Ismael Lozada v. Hobby Lobby Stores, Inc. , 702 F. App'x 904 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15959
Non-Argument Calendar
________________________
D.C. Docket No. 6:15-cv-00711-CEM-TBS
ISMAEL LOZADA,
Plaintiff - Appellant,
versus
HOBBY LOBBY STORES, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 31, 2017)
Before HULL, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Michael Licari, manager of the Kissimmee, Florida Hobby Lobby store,
called law enforcement to report that one of his employees, Ismael Lozada, was
planning a mass shooting. Sheriff’s deputies, including Tate Wilson, responded to
the store and interviewed Licari, who related a series of troubling conversations
among the store’s employees about Lozada. After that interview, Wilson located
Lozada and civilly committed him pursuant to Florida’s Baker Act. Fla. Stat.
§ 394.451 et seq. Lozada was detained for approximately 36 hours. He was
released, and no further action was taken against him.
Lozada filed this case alleging Florida state law claims of defamation and
false arrest against Hobby Lobby Stores, Inc. 1 After discovery, the district court
entered summary judgment for Hobby Lobby on both claims. The court granted
summary judgment on Lozada’s defamation claim because the allegedly
defamatory statements on which it was based either were protected by qualified
privilege or not attributable to Hobby Lobby under Florida law. The court granted
summary judgment on Lozada’s false arrest claim because Hobby Lobby did not
instigate Lozada’s arrest by law enforcement. Lozada challenges each of these
rulings, but we agree with the district court that the undisputed evidence supported
summary judgment. We therefore affirm.
1
Lozada also alleged malicious prosecution, but he voluntarily dismissed that claim.
2
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I. BACKGROUND
A. Hobby Lobby Employee Conversations
After they left the store on the evening of Tuesday, February 24th, 2015,
Hobby Lobby employees Ray Dendariarina, Corey Cozzens, and Destinie Crupi
had a conversation in the store’s parking lot. Cozzens mentioned “how negative”
their fellow employee, Lozada, “was being.” Cozzens Statement, Doc. 33-17 at 8.2
Dendariarina responded that Lozada was angry and had told Dendariarina that
Lozada would shoot up3 the store on the coming Saturday if he was not promoted
from part-time to full-time status.
The next day, Wednesday, February 25th, Cozzens approached Mary
Dellofano, the store’s assistant manager, and reported what Cozzens had heard
from Dendariarina. Dellofano in turn reported the conversation to Licari, who took
charge of the store’s investigation.
B. Hobby Lobby’s Investigation
Cozzens told Licari what she had heard. Licari contacted his district
manager, who told Licari to have Cozzens write out a statement. Cozzens wrote
out a statement explaining that Dendariarina had told her that Lozada was angry at
being asked to clock out early that day and that Lozada had said he would shoot up
2
Citations to “Doc.” refer to the numbered entries in the district court record of the case.
3
Cozzens reported hearing Dendariarina say that Lozada threatened to blow up the store.
Throughout this opinion, we refer to a threatened mass shooting, but a threatened bombing
would not alter our conclusions.
3
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the store if not promoted to full-time status by Saturday. She also reported that
Lozada legally carried firearms in his vehicle.
At the request of a human resources employee, Licari also spoke with Crupi
and had her write out a statement. Crupi repeated Dendariarina’s statement that
Lozada threatened the store if he did not get what he wanted by Saturday. In her
written statement, Crupi said that Lozada had told her several times that he was
“tired of waiting for what was promised to him.” Crupi Statement, Doc. 33-17 at
7. Crupi also related that she had heard Lozada complaining to other employees
about the “full/part time” situation. Id. Crupi wrote that on Monday, Lozada had
“that he was very mad about leaving early on a day he was not scheduled to leave
until closing.” Id. (internal quotation marks omitted). From previous
conversations, Crupi knew that Lozada had firearms and kept one in his vehicle.
She concluded her statement by warning that she did not know Lozada well
enough to say that he was making hollow threats, “but with his temper lately and
conversations, [she] g[o]t the feeling his threats [we]re everything but hollow.” Id.When Dendariarina arrived at work the next day, Thursday, February 26th,
Licari and Dellofano called him into the office. Dendariarina told them that for a
month Lozada had been speaking about coming to the store, shooting it up, and
then killing himself. Dendariarina also related that Lozada had said he would
commit a violent act on the coming Saturday if he was not promoted. At Licari’s
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request, Dendariarina wrote out a statement explaining what he had heard from
Lozada over the past month. He wrote that Lozada told him Licari had lied to
another manager, and as a result Lozada would not be getting full-time status.
