Roger Brown v. Citizens Property Insurance Corporation

        USCA11 Case: 20-11607    Date Filed: 02/04/2021    Page: 1 of 7

                                                          [DO NOT PUBLISH]


                     FOR THE ELEVENTH CIRCUIT

                             No. 20-11607
                         Non-Argument Calendar

                D.C. Docket No. 8:19-cv-01951-CEH-SPF







                Appeal from the United States District Court
                    for the Middle District of Florida

                            (February 4, 2021)

Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
          USCA11 Case: 20-11607        Date Filed: 02/04/2021    Page: 2 of 7

      Roger Brown filed an action against Citizens Property Insurance
Corporation, alleging various state law claims connected to a settlement

agreement. The district court dismissed the action when it found that the
corporation was an arm of the state. Finding no error in the district court’s
holding, we affirm.
      Citizens Property Insurance Corporation (CPIC) was established by the
Florida legislature to provide “affordable property insurance.” Fla. Stat.

§ 627.351(6)(a)1. And the Florida legislature further described CPIC as “a
government entity that is an integral part of the state, and that is not a private
insurance company.”

Id. That is the

entity which Brown now sues.
      In 2011, Brown co-owned property in Clearwater, Florida. The trouble was
that his property was adjacent to a designated sinkhole property. So he submitted a
claim to his property’s insurer, CPIC. His claim was disputed, but the ensuing
litigation was settled in 2014. That same year, Brown’s property was foreclosed,
with the final judgment of foreclosure assigned to the Federal National Mortgage
Association (FNMA).
      CPIC wrote a check for about half the settlement amount, made jointly to
Brown and FNMA. Because Brown had not dealt with FNMA before, he sought to
get it reissued in his name only. But each time Brown demanded payment, CPIC
continued to issue joint checks. Eventually Brown had enough, and he filed this
action in federal district court against CPIC and “unknown employees” of that
corporation. Brown’s amended complaint alleges breach of contract, conversion,

          USCA11 Case: 20-11607       Date Filed: 02/04/2021    Page: 3 of 7

unjust enrichment, intentional breach of fiduciary duty, and intentional infliction of
severe emotional distress.

      CPIC filed a motion to dismiss for lack of subject matter jurisdiction, citing
Eleventh Amendment immunity. In response, Brown argued that Congress can
abrogate sovereign immunity, that he could still sue under Ex parte Young, that
Florida had waived its immunity, and that CPIC is not an arm of the state. He also
filed a motion to compel CPIC to answer interrogatories and produce documents,
as well as a motion to compel discovery. Both were denied by the district court

because “the discovery requests at issue” were “not relevant to a determination of
the Court’s jurisdiction.”
      And ultimately, the district court agreed with CPIC that the Eleventh
Amendment blocked subject matter jurisdiction. More specifically, the court noted
the language of the state statute, and that “courts regularly recognize [CPIC]’s
status as a state government entity.” It also found that Florida never explicitly
waived CPIC’s “immunity from suit in federal court.” And the court found that the
“unknown employees” were not identified or served, and that therefore their
inclusion was “not a barrier to dismissal of” the action. So the case was dismissed,
and Brown now appeals.
      We review de novo the district court’s ruling on Eleventh Amendment
immunity. Pellitteri v. Prine, 

776 F.3d 777

, 779 (11th Cir. 2015).

          USCA11 Case: 20-11607        Date Filed: 02/04/2021    Page: 4 of 7


      As to CPIC itself, Brown argues that it is not an “arm of the state.” The
district court found otherwise, and Brown has given us no reason to find that its
decision was error. Because we agree with the district court, we affirm.
      “Eleventh Amendment immunity bars suits by private individuals in federal
court against a state unless the state has consented to be sued or has waived its
immunity or Congress has abrogated the states’ immunity.” Nichols v. Alabama

State Bar, 

815 F.3d 726

, 731 (11th Cir. 2016). That immunity is available “only to
states and arms of the states.” Walker v. Jefferson Cnty. Bd. of Educ., 

771 F.3d 748

, 751 (11th Cir. 2014) (internal quotation marks omitted). Whether an entity is
an arm of the state is determined based on four factors: “(1) how the state law
defines the entity; (2) the degree of state control over the entity; (3) where the
entity derives its funds; and (4) who is responsible for judgments against the

