovery, and then moved for summary
judgment. And the question at summary judgment is not whether
the complaint stated a plausible claim, but whether the evidence
reasonably could support a verdict for the nonmoving party on its
claims. See, e.g., Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,
1134 (11th Cir. 2020) (en banc).
For these reasons, we conclude that the district court erred
in granting summary judgment based on perceived deficiencies in
the complaint. We decline to resolve the other grounds for affir-
mance raised by the City, preferring that the district court address
them in the first instance. See, e.g., Waldron v. Spicher, 954 F.3d
1297, 1312 (11th Cir. 2020) (declining to resolve certain issues at
summary judgment and remanding for the district court to address
them “in the first instance”). Accordingly, we vacate and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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