UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22942-KMM

CHRISTINA MCLAUGHLIN,

Plaintiff,

v.

FLORIDA INTERNATIONAL 

UNIVERSITY BOARD OF TRUSTEES,

et al., 

Defendants.

 /

OMNIBUS ORDER

THIS CAUSE came before the Court upon Defendants United States Department of 

Education (“DOE”) and Secretary of Education’s (collectively, “the Federal Defendants”) Motion 

to Dismiss (“Federal Defs.’ Mot.”) (ECF No. 44) and Memorandum in Support (“Mem. in Supp.”) 

(ECF No. 44-1); Defendants Florida International University Board of Trustees (“FIU BOT”), 

Board of Governors for the State University System of Florida (“BOG”), Claudia Puig (“Puig”), 

Mark B. Rosenberg (“Rosenberg”), R. Alex Acosta (“Acosta”), Tawia Baidoe Ansah (“Ansah”), 

Joycelyn Brown (“Brown”), Rosario L. Schrier (“Schrier”), Thomas E. Baker (“Baker”), Scott F. 

Norberg (“Norberg”), Noah Weisbord (“Weisbord”), Marci Rosenthal (“Rosenthal”),

1 Ned C. 

Lautenbach (“Lautenbach”),

2 and Iris Elijah’s (“Elijah”) (collectively, “the State Defendants”)

Motion to Dismiss (“State Defs.’ Mot.”) (ECF No. 47); and Defendant Howard Wasserman’s 

(“Wasserman”) Motion to Dismiss (“Def. Wasserman Mot.”) (ECF No. 46). Plaintiff Christina 

1

 Incorrectly sued as Marcy Rosenthal. See (ECF No. 47). 

2

 Incorrectly sued as Ned C. Laudenbach. See id. 

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McLaughlin (“Plaintiff”) filed Responses in Opposition.

3 (“Resp. to Federal Defs.’ Mot.”) (ECF 

No. 52); (“Resp. to State Defs.’ Mot.”) (ECF No. 53); (“Resp. to Def. Wasserman”) (ECF No. 54). 

The Federal Defendants, the State Defendants, and Defendant Wasserman filed Replies. (“Federal 

Defs.’ Reply”) (ECF No. 59); (“State Defs.’ Reply”) (ECF No. 61); (“Def. Wasserman Reply”) 

(ECF No. 60). The Motions are now ripe for review. 

I. BACKGROUND4

In this action, Plaintiff alleges a myriad of constitutional violations against numerous 

defendants. See generally Am. Compl. Plaintiff, a Florida resident, was enrolled as a first-year 

law student (“1L year”) at Florida International University (“FIU”) Law during the 2016-2017 

academic year. Id. ¶¶ 143–144. During her 1L year, Plaintiff was a candid supporter of the 

Republican party on social media. Id. ¶¶ 151–152. At a “Hillary Clinton for President” rally held 

at FIU in the Fall of 2016, “[i]t became plainly evident to all the surrounding classmates that 

[Plaintiff] was a Donald Trump supporter.” Id. ¶¶ 153–156. Thereafter, Plaintiff “noted an almost 

immediate difference in attitude and behavior from classmates, professors, and FIU 

administration” and “FIU Law began an intentional hostile, discriminatory and retaliatory 

campaign” against Plaintiff. Id. ¶¶ 156–158. After former President Trump’s inauguration, 

Plaintiff “felt threatened and stifled to voice any comments in support of President Trump for fear 

3

 In each Response, Plaintiff requests a sixty (60) minute in-person hearing before the Court 

because the Amended Complaint is “very complicated” and “[a]n in-person hearing would also 

create a more specific and lengthy video appellate record for possible interlocutory review.” Resp. 

to Federal Defs.’ Mot. at 2; Resp. to State Defs.’ Mot. at 2; Resp. to Def. Wasserman at 2. Local 

Rule 7.1(b)(2) provides that “[t]he Court in its discretion may grant or deny a hearing as 

requested.” S.D. Fla. L.R. 7.1(b)(2). The Court sees no need to set a hearing regarding the pending 

motions here. 

4

 The following background facts are taken from Plaintiff’s First Amended Complaint (“Am. 

Compl.”) (ECF No. 10) and are accepted as true for purposes of ruling on this Motion to Dismiss. 

Fernandez v. Tricam Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 WL 10668267, 

at *1 (S.D. Fla. Oct. 21, 2009). 

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of further retaliatory action especially concerning grades.” Id. ¶¶ 159–160. Plaintiff “felt unsafe 

to show any expression of her political allegiance such as wearing a ‘Trump/Pence’ shirt or hat 

because of the vitriol expressed by the law professors.” Id. ¶ 161. 

A brief overview of each named Defendant and the allegations against them follows:

1. The DOE “failed to timely and effectively process [Plaintiff’s] FERPA5 complaint” 

and, as of the date of the Amended Complaint, “failed to make a finding for 952 

days since the DOE was in receipt [of the complaint,] 779 days since the DOE sent 

a Notice of Investigation and 601 days since the DOE stated that the investigation

was nearing completion.” The DOE has “intentionally stalled making a 

determination of [Plaintiff’s] complaint in order to prevent [Plaintiff] from filing 

suit within the statute of limitations.” Id. ¶¶ 627–757. 

2. The Secretary of Education is named as the recipient of several letters sent by 

Plaintiff. The Secretary of Education is sued in her official capacity. Id. ¶¶ 647–

650, 725, 731. 

3. The FIU BOT is the governing body of FIU and Puig is its Chair. The FIU BOT 

“defended, supported, and sanctioned all actions taken by professors, deans, 

employees, and agents referred to in [the Amended Complaint].” Each member of 

the FIU BOT is sued in their official capacity. Id. ¶¶ 164–174. 

4. The BOG is the governing body of all public Florida universities, Lautenbach is its 

Chair, and Elijah served as its Assistant General Counsel. The BOG “defended, 

supported, and sanctioned all actions taken by professors, deans, employees and 

agents referred to in [the Amended Complaint]” and “failed to protect [Plaintiff], a 

lawfully matriculated student, from the nefarious acts committed by one of the 

5

 The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g). 

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Florida Universities.” Elijah had an “excessively close relationship with FIU” and 

“knew or should have known to recuse herself from any participation, involvement, 

direction or control of [Plaintiff’s] complaint.” Each member of the BOG is sued 

in their official capacity. Id. ¶¶ 441–460. 

5. Rosenberg is the President of FIU who (i) failed to redress Plaintiff’s complaint; 

(ii) unfairly dismissed Plaintiff’s request for a FERPA hearing; (iii) converted 

Plaintiff’s FERPA challenge to a student grievance; and (iv) “victim shamed” 

Plaintiff—all of which was done “to conceal, divert, and cover-up the felonious 

acts committed by FIU Law professors.” Rosenberg is sued in his official capacity. 

Id. ¶¶ 175–196. 

6. Acosta is the Dean of FIU Law who either allowed or ignored law professors’ 

actions, which included (i) “using non-academic standards for grading”; (ii) 

“tampering with scantron tabulation”; and (iii) “unauthorized grade unblinding to 

fraudulently mis-record[] grades.” Acosta is sued in his official capacity. Id. ¶¶

197–210. 

7. Ansah was FIU Law’s interim Dean at the time of Plaintiff’s academic dismissal,

who Plaintiff characterizes as “a well-known out-spoken, anti-conservative, 

anti-Trump critic” and whose actions “demonstrate[] the depth of 

anti-Trump/anti-conservative ideology among Ansah and other FIU Law 

professors.” Ansah (i) “failed to substantively respond to Plaintiff’s reasonable 

attempts to learn about the readmission procedure and to have counsel present”;

and (ii) “depicted [Plaintiff] as a failed 1L student without any mention of the fact 

that [Plaintiff] had not been placed on remediation or ever failed any class.” Ansah 

is sued in his official capacity. Id. ¶¶ 211–229.

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8. Brown was an interim FIU Law professor during the Spring 2017 semester who (i)

“is a radical leftist who either belongs to or provides support for several radical 

leftist organizations”; (ii) gave Plaintiff a final grade of “C+”; (iii) told Plaintiff that 

her support for Donald Trump was “immoral”; (iv) told Plaintiff her assignments 

were downgraded rather than graded according to the rubric; and (v) “intentionally 

lowered [Plaintiff’s] grades to retaliate and politically engineer the student body 

class.” Brown is sued in her official capacity. Id. ¶¶ 230–267. 

9. Schrier is an FIU Law professor who (i) gave Plaintiff a final grade of “B-”; (ii) 

“gave several ‘Feel the Bern’ speeches promoting socialism during regular 

classroom time”; (iii) “engaged in political indoctrination and attempted to sway 

the students to voting for the Democratic nominee”; (iv) gave Plaintiff lower 

academic grades and became “inhospitable” after learning about Plaintiff’s support 

for President Trump and the Republican Party; (v) “used non-academic standards 

to grade [Plaintiff’s] assignments”; (vi) participated in and voted to deny Plaintiff’s 

readmission during her readmission hearing; and (vii) “discriminated and retaliated 

against [Plaintiff] because of her political beliefs.” Schrier is sued in her official 

capacity.6

 Id. ¶¶ 317–339.