Dendariarina cautioned that Lozada may have been speaking out of anger, and
Dendariarina did not think Lozada would do what he was threatening. “[B]ut,” he
concluded, “you never [k]no[w] people’s anger” when “they think they [are] going
to get something right away and they don[’]t.” Dendariarina Statement, Doc. 33-
17:11.
Licari forwarded the written statements to Hobby Lobby’s corporate office.
He then received a call from David Williams, who worked in Hobby Lobby’s loss
prevention department. Williams advised Licari that Williams did not want
Lozada in the store anymore, that Lozada no longer worked for Hobby Lobby, and
that Licari should contact law enforcement. Williams also told Licari to have law
enforcement put Williams’s name down as the chief complainant on the case
report.
C. Law Enforcement’s Investigation
Late in the afternoon on Thursday, February, 26th, law enforcement received
a call about Lozada’s threats. Deputy Wilson went to the store with at least one
other sheriff’s deputy. Licari told Wilson that several employees had approached
him to report that Lozada was planning to shoot up the store and kill himself if he
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did not get what he wanted by Saturday. On a sheriff’s office form, Licari wrote
out a statement for Wilson summarizing what he had heard from the employees.
The words “Baker Act” appear handwritten in a box marked “Offense” above
Licari’s statement. Osceola Cty. Sheriff’s Office Statement, Doc. 33-2 at 91.
Following Licari’s instruction, Licari asked to have Williams named as chief
complainant, but Licari was named instead because Williams was located outside
Florida. One of the deputies said he would go speak with Lozada and assess
Lozada’s mental state to determine if he was a threat to himself or others. The
deputies told Licari they could not tell Lozada he was fired. But they would
contact Licari to let him know if Lozada was detained under the Baker Act. Licari
did not ask that Lozada be detained.
Wilson left the store and visited Lozada at the hotel where he was living. He
spoke with Lozada about his troubles at Hobby Lobby and determined that Lozada
should be detained under the Baker Act. Lozada was detained and brought to a
mental health treatment facility, where he remained for approximately 36 hours
before being released.
D. Procedural History
Lozada filed this case in Florida state court, and Hobby Lobby removed it to
federal district court. The parties proceeded to discovery. Lozada testified that he
never made any threats against the store. He had, however, spoken with
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Dendariarina about the bad culture at the Kissimmee store, the gossiping and
favoritism there, and about how the manager had lied to him. Once while
discussing the store’s bad culture, Lozada brought up recent shootings and
remarked that it would be crazy if somebody took out his frustration on the store
that way. Lozada acknowledged that Dendariarina may have said that Lozada
threatened the store because Dendariarina misinterpreted this conversation. But
Lozada also said that Dendariarina might have reported him because Dendariarina
was jealous or fighting for position, as was common at the store.
The Hobby Lobby employees testified consistently with their written
statements. Licari believed the statement he gave Wilson to be true. He felt at the
time that his life was in danger, and he knew from speaking with Lozada that
Lozada owned a firearm. Licari did not believe that Cozzens, Crupi, or
Dendariarina was lying. He observed that Cozzens appeared fearful when writing
out her statement.
In her deposition, Crupi added context to the period leading up to Lozada’s
civil commitment. In the months prior to the events of this case, Lozada told Crupi
several times that “[i]f they d[id]n’t make [him] a full-time, they’re not going to
like what they see.” Crupi Dep. 14–15, Doc. 35-1. Then, on Monday, February
23rd, Crupi observed that Lozada was very upset at being sent home early when he
expected to work until closing. Lozada said he was “sick of this,” “[t]hey’re not
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going to like what they see,” and “they just need to watch out.” Id. at 12, 14.
Crupi was unsure how to interpret this remark at the time but thought that Lozada
might be preparing to start a physical altercation with one of the managers. Crupi
also explained that Lozada and Dendariarina spoke frequently and that
Dendariarina often tried to make Lozada feel better. After Lozada was sent home
on Monday, Crupi asked Dendariarina how Lozada was doing, and Dendariarina,
who had spoken to Lozada on the phone, replied that Lozada was upset and mad
and “it was just like pure anger that was spewing out.” Id. at 13. After work on
Tuesday, Dendariarina followed up on this earlier conversation by mentioning the
threats that Lozada had made. Crupi characterized this conversation with Cozzens
and Dendariarina about Lozada’s temper as gossip. Crupi confirmed Licari’s
account of how the investigation proceeded from there. She also testified that
Dellofano informed her on Thursday that law enforcement would detain Lozada
for 72 hours once they found him.
