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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA 

CASE NO.: 20-cv-61328-SINGHAL/VALLE

TIM CANOVA, 

Plaintiff, 

v. 

BRENDA C. SNIPES, DOZEL

SPENCER, and the BROWARD 

COUNTY SUPERVISOR OF ELECTIONS

Defendant. 

___________________________________________/ 

DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO 

DEFENDANTS’ MOTION TO DISMISS

Brenda C. Snipes, Dozel Spencer, and the Broward County Supervisor of Elections

(“SOE”), collectively, (“Defendants”) hereby file their Reply to Plaintiff’s Response in Opposition 

to Defendants’ Motion to Dismiss (“Response”) and states as follows: 

Plaintiff’s Response fails to adequately address the Defendants’ arguments that the 

Complaint fails to state a claim. Accordingly, Plaintiff’s Complaint is due to be dismissed.

A. The SOE is Not a Legal Entity with the Capacity to be Sued.

Despite Plaintiff’s protestations that they have sued the correct party, Plaintiff cites no case 

law supporting his argument. Indeed, the case law cited by Plaintiff does not address the issue at 

all, and Plaintiff’s argument that suing the correct party is a mere “legal technicality” is belied by 

the Federal Rules of Civil Procedure and applicable case law. 

Rather than characterizing the failure to sue an entity that does not have the legal capacity 

to be sued as a “legal technicality,” the Eleventh Circuit Court of Appeals has characterized this 

error as a deficiency in the complaint “that runs to a plaintiff's ability to state a claim.” Silberman 

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v. Miami-Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019). As argued in its Motion to Dismiss, 

the SOE is not a legal entity with the capacity to be sued. Similarly, the Broward Sheriff’s Office, 

also an independent constitutional officer, has been found to be an entity that does not have the 

capacity to be sued. Ramsay v. Broward Cnty. Sheriff’s Office, 303 Fed. Appx. 761, 763 n.1 (11th 

Cir. 2008) (noting that the proper defendant in the action is the Sheriff in his official capacity); 

Navarro v. City of Riviera Beach, 192 F.Supp.3d 1353, 1360-61 (S.D. Fla. June 29, 2016) (holding 

that the Sheriff’s Office was not a proper party to be sued). 

Here, Plaintiff’s failure to sue an entity with the capacity to be sued merits dismissal of the 

Complaint. 

B. Plaintiff Fails to Allege A First or Fourteenth Amendment Violation Against the 

SOE or Dr. Snipes.

Plaintiff makes a variety of conclusory statements in the Complaint such as that he has a 

right to run for office and that he has a right to candidacy. A review of Plaintiff’s Complaint 

reveals the following factual allegations: (1) Plaintiff ran for office in 2016; (2) he lost by a large 

margin (56.8% to 43.2%); (3) approximately a seven months later he requested the paper ballots

from the election; (4) he did not receive the paper ballots; and (5) he filed a public records lawsuit

in 2017 where he alleged that the paper ballots were destroyed. Notably absent from Plaintiff’s 

Complaint are ANY allegations that Plaintiff attempted to timely challenge this election through 

either the statutes available under Florida law or any other means. See § 102.168, Fla. Stat. 

(providing the statutory framework for contesting an election and requiring a complaint within 10 

days after certifying the results). Plaintiff’s response attempts to rewrite history and bootstrap a 

First Amendment claim by arguing that the destruction of the paper ballots deterred him from 

exercising his right to candidacy in the future and that he is entitled to a presumption that his right 

to candidacy was harmed by election “irregularities.” However, the election Plaintiff complains of 

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was completed over seven months prior to his public records request. Plaintiff does not and cannot 

legitimately allege a First Amendment or Fourteenth amendment claim that votes were not counted 

or there were election irregularities - four years after the election. 

Plaintiff cites to a myriad of case law, but none of it establishes any support for Plaintiff’s 

attempt to state a First or Fourteenth Amendment violation. No case cited by Plaintiff holds that 

the failure to retain a ballot well after the certification of an election is a federal constitutional 

deprivation or even an “election regularity.” In fact, federal courts are loathe to inject themselves 

in state election proceedings. “If every state election irregularity were considered a federal 

constitutional deprivation, federal courts would adjudicate every state election dispute, and the 

elaborate state election contest procedures, designed to assure speedy and orderly disposition of 

the multitudinous questions that may arise in the electoral process, would be superseded by a 

section 1983 gloss.” Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980). 

Plaintiff merely ignores that the alleged actions of the SOE and its employees occurred 

well after the election had concluded and well after any election contest could have been legally 

filed. The physical paper ballots that were allegedly destroyed had already been cast, counted, 

reported, certified, and the election process was complete. The destruction of paper ballots had no 

impact on Plaintiff’s candidacy or any right to run for office. 

Further, the Public Records Act does not confer any additional rights to Plaintiff other than 

what is statutorily permitted by Florida law. See § 119.12(4), Fla. Stat. (“This section does not 

create a private right of action authorizing the award of monetary damages for a person who brings 

an action to enforce the provisions of this chapter. Payments by the responsible agency may include 

only the reasonable costs of enforcement, including reasonable attorney fees, directly attributable 

to a civil action brought to enforce the provisions of this chapter.”). 52 U.S.C. § 20701 also does 

not create a private cause of action authorizing the award of monetary damages. 

