UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION. v. CASE NO: 8:12-cv-2660-T-26TBM O R D E R

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1 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 1 of 7 PageID 290 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ROBIN A. MYERS, GREGORY S. ZWIRN, SHERRY L. SMITH, CARRIE C. DAMASKA, JOHN DOE, and JANE DOE, Plaintiffs, v. CASE NO: 8:12-cv-2660-T-26TBM KEVIN N. MCCARTHY, Defendant. / O R D E R Plaintiffs have responded wi a passionate motion requesting is Court to reconsider its order rendered December 12, 2012, at docket 19, denying eir motion to enjoin preliminarily e implementation and enforcement of various provisions of Chapter , Laws of Florida, which substantively amended e statutory text of what is commonly known as e Personal Injury Protection Act (e PIP Act) which is scheduled 1 to take effect on January 1, However, no matter to what degree is Court may sympaize wi Plaintiffs plight of suffering potential economic loss by virtue of is newly enacted legislation, e Court must be guided by e rule of law which, as will be 1 Also pending before e Court is Defendant s Motion to Dismiss Plaintiffs Complaint filed at docket 21to which Plaintiffs have yet to respond.

2 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 2 of 7 PageID 291 explained, dictates at e motion is due to be denied, us obviating e need for a response from Defendant, eir federal claim embodied in count one of eir complaint be dismissed wi prejudice, and eir state law claims alleged in counts two rough ten be dismissed wiout prejudice to being refiled in a Florida state court. Plaintiffs primary rust in arguing is Court committed clear legal error in denying eir motion for preliminary injunctive relief, us resulting in manifest injustice to em, is at ey possess a fundamental property right in eir professional licenses to practice chiropractic medicine, acupuncture medicine, and massage erapy by virtue of eir licensure by e State of Florida to practice ose healing arts. They contend, erefore, at e amendments to e PIP Act which constrain, in e case of a chiropractic physician, and eliminate, in e case of an acupuncture physician and a massage erapist, eir ability to seek reimbursement for professional services rendered to a person injured in a motor vehicle collision under e personal injury protection provisions of an automobile insurance policy deny em due process of law and e equal 2 protection of e laws under e Fif and Fourteen Amendments. What Plaintiffs fail to grasp is at alough ey do have a state-created property interest in eir professional licenses, at interest is only subject to procedural due process protection and not substantive due process protection. See McKinney v. Pate, 20 2 Alough Plaintiffs have alleged nine violations of e Florida Constitution, e Court s focus in is order will be on eir federal claim. -2-

3 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 3 of 7 PageID 292 F.3d 1550, 1556 (11 Cir. 1994) (en banc) (observing at areas in which substantive rights are created only by state law (as is e case wi tort and employment law) are not subject to substantive due process protection under e Due Process Clause because substantive due process rights are created only by e Constitution. ) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985)). Thus, to e extent at [Plaintiffs] predicate[] [eir] substantive due process claim directly on e denial of [eir] state-granted and-defined property right in e[ir] [licenses], no substantive due process claim is viable. Greenbriar Vill., L.L.C., v. Mountain Brook City, 345 F.3d 1258, 1262 (11 Cir. 2003) (citing in part McKinney, 20 F.3d at 1560; see also Morley s Auto Body, Inc. v. Hunter, 70 F.3d 1209, 1217 n.5 (11 Cir. 1995) (noting at plaintiffs substantive due process claim [was] palpably wiout merit because [a]ny expectations at plaintiffs may have had regarding e rotation list do not approach a right implicit in e concept of ordered liberty as required for e triggering of substantive due process protection. ) (citing McKinney, 20 F.3d at 1556). Furermore, as in Hunter, e statutory restrictions and eliminations imposed on Plaintiffs by e soon to take effect PIP Act do not cognizably burden e plaintiffs liberty to follow a chosen profession free from unreasonable governmental interference, Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959) or to work for a living in e common occupations of e community, Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915). 70 F.3d at 1217 n.5. Finally, because -3-

4 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 4 of 7 PageID 293 e focus of Plaintiffs complaint as framed relates to governmental action which is legislative in nature, e procedural component of e due process clause is not implicated. See 78 Acres, LLC v. Miami-Dade Cty, Fla., 338 F.3d 1288, 1294 (11 Cir. 2003) (quoting Ronald E. Rotunda & John E. Nowack, Treatise on Constitutional Law 17.8 (3d ed. 1999) for e proposition at [w]hen e legislature passes a law which affects a general class of persons, ose persons have all received procedural due process - e legislative process. The challenge to such laws must be based on eir substantive compatibility wi constitutional guarantees. ). Measured against ese well-settled principles, Plaintiffs effort, under e auspices of 42 U.S.C. 1983, to invoke substantive due process protection, as well as to claim a violation of e equal protection of e laws, in an effort to undermine constitutionally e newly added provisions to e PIP Act is doomed to utter failure in light of is Court s legal analysis under e rational basis test utilized in e order denying eir motion for preliminary injunctive relief. As e Court observed in at order, based on Plaintiffs submissions, ey utterly failed to bear e burden of disproving every conceivable basis supporting e challenged amendments to e PIP Act in order to sustain eir federal equal protection and due process claims. Plaintiffs recent submission in e form of eir motion for reconsideration fares no better inasmuch as ey again fail to demonstrate at ey are part of a suspect class or at e challenged provisions of e PIP Act violate a fundamental constitutional right. See Haves v. City of -4-

