IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KIMBERLY GRIPPA,

Plaintiff,

v. CASE NO.: 4:20cv457-MW/MAF

RONALD RUBIN,

Defendant.

_________________________/

ORDER DENYING MOTION TO DISMISS

This Court has considered, without hearing, Defendant’s Motion to Dismiss.

ECF No. 4. In the motion, Defendant seeks to dismiss Plaintiff’s single count 

Amended Complaint, ECF No. 1-2, at 18–24 (“Am. Compl.”), for failure to state a 

claim upon which relief can be granted. For the reasons provided below, the motion 

is DENIED. However, as explained below, certain statements on which Plaintiff 

relies on for her lawsuit cannot be a basis for a defamation claim. 

I

This Court accepts the allegations in the Amended Complaint as true and 

construes them in the light most favorable to Plaintiff. See Hunt v. Amico Props., 

L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). “To withstand a motion to dismiss under 

Rule 12(b)(6), a complaint must include ‘enough facts to state a claim to relief that 

is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

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(2007)). “A ‘claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

“Plaintiff’s allegations must amount to ‘more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting 

Twombly, 550 U.S. at 555). 

In a motion to dismiss, this Court is usually bound by the four corners of a 

complaint. If it considers materials outside the complaint, such as the attachments to 

the motion to dismiss, this Court “generally must convert a motion to dismiss into a 

motion for summary judgment.” Day v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 

2005). But that is not always the case. “[T]he court may consider a document 

attached to a motion to dismiss without converting the motion [to dismiss] into one 

for summary judgment if the attached document is (1) central to the plaintiff’s claim 

and (2) undisputed.” Id. at 1276. 

In his motion, Defendant attaches three exhibits. First is Defendant’s letter 

that he provided to state investigators in May 2019. ECF No. 4-1. Second is a state 

court complaint that Defendant filed against R. Paul Mitchell. ECF No. 4-2. Third is 

an email Defendant sent to Governor DeSantis and Chief Inspector General Malinda 

Miguel on June 21, 2019. ECF No. 4-3. These exhibits are referenced in Plaintiff’s 

Amended Complaint. Am. Compl. ¶ 13 (“Defendant has filed several lawsuits 

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(including Case No. 2019 CA 002535) wherein GRIPPA is listed as a co-conspirator 

of the ‘enterprise’ that Rubin claims. . . .”); ¶ 15 (“Rubin, through counsel, sent 

emails to Governor Ron DeSantis and Chief Inspector General Melinda Miguel, on 

June 21, 2019 in which he referenced his enterprise and the lawsuit identified in 

paragraph 13 above, in which Plaintiff was included as a named participant in this 

fictitious ‘enterprise.’ ”); ¶ 16 (“Moreover, in a statement/letter that Rubin provided 

to state investigators on May 30, 2019 . . . .”). 

Indeed, the Amended Complaint directly quotes from some of the exhibits. 

Compare Am. Compl. ¶ 16 (“Rubin falsely stated that Plaintiff was not ‘qualified to 

be the agency’s enforcement director,’ that Plaintiff ‘had an air of entitlement and 

that [he] feared she would make [his] staff and other OFR employees miserable’ ” 

and “that Plaintiff had ‘not even pretended [their] lunch was a real interview and that 

she was angry because [he] had treated it as a real interview.”) with ECF No. 4-1, at 

4 (“I replied that I didn’t say she was incompetent, but rather only that she was not 

qualified to be OFR’s enforcement director”); 5 (“I told Mr. Mitchell that Ms. Grippa 

was so unpleasant, and had such an air of entitlement, that I feared she would make 

my staff and other OFR employees miserable”); (“I informed him that nothing I said 

to Ms. Grippa was inappropriate, that she had not even pretended our lunch was a 

real interview, and that she was angry because I had treated it as a real interview.”). 

Moreover, Plaintiff’s defamation claim is largely, if not entirely, based on the three 

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exhibits and information contained within them. Therefore, this Court finds that the 

exhibits attached in Defendant’s motion are central to Plaintiff’s claim. Plaintiff also 

does not challenge the authenticity of the documents. These documents are, 

therefore, undisputed. See Taylor, 400 F.3d at 1276. 