Deputy Wilson testified about his investigation and Lozda’s detention.
When Lozada questioned him about whether his investigation would have
proceeded differently if he had known that only one employee had approached the
store’s management about Lozada’s threats, Wilson refused to speculate.
After the parties concluded discovery, Hobby Lobby moved for summary
judgment. The district court granted the motion. This is Lozada’s appeal.
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II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment to Hobby Lobby
de novo, applying the same legal standards used by the district court. Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). We view
the evidence and all reasonable inferences from the evidence in the light most
favorable to Lozada and resolve all reasonable doubts about the facts in his favor.
Id. Summary judgment is appropriate when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Mere speculation is insufficient to create a genuine issue of material
fact. See Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
III. DISCUSSION
A. Dendariarina’s Statement to Cozzens and Crupi Was Not Attributable
to Hobby Lobby.
Hobby Lobby was entitled to summary judgment on Lozada’s defamation
claims based on Dendariarina’s statement to Cozzens and Crupi because under
Florida law, the statement could not be attributed to Hobby Lobby. Lozada
contends that the district court ignored Hobby Lobby’s burden of proof and failed
to draw all reasonable inferences in Lozada’s favor. We disagree and affirm the
district court’s grant of summary judgment.
Dendariarina’s statement that Lozada intended to shoot up the Kissimmee
store could only be attributed to Hobby Lobby if Dendariarina made that statement
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within the scope of his employment. Defamation is an intentional tort. See Rowell
v. Holt, 850 So. 2d 474, 478 n.1 (Fla. 2003). An employer generally is not liable
for a tort committed by its employee. See City of Miami v. Simpson, 172 So.2d
435, 437 (Fla. 1965). That employer becomes liable, however, if it authorized the
tort or if the employee committed the tort while acting within the real or apparent
scope of his employment. See Life Ins. Co. of N. Am. v. Del Aguila, 417 So. 2d
651, 652 (Fla. 1982); Simpson, 172 So. 2d at 437. Lozada does not contend that
Hobby Lobby authorized Dendariarina to defame him, so Dendariarina’s statement
could only be attributed to Hobby Lobby if Dendariarina made it within the scope
of his employment.
Dendariarina did not make his statement about Lozada’s plan within the
scope of his employment. “Under Florida law, an employee acts within the scope
of his employment ‘if his act is of the kind he is employed to perform, it occurs
substantially within the time and space limits of employment and it is activated at
least in part by a purpose to serve the master.’” Nadler v. Mann, 951 F.2d 301,
305 (11th Cir. 1992) (quoting Kane Furniture Corp. v. Miranda, 506 So. 2d 1061,
1067 (Fla Dist. Ct. App. 1987)). “The purpose of the employee’s act, rather than
the method of performance thereof, is said to be the important consideration.”
McGhee v. Volusia Cty., 679 So. 2d 729, 732 (Fla. 1996) (citation omitted). “The
question as to whether or not [an] employee is acting within the scope of his
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employment in a particular instance is a question of law for the court if there is no
conflict in the facts.” Johnson v. Gulf Life Ins. Co., 429 So. 2d 744, 746 (Fla. Dist.
Ct. App. 1983).
The undisputed facts of this case support the district court’s determination
that Dendariarina did not make his statement about Lozada for the purpose of
serving Hobby Lobby. First, the context in which Dendariarina made the
statement suggested a personal motive. The conversation during which
Dendariarina spoke about Lozada took place in the parking lot, after work, as
Dendariarina and his co-workers were about to leave for the evening. Crupi
characterized the conversation as gossip about Lozada’s temper. Cozzens
explained that Dendariarina made his statement in response to her talking about
“how negative [Lozada] was being.” Cozzens Statement, Doc. 33-17 at 8. Lozada
testified that gossiping was a problem at Hobby Lobby. He singled out Cozzens as
one who “loved to gossip.” Lozada Dep. 53, Doc. 33-1. This context suggests that
Dendariarina had nothing other than a personal motive—gossiping with
coworkers—for making his statement about Lozada.
Second, Dendariarina’s failure to report Lozada’s comments to Hobby
Lobby’s management supported the determination that he was not acting for the
purpose of serving the company. Dendariarina wrote in his statement for Hobby
Lobby that Lozada had been expressing his anger against the store for about a
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month. Yet, during that month, Dendariarina never approached store management.
And when Dendariarina finally chose to speak about Lozada, he did so to co-
workers rather than management, even though Hobby Lobby’s employee
handbook directed him to express any job related concerns to a superior. See Emp.