10. Baker is an FIU Law professor who (i) gave Plaintiff a final grade of “D”; (ii)

“performed a skit demeaning Trump supporters” during class; (iii) “made his 

6

 The Amended Complaint is ambiguous in terms of whether Schrier is sued only in her official 

capacity, or both in her individual and official capacity. Compare Am. Compl. at 1 (identifying 

Wasserman as the only Defendant sued in both his official capacity and “personally”), with id.

¶ 338 (stating that “Schrier is sued personally and in her official capacity”). To the extent Plaintiff 

sought to sue Schrier both in her individual and official capacity, this ambiguity may not have 

placed Schrier on notice of the breadth of the claims against her. It is notable that counsel for State 

Defendants filed a separate Motion to Dismiss on behalf of Wasserman. See Wasserman Mot. at 

1 (“Professor Wasserman is the only Defendant sued both in his individual capacity . . . and official 

capacity.”). The Court resolves this ambiguity in Schrier’s favor. 

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classroom a hostile educational environment and stifled [Plaintiff’s] freedom of 

speech and political expression in his classroom”; (iv) after learning of Plaintiff’s 

support for President Trump and the Republican Party, “graded her exam unblinded 

and failed to use anonymous grading to record [Plaintiff’s] exam scores”; (v) 

“intentionally lowered [Plaintiff’s] grades to retaliate and politically engineer the 

student body class”; (vi) “used non-academic standards to record [Plaintiff’s] final 

grade”; (vii) “fraudulently tampered with [Plaintiff’s] Scantron score to record a 

fraudulent exam score”; and (viii) “colluded with other professors to unlawfully 

expel” Plaintiff. Baker is sued in his official capacity. Id. ¶¶ 340–362. 

11. Norberg is an FIU Law professor who (i) gave Plaintiff a final grade of “C”; (ii) “is 

a vocal anti-Trump leftist and used his classroom to espouse anti-Trump rhetoric”; 

(iii) “was one of 10 FIU Law professors to sign [an] anti-Trump/anti-Kavanaugh 

letter”; (iv) after learning of Plaintiff’s support for Republican candidates, 

“developed animus for [Plaintiff] for her political beliefs”; (v) “erroneously 

‘bumped down’ [Plaintiff’s] final grade” from a “C+” to a “C” due to confusion 

over a missing assignment that Plaintiff had in fact turned in; (vi) “fraudulently 

tampered with Scantron exam scores”; (vii) “used non-academic standards to score 

unblinded essay exams”; and (viii) “colluded with other professors and 

administrators to effectuate an unlawful academic dismissal.” Norberg is sued in 

his official capacity. Id. ¶¶ 363–397. 

12. Weisbord was an FIU Law professor who (i) gave Plaintiff a final grade of “C-”; 

(ii) “used his classroom to accuse President Trump of being a criminal in violation 

of International and Humanitarian laws”; (iii) “accused President Trump of being a 

war criminal”; (iv) was “well-known” to have inappropriate sexual relationships 

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with other 1L students in Plaintiff’s class; (v) “used non-academic standards and 

unblinded grading” in favor of those he had sexual affairs with and unfavorably for 

Plaintiff; and (vi) due to the “influence of sexual affair and political 

discrimination,” partly caused the 0.02 percent grade point average (“GPA”) deficit 

that resulted in Plaintiff’s academic expulsion. Weisbord is sued in his official 

capacity. Id. ¶¶ 398–418. 

13. Rosenthal was FIU Law’s interim Assistant Dean of Academic Affairs who (i) was 

directed “to act as FIU’s agent concerning [Plaintiff’s] complaint”; (ii) “failed to 

disclose to the Plaintiff that [Rosenthal] is a member of the Florida Bar and may 

legally represent clients”; (iii) violated the Florida Bar’s Rule of Ethics because

Rosenthal “knew or should have known that [Plaintiff] was represented by counsel 

and that [Plaintiff] intended to pursue legal action against FIU Law” and Rosenthal

contacted Plaintiff “directly” without obtaining the consent of Plaintiff’s attorney; 

(iv) “used [Rosenthal’s] enormous disparity in status and knowledge [as a former 

DOE employee and expert on FERPA law] in an attempt to overpower and 

potentially bully [Plaintiff]; and (v) “purposely denied [Plaintiff] assistance of 

counsel.” Rosenthal is sued in her official capacity. Id. ¶¶ 419–440. 

14. Wasserman is an FIU Law professor who (i) is “a publically [sic], well-known, 

anti-Trump blogger”; (ii) “engaged in political indoctrination”; (iii) gave Plaintiff 

a final grade of “D”; (iv) “used non-academic standards to grade [Plaintiff’s] 

exams”; (v) “graded [Plaintiff’s] exam unblinded and failed to use anonymous 

grading to record [Plaintiff’s] exam scores”; (vi) “intentionally lowered [Plaintiff’s] 

grades to retaliate and politically engineer the student body class”; (vii) “did not 

apply the objective grading rubric to [Plaintiff’s] written exams”; (viii) “tampered 

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with [Plaintiff’s] multiple-choice Scantron results to manufacture a fraudulent 

exam score”; (ix) “coordinated with other professors and FIU staff to unlawfully 

cause an academic dismissal”; (x) “planned a hit-job to force [Plaintiff] out of law 

school because of her support for candidate Donald Trump”; (xi) as the senior 

professor who supervised all grading and academic standing, “had access, 

opportunity and authority to jerry-rig students’ education records and class 

standing”; (xii) “chaired and conducted [] Plaintiff’s [Academic Standards 

Committee (“ASC”)] readmission hearing”; (xiii) “refused to allow [] Plaintiff’s 

attorney from attending the ASC readmission hearing”; and (xiv) “breached his 

duty to carefully and deliberately evaluate [Plaintiff’s] academic performance 

before denying her petition for readmission . . . because he had predetermined the 

outcome making the ASC hearing a sham proceeding.” Wasserman is sued both in 

his individual and official capacity. Id. ¶¶ 268–316.

On May 19, 2017, Plaintiff was academically dismissed from FIU Law despite being a 

student in good standing. Id. ¶¶ 145–146. Plaintiff alleges that (1) “her academic dismissal 

violated her [right to] due process because FIU never placed [Plaintiff] on notice of the risk of 

academic dismissal before the academic dismissal was final; (2) FIU Law’s policy regarding notice 

of expulsion and remediation for 1L students in their Spring semester violated Plaintiff’s right to 

equal protection; (3) FIU Law violated Plaintiff’s rights to due process and equal protection by 

offering students with higher GPAs the opportunity to participate in remediation and “cut[ting] off 

the benefit of remediation at [Plaintiff’s] ranking”; (4) FIU Law violated Plaintiff’s right to 

procedural due process because its regulations create a strong presumption against readmission, 

create a non-rebuttable presumption of FIU Law infallibility, and deny access to educational 

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records but require clear and convincing evidence for readmission; and (5) FIU, as the governing 

university over FIU Law, violated FERPA in several respects. Id. ¶¶ 461–626. 

The causes of action include violation of Plaintiff’s First Amendment right to freedom of

speech and political expression (Count I), id. ¶¶ 758–786; violation of Plaintiff’s Fourteenth 

Amendment and Florida constitutional rights to due process (Count II), id. ¶¶ 787–855; violation 

of Plaintiff’s Fourteenth Amendment and Florida constitutional rights to equal protection of the 

law (Count III), id. ¶¶ 856–871; breach of a legal obligation to properly enforce a student FERPA 

complaint (Count IV), id. ¶¶ 872–894; violation of Plaintiff’s FERPA rights (Count V), id. ¶¶

895–907; denial of Plaintiff’s right to assistance of counsel under federal law (Count VI), id. ¶¶

908–921; fraud (Count VII), id. ¶¶ 922–928; civil conspiracy (Count VIII), id. ¶¶ 929–946; breach 

of fiduciary duty (Count IX), id. ¶¶ 947–981; negligence (Count X), id. ¶¶ 982–1043; and 

defamation (Count XI), id. ¶¶ 1044–1064. Plaintiff seeks injunctive relief; declaratory judgment; 

nominal damages; compensatory, actual, and punitive damages in excess of $25 million dollars; 

and attorneys’ fees and costs. Id. at 113–14. 

Now, the Federal Defendants, the State Defendants, and Defendant Wasserman move to 

dismiss the various claims against them. See generally Federal Defs.’ Mot.; State Defs.’ Mot.; 

Def. Wasserman Mot. 

II. LEGAL STANDARD

A. 12(b)(1) Standard 

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for 

lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited 

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be 

presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the 

contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted). Such 

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jurisdiction must be proven by a preponderance of the evidence. Underwriters at Lloyd’s, London 

v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). “Attacks on subject matter jurisdiction 

under Fed. R. Civ. P. 12(b)(1) come in two forms”: facial and factual attacks. Lawrence v. Dunbar, 

919 F.2d 1525, 1528–29 (11th Cir. 1990) (per curiam). “Factual attacks challenge subject matter 

jurisdiction in fact, irrespective of the pleadings.” Morrison v. Amway Corp., 323 F.3d 920, 924 

n.5 (11th Cir. 2003). “On a facial attack, a plaintiff is afforded safeguards similar to those provided 

in opposing a Rule 12(b)(6) motion, meaning that the court must consider the allegations of the 

complaint to be true.” Fru Veg Marketing, Inc. v. Vegfruitworld Corp., 896 F. Supp. 2d 1175,

1179 (S.D. Fla. 2012). The burden is on the party seeking to invoke the Court’s jurisdiction to 

establish that jurisdiction exists. Kokkonen, 511 U.S. at 377. If the Court determines that it lacks 

subject matter jurisdiction, it must dismiss the claim. Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 94 (1998).