For these reasons, this Court will, if it needs to, consider the exhibits attached 

in Defendant’s motion. 

II

This is a single-count action for defamation. Plaintiff alleges that she is an 

experienced attorney who has had a prominent career. Am. Compl. ¶ 6. On March 

21, 2019, Plaintiff interview with the Florida Office of Financial Regulation 

(“OFR”) and the Department of Financial Services (“DFS”) for the position of 

General Counsel. Id. ¶ 7. 

During the interview, Defendant made numerous discriminatory statements 

and acted inappropriately based on Plaintiff’s gender. Id. ¶ 8. Plaintiff reported the 

discriminatory statements and actions to Chief of Staff Ryan West. Id. ¶ 9. This 

incident, along with additional complaints filed against Defendant by females he 

treated similarly, resulted in an internal investigation into Defendant’s behavior. Id. 

¶¶ 10–11. The investigation determined that Defendant’s conduct was severe and 

pervasive enough to find him guilty of official misconduct. Id. ¶ 11. The Governor’s 

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office reviewed Defendant’s behavior and, in conjunction with the Florida Cabinet, 

removed Defendant from office. Id. ¶ 12. 

The Amended Complaint further includes statements that are the basis of 

Plaintiff’s defamation claim. The first set of statements come from multiple lawsuits, 

including Case No. 2019 CA 002235, where Plaintiff was listed as a co-conspirator 

of the “enterprise” that Defendant claims blackmailed, intimidated, and extorted him 

and that Plaintiff was associated with racketeering, political corruption, abuse of 

power, and misuse of taxpayer money at the highest level of DFS. Id. ¶ 13. Plaintiff 

alleges that these statements are unsubstantiated, impertinent, scandalous, and false 

and Plaintiff states that she had no means of defending herself against these 

statements because she was not named as a party in the case. Id. ¶ 14. 

The next set of statements come from emails that Defendant, through counsel, 

sent to Governor DeSantis and Chief Inspector General Melinda Miguel on June 21, 

2019. Id. ¶ 15; ECF No. 4-3. The email referenced an “enterprise” and included a 

hyperlink to the lawsuit in which Plaintiff was named as a participant in the 

“enterprise.” Am. Compl. ¶ 15. Plaintiff alleges that these statements are false and 

disparaging. Id. 

Finally, the third set of statements come from a letter Defendant provided to 

state investigators in May 2019. Id. ¶ 16; ECF No. 4-1. The letter was provided to, 

among others, the Office of the Inspector General within DFS and to FLAPOL, a 

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publication through floridapolitics.com. In the letter, Defendant stated that Plaintiff 

was not “qualified to be the agency’s enforcement director,” that Plaintiff “had an 

air of entitlement and that he feared she would make his staff and other OFR 

employees miserable.” Id. He further stated that Plaintiff had “not even pretended 

their lunch was a real interview and that she was angry because he had treated it as 

a real interview.” Id. Plaintiff claims these statements were false and constitute 

defamation per se or per quod. Id.

III

Under Erie, this Court applies Florida’s substantive law for defamation 

claims. Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018). “Defamation under 

Florida law has these five elements: (1) publication; (2) falsity; (3) the statement was 

made with knowledge or reckless disregard as to the falsity of the matter concerning 

a public official, or at least negligently on a matter concerning a private person; (4) 

actual damages; and (5) the statements must be defamatory.” Id. 

“True statements, statements that are not readily capable of being proven 

false, and statements of pure opinion are protected from defamation actions by the 

First Amendment.” Id. “Under Florida law, a defendant publishes a ‘pure opinion’ 

when the defendant makes a comment or opinion based on facts which are set forth 

in the publication or which are otherwise known or available to the reader or listener 

as a member of the public.” Id. “Mixed expression of opinion occurs when an 

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opinion or comment is made which is based upon facts regarding the plaintiff or his 

conduct that have not been stated in the publication or assumed to exist by the parties 

to the communication.” Id. 