Handbook 10, Doc. 33-10 at 7 (“Employees are encouraged to discuss any
concerns with their immediate supervisor, other members of management, or the
Company’s Human Resources Department.”); id. at 12, Doc. 33-10 at 9 (“If an
employee has any problem relating to his/her job, the employee should promptly
and frankly discuss it with his/her supervisor.”). The handbook also required that
Dendariarina report comments inappropriate for the workplace to a higher-up. See
id. at 30, Doc. 33-12 at 7 (“If an employee feels that he/she has been subjected to
Inappropriate Conduct . . . he/she must immediately report the conduct to his/her
supervisor, OR any other appropriate member of management . . . .”); id. at 29,
Doc. 33-12 at 6 (defining “Inappropriate Conduct” to include “comments or
actions that are inappropriate for the workplace [or] disrupt and/or interfere with
work performance”). But the undisputed evidence showed that Dendariarina did
not speak to Hobby Lobby’s management about Lozada until two days after
speaking with his co-workers, and even then only after he was questioned by
management.
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Lozada contends that Dendariarina made his statement about Lozada at least
in part for the purpose of serving Hobby Lobby. He offers three arguments. First,
Lozada insists that Hobby Lobby failed to establish that Dendariarina acted solely
from personal motives, so the burden did not shift to Lozada to point out a genuine
dispute of material fact about Dendariarina’s motives. We disagree based on the
evidence we discussed above. Second, Lozada points to his own testimony as
evidence that Dendariarina may have erroneously interpreted Lozada’s statements
as a threat and therefore been motivated by a “reckless concern for the safety of
himself and his coworkers.” Appellant’s Br. 16. Although Lozada testified that
Dendariarina may have misinterpreted a conversation between them, the only
motive he ascribed to Dendariarina was “jealous[y] or fighting for a position.”
Lozada Dep. 49, Doc. 33-1. Both jealousy and angling for position would be
entirely personal motives rather than for the purpose of serving Hobby Lobby.
Third, Lozada asserts that the most natural inference from the record evidence as a
whole was that Dendariarina perceived a threat to himself and his fellow
employees and communicated it in the interest of the safety of the Kissimmee
store. In effect, Lozada argues for a rule that every employee who makes a
statement to a co-worker about another co-worker’s alleged workplace threat
automatically does so for the purpose of serving their employer. While that may
often be the case, we disagree that workplace safety motivated Dendariarina here
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in light of all the evidence pointing to a personal motive. On this record, the
inference Lozada asks us to draw is too speculative to withstand summary
judgment. See Cordoba, 419 F.3d at 1181. Because there was no dispute of
material fact as to Dendariarina’s motivation for making his statement about
Lozada to Crupi and Cozzens, the district court properly concluded that
Dendariarina did not make that statement within the scope of his employment by
Hobby Lobby. We therefore affirm the district court’s grant of summary judgment
to Hobby Lobby on Lozada’s defamation claim based on Dendariarina’s statement
to Cozzens and Crupi. 4
B. Hobby Lobby’s Statements Were Protected by Qualified Privilege.
Summary judgment for Hobby Lobby on Lozada’s remaining defamation
claims against the company was appropriate because even assuming the statements
attributable to Hobby Lobby were defamatory, those statements were protected by
qualified privilege. Florida law provides that some defamatory statements are
protected by privilege. See, e.g., Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla
1984). There are two types of privilege applicable to defamation claims: absolute
4
The district court also determined that Dendariarina was acting outside the scope of his
employment based on where and when Dendariarina made his statement. Lozada makes several
persuasive arguments challenging the district court’s reasoning. We need not review the court’s
determination, however, because our conclusion that Dendariarina did not act with the purpose
of serving Hobby Lobby is sufficient to affirm the district court’s grant of summary judgment.
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and qualified. See Fridovich v. Fridovich, 598 So. 2d 65, 66–69 (Fla. 1992). In
Nodar, the Supreme Court of Florida explained qualified privilege as follows:
A communication made in good faith on any subject matter by one
having an interest therein, or in reference to which he has a duty, is
privileged if made to a person having a corresponding interest or duty,
even though it contains matter which would otherwise be actionable,
and though the duty is not a legal one but only a moral or social
obligation.
462 So. 2d at 809. A plaintiff can nevertheless overcome a defendant’s qualified
privilege by establishing that the defendant acted with express malice in making
the defamatory statements. See Fridovich, 598 So. 2d at 69.