B. 12(b)(6) Standard 

A court may also dismiss a complaint for failing to state a claim upon which relief can be 

granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). This 

requirement “give[s] the defendant fair notice of what the claim is and the grounds upon which it 

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and alterations 

omitted). The court takes the plaintiff’s factual allegations as true and construes them in the light 

most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

A complaint must contain enough facts to plausibly allege the required elements. Watts v. 

Fla. Int’l Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers “a formulaic 

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting 

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Twombly, 550 U.S. at 555). “[C]onclusory allegations, unwarranted deductions of facts or legal 

conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. 

Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

C. Impermissible Shotgun Pleading Standard 

The United States Court of Appeals for the Eleventh Circuit has described impermissible 

shotgun pleadings at length:

Though the groupings cannot be too finely drawn, we have identified four rough 

types or categories of shotgun pleadings. The most common type—by a long 

shot—is a complaint containing multiple counts where each count adopts the 

allegations of all preceding counts, causing each successive count to carry all that 

came before and the last count to be a combination of the entire complaint. The 

next most common type, at least as far as our published opinions on the subject 

reflect, is a complaint that does not commit the mortal sin of re-alleging all 

preceding counts but is guilty of the venial sin of being replete with conclusory, 

vague, and immaterial facts not obviously connected to any particular cause of 

action. The third type of shotgun pleading is one that commits the sin of not 

separating into a different count each cause of action or claim for relief. Fourth, 

and finally, there is the relatively rare sin of asserting multiple claims against 

multiple defendants without specifying which of the defendants are responsible for 

which acts or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015) 

(citation omitted). “The unifying characteristic of all types of shotgun pleadings is that they fail 

to one degree or another, and in one way or another, to give the defendants adequate notice of the 

claims against them and the grounds upon which each claim rests.” Id. at 1323. “Courts in this 

district and the Eleventh Circuit have warned litigants that shotgun pleadings tend to impede the 

orderly, efficient, and economic disposition of disputes as well as the court’s overall ability to 

administer justice.” Pyatt v. Fla. Int’l Univ. Bd. of Trs., 1:20-CV-24085-BLOOM/Otazo-Reyes, 

2020 WL 6945962, at *4 (S.D. Fla. Nov. 25, 2020) (citation and internal quotation marks omitted). 

III. DISCUSSION

The Federal Defendants argue that the Court should dismiss the claims against them under 

Rule 12(b)(1) for lack of subject matter jurisdiction, or alternatively under Rule 12(b)(6) for failure 

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to state a claim upon which relief may be granted. See generally Federal Defs.’ Mot. The State 

Defendants and Defendant Wasserman move to dismiss the Amended Complaint as an 

impermissible shotgun pleading as well as on substantive grounds. See generally State Defs.’ 

Mot.; Def. Wasserman Mot. These arguments are addressed in turn below. 

A. Federal Defendants

The Federal Defendants set forth both a facial and factual attack on subject matter 

jurisdiction. Mem. in Supp. at 5. Specifically, Federal Defendants argue that Plaintiff’s 

constitutional claims against them—Counts I and III—fail because the United States has not 

explicitly waived sovereign immunity. Id. at 6. As to the remaining tort claims—Counts IV, VII, 

VIII, IX, and X—the Federal Defendants argue that these claims cannot proceed because (1) 

neither the DOE nor the Secretary of Education are proper defendants; (2) Plaintiff failed to 

exhaust her administrative remedies under FERPA; (3) there is no basis for Plaintiff’s intentional 

tort claims of fraud and civil conspiracy to commit fraud as the United States has not waived 

sovereign immunity; (4) FERPA does not provide subject matter jurisdiction; (5) the 

“discretionary function” exception bars all of Plaintiff’s potential FTCA claims; and (6) there is 

no private party analog to the alleged conduct, thus negating any government liability under the 

FTCA. Id. at 7–15. 

Plaintiff first argues that sovereign immunity is explicitly waived for constitutional claims, 

citing 5 U.S.C. § 702 and 28 U.S.C. § 1331. Resp. to Federal Defs.’ Mot. at 4–5. Regarding the 

tort claims, Plaintiff argues that (1) the DOE and Secretary of Education are proper defendants; 

(2) Plaintiff was not required to exhaust her administrative remedies; (3) Plaintiff alleges a claim 

of discrimination based on her support of former President Trump, which is a constitutional 

violation and statutory right under FERPA; (4) Plaintiff’s complaint is based on First and Fifth 

Amendment constitutional violations; (5) there is no “discretionary function” exception to the 

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Federal Defendants’ duty to issue a final determination letter to Plaintiff; and (6) Plaintiff has 

facially pled claims against Federal Defendants under both Federal and State law. Id. at 5–10. 

1. Constitutional Claims—Counts I and III

The Federal Defendants argue that the constitutional claims against them fail because the 

United States has not explicitly waived its sovereign immunity. Mem. in Supp. at 6. In response, 

Plaintiff argues that (1) citing 5 U.S.C. § 702, “the United States has explicitly waived sovereign 

immunity”; (2) citing 28 U.S.C. 1331, “[t]he district courts shall have original jurisdiction of all 

civil actions arising under the Constitution, laws, or treaties of the United States”; and (3) citing 

28 U.S.C. 1346(b)(1), “the Court shall have exclusive jurisdiction of civil actions on claims against 

the United States, for money damages . . . for the negligent or wrongful act or omission of any 

employee of the Government while acting within the scope of his office or employment, under 

circumstances where the United States, if a private person, would be liable to the claimant in 

accordance with the law of the place where the act or omission occurred.” Resp. to Federal Defs.’ 

Mot. at 4–5 (internal quotation marks omitted). 

“Under settled principles of sovereign immunity, the United States, as a sovereign, is 

immune from suit, save as it consents to be sued . . . .” United States v. Dalm, 494 U.S. 596 (1990) 

(citations and internal quotation marks omitted). Such immunity extends to United States’ 

agencies. Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal Comm’n, 

453 F.3d 1309, 1315 (11th Cir. 2006) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Further, 

such immunity generally applies in an official capacity suit, which is akin to a suit against the 

official’s agency or entity. Nalls v. Bureau of Prisons of U.S., 359 F. App’x 99, 100 (11th Cir. 

2009) (per curiam). “A waiver of sovereign immunity ‘cannot be implied but must be 

unequivocally expressed.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United 

States v. King, 395 U.S. 1, 4 (1969)). “[A] plaintiff bears the burden of establishing subject matter 

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jurisdiction . . . and, thus, must prove an explicit waiver of immunity.” Ishler v. Internal Revenue, 

237 F. App’x 394, 398 (11th Cir. 2007) (per curiam) (citation omitted). 

Here, the DOE, as an agency of the United States, and the Secretary of Education, as an 

official of the United States, are immune from suit under the principles of sovereign immunity, 

and Plaintiff fails to prove that immunity has been explicitly waived. Ishler, 237 F. App’x at 398.

Plaintiff invokes 5 U.S.C. § 702 for the first time in her response and argues that she “intends to 

seek equitable relief that the DOE must issue a findings letter through writ of mandamus.”7

 Resp. 

to Federal Defs.’ Mot. at 5. However, Plaintiff’s Amended Complaint fails to plead entitlement to 

such relief and quite clearly seeks monetary damages—in excess of $25 million dollars—in 

connection with the alleged constitutional violations. See Am. Compl. at 114–15. Specifically, 

Plaintiff seeks “an award of monetary damages and equitable relief” as to Count I, and “an award 

of nominal and compensatory damages and equitable relief” as to Count III. Id. ¶¶ 786, 871. 

Plaintiff’s vague prayer for “equitable relief” in addition to damages is of no consequence. Section 

702 is not to be read so broadly such that sovereign immunity is waived any time a plaintiff seeks 

equitable relief, whether in addition to or in lieu of monetary damages. See Dep’t of Army v. Blue 

Fox, Inc., 525 U.S. 255, 260–65 (reversing the judgment of the court below and clarifying that a 

suit may fall within § 702’s waiver of immunity if it is one seeking specific relief, not money 

damages, and that the “interpretation of § 702 thus hinge[s] on the distinction between specific 

relief and substitute relief, not between equitable and nonequitable categories of remedies”). 

7

 Plaintiff’s Amended Complaint contains no such claim. Accordingly, this argument is 

impermissibly raised, and the Court will not consider it for the purposes of the instant motion. See 

Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x 657, 665 (11th Cir. 2015) (per curiam) (“We 

repeatedly have held that plaintiffs cannot amend their complaint through a response to a motion 

to dismiss.”).

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Accordingly, the constitutional claims must be dismissed with prejudice as to the Federal 

Defendants for lack of subject matter jurisdiction under the principles of sovereign immunity. 

Ishler, 237 F. App’x at 398.