“Whether the statement is one of fact or opinion and whether of fact is 

susceptible to defamatory interpretation are questions of law for the court.” Id. at 

1262–63. In making this assessment, “a court should construe statements in their 

totality, with attention given to any cautionary terms used by the publisher in 

qualifying the statement.” Id. at 1263. 

1. Statements in the Lawsuits

Defendant argues that Defendant’s statements that appeared in a lawsuit (2019 

CA 002535)1 cannot be a basis for a defamation claim because they are absolutely 

privileged. In Florida, “[t]he law has long recognized that judges, counsel, parties, 

and witnesses should be absolutely exempted from liability to an action for 

defamatory words published in the course of judicial proceeding, regardless of how 

false or malicious the statements may be, so long as the statements bear some relation 

to or connection with the subject of inquiry.” DelMonico v. Traynor, 116 So. 3d 

1205, 1211 (Fla. 2013). This privilege is referred to as a judicial or litigation 

1 Defendant does not move to dismiss based on statements that appear in other lawsuits 

alleged in the Amended Complaint. To the extent it does, Defendant does not attach these lawsuits 

and, therefore, this Court cannot determine whether the statements bear some relation to the subject 

of the inquiry. While Defendant asserts that the attached lawsuit is the only lawsuit Defendant filed 

that names Plaintiff as a member of the enterprise, this Court cannot consider such assertion at this 

stage of the litigation. 

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privilege. “Florida’s litigation privilege is an affirmative defense.” Diamond Resorts 

Int’l, Inc. v. Aaronson, 371 F. Supp. 3d 1088, 1112 n. 21 (M.D. Fla. 2019). As such, 

Defendant has the burden of proving its applicability. Id. And although an 

affirmative defense, Florida courts have made it clear that litigation privilege “may 

be considered in resolving a motion to dismiss when the complaint affirmatively and 

clearly shows the conclusive applicability of the defense to bar the action.” Jackson 

v. BellSouth Telecomms., 372 F.3d 1250, 1277 (11th Cir. 2004).2

Plaintiff takes issue with the fact that Defendant alleged that Plaintiff was an 

unnamed coconspirator in a civil lawsuit where the coconspirators were accused on 

running an “enterprise” that blackmailed, intimidated and extorted him, and that she 

was associated with the racketeering, political corruption, abuse of power, and 

misuse of taxpayer money at the highest level of DFS. But the statements Plaintiff 

alleges as defamatory are relevant to Defendant’s claim in the state court lawsuit. 

ECF No. 4-2. Indeed, the lawsuit is entirely premised on the fact that the “enterprise” 

engaged in criminal activity and sought to defame him. And while accusing Plaintiff 

2 Plaintiff cites to a hodge-podge of inapplicable cases. For example, Plaintiff cites several 

cases that have limited the application of litigation privilege to various causes of action other than 

defamation. ECF No. 7, at 6 (citing Debrincat v. Fischer, 217 So. 3d 68 (2017), where the Florida 

Supreme Court held that litigation privilege does not provide immunity from claims for malicious 

prosecution); ECF No. 7, at 7 (citing Sun Life Assurance Co. of Canada v. Imperial Premium Fin., 

LLC, 904 F.3d 1197 (11th Cir. 2018), where the court held that Florida’s litigation privilege would 

not immunize a defendant from a breach of contract claim). These lawsuits do not do away with 

the long list of cases that apply litigation privilege to defamation suits. See, e.g., Gursky Ragan, 

P.A. v. Ass’n of Poinciana Vills., Inc., --- So. 3d ---, 2020 WL 7635829 (Fla. 3d DCA 2020).