A defendant acts with express malice in making defamatory statements
when his “primary motive in making the statements [is] the intent to injure the
reputation of the plaintiff.” Id. “If the occasion of the communication is
privileged because of a proper interest to be protected, and the defamer is
motivated by a desire to protect that interest, he does not forfeit the privilege
merely because he also in fact feels hostility or ill will toward the plaintiff.”
Nodar, 462 So. 2d at 811–12. Indeed, “[s]trong, angry, or intemperate words do
not alone show express malice; rather, there must be a showing that the speaker
used his privileged position to gratify his malevolence.” Id. at 811 (internal
quotation marks omitted).
The allegedly defamatory statements attributable to Hobby Lobby in this
case were protected by qualified privilege. “Where the circumstances surrounding
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a defamatory communication are undisputed, or are so clear under the evidence as
to be unquestionable, then the question of whether the occasion upon which they
were spoken was privileged is a question of law to be decided by the court.” Id. at
810. Here, the undisputed evidence established that two statements made by
Hobby Lobby employees and attributable to the company, Licari’s statement to
law enforcement and Dendariarina’s statements to his managers, were qualifiedly
privileged and made without express malice. We examine each of these statements
in turn.
1. Licari’s Statement to Law Enforcement Was Privileged.
The district court did not err in granting summary judgment to Hobby Lobby
on Lozada’s defamation claim that was based on Licari’s statement to the sheriff’s
deputies. The undisputed facts demonstrated that this statement was qualifiedly
privileged and that Licari did not make it with express malice. On appeal, Lozada
identifies two misrepresentations 5 in Licari’s statement: (1) the number of
employees who heard Lozada threaten the store, and (2) the imminent nature of
Lozada’s threat. Lozada alleges these misrepresentations were made recklessly,
and contends that such reckless misrepresentations overcome qualified privilege
5
Lozada identified other alleged misrepresentations before the district court. But he
neither identifies them nor makes any arguments about them on appeal. He has therefore
abandoned any claims based on those misrepresentations. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (holding issues not adequately briefed on appeal are
abandoned).
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under Florida law. Even if Lozada’s interpretation of the law is correct, however,
neither of Licari’s alleged misrepresentations evinced any recklessness on his part.
We therefore affirm.
Licari wrote about Lozada’s threat in his statement to the deputies:
I was approached by some employees about threats that were made by
Ismael Lozada (Izzy) that he was gonna shoot up the store and kill
himself if he didn’t get what he wants. Izzy was stating if he didn’t
get what he wants this Saturday . . . . Izzy has told me he has a full
concealed carry permit and he Izzy has worked as a armed security
guard which he has told me. He has shown employees pictures of his
firearms.
Osceola Cty. Sheriff’s Office Statement, Doc. 33-2 at 91. Assuming this statement
was defamatory, “defamatory statements voluntarily made by [a] private
individual[] to the police . . . prior to the institution of criminal charges are
presumptively qualifiedly privileged.” Fridovich, 598 So. 2d at 69. Lozada does
not contest that Licari’s statement was voluntary, that he was a private individual,
or that he made his statement to law enforcement prior to the institution of criminal
charges. Licari’s statement thus was presumptively privileged.
There is no evidence that Licari acted with express malice in making his
statement. To the contrary, the evidence demonstrated that Licari believed the
statement he provided to law enforcement to be true. He observed Cozzens to be
fearful when writing her statement, and he believed she was reporting in good faith
what she had heard. Licari also believed Dendariarina was truthful. And Crupi,
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whom he also believed, confirmed that Lozada was upset about the full-time/part-
time status situation. Licari knew Lozada owned a firearm, and at the time Licari
spoke with law enforcement, Licari felt that his life was in danger. None of this
evidence even hinted that Licari’s “primary motive in making his statements was
the intent to injure [Lozada’s] reputation,” as was required to find express malice.
Id. Because Licari’s statement was qualifiedly privileged and made without
express malice, the district court properly determined that Lozada’s defamation
claim based on the statement must be dismissed.
Lozada argues that Licari’s statement to law enforcement was not privileged
based on a recent Supreme Court of Florida decision. See Valladares v. Bank of
Am. Corp., 197 So. 3d 1 (Fla. 2016). He cites Valladares as standing for the
proposition that reckless misrepresentations to law enforcement overcome
qualified privilege. This case is relevant, Lozada contends, because the
misrepresentations in Licari’s statement provide enough evidence to suggest
recklessness and therefore preclude summary judgment. We do not find this
argument persuasive.