5 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 5 of 7 PageID 294 Miami, 52 F.3d 918, 921 (11 Cir. 1995). Consequently, even ough, as noted, Plaintiffs 3 have not had e opportunity to respond to Defendant s pending motion to dismiss, e Court concludes at such a response would be an exercise in futility, as would be permitting Plaintiffs to file an amended complaint, so at eir federal claim is due to be dismissed wi prejudice. 4 The Court s task now is to determine wheer, in e absence of Plaintiffs federal claim, it should retain supplemental jurisdiction over eir state law claims pursuant to 28 U.S.C. 1367(a) or wheer it should decline to exercise jurisdiction over ose claims and dismiss em wiout prejudice to being refiled in a Florida state court in accord wi 3 The Court would note, however, at Plaintiffs have asked for alternative relief in e form of having is Court abstain from deciding e federal claim under e doctrine of Railroad Comm n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971 (1941), closing but not dismissing is case, allowing e state law claims to be adjudicated in a Florida state court, and preserving e federal claim for adjudication, if necessary, at a later date. The Court declines to grant is alternative relief. 4 The Court notes at one might reasonably surmise at e Florida legislature s true motivation in enacting e challenged amendments to e PIP Act was not to combat fraud, as was widely and consistently reported, but to curtail e proliferation and continued viability of so-called lawyer and medical referral services by restricting eir ability to secure personal injury protection benefits for eir clients. Even if is were e case, e Court s conclusion to dismiss e federal claim remains unaffected because e Court is absolutely prohibited from inquiring into a legislative body s motivation in enacting legislation. See F.C.C. v. Beach Commcns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993) (stating wiin e context of a rational basis analysis of a statute, at because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes wheer e conceived reason for e challenged distinction actually motivated e legislature. ); accord Houston v. Williams, 547 F.3d 1357, 1363 (11 Cir. 2008); Panama City Med. Diagnostic, Ltd. v. Williams, 13 F.3d 1541, 1546 (11 Cir. 1994). -5-

6 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 6 of 7 PageID 295 e criteria embodied in 1367(c)(1-4). In making is discretionary determination, e Court must consider e principles of economy, convenience, fairness, and comity. See City of Chicago v. International Coll. of Surgeons, 522 U.S. 156, , 118 S.Ct. 523, 533, 139 L.Ed.2d 525 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988)). After doing so, ose principles dictate at e Court decline to exercise supplementary jurisdiction over e state law claims. First, economy and convenience weigh heavily in favor of relinquishing jurisdiction to a Florida state court because is case is in its very early stage wi e Defendant having yet to file an answer due to e pendency of his motion to dismiss and e Court having yet to enter a case management and scheduling order. As e Supreme Court instructed in Carnegie-Mellon, [w]hen e single federal-law claim in e action [is] eliminated, at an early stage of e litigation, e District Court ha[s] a powerful reason to choose not to continue to exercise jurisdiction. 484 U.S. at 351, 108 S.Ct. at 619. Second, principles of comity also weigh heavily in favor of allowing a Florida state court to assume jurisdiction over e state law claims because at court is better suited to determine e unique issues of Florida constitutional law raised by Plaintiffs complaint. See Lake Cty. v. NRG/Recovery GRP., Inc., 144 F.Supp. 2d 1316, 1321 (M.D. Fla. 2001). Moreover, Plaintiffs initiated eir challenge to e constitutionality of e amended provisions of e PIP Act in a Florida state court only to dismiss at case -6-

7 Case 8:12-cv RAL-TBM Document 23 Filed 12/27/12 Page 7 of 7 PageID wiout prejudice for some reason unexplained in e record. Finally, e Court can conceive of no reason as to why principles of fairness will be offended if a Florida state court is allowed to hear and resolve Plaintiffs state law claims, especially in light of e fact at ose nine claims predominate over e lone federal claim. Accordingly, for e reasons expressed, it is ordered and adjudged as follows: 1) Plaintiffs Motion for Reconsideration (Dkt. 22) is denied. 2) Defendant s Motion to Dismiss (Dkt. 21) is denied as moot. 3) Count one of Plaintiffs complaint is dismissed wi prejudice and e Clerk is directed to enter judgment for Defendant on at count. 4) Counts two rough ten of Plaintiffs complaint are dismissed wiout prejudice to being refiled in e appropriate Florida state court. 5) The Clerk is directed to close is case. DONE AND ORDERED at Tampa, Florida, on December 27, s/richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record 5 See dockets 15 and

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