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Plaintiff further mischaracterizes the Defendants’ argument with respect to his Fourteenth 

Amendment claim. Plaintiff had two remedies to address his purported due process claims. First, 

Plaintiff could have filed a post-election contest pursuant to state law. The post-election contest 

may be filed based on a variety of grounds including ineligibly of the successful candidate for the 

nomination in dispute; or the receipt of a number of illegal votes or rejection of a number of legal 

votes sufficient to change or place in doubt the result of the election. § 102.168, Fla. Stat. (2016). 

The Florida Public Records Act also provides an adequate remedy. See Fla. Stat. § 119.12; Brewer

v. Pensacola Police Dep’t, No. 3:15CV469/MCR/CJK, 2015 WL 8113253, at *4 (N.D. Fla. Nov. 

13, 2015), report and recommendation adopted sub nom., 2015 WL 8207502 (N.D. Fla. Dec. 7, 

2015) (holding that because Florida’s public records law provided the plaintiff with an adequate 

state law remedy to address the defendant’s alleged failure to provide her with a requested record, 

he cannot establish that the defendant’s actions violated her due process rights under the 

Fourteenth Amendment).

Plaintiff’s Complaint is devoid of allegations that he ever filed a post-election complaint 

contesting any votes or “election irregularities.” Plaintiff did file a Public Records Act lawsuit in 

which he alleges that he did not receive the records and that the records were destroyed. Thus, 

Plaintiff fails to state a due process claim. 

C. Plaintiff Cannot State a Claim for Relief for Violation of Article VI of the Florida 

Constitution.

Plaintiff’s response ignores that his Complaint seeks damages under Section 1983 for 

alleged violations of state law. This failure standing alone justifies dismissal of his Complaint. 

Ensley v. Soper, 142 F.3d 1402, 1406 n.4 (11th Cir. 1998) (noting that a plaintiff cannot base a 

Section 1983 claim solely on an alleged violation of non-federal law). Compounding this error is 

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Plaintiff’s proposition that the SOE waived sovereign immunity and that money damages are 

available against the Defendants for violation of Article VI of the Florida Constitution. 

Plaintiff contends that Chapter 119, Florida Statutes, (“Public Records Act”) waived the 

SOE’s sovereign immunity. While, the Public Records Act provides that an individual may bring 

suit for alleged violations of such law, the same cannot be said for violations of Article VI of the 

Florida Constitution. To be sure, Plaintiff cites to no law stating otherwise. Moreover, Plaintiff

fails to respond to the Defendants’ argument that money damages are not available for alleged 

violations of Article VI of the Florida Constitution. Accordingly, it appears that Plaintiff concedes 

this issue and the Defendants are entitled to dismissal of this count. 

D. Plaintiff Cannot State a Claim for Civil Conspiracy. 

In similar fashion to his Complaint, Plaintiff alleges in conclusory fashion that he has stated 

a claim for civil conspiracy. Plaintiff made no effort to elucidate to the Defendants or this Court 

whether the civil conspiracy claim was under state or federal law, or both. Plaintiff cites two cases 

to support his claim that he adequately alleged a civil conspiracy. Neither case provides a modicum 

of support to contest the Defendants’ arguments that the civil conspiracy claim is foreclosed by 

the intercorporate conspiracy doctrine or that Plaintiff adequately alleged the factual basis for a 

civil conspiracy claim. 

As argued in Defendants’ Motion to Dismiss, the intracorporate conspiracy doctrine bars 

Plaintiff’s civil conspiracy claim. Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) 

(holding that plaintiff’s conspiracy claim failed under the intracorporate conspiracy doctrine 

because the only allegations of the conspiracy were between two city employees); Richard 

Bertram, Inc. v. Sterling Bank & Trust, 820 So. 2d 963, 966 (Fla. 4th DCA 2002) (holding that it 

is well settled that an employee cannot conspire with his or her employer). Therefore, Plaintiff’s 

civil conspiracy claim must be dismissed. 

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WHEREFORE, the County respectfully requests that this Court enter an Order dismissing 

Plaintiffs’ counts against the County with prejudice. 

Respectfully submitted,

Andrew J. Meyers

Broward County Attorney

115 South Andrews Avenue, Suite 423

Fort Lauderdale, Florida 33301

Telephone: (954) 357-7600

Facsimile: (954) 357-7641

By: s/Adam Katzman

Adam Katzman

Assistant County Attorney 

Florida Bar No.: 652431

E-mail: akatzman@broward.org

Kristen McIntosh

Assistant County Attorney

Florida Bar No.: 1003315

E-mail: kmmcinstosh@broward.org

Counsel for All Defendants 

s/Nathaniel Klitsberg

Nathaniel Klitsberg

Assistant County Attorney

Florida Bar No.:

E-mail: nklitsberg@broward.org

Counsel for Peter Antonacci, Broward County 

Supervisor of Elections

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Defendants’ Motion to Dismiss was 

served via CM/ECF on November 17, 2020, on all counsel of record.

s/Adam Katzman

Adam Katzman

Assistant County Attorney 

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