The Supreme Court of Florida recognized in Valladares that reckless
misrepresentations to law enforcement may overcome qualified privilege, id. at 12,
but it did so in the context of a cause of action for negligent reports to law
enforcement rather than the intentional tort of defamation. Id. at 7. The court
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called it “critical [to] recognize and maintain a real, meaningful distinction
between intentional torts, malicious prosecution, false arrest, and negligent acts
arising from conduct in” the context of false reports to law enforcement. Id. We
therefore doubt that Valladares altered the express malice requirement for
overcoming qualified privilege in the defamation context. We need not answer this
question of Florida law, however, because there was no evidence that Licari acted
recklessly in making his statement to law enforcement.
To the extent that Licari made any misrepresentations to law enforcement,
they did not amount to recklessness. Recklessness in this context means
“negligence . . . of a gross and flagrant character, evincing reckless disregard of
human life, or of the safety of persons exposed to its dangerous effects . . . or a
grossly careless disregard of the safety and welfare of the public.” Id. at 11(internal quotation marks omitted). The facts of Valladares are instructive. There,
a bank teller falsely identified plaintiff Rodolfo Valladares as a bank robber police
were searching for. Id. at 2. Valladares differed from the robber in both
appearance and ethnicity, but the teller nevertheless pushed her silent alarm as
Valladares approached her to cash a check. Id. Valladares handed the teller the
check and his identification, and he waited at the counter for 15 to 20 minutes as
the teller made excuses to delay him. Id. at 2–3. Eventually, Valladares gave up
on cashing his check and attempted to leave the bank. Id. at 3–4. But police
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officers arrived, and another bank employee pointed to Valladares as the robber.
Id. at 4. Valladares was injured severely when an officer kicked him in the head.
Id. The Supreme Court of Florida concluded that the bank employees’ behavior
constituted reckless, culpable conduct that they knew or should have known would
result in harm to others. Id. at 12.
Neither of the two alleged misrepresentations Lozada identifies in Licari’s
statement approached the recklessness displayed in Valladares. First, Lozada
argues that Licari’s statement that he “was approached by some employees about
threats that were made by [Lozada]” was false because only one employee,
Cozzens, had approached Licari and using the word “some” implied that more than
one employee heard Lozada threaten to commit violence. Appellant’s Br. 21
(quoting Doc. 33-2:91). Although only Cozzens sought out the store’s managers 6
and only Dendariarina heard Lozada’s alleged threats, there is no indication that
writing “some employees” instead of “an employee” was so significant as to
evince a reckless disregard for human life. Lozada even asked Wilson at his
deposition whether Wilson’s investigation would have proceeded differently if he
knew that only one employee had approached management “about some rumor or
gossip they had heard from another employee about what that employee had heard
from [Lozada].” Wilson Dep. 23, Doc. 33-3. Wilson refused to speculate. Id. So
6
The record reflects that the store’s managers initiated the conversations with Crupi and
Dendariarina.
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do we. See Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015)
(“[S]peculation [is] insufficient to create a genuine issue of material fact.”).
Second, Lozada insists that Licari misrepresented the imminent nature of
Lozada’s threat. According to Lozada, Licari’s statement that Lozada would shoot
up the store if he did not get what he wanted by the coming Saturday was
misleading because Dendariarina—the only one who heard Lozada’s threats—did
not include that information in the written statement Licari reviewed. Lozada
claims that the imminent nature of the threat was relevant to law enforcement’s
decision to detain him because detention under the Baker Act requires “a
substantial likelihood that . . . [a] person will cause serious bodily harm to himself
or herself or others in the near future.” Fla. Stat. § 394.463(1)(b)2 (emphasis
added). As such, Lozada asserts that Licari’s misrepresentation was reckless. Yet
it does not seem that Licari made such a misrepresentation. Dendariarina verbally
informed Licari about the Saturday threat. Dellofano, who was present at the
meeting between Dendariarina and Licari testified as much, and Lozada points to
no contrary evidence. But even if Licari did not learn about the significance of
Saturday from Dendariarina, Cozzens mentioned it in her written statement, and
Crupi mentioned it when Licari interviewed her. So, at worst, Licari’s
misrepresentation was the implication that he heard about the Saturday deadline
from the same person who heard Lozada’s initial threat instead of through an
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intermediary. Even if this was a misrepresentation, it was not so reckless as to
overcome Hobby Lobby’s qualified privilege.
Licari’s statement to law enforcement was protected by qualified privilege,
and there was no evidence that Licari acted with express malice sufficient to
overcome that privilege. The Valladares case is inapposite because neither of
Licari’s alleged misrepresentations was reckless. We therefore affirm the district
court’s grant of summary judgment to Hobby Lobby on Lozada’s defamation claim
that is based on Licari’s statement to law enforcement.