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of blackmail or other criminal activity may be false and malicious, it is nonetheless 

protected by litigation privilege if it bears some relationship to the subject matter of 

the lawsuit. This Court finds that the statements implicating Plaintiff as part of an 

enterprise not only bears some relation to the state court lawsuit, but the state court 

lawsuit is entirely premised on these statements. As such, the allegedly defamatory 

statements that appear in the lawsuit, 2019 CA 002535, are absolutely privileged.3

2. Statements in the Letter Sent to Governor and Chief Inspector General

Defendant next argues that the letters sent to the Governor and the Chief 

Inspector General cannot be the basis for a defamation claim because the letters were 

not about Plaintiff. ECF No. 4, at 11. That is not accurate. The letters expressly 

reference the lawsuit in which Plaintiff was named as a part of an “enterprise” and 

also included the lawsuit in the letters as a hyperlink. This Court, therefore, finds 

Defendant’s argument unpersuasive. 

Defendant also argues that the letters are subject to qualified privilege because 

they requested an investigation for misuse of public office. Assuming, without 

deciding, that the letters are subject to qualified privilege, a plaintiff may overcome 

3 In an attempt to throw legal arguments at the wall and see what sticks, Plaintiff cites to a 

number of cases that deal with statements made outside the courtroom and formal discovery or 

statements that are necessarily preliminary to judicial proceedings. See ECF No. 7, at 7 (citing 

DelMonico v. Traynor, 116 So. 3d 1205, 1218 (2013), where the court stated that absolute privilege 

does not apply where an attorney steps outside the courtroom and formal discovery process to 

investigate a claim.), 10 (citing multiple cases that deal with conduct that is necessarily preliminary 

to judicial proceedings). These cases are inapplicable for the simple reason that the statements 

complained of appear in a complaint filed in a state court proceeding.

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qualified privilege by pleading express malice. Jarzynka v. St. Thomas Univ. of Law, 

310 F. Supp. 2d 1256, 1268 (S.D. Fla. 2004). “Express malice has been defined by 

the Florida courts as ‘ill will, hostility and evil intention to defame and injure.’ ” Id. 

(citing Lewis v. Evans, 406 So. 2d 489, 492 (Fla. 2nd DCA 1981)). “The Florida 

courts have further stated, ‘the gravamen of express malice is the abuse of privilege 

occasion by improper motives on the part of the speaker.’ ” Id. (citing Nodar v. 

Galbreath, 462 So. 2d 803, 811 n.8 (Fla. 1984)). 

Plaintiff, here, has sufficiently pled express malice. Specifically, Plaintiff 

alleged that she complained about Defendant’s discriminatory actions and 

statements to the Chief of Staff for the DFS. Am. Compl. ¶¶ 8–9. This complaint led 

to Defendant’s removal from his position. Id. ¶¶ 11–12. After his removal, 

Defendant sent letters to the Governor and the Chief Inspector General accusing 

Plaintiff of being part of an enterprise. Taken together, these allegations show that 

Defendant retaliated against Plaintiff for complaining about his improper behavior. 

In other words, Defendant had ill will and hostility towards Plaintiff because she 

filed a complaint against him, and this hostility led Defendant to send letters to the 

Governor and the Chief Inspector General. As such, this Court finds that Plaintiff 

has sufficiently pled facts to show express malice and overcome qualified privilege. 

For these reasons, Defendant’s motion as it relates to statements made in the 

letters sent to the Governor and the Chief Inspector General is denied.

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3. Statements in the Letter Provided to State Investigators

Plaintiff alleges that certain statements Defendant made in his letter to the 

state investigators were defamatory. Specifically, Plaintiff takes umbrage with 

Defendant’s statement that she was not “qualified to be the agency’s enforcement 

director,” “had an air of entitlement and that [Defendant] feared she would make 

[his] staff and other OFR employees miserable,” and “[had] not even pretended 

[their] lunch was a real interview and that she was angry because [Defendant] had 

treated it as a real interview.” Am. Comp. ¶ 16; ECF No. 4-1. Defendant argues that 

these statements are statements of pure opinion and not statements of fact. This Court 

agrees. 