Nichols, 815 F.3d at 732

      The first two factors weigh heavily in favor of finding that CPIC is an arm of
the state. For the first factor, as mentioned before, the Florida legislature defined
CPIC as “a government entity,” and specifically noted that it was “not a private
insurance company.” Fla. Stat. § 627.351(6)(a)1. As for the second factor, CPIC
operates pursuant to a plan “approved by order of the Financial Services
Commission,” which is “subject to continuous review.” Fla. Stat.
§ 627.351(6)(a)2. Further, the commission “may, by order, withdraw approval of
all or part of a plan if the commission determines that conditions have changed

           USCA11 Case: 20-11607        Date Filed: 02/04/2021     Page: 5 of 7

since approval was granted and that the purposes of the plan require changes in the

Id. The Financial Services

Commission, in turn, is composed of “the

Governor, the Attorney General, the Chief Financial Officer, and the
Commissioner of Agriculture.” Fla. Stat. § 20.121(3). Brown does not dispute
these factors beyond conclusory statements which seldom touch directly on the
multi-factor approach. And though he briefly mentions the other factors in the
analysis, he does not show that they outweigh the first two. Cf. Lake v. Skelton,

840 F.3d 1334

, 1344 (11th Cir. 2016) (“[A]n actual drain on the state treasury is

not required for immunity to apply.” (internal quotation marks omitted)).
       Brown also argues in the alternative that, even if CPIC is an arm of the state,
Florida has waived the entity’s Eleventh Amendment immunity. Not so. “The test
to determine if a state has waived its sovereign immunity is a stringent one.”
Barnes v. Zaccari, 

669 F.3d 1295

, 1308 (11th Cir. 2012) (internal quotations
omitted). A “waiver of Eleventh Amendment immunity must specifically permit
suits in federal court.”

Id. It is true

that the Florida Statutes explicitly state that the
liability and cause of action shield does not extend to every circumstance; such
exceptions include “willful tort” and “breach of any contract or agreement
pertaining to insurance coverage.” Fla. Stat. § 627.351(6)(s)1. But, without more,
that just means Florida waived immunity for certain suits in state courts. And
Brown raises nothing before us that would meet the “stringent” test for finding that
Florida waived CPIC’s immunity from suits in federal court.

          USCA11 Case: 20-11607        Date Filed: 02/04/2021    Page: 6 of 7

      Brown’s remaining arguments on appeal relate to the “unknown employees”

he attempted to sue. In particular, he alleges that the district court erred in
(1) denying his motions to compel discovery, answer interrogatories, and produce
documents, and (2) dismissing the claim against the unknown employees. For the
former, we review the district court’s decision for abuse of discretion. Holloman v.
Mail-Well Corp., 

443 F.3d 832

, 837 (11th Cir. 2006). For the latter, we review the
dismissal de novo. Richardson v. Johnson, 

598 F.3d 734

, 737 (11th Cir. 2010).

And for both, we affirm.
      Brown has failed to show that the district court abused its discretion in
denying his motions to compel discovery. We have noted in the past that a district
court “may deny a motion to compel further deposition questioning when the court
determines that the questions are irrelevant.” Com. Union Ins. Co. v. Westrope,

730 F.2d 729

, 732 (11th Cir. 1984). So too here. Nothing for which Brown sought
discovery would have been relevant to the district court’s finding of Eleventh
Amendment immunity as to CPIC—and that finding turns out to be dispositive.
And as for the unknown employees, Brown only argued that his discovery motions
would have been helpful for bringing an Ex parte Young action against them. But
he fails to adequately allege any violation of federal law, and Ex parte Young does
not apply to mere state law violations. See Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 

506 U.S. 139

, 146 (1993).
      Nor did the district court err in dismissing Brown’s claims asserted against
the unknown employees. “As a general matter, fictitious-party pleading is not

          USCA11 Case: 20-11607       Date Filed: 02/04/2021    Page: 7 of 7

permitted in federal court.” 

Richardson, 598 F.3d at 738

. And though we have a
“limited exception” to that rule for when the plaintiff still provides some specific

description of the defendant, Brown does not reach that standard.

Id. IV.

      We have sympathy for Brown’s apparent predicament. But because CPIC is

an arm of the state, Eleventh Amendment immunity bars him from bringing his
claims in federal court. We therefore AFFIRM the district court’s judgment.


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