2. Counts IV, VII, VIII, IX, and X

The Federal Defendants assert several bases upon which Plaintiff’s remaining tort claims 

against them also cannot proceed. Mem. in Supp. at 7–15. Specifically, the Federal Defendants 

argue that (1) neither the DOE nor the Secretary of Education are proper defendants in this action 

because “the exclusive remedy for a state law tort claim against a federal employee acting within 

the scope of his or her employment is an action against the United States under the Federal Tort 

Claims Act, 28 U.S.C. §§ 1346, 2672” (“FTCA”); (2) Plaintiff failed to exhaust her administrative 

remedies under FERPA as is required under the FTCA because she “did not present the 

prerequisite administrative claim [to] the DOE”; (3) there is no basis for Plaintiff’s intentional tort 

claims of fraud and civil conspiracy to commit fraud as the United States has not waived sovereign 

immunity; (4) FERPA does not provide a private right of action; (5) the “discretionary function” 

exception bars all of Plaintiff’s potential FTCA claims; and (6) there is no private party analog to 

the alleged conduct, thus negating any government liability under the FTCA. Id. 

Plaintiff argues that (1) the DOE and Secretary of Education are proper defendants because 

her claims “are not exclusively under the FTCA” as she “alleges violation of her rights under the 

U.S. Constitution as well as tort claims,” and a possibility exists that the DOE and Secretary of 

Education “are not acting within the scope of their employment”; (2) Plaintiff was not required to 

exhaust her administrative remedies because “the exhaustion requirement does not apply to actions 

based on constitutional torts” and “Plaintiff is not requesting review of a final agency action”; (3) 

“Plaintiff intends to make a Bivens challenge because she does not have any adequate remedy for 

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the harm caused by the Federal Defendants’ unconstitutional actions”8

; (4) Plaintiff need not rely 

on FERPA to provide a private right of action because her “entire complaint is based on First and 

Fifth Amendment violations of unlawful discrimination”; (5) there is no “discretionary function” 

exception to the Federal Defendants’ duty to issue a final determination letter to Plaintiff; and (6) 

Plaintiff has facially pled claims against Federal Defendants under both Federal and State law. Id.

at 5–10. 

 “[T]he FTCA was designed to provide redress for ordinary torts recognized by state law.” 

Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (citation and internal quotation 

marks omitted). “An action against the United States under the FTCA is the exclusive remedy for 

employment-related torts committed by employees of the federal government.” Caldwell v. 

Klinker, 646 F. App’x 842, 846 (11th Cir. 2016) (per curiam). The FTCA “makes clear that where 

a federal employee acts within the scope of his or her employment, an individual can recover only 

against the United States . . . .” Burns v. United States, 809 F. App’x 696, 699 (11th Cir. 2020) 

(per curiam) (quoting Matsushita Elec. Co. v. Zeigler, 158 F.3d 1167, 1169 (11th Cir. 1998)) 

(internal quotation marks omitted). “[W]here the United States Attorney General certifies that the 

employee-defendant was acting within the scope of his employment at the time of the alleged 

wrong, the burden shifts to the plaintiff to prove otherwise.” Small v. United States, No. 

13-cv-22836-UU, 2014 WL 12537139, at *2 (S.D. Fla. Mar. 3, 2014). 

“The FTCA bars claimants from bringing suit in federal court until they have exhausted 

their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). As a 

prerequisite to filing suit, a “claimant shall first have presented the claim to the appropriate Federal 

agency and his claim shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a). 

8

 Again, Plaintiff’s Amended Complaint contains no such claim. Accordingly, this argument is 

impermissibly raised and the Court will not consider it for the purposes of the instant motion. See 

Burgess, 600 F. App’x at 665. 

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As an initial matter, the Court finds that DOE and Secretary of Education are not the proper 

parties here. Burns, 809 F. App’x at 699. The Court construes the Federal Defendants’ argument 

that the United States is the proper party—submitted by the United States Attorney for the 

Southern District of Florida—as certification that the DOE and Secretary of Education were acting 

within the scope of their employment as it relates to the alleged conduct giving rise to this action. 

Plaintiff provides nothing more than the mere possibility that the DOE and Secretary of Education 

were not acting within the scope of their employment, with no facts in support of such a possibility. 

Thus, Plaintiff failed to meet her burden to prove that the DOE and the Secretary of Education 

were not acting within the scope of their employment when the alleged wrong occurred. See Small, 

2014 WL 12537139, at *2. The Court finds it prudent to dismiss the DOE and Secretary of 

Education and substitute the United States as the proper party. See Burns, 809 F. App’x at 699.

Next, as to the exhaustion of remedies requirement, Plaintiff’s argument that “filing a claim 

against the DOE would be futile” because the DOE has not yet issued a final decision on her 

FERPA complaint is without merit. Plaintiff cites to no authority establishing a futility exception. 

See generally Resp. to Federal Defs.’ Mot. Further, DOE’s purported delay in issuing Plaintiff a 

final decision on her FERPA complaint is inapposite to the requirement that she exhaust her 

administrative remedies under the FTCA prior to bringing suit. To the extent that Plaintiff is 

concerned about indefinite delay in responding to an administrative claim under the FTCA, the 

relevant statute provides that “[t]he failure of an agency to make final disposition of a claim within 

six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final 

denial of the claim for purposes of this section.” § 2675(a). 

Accordingly, the tort claims against the Federal Defendants must be dismissed for 

Plaintiff’s failure to exhaust her administrative remedies. See Caldwell, 646 F. App’x at 846–47. 

While this failure alone requires that the Court dismiss the tort claims against the Federal 

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Defendants, the Court briefly addresses some of the remaining arguments related to subject matter 

jurisdiction because they warrant dismissal with prejudice.

9

 

The federal government’s waiver of immunity from tort suits based on state court claims 

is not without bounds. See Zelaya v. United States, 781 F.3d 1315, 1321–22 (11th Cir. 2015) 

(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)) (“[I]n offering its consent to be sued, 

the United States has the power to condition a waiver of its immunity as broadly or as narrowly as 

it wishes, and according to whatever terms it chooses to impose.”). One such statutory exception 

is the intentional tort exception, which excludes “[a]ny claim arising out of assault, battery, false 

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract rights.” § 2680(h). “In determining 

whether the exception applies, it is the substance of the claim and not the language used in stating 

it which controls.” Alvarez v. United States, 862 F.3d 1297, 1302 (11th Cir. 2017) (quoting Zelaya, 

781 F.3d at 1334) (internal quotation marks omitted). Counts VII and VIII of the Amended 

Complaint allege fraud and civil conspiracy, respectively. See generally Am. Compl. Both fraud 

and civil conspiracy, as specifically pled here, fall squarely within the intentional tort exception as 

they contain elements of misrepresentation and deceit. See id. ¶¶ 922–946; Omegbu v. United 

States, 475 F. App’x 628, 629 (7th Cir. 2012). 

Accordingly, Counts VII and VIII must be dismissed with prejudice as to Federal 

Defendants. 

The remaining claims against the Federal Defendants—Counts IV (breach of legal 

obligation to properly enforce a student FERPA complaint), IX (breach of fiduciary duty), and X

(negligence)—are rooted in DOE’s purported failure to timely resolve Plaintiff’s FERPA 

9

 Finding several grounds to dismiss the claims based on a lack of subject matter jurisdiction, the 

Court declines to analyze the additional bases for dismissal under Rule 12(b)(6). 

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complaint. However, FERPA does not provide a private right of action. See, e.g., Gonzaga Univ. 

v. Doe, 536 U.S. 273, 289–90 (2002); Martes v. Chief Exec. Officer of S. Broward Hosp. Dist., 

683 F.3d 1323, 1326 n.4 (11th Cir. 2012) (quoting Gonzaga, 536 U.S. at 290) (“To be clear, 

Gonzaga declined to find a private right of action in FERPA because the relevant provisions 

‘contain no rights-creating language, they have an aggregate, not individual focus, and they serve 

primarily to direct the Secretary of Education’s distribution of public funds to educational 

institutions.’”). Without citing any legal authority in support, Plaintiff’s argument that Gonzaga

and its progeny applies only to actions against educational institutions is unfounded. 

Accordingly, Counts IV, IX, and X must be dismissed with prejudice as to the Federal 

Defendants. 

B. State Defendants 

The State Defendants first argue that Plaintiff’s Amended Complaint is a shotgun pleading 

and must be dismissed. State Defs.’ Mot. at 5–7. Further, the State Defendants argue that (1) the 

federal claims against them do not survive dismissal; (2) the official capacity claims against the 

individuals are redundant and must be dismissed; (3) the First Amendment claim (Count I) fails 

because Plaintiff has not alleged any protected activity or a causal connection between any activity 

and her dismissal; (4) the due process claim (Count II) fails because there is no recognized 

fundamental property right in continued post-secondary education and Plaintiff did not exhaust 

her administrative remedies; (5) the equal protection claim (Count III) fails because Plaintiff is not 

a member of a protected class and has not identified similarly situated comparators; (6) the FERPA

claim (Count V) fails because no action in this Court can be maintained for violations related to 

FERPA under federal or state law; (7) the denial of assistance of counsel claim (Count VI) fails 

because Plaintiff was not entitled to counsel under any federal law; (8) sovereign immunity bars 

the state law tort claims (Counts VII, VIII, IX, and XI); and (9) the negligence claim (Count X)

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fails because Plaintiff did not comply with statutory notice requirements, and educational 

malpractice claims are not recognized in Florida. Id. at 7–23. 