First, all of the statements Plaintiff complains of are subjective assessment of 

Defendant as an interviewer and therefore not readily capable of being proved true 

or false. See Wells, 879 F.3d at 1262. For example, Defendant’s statement that 

Plaintiff “had an air of entitlement” is his assessment of the interviewee—Plaintiff—

as an interviewer based on her behavior during the interview. Defendant’s other 

statement that Plaintiff did not pretend that the lunch was a real interview and that 

she was angry Defendant had treated it as a real interview is also Defendant’s 

subjective assessment of how the interview was going. Indeed, Defendant clearly 

states in his statement to the investigator that the “interview did not go well from my

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perspective,” thereby informing a reasonable reader that the conclusions contained 

in the letter were his opinions, from his perspective. See Wells, 879 F.3d at 1264 

(“Notably too, the Report included several cautionary statements that inform a 

reasonable reader that the conclusions contained therein are opinions.”) Same is true 

for Defendant’s statement that he did not believe Plaintiff was “qualified to be the 

agency’s enforcement director” is his subjective assessment as a hirer of the hiree.

Moreover, Defendant laid out the basis for his allegedly defamatory 

statements in the letter to the state investigators. Defendant’s statements that Plaintiff 

had an air of entitlement and had not even pretended that the interview was real is 

supported by statements in the letter indicating that Plaintiff put the OFR 

organization on the table, stated that she would like to be a deputy commissioner and 

then, when told that Defendant was reorganizing the agency to convert that position 

to a chief of staff position, Plaintiff declared that she would take the job of 

enforcement director. ECF No. 4-1, at 3–4. Defendant’s statement that Plaintiff was 

not qualified for the enforcement director job is also supported by the statements in 

the letter. Specifically, Defendant stated that based on Plaintiff’s resume, 

“enforcement director was the one job she could not be expected to perform.” ECF 

No. 4-1, at 4. He further stated that he explained to Plaintiff that the role of 

enforcement director would require an experienced litigator with some combination 

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of “expertise in securities law, consumer finance law, criminal law and banking 

law,” whereas Plaintiff only had administrative law experience. ECF No. 4-1, at 4. 

Because Defendant’s statements in the letter are his subjective assessments 

and because they are supported by facts set forth in the letter, making them pure 

opinions, this Court finds that these statements are protected from a defamation 

action. As such, Defendant’s motion as it relates to the statements made in the letter 

to the state investigator is granted. 

IV

Defendant seeks fees and costs pursuant to Florida’s anti-SLAPP law. This 

Court assumes, without deciding, that Florida’s anti-SLAPP statute applies in 

diversity actions. Florida’s anti-SLAPP statute prohibits bringing a lawsuit that is 

without merit and is filed primarily because defendant has exercised the 

constitutional right of free speech in connection with a public issue. § 768.295(3), 

Fla. Stat. As explained in this Order, Plaintiff’s lawsuit is not without merit. For 

these reasons, Defendant is not entitled to fees and costs pursuant to Florida’s antiSLAPP law. 

V

This Court dismisses counts and not theories on which the counts rest. Here, 

Plaintiff’s single count of defamation rests on multiple incidents of defamatory 

statements. While this Court holds that some of the incidents of allegedly defamatory 

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statements cannot be a basis for a defamation claim, this Court cannot dismiss the 

claim because some statements survive. As such, Plaintiff’s defamation count 

survives Defendant’s motion to dismiss. But Plaintiff cannot rely on statements 

made in the state court lawsuit, 2019 CA 002535, and statements made in a letter to 

state investigators to state a claim for defamation. For the reasons provided, 

Defendant’s motion is DENIED.

While Defendant does not currently have a counsel, ECF No. 21, the motion 

to dismiss was fully briefed before Defendant’s counsel withdrew. As such, this 

Court finds it prudent to rule on the motion to dismiss. As this Court indicated in its 

Order Granting Motion to Withdraw, ECF No. 21, this Court will reset the deadlines 

once Defendant obtains new counsel. Defendant has until March 5, 2021, to obtain 

new counsel. This includes deadlines for any motions for reconsideration related to 

this Order. Stated otherwise, this matter is stayed until March 5, 2021. The Clerk 

is directed to set this matter for a telephonic hearing the week of Monday, March 8,

2021, so the deadlines can be reset.

SO ORDERED on February 22, 2021.

s/Mark E. Walker 

Chief United States District Judge

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