2. Dendariarina’s Statements to His Managers Were Privileged.
The district court also properly granted summary judgment to Hobby Lobby
on Lozada’s defamation claim based on Dendariarina’s statement to his managers.7
This claim was based on both the oral statement Dendariarina made to Licari and
Dellofano and the written statement he provided at Licari’s request. The district
court concluded that qualified privilege applied to Dendariarina’s statements to his
managers, and Lozada does not challenge this conclusion. Instead, Lozada argues
that Dendariarina acted with express malice, which nullified the qualified
privilege. But the undisputed evidence did not support Lozada’s argument.
7
In his brief, Lozada frames his argument much more broadly to encompass allegedly
defamatory statements made by Cozzens and Crupi to Licari and Dellofano and by Licari to
members of Hobby Lobby’s upper management. But Lozada offers support only for his
contention that Dendariarina’s statements to his managers were made with express malice. We
therefore consider only these statements on appeal. See Sapuppo, 739 F.3d at 680–81.
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Dendariarina did not act with express malice in making the statements about
Lozada to his managers. First, even assuming Lozada never actually told
Dendariarina he intended to shoot up the Kissimmee store, the evidence indicated
that Dendariarina misinterpreted a series of conversations he had with Lozada.
Lozada testified that he spoke with Dendariarina about the bad culture at the
Kissimmee store: “how it was unpleasant to work there, the gossiping, the
favoritism,” and about how the manager had lied to him. Lozada Dep. 45, Doc.
33-1. While discussing the store’s bad culture, Lozada once said that “because of
everything that was going on in the news[,] people shooting up, you know, schools
and everything that was going on, that [it] would be crazy if someone takes their
frustration out like that here . . . .” Id. at 46–47. Lozada admitted that
Dendariarina may have made the statements he did to Hobby Lobby’s management
because he misinterpreted this conversation about shootings. Second,
Dendariarina’s actions after having this conversation with Lozada did not indicate
that he acted with malice. Dendariarina did not provide the statements to his
managers until they called him into their office. And Dendariarina’s written
statement contained qualifications suggesting he was unsure of Lozada’s
intentions. It included that Lozada may have been speaking “out [of] anger,” in
which case Lozada “d[id]n’t mean it,” and that Dendariarina “d[id]n’t think
[Lozada] would do anything stupid like that,” although Dendariarina added that
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“you never [k]no[w] people’s anger.” Dendariarina Statement 1, 3, Doc. 33-17 at
9, 11. None of this evidence supported an inference that Dendariarina’s “primary
motive in making the statements was the intent to injure the reputation of” Lozada,
as required to find express malice. Fridovich, 598 So. 2d at 69.
Lozada argues that his own testimony that he did not make the alleged
statements to Dendariarina is enough to establish that Dendariarina acted with
express malice because it shows that Dendariarina lied knowingly when speaking
to his managers. Yet, as we explained above, Lozada’s testimony established that
he and Dendariarina talked about an employee shooting up the Kissimmee store
and Lozada’s dislike of the culture at that store, and Lozada himself acknowledged
that Dendariarina may have misinterpreted this conversation. In light of this
evidence, Lozada’s argument that Dendariarina made the statements to his
managers primarily to injure Lozada’s reputation was too speculative to survive
summary judgment. We therefore affirm the district court’s grant of summary
judgment to Hobby Lobby on Lozada’s defamation claim that is based on
Dendariarina’s statements to his managers.
C. Hobby Lobby Did Not Instigate Lozada’s Detention.
Finally, the district court properly granted summary judgment for Hobby
Lobby on Lozada’s false arrest claim because Hobby Lobby did not instigate his
detention. Lozada claims there is evidence that Hobby Lobby, acting through
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Licari and Williams, procured Lozada’s detention, but the evidence on which he
relies merely indicates that Licari sought help from law enforcement at Williams’s
direction. We thus affirm the court’s grant of summary judgment.
Hobby Lobby could be liable for false arrest based on Lozada’s detention
only if it instigated that detention.8 Florida law provides a claim for false arrest
when a defendant either directly or indirectly detains a plaintiff. Johnson v.
Weiner, 19 So. 2d 699, 701 (Fla. 1944). In the context of a private citizen’s report
leading to an arrest by law enforcement, a “private citizen may not be held liable in
tort where he neither actually detained another nor instigated the other’s arrest by
law enforcement officers.” Pokorny v. First Fed. Sav. & Loan Ass’n of Largo, 382
So. 2d 678, 681 (Fla. 1980). Because Lozada does not contend that Hobby Lobby
itself detained him, Hobby Lobby could be liable for false arrest only if it
instigated his detention by law enforcement.