In response, Plaintiff argues that the Amended Complaint places the State Defendants on 

sufficient notice with particularity. Resp. to State Defs.’ Mot at 2–3. Next, Plaintiff argues that 

(1) the federal claims survive dismissal in equity, and her harm is ongoing; (2) the official capacity 

claims against the individuals are separate and distinct from the claims against the FIU BOT and 

the BOG and are therefore not redundant; (3) the First Amendment claim (Count I) survives 

because she has alleged protected speech and a causal connection between her political activity 

and her dismissal; (4) the due process claim (Count II) survives because she has a property right 

in her law school education, and FIU did not provide Plaintiff with procedural due process; (5) the 

equal protection claim (Count III) survives because Plaintiff identified similarly situated 

comparators; (6) the FERPA claim (Count V) survives because the Florida Statutes confer a private 

cause of action; (7) the denial of assistance of counsel claim (Count VI) survives because 

universities do not have the right to deny students assistance of counsel, and such assistance is 

permitted under federal law; (8) Florida has waived sovereign immunity in tort cases (Counts VII, 

VIII, IX, and XI); and (9) the negligence claim (Count X) survives because Plaintiff did satisfy 

statutory pre-suit notice requirements, and this claim is not based on educational malpractice. 

1. Impermissible Shotgun Pleading—Counts I, II, III, V, VI, VII, VIII, IX, X, and XI

As an initial matter, Plaintiff’s Amended Complaint is indeed an impermissible shotgun 

pleading and must be dismissed on that basis. There are several examples that highlight the 

deficiencies therein—e.g., each cause of action is inherently vague in terms of which Defendant it 

specifically applies to, there are a number of factual statements that are wholly irrelevant to 

Plaintiff’s claims, and it is unreasonably difficult to ascertain which causes of action apply to which 

Defendants, and specifically on what basis. One thing is abundantly clear—a short and plain 

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statement this is not. Accordingly, the Court finds sufficient grounds to dismiss the Amended 

Complaint in its entirety as a shotgun pleading. See Pyatt, 2020 WL 6945962, at *5. However, 

except as otherwise provided in this Order, the Amended Complaint is dismissed without prejudice

on this basis. See Hollis v. W. Acad. Charter, Inc., 782 F. App’x 951, 955 (11th Cir. 2019). 

2. Constitutional Claims—Counts I, II, and III 

The State Defendants argue that Plaintiff’s constitutional claims must be dismissed because 

both the FIU BOT and the BOG are recognized arms of the State of Florida and they have not 

explicitly waived immunity. State Defs.’ Mot. at 7–9. The State Defendants argue this holds true 

for Defendants Puig, Rosenberg, Acosta, Ansah, Brown, Schrier, Baker, Norberg, Weisbord, 

Rosenthal, Lautenbach, and Elijah to the extent that they are sued in their official capacities.10 Id.

at 8–9. Plaintiff argues that the State Defendants deprived her of her property rights under § 1983, 

and that she has properly pled that the State Defendants are “liable for the codified, facially 

unconstitutional ‘FIU Law Regulations’ and other pervasive actions done under official 

government policy.” Resp. to State Defs.’ Mot. at 3. Moreover, Plaintiff argues that she seeks 

both injunctive and monetary relief, and that “she continues to suffer the embarrassment and 

damage to her career for an unlawful academic dismissal.” Id. at 4. Plaintiff argues that her 

“unlawful academic dismissal is an on-going constitutional violation.” Id. Plaintiff argues that 

she “intends to have a jury declare FIU COL Regulations unconstitutional and deprive law students 

of basic procedural due process protection of their property right in continued enrollment . . . at a 

fair and unbiased law school.” Id. 

The Eleventh Amendment to the United States Constitution bars § 1983 claims against the 

State absent a waiver of immunity. Gould v. Fla. Atl. Univ. Bd. of Trs., No. 

10-81210-CIV-RYSKAMP/VITUNAC, 2011 WL 13227893, at *2 (S.D. Fla. June 14, 2011). 

10 Only Defendant Wasserman is sued in both his individual and official capacity. 

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“Section 1983 does not provide a federal forum for litigants who seek a remedy against a State for 

alleged deprivations for civil liberties.” Id. at *3 (citing Will v. Mich. Dep’t of State Police, 491 

U.S. 58, 66 (1989)). “In Florida, sovereign immunity is the general rule, not the exception.” Fin. 

Healthcare Assocs., Inc. v. Pub. Health Tr. of Miami-Dade Cnty., 488 F. Supp. 2d 1231, 1235–36 

(S.D. Fla. 2007). “Even if a state could consent to suit, Florida has not waived its § 1983 

immunity.” Gould, 2011 WL 13227893, at *3. Further, “neither a State nor its officials acting in 

their official capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71 (reasoning that “a suit 

against a state official in his or her official capacity is not a suit against the official but rather is a 

suit against the official’s office.”). 

“An exception to Eleventh Amendment immunity exists under the Ex parte Young doctrine, 

which permits suits against state officers seeking prospective relief to end continuing violations of 

federal law.” Nicholl v. Att’y Gen. Ga., 769 F. App’x 813, 815 (11th Cir. 2019) (per curiam) 

(citation and internal quotation marks omitted). “The Ex parte Young doctrine applies only when 

a violation of federal law by a state official is ongoing as opposed to cases in which federal law 

has been violated at one time or over a period of time in the past.” Id. (citation and internal 

quotation marks omitted). “The Ex parte Young doctrine is inapplicable when a plaintiff seeks to 

adjudicate the legality of past conduct.” Id. (citation and internal quotation marks omitted). 

Plaintiff’s constitutional claims against State Defendants FIU BOT and BOG, as well as 

those against the individual State Defendants sued in their official capacity, are not cognizable 

because they are subject to sovereign immunity. See Pyatt, 2020 WL 6945962, at *10 (dismissing 

with prejudice claims against FIU BOT and those sued in their official capacity as nonactionable). 

Further, Plaintiff’s allegation that she suffers ongoing harm that entitles her to injunctive relief 

under the Ex parte Young doctrine is without legal support. See Nicholl, 769 F. App’x at 815–16 

(affirming the district court’s dismissal of the plaintiff’s complaint and finding that the Ex parte 

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Young doctrine was not applicable where the plaintiff sought redress for an alleged violation of 

federal law resulting in a particular grade in a completed course). Plaintiff cites to no legal 

authority in support of her ongoing harm theory that warrants a different result here. See generally

Resp. to State Defs.’ Mot. Plaintiff has since completed law school at another academic institution, 

which makes her argument regarding alleged ongoing harm all the more speculative. To the extent 

that Plaintiff seeks to challenge FIU Law’s policies and regulations as they apply to future law 

students, she lacks standing to do so. See Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 

1262, 1283 (11th Cir. 2001) (“[T]o have standing to obtain forward-looking relief, a plaintiff must 

show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the 

future.”). 

Accordingly, Counts I, II and III must be dismissed with prejudice as to State Defendants 

FIU BOT, BOG, and the individual State Defendants sued in their official capacity.11 

3. FERPA Claim—Count V

The State Defendants argue that FERPA does not provide a private right of action citing 

the same general principles argued by the Federal Defendants in reliance on Gonzaga. See supra

Section III.A.2.; State Defendants’ Mot. at 17–18. Further, to the extent Plaintiff seeks to assert a 

right pursuant to Florida Statutes § 1002.22, the State Defendants argue that statute does not apply 

to disputes involving state universities. Id. Plaintiff argues that § 1002.225(3) “confers a private 

cause of action in equity,” and seeks leave to amend her complaint accordingly.

As discussed above, FERPA does not provide a private right of action. See supra Section 

III.A.2 at 19; see also Gonzaga, 536 U.S. at 289 (quoting 20 U.S.C. § 1232; 34 C.F.R. § 99.60 (a)–

(b)) (“Congress expressly authorized the Secretary of Education to ‘deal with violations’ of the 

11 Finding that dismissal without prejudice is warranted based on sovereign immunity, the Court 

declines to analyze the additional grounds for dismissal based on the substantive components of 

Plaintiff’s constitutional claims. 

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Act, § 1232g(f) (emphasis added), and required the Secretary ‘to establish or designate [a] review 

board’ for investigating and adjudicating such violations, § 1232g(g). Pursuant to these provisions, 

the Secretary created the Family Policy Compliance Office (FPCO) ‘to act as the Review Board 

required under the Act [and] to enforce the Act with respect to all applicable programs.’”). 

Plaintiff’s FERPA claim is not actionable in this Court. 

Plaintiff’s attempt to assert jurisdiction under § 1002.225(3) fares no better. Section 

§ 1002.225(3) provides in relevant part that “[i]f any public postsecondary educational institution 

refuses to comply with this section, the aggrieved student has an immediate right to bring an action 

in circuit court to enforce his or her rights by injunction.” Thus, to the extent Plaintiff seeks to 

assert a claim under § 1002.225(3), she may do so in circuit court, but not before this Court. 

Accordingly, Count V must be dismissed with prejudice as to the State Defendants. 

4. Denial of Counsel Claim—Count VI

The State Defendants argue that “there is no caselaw recognizing a right to counsel in 

disciplinary- or academic-dismissal proceedings,” and Plaintiff’s reliance on FERPA “is again 

misplaced.” State Defs.’ Mot. at 18–19. Plaintiff argues that she “intends to challenge the legal 

axiom that law students can be pervasively and perniciously denied assistance of counsel in the 

face of an academic dismissal and in today’s polarized and vitriolic educational environment.” 

Resp. to State Defs.’ Mot. at 11. Plaintiff argues that “FERPA law 23 C.F.R. [§] 99.22(d)[] states 

that students ‘may, at their own expense, be assisted or represented by one or more individuals of 

his or her own choice, including an attorney.’” Id. Plaintiff argues that “[t]his is a case of first 

impression to determine whether a university may deny the assistance of counsel under FERPA.” 

Id. at 12. 

Again, as discussed above in supra Sections III.A.2 and III.B.3., FERPA does not provide 

a private right of action and therefore this claim is not subject to redress before this Court. See 

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Gonzaga, 536 U.S. at 289–90. Accordingly, Count VI must be dismissed with prejudice as to the 

State Defendants. 

5. Tort Claims—Counts VII, VIII, IX, and XI

a. Fraud, Civil Conspiracy, and Defamation

The State Defendants argue that “[a]lthough Florida has generally waived immunity for 

torts, it has retained immunity for torts allegedly committed in bad faith.” State Defs.’ Mot. at 19 

(citing § 768.28(9)(a)). Specifically, the State Defendants argue that because the claims alleging 

fraud, civil conspiracy, and defamation all require an element of bad faith or malicious purpose, 

they must be dismissed as a matter of law. Id. 19–21. Plaintiff does not directly respond to the 

State Defendants’ arguments regarding fraud, civil conspiracy, and defamation. Resp. to State 

Defs.’ Mot. at 12–13. Rather, Plaintiff argues that “FIU’s policy of not reviewing educational 

records and grades before final dismissal or upon a challenge of that dismissal intentionally negates 

the possibility that FIU could make a clerical error or [sic] records suffered through a technical 

‘glitch.’” Id. at 13. Plaintiff alludes to such a policy as creating a “known dangerous condition” 

which, if the state fails to remedy such a condition, would render sovereign immunity inapplicable. 

Id. 

“Under Florida law, the state and its agencies have sovereign immunity and cannot be sued 

unless the Florida legislature has waived that privilege.” Zainulabeddin v. Univ. of S. Fla. Bd. of 

Trs., 749 F. App’x 776, 786 (11th Cir. 2018) (per curiam) (citing Pan-Am Tobacco Corp. v. Dep’t 

of Corr., 471 So. 2d 4, 5 (Fla. 1984)). “Although Florida has generally waived immunity for torts, 

it has retained immunity for torts committed in bad faith by its employee.” Id. (citing § 768.28(9)). 

“Florida has not waived immunity for torts involving fraud.” Id. Similarly, “[p]leading malice in 

a defamation action will bar recovery against a state agency pursuant to sovereign immunity under 

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[§] 768.28(9)(a).” Boggess v. Sch. Bd. of Sarasota Cnty., No. 8:06-CV-2245-T-27-EAJ, 2008 WL 

564641, at *5 (M.D. Fla. Feb. 29, 2008) (citation omitted). 

Here, Plaintiff’s claims of fraud, civil conspiracy predicated on fraud, and defamation all 

include elements of bad faith or malicious intent. In her claim of fraud, Plaintiff recites the 

elements of fraud under Florida law which requires, in part, knowledge that a statement is false 

and intent by the person making the false representation that it will induce another to act on it. 

Am. Compl. ¶ 923. In her claim of civil conspiracy, Plaintiff very specifically alleges bad faith 

and malice where she states that “FIU professors conspired with one another, as well as other 

individuals and entities, to perpetrate an unlawful act upon [Plaintiff] or to perpetrate a lawful act 

by unlawful means, to wit: Defendants conspired to devise a fraudulent and unconstitutional 

grading scheme to cause [Plaintiff] an academic expulsion.” Id. ¶ 930. Finally, in her defamation 

claim, Plaintiff alleges, in part, that “FIU’s publication of [Plaintiff’s] expulsion had malicious 

intent or at least had reckless disregard for the truth because FIU intended to block [Plaintiff] from 

ever graduating from any law school.” Id. ¶ 1059. Each of these claims very clearly asserts the 

type of bad faith and malice for which Florida has retained immunity. See Zainulabeddin, 749 F. 

App’x at 786 (11th Cir. 2018). 

Accordingly, Counts VII, VIII, and XI must be dismissed with prejudice as to the State 

Defendants. 

b. Breach of Fiduciary Duty

The State Defendants argue that Plaintiff’s allegations fail to show the breach of an express 

written contract, as is required to sustain a breach of fiduciary duty claim. State Defs.’ Mot. at 

21–22. In her response, Plaintiff does not directly respond to the argument that there be an express 

written contract. Resp. to State Defs.’ Mot. at 13–14. Rather, Plaintiff argues that “Florida courts 

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may still recognize a fiduciary duty based on the specific action of parties where there is no specific 

fiduciary duty established under the law.” Id. 

“[W]here the state has entered into a contract fairly authorized by the powers granted by 

general law, the defense of sovereign immunity will not protect the state from action arising from 

the state’s breach of contract.” Pan-Am Tobacco Corp., 471 So. 2d at 5. The absence of the 

sovereign immunity defense applies “only to suits on express, written contract into which the state 

agency has statutory authority to enter.” Id. at 6. 

Plaintiff fails to assert the existence of an express written contract upon which a breach of 

fiduciary duty claim can stand. Plaintiff’s status as a student is not sufficient to sustain this cause 

of action. See Morrison v. Univ. of Miami, No. 1:15-cv-23856-UU, 2016 WL 3129490, at *7 (S.D. 

Fla. Jan. 19, 2016) (finding that “a fiduciary duty does not simply arise out of students’ status”). 

Accordingly, Count IX must be dismissed with prejudice as to the State Defendants. 

6. Negligence Claim—Count X

The State Defendants argue that Plaintiff’s negligence claim fails because she did not 

comply with pre-suit notice requirements set forth in § 768.28. State Defs.’ Mot. at 22–23. 

Specifically, the State Defendants argue that Plaintiff’s notices of intent to commence litigation 

are insufficient to satisfy statutory pre-suit notice requirements. Id. Further, the State Defendants 

argue that even if Plaintiff had complied with the statutory pre-suit notice requirements, the 

negligence claim still fails because educational malpractice is not a cognizable cause of action. Id.

at 23. The State Defendants argue the negligence claim should be dismissed with prejudice 

because the allegations “are generally premised on academic decisions and conduct relating to

Plaintiff’s enrollment or the evaluation of her complaints related to her education at FIU.” Id. 

Plaintiff argues that she did in fact comply with pre-suit notice requirements, citing to the Amended 

Complaint ¶ 130 and Exhibit 28. Resp. to State Defs.’ Mot. at 14. Plaintiff further argues that 

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State Defendants are “mischaracterizing” her negligence claim and it “is not exclusively based on 

discretionary academic decisions such as grading or academic placement.” Id. at 14–15. 

Specifically, Plaintiff argues that she “properly pled a breach of the duty to supervise employees, 

maintaining accurate record-keeping and comply with their own policies and regulation as 

published [sic].” Id. at 15. 

“To maintain a claim in tort against the State or one of its agencies, a plaintiff must meet 

the requirements of § 768.28, which waives the government’s sovereign immunity with respect to 

tort actions.” Woodburn v. State of Fla. Dep’t of Child. & Fam. Servs., 854 F. Supp. 2d 1184, 

1207–08 (S.D. Fla. 2011). “The statute sets out mandatory procedures that one must follow before 

suing pursuant to the waiver.” Id. at 1208. Specifically, the statute provides in relevant part:

An action may not be instituted on a claim against the state or one of its agencies 

or subdivisions unless the claimant presents the claim in writing to the appropriate 

agency, and also . . . presents such claim in writing to the Department of Financial 

Services, within 3 years after such claim accrues and the Department of Financial 

Services of the appropriate agency denies the claim in writing. . . . The failure of 

the Department of Insurance or the appropriate agency to make final disposition of 

a claim within 6 months after it is filed shall be deemed a final denial of the claim 

for purposes of this section. 

§ 768.28(6)(a), (d). Satisfaction of the requirements set forth above “is a condition precedent to 

maintaining a lawsuit.” Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393 (S.D. Fla. 2008) 

(citation and internal quotation marks omitted). 

Here, Plaintiff sent a letter to the Florida Department of Financial Services on February 6, 

2018. Am. Compl. ¶ 130, Ex. 28. That letter included (1) a copy of Plaintiff’s notice of intent to 

initiate litigation, (2) a copy of the complaint Plaintiff sent to the BOG, (3) responses from the 

BOG’s Inspector General and FIU’s General Counsel, and (4) Plaintiff’s rebuttal to their findings. 

Id. Ex. 28. On the face of the exhibit presented, and as State Defendants argue, Plaintiff’s letter to 

the Florida Department of Financial Services was missing certain components required by 

§ 768.28(6)(c)—specifically, date of birth, place of birth, social security number, or information 

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regarding any unpaid prior adjudicated claim against the State. See id. Moreover, the letter seems 

less like a claim seeking relief from the appropriate agency under § 768.28, and more like what it 

is specifically characterized as therein—a notice of pending litigation. See id. (“The purpose of 

this letter is to place your department on notice of pending litigation.”). Plaintiff’s reliance on 

Wagatha v. City of Satellite Beach is misplaced. See Wagatha, 865 So. 2d 620, 622 (Fla. Dist. Ct. 