Hobby Lobby did not instigate Lozada’s detention. “If [a] private citizen
makes an honest, good faith mistake in reporting an incident, the mere fact that his
communication to an officer may have caused the victim’s arrest does not make
him liable when he did not in fact request any detention.” Id. at 682. Assuming
Licari’s statement about Lozada’s threat was mistaken, he made that statement in
8
Hobby Lobby does not deny that Licari and Williams each acted within the scope of
their employment, so Hobby Lobby could be liable for false arrest based on their actions. See
Del Aguila, 417 So. 2d at 652.
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good faith. 9 And he did not instigate Lozada’s detention. “To so ‘instigate’ an
arrest, the defendant must have taken an active role in encouraging or procuring
the wrongful arrest.” Harder v. Edwards, 174 So. 3d 524, 530 (Fla. Dist. Ct. App.
2015). Instigation in this context “is the equivalent in words or conduct of
‘Officer, arrest that man!’” Id. at 531 (quoting Restatement (Second) of Torts §
45A cmt. c.) (internal quotation marks omitted). Here, Licari, Dellofano, and
Wilson each testified about the meeting at which they discussed Lozada, and all of
them testified that Licari never requested that Lozada be detained. Instead, Licari
relayed to Wilson the information he learned from Dendariarina, Cozzens, and
Crupi. Wilson testified that he then visited Lozada and, after observing him,
decided to detain him. There is no evidence that Licari made any statements or
took any action equivalent to urging law enforcement to arrest Lozada. Hobby
Lobby therefore did not instigate Lozada’s detention.
Lozada insists that the evidence reasonably gave rise to an inference that
Hobby Lobby instigated his detention. He highlights Licari’s testimony that
Williams instructed Licari that “he did not want Mr. Lozada in the building
anymore, [Lozada] was not going to work for Hobby Lobby anymore, and . . .
[Licari] needed to call the police and get the local law enforcement involved in it.”
Licari Dep. 40, Doc. 33-2. According to Lozada, “get the local law enforcement
9
As we explained above, the undisputed evidence supports the conclusion that Licari
acted without malice.
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involved in it” reasonably could have been a directive to have Lozada arrested.
This reading is purely speculative and runs counter to the evidence. Lozada also
points out that Williams wanted to be listed as the complainant on the statement to
law enforcement, but Lozada does not explain how this request is relevant to his
argument. 10 Lozada next argues that evidence that Licari asked Wilson to speak to
Lozada and inform him that he was fired went beyond merely reporting
information to law enforcement. Perhaps so, but it did not amount to instigation
because it was not equivalent to asking Wilson to arrest Lozada.
Finally, Lozada contends that evidence of record demonstrated that Licari
spoke with law enforcement about detaining Lozada under the Baker Act, which
reasonably gave rise to the inference that Licari requested that detention. The
evidence on which Lozada relies is Licari’s request that law enforcement “contact
[him] to let [him] know if [Lozada] was backeracted [sic] which is a 72 hour
mandatory psych hold,” Crupi’s testimony that her managers 11 told her that law
enforcement would detain Lozada for 72 hours once they found him, and the title
“Baker Act” written in the “Offense” box over the statement Licari wrote for
10
Lozada asserts that when Wilson declined to list Williams as the complainant,
Williams directed Licari to become the complainant. There is no support in the record for this
assertion. And in any event, the identity of the complainant is irrelevant; it is what the
complainant asked law enforcement to do that matters. See Harder, 174 So. 3d at 531.
11
Lozada claims that Licari made this statement to Crupi. In fact, the record establishes
that Dellofano and an assistant manager informed Crupi about law enforcement’s intention to
detain Lozada.
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Wilson. These facts reasonably give rise to the inference that Hobby Lobby
employees spoke with law enforcement about detaining Lozada under the Baker
Act. To the extent that inference contradicts Wilson’s testimony that he did not
decide to detain Lozada until after seeing him, we must accept Lozada’s version of
events as true. But a conversation between Hobby Lobby employees and law
enforcement about detaining Lozada does not by itself reasonably give rise to the
inference that Licari requested that detention. Without any evidence to that effect,
we cannot agree with Lozada’s argument that there is a dispute of material fact as
to whether Hobby Lobby instigated his detention. We therefore affirm the district
court’s grant of summary judgment on this issue.
IV. CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED.
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