App. 2004) (“A plaintiff must plead compliance with the statute, although a general averment will 

suffice.”). While a “general averment” in a complaint may suffice to overcome a motion to 

dismiss, it does not serve as a waiver of the otherwise applicable statutory requirements. Here, 

Plaintiff’s flaw is not that she has said too little in the Amended Complaint, but that she has said 

too much by way of the exhibits attached thereto which demonstrate that the statutory pre-suit 

notice requirements have not been met. The Eleventh Circuit has consistently held that “when the 

exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” 

Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (per curiam) (quoting Griffin Indus., 

Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007)) (internal quotation marks omitted). And, 

because the time to comply with the pre-suit requirements has expired, this claim must also be 

dismissed with prejudice. See Fletcher, 567 F. Supp. 2d at 1393 (quoting Wagatha, 865 So. 2d at 

622) (internal quotation marks omitted) (“[W]here the time for such notice has expired so that it 

is apparent that the plaintiff cannot fulfill the requirement, the trial court has no alternative but to 

dismiss the complaint with prejudice.”). 

Accordingly, Count X must be dismissed with prejudice as to the State Defendants. 

Finding sufficient grounds to dismiss the negligence claim for failure to strictly comply with 

§ 768.28, the Court does not reach the remaining basis for dismissal—i.e., whether this claim 

amounts to anything more than an allegation of educational malpractice. 

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C. Defendant Wasserman 

Defendant Wasserman first argues that Plaintiff’s Amended Complaint is a shotgun 

pleading and must be dismissed. Wasserman Mot. at 6–7. Further Defendant Wasserman argues 

that (1) as to the First Amendment claim (Count I), Plaintiff has not shown protected conduct or 

violation of a clearly established right to support a First Amendment claim; (2) as to the due 

process claim (Count II), Plaintiff has not shown clearly established due process rights that she 

was deprived of; (3) as to the equal protection claim (Count III), Plaintiff is not a member of a 

protected class and has not identified a similarly situated comparator; (4) as to the denial of 

assistance of counsel claim (Count VI), Plaintiff did not have a right to counsel; (5) as to the fraud 

claim (Count VII), the elements necessary to support a fraud claim are not satisfied with any 

particularity; (6) as to the civil conspiracy claim (Count VIII), the underlying tort requirement bars 

civil conspiracy and the intra-corporate conspiracy doctrine precludes liability; (7) as to the breach 

of fiduciary duty claim (Count IX), no fiduciary duty exists; (8) as to the negligence claim (Count 

X), educational malpractice is not a cognizable claim and, as a public employee, Defendant 

Wasserman is shielded by § 768.28; (9) as to the defamation claim (Count XI), absolute immunity 

bars defamation; and (10) the official capacity claims are redundant.12 Id. at 6–20. 

Plaintiff argues that the Amended Complaint is not a shotgun pleading, and that it places 

Defendant Wasserman on sufficient notice with particularity. Resp. to Def. Wasserman Mot. at 

3–4. Plaintiff further argues that (1) Plaintiff has alleged protected speech and a causal connection 

between her political activity and dismissal in support of the First Amendment claim; (2) Plaintiff 

has a property right in continuing her law school education and FIU provided no procedural due 

process in connection with her dismissal; (3) Plaintiff has identified similarly situated comparators

12 For the same reasons set forth in supra Section III.B., all claims against Defendant Wasserman 

in his official capacity must be dismissed with prejudice. Thus, the redundancy argument is moot. 

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in support of the equal protection claim; (4) no case law exists that affirmatively grants a university 

the right to deny a student’s discretion to avail herself of the assistance of counsel; (5) Plaintiff’s 

claim of fraud is pled with particularity and specificity; (6) as to the civil conspiracy claim 

Defendant Wasserman’s intra-corporate conspiracy doctrine fails; (7) Defendant Wasserman 

breached his fiduciary duty to Plaintiff; (8) Plaintiff’s negligence claim is not based on educational 

malpractice; and (9) absolute immunity does not bar the defamation claim because Wasserman is 

sued personally and is not a public official. 

1. Impermissible Shotgun Pleading—Counts I, II, III, VI, VII, VIII, IX, X, and XI

As discussed above in supra Section III.B.1., Plaintiff’s Amended Complaint is an 

impermissible shotgun pleading and must be dismissed accordingly. However, except as 

otherwise provided in this Order, the Amended Complaint is dismissed without prejudice on this 

basis. See Hollis v. W. Acad. Charter, Inc., 782 F. App’x 951, 955 (11th Cir. 2019). 

2. Qualified Immunity—Counts I, II, and III

Defendant Wasserman argues that he is subject to qualified immunity as to Counts I, II, 

and III. Def. Wasserman Mot. at 5. Plaintiff disputes Defendant Wasserman’s qualified immunity 

defense, arguing that “Plaintiff clearly asserts the infringement of several constitutional rights in 

her complaint, particularly her liberty right in her First Amendment right to free speech,” and 

Defendant Wasserman’s “unlawful acts were well beyond the scope of his discretion and authority 

as a professor.” Resp. to Def. Wasserman Mot. at 3. 

“Qualified immunity provides complete protection for government officials sued in their 

individual capacities where their conduct ‘does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.’” Quinette v. Reed, 805 F. 

App’x 696, 701 (11th Cir. 2020) (per curiam) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)). A government official “is entitled to qualified immunity where his actions would be 

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objectively reasonable to a reasonable [official] in the same situation.” Id. (citing Anderson v. 

Creighton, 483 U.S. 635, 638–41 (1987)). To assert a qualified immunity defense, a government 

official must have been acting within the scope of his discretionary authority when the allegedly 

wrongful acts occurred. Id. (citation omitted). Once the government official establishes that they 

were acting within the scope of their discretionary authority, the burden shifts to the plaintiff to 

show that the defendants violated a clearly established constitutional right. See Carter v. Butts 

Cnty., Ga., 821 F.3d 1310, 1319 (11th Cir. 2016) (citation omitted). Courts employ a two-step 

inquiry to determine whether government officials are entitled to qualified immunity: (1) the facts 

alleged in the complaint show the official’s conduct violated a constitutional right, and (2) the right 

was clearly established at the time of the alleged misconduct. See Pearson v. Callahan, 555 U.S 

223, 232 (2009). Courts need not address these steps in sequential order. See id. at 236.

Further, it is proper for courts to dismiss a complaint because the defendants are entitled to 

qualified immunity. Indeed, the Supreme Court has urged courts to apply qualified immunity at 

the earliest possible stage of litigation because the defense is immunity from the burdens of 

defending a lawsuit, not just immunity from damages or liability. See Hunter v. Bryant, 502 U.S. 

224, 228 (1991). As such, “[a]lthough the defense of qualified immunity is typically addressed at 

the summary judgment stage of a case, it may be . . . raised and considered on a motion to dismiss.” 

Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (citation omitted). “Unless the plaintiff’s 

allegations state a claim of violation of clearly established law, a defendant pleading qualified 

immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 

472 U.S. 511, 526 (1985) (citation omitted).

As an initial matter, the Court finds that Defendant Wasserman was acting within the scope 

of his discretionary authority because all the allegations against him relate to him carrying out his 

professorial duties—instructing a classroom, grading exams, and serving on an academic dismissal 

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committee. Accordingly, the burden shifts to Plaintiff to show that Defendant Wasserman violated 

clearly established constitutional rights. Carter, 821 F.3d at 1319. 

a. First Amendment Claim—Count I

Defendant Wasserman argues that “[u]nder an education-setting First Amendment theory, 

Plaintiff has not alleged any protected expression or conduct.” Def. Wasserman Mot. at 8. 

Specifically, Plaintiff “admittedly did not engage in any on-campus speech” and Plaintiff “failed 

to allege any speech that is constitutionally protected because she has not alleged what that speech 

was.” Id. According to Defendant Wasserman, at most Plaintiff alleges that “she felt intimidated 

to speak up in [Defendant Wasserman’s] class.” Id. Plaintiff argues that she “clearly alleges that 

[Defendant] Wasserman’s use of the classroom as a leftist propaganda machine was an 

intimidating suppression of [Plaintiff’s] freedom to express her conservative, Republican speech.” 

Resp. to Def. Wasserman Mot. at 4. Plaintiff further argues that she has “clearly pled that 

[Defendant] Wasserman’s fraudulent grading to result in [sic] a fraudulent academic dismissal was 

meant to infringe her right to be a lawyer that would likely defend conservative values in the courts 

and in the public arena.” Id.

“First Amendment rights, applied in light of the special characteristics of the school 

environment, are available to teachers and students.” Tinker v. Des Moines Indep. Cmty. Sch. 

Dist., 393 U.S. 503, 506 (1969). “It can hardly be argued that either students or teachers shed their 

constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. “To state a 

retaliation claim, the commonly accepted formulation requires that a plaintiff must establish first 

that his speech or act was constitutionally protected; second, that the defendant’s retaliatory 

conduct adversely affected the protected speech; and third, that here is a causal connection between 

the retaliatory actions and the adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 

(11th Cir. 2005) (citation omitted). “A plaintiff suffers adverse action if the defendant’s allegedly 

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retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First 

Amendment rights.” Id. at 1254. 

Here, Plaintiff’s raises two possible ways in which her First Amendment rights were 

violated. First, Plaintiff alleges that Defendant Wasserman’s actions had a chilling effect on her 

right to free speech, inasmuch as she alleges that she “felt intimidated to freely express an opposing 

political viewpoint in his classroom.” Am. Compl. ¶ 275. However, Plaintiff’s subjective 

discomfort sharing her political viewpoints during her first year of law school does not a 

constitutional violation make. Plaintiff cites to no authority in support of this vaguely asserted 

proposition. See generally Resp. to Def. Wasserman Mot. Thus, Plaintiff fails to meet her burden 

to show that any of Defendant Wasserman’s actions in the classroom were violative of Plaintiff’s 

clearly established constitutional rights in this context. 

Second, Plaintiff alleges that Defendant Wasserman retaliated against her for exercising 

her First Amendment rights by “using non-academic standards to grade her exams,” grading her 

exams “unblinded,” and intentionally lowering her grades “to retaliate and politically engineer the 

student body class”—all of which was apparently done because Defendant Wasserman “was aware 

of [Plaintiff’s] support of President Trump and the Republican Party.” Id. ¶¶ 276–280. The flaw 

in Plaintiff’s argument, however, is that her allegations are wholly conclusory and lack any factual 

support. Plaintiff does not specifically plead what constitutionally protected speech resulted in the 

retaliation that allegedly followed. In her response, Plaintiff argues that “she was punished for her 

very public advocacy of Republican candidates and then-candidate Trump on social media, in her 

hometown, and other off-campus activities during her 1L year.” Resp. to Defendant Wasserman 

Mot. at 4. She then leaps to the conclusion that Defendant Wasserman—now in the on-campus 

setting—was aware of such advocacy and thus retaliated against her because of it. Plaintiff’s 

“public advocacy,” whether on social media, in her hometown, or during other off-campus 

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activities, is far too vague to allow the Court to determine whether Plaintiff’s speech was 

constitutionally protected. Thus, the Court cannot find that the first prong of the retaliation 

analysis is satisfied, see Bennett, 423 F.3d at 1250, and Plaintiff fails to meet her burden to show 

that any of Defendant Wasserman’s actions in the classroom were violative of Plaintiff’s clearly 

established constitutional rights in this context as well. See Carter, 821 F.3d at 1319. 

Accordingly, Count I is dismissed without prejudice as to Defendant Wasserman. 

b. Count II—Due Process Claim

Defendant Wasserman argues that Plaintiff does not have a liberty or property interest in a 

continuing law school education, and thus there is no substantive due process violation. Def.

Wasserman Mot. at 9–10. As to any procedural due process violation, Defendant Wasserman 

argues that Plaintiff’s claim is premature as she has not exhausted her State remedies. Id. at 10–11. 

Further, Defendant Wasserman argues that “[t]here is no requirement for a pre-dismissal hearing 

at which [a] student may contest the basis for an academic dismissal.” Id. at 1. Plaintiff argues 

that she does have a property interest in her law school education, citing to a case involving a 

Georgia university. Resp. to Def. Wasserman Mot. at 5–6. Plaintiff does not discuss her failure 

to exhaust State remedies, however she argues that the “Procedural Due Process Clause grants 

[Plaintiff] the opportunity to present her case and have its merits fairly judged.” Id. at 7.

“The substantive component of the Due Process Clause protects those rights that are 

‘fundamental,’ that is, rights that are ‘implicit in the concept of ordered liberty.’” McKinney v. 

Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Palko v. Connecticut, 302 U.S. 319, 325 

(1937)). “[S]tudents at a public university do not have a fundamental right to continued 

enrollment.” Doe v. Valencia Coll., 903 F.3d 1220, 1235 (11th Cir. 2018) (citing Plyler v. Doe, 

457 U.S. 202, 221 (1982) (“Public education is not a ‘right’ granted to individuals by the 

Constitution.”)). “No court has recognized a substantive property or liberty interest in a college 

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education.” Ellison v. Bd. of Regents of Univ. Sys. of Ga., No. CV 105-204, 2006 WL 664326, at 

*1 (S.D. Ga. Jan. 12, 2006). 

“[A] violation of procedural due process is not complete ‘unless and until [a] State fails to 

provide due process.’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1294 (11th Cir. 2007) (quoting 

McKinney, 20 F.3d at 1557). “Only when the state refuses to provide a process sufficient to remedy 

the procedural deprivation does a constitutional violation become actionable.” Id. 

Plaintiff relies on Barnes v. Zaccari for the proposition that she held a property interest in 

her law school education. Barnes, 669 F.3d 1295 (11th Cir. 2012). However, Plaintiff’s reliance 

on Barnes is misplaced. In Barnes, a university policy imposed a “for cause” requirement for the 

imposition of disciplinary sanctions, and the student in question was dismissed on disciplinary, not 

academic, grounds. Id. at 1304–05. Plaintiff cites to no other authority, or any corollary FIU Law 

policy, that shows she had a clearly established property interest in continuing her law school 

education at FIU Law. Further, Plaintiff ignores entirely her failure to exhaust State administrative 

remedies. Plaintiff has failed to meet her burden to show that Defendant Wasserman violated 

Plaintiff’s clearly established due process rights. See Carter, 821 F.3d at 1319. 

Accordingly, Count II is dismissed without prejudice as to Defendant Wasserman. 

c. Count III—Equal Protection Claim

Defendant Wasserman argues that Plaintiff’s equal protection claim fails because Plaintiff 

has not alleged that she is part of a protected class, and Plaintiff did not identify any comparators 

or similarly situated individuals who were treated more favorably. Def. Wasserman Mot. at 11–13. 

Plaintiff first reasserts arguments related to Counts I and II—First Amendment and due process 

violations. Resp. to Def. Wasserman Mot. at 7. Next, Plaintiff argues that she “suspects certain 

identifiable students received [] favorable treatment, but refrains from naming them until such time 

as evidence is verified.” Id. at 8.

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“In order to state an equal protection claim, the plaintiff must prove that he was 

discriminated against by establishing that other similarly-situated individuals outside of his 

protected class were treated more favorably.” Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1180 

(11th Cir. 2009). Courts generally look to race, religion, gender, or national origin to determine 

whether the plaintiff is a member of a protected class. See Rollins v. Bd. of Trs. of Univ. of Ala., 

647 F. App’x 924, 938 (11th Cir. 2016) (“To maintain an equal protection claim, a plaintiff must 

allege that, through state action, similarly situated persons have been treated disparately. Further, 

the plaintiff must present evidence that the state actor’s conduct was motivated by the plaintiff’s 

race or sex.”) (internal citations and quotation marks omitted); Alford v. Consol. Gov’t of 

Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011) (per curiam) (“In a traditional employment 

case brought under the Equal Protection Clause, an employee asserts that he was discriminated 

against on account of his membership in an identifiable or protected class, such as race, religion, 

sex, or national origin.”). “If a plaintiff fails to show the existence of a similarly-situated 

[individual], judgment as a matter of law is appropriate where no other plausible allegation of 

discrimination is present.” Arafat v. Sch. Bd. of Broward Cnty., 549 F. App’x 872, 874 (11th Cir. 

2013) (per curiam). 

Here, Plaintiff does not identify membership in a protected class, nor does she allege with 

any particularity that similarly-situated individuals were treated more favorably. Plaintiff has 

failed to meet her burden to show that Defendant Wasserman violated Plaintiff’s clearly 

established equal protection rights. See Carter, 821 F.3d at 1319. 

Accordingly, Count III is dismissed without prejudiced as to Defendant Wasserman. 

3. Remaining State Law Claims

A district court may decline to exercise supplemental jurisdiction over a claim if the district 

court dismisses all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). “It has 

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consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s 

right.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). “[I]n the usual case in 

which all federal-law claims are eliminated before trial, the balance of factors to be considered 

under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and 

comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.” 

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). The Eleventh Circuit encourages 

district courts to dismiss any remaining state claims when the federal claims are dismissed prior to 

trial. See, e.g., Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018); Raney v. 

Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam). Dismissal of state-law 

claims should usually be done without prejudice so that plaintiff may seek relief in state court. See 

Vibe Micro, Inc., 878 F.3d at 1296 (citing Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999)). 

Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff’s 

remaining claims at this juncture and will dismiss those claims without prejudice. 

IV. CONCLUSION

UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being 

otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the 

Federal Defendants’ Motion to Dismiss, the State Defendants’ Motion to Dismiss, and Defendant 

Wasserman’s Motion to Dismiss are GRANTED IN PART and DENIED IN PART. 

Plaintiff’s Amended Complaint is DISMISSED WITH PREJUDICE in its entirety as to 

the Federal Defendants and the State Defendants, including Defendant Wasserman in his official 

capacity. Plaintiff’s Amended Complaint is DISMISSED WITHOUT PREJUDICE in its entirety 

as to Defendant Wasserman in his individual capacity. The Clerk of Court shall TERMINATE 

the Department of Education, the Secretary of Education, Florida International University Board 

of Trustees, Board of Governors for the State University System of Florida, Claudia Puig, Mark 

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B. Rosenberg, R. Alex Acosta, Tawia Baidoe Ansah, Joycelyn Brown, Rosario L. Schrier, Thomas 

E. Baker, Scott F. Norberg, Noah Weisbord, Marci Rosenthal, Ned C. Lautenbach, and Iris Elijah 

as parties to this case. 

The Clerk of Court is INSTRUCTED to administratively CLOSE THIS CASE. All 

pending motions, if any, are DENIED AS MOOT. Should Plaintiff choose to file a second 

amended complaint, she may do so within twenty-one (21) days of the date of this Order. Any 

such amended complaint shall remove all extraneous information related to the parties terminated 

herein. 

DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of April, 2021.

K. MICHAEL MOORE

CHIEF UNITED STATES DISTRICT JUDGE

c: All counsel of record

12th

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