UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KIMBERLY GRIPPA, CASE NO. 4:20cv457-MW/MAF

Plaintiff,

vs.

RONALD RUBIN,

Defendant.

_____________________/

MOTION TO DISMISS AMENDED COMPLAINT

Ronald Rubin respectfully requests entry of an order dismissing Kimberly 

Grippa’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a facially plausible claim for defamation. As shown below, dismissal is 

warranted because Grippa’s claim is based on: (1) allegations in Rubin’s state-court 

lawsuit, which are absolutely privileged; (2) letters to Florida’s Governor and Chief 

Inspector General that were not about Grippa and, further, were qualifiedly privileged; 

and (3) statements of opinion not readily capable of being proven false.

This action is part of a larger effort by Grippa, her ex-husband, and several 

Florida officials to harass and burden Rubin with costly, time-consuming and baseless 

litigation and retaliatory threats of criminal prosecution to discourage him from 

pursuing his well-documented claims of public corruption. This lawsuit contravenes 

Florida’s anti-SLAPP statute, and Rubin should be awarded his fees and costs for 

having to defend it.

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RELEVANT FACTS

On February 26, 2019, the Florida Cabinet voted to appoint Rubin as 

Commissioner of the Florida Office of Financial Regulation (“OFR”) after Florida’s 

Chief Financial Officer Jimmy Patronis had nominated him for the position.1

 In early 

March 2019, Florida Department of Financial Services (“DFS”) Chief of Staff Ryan 

West gave Rubin Grippa’s résumé and said he hoped Rubin would interview her for 

OFR General Counsel.2

 Lobbyist Paul Mitchell then told Rubin that the résumé had 

come from Patronis and that Grippa was the ex-wife of Patronis’ friend who wanted 

Grippa to get a job in Tallahassee where he was planning to relocate so they could be 

in the same city with their minor child.

3

1 See Ronald Rubin’s Statement Regarding May 2019 Investigation (Ex. A) p. 2. 

Although Grippa’s claim is based in part on remarks contained in Rubin’s written 

statement, she did not attach it to her complaint. Under the “incorporation by 

reference” doctrine, a document attached to a motion to dismiss may be considered by 

the court without converting it into a summary judgment motion if the attached 

document is (1) central to the plaintiff’s claim and (2) the document’s authenticity is not 

challenged. See, e.g., Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (applying 

doctrine in context of Rule 12(c) motion for judgment on the pleadings and finding 

article that contained allegedly defamatory statements should be considered because 

article was central to plaintiff’s defamation claim and its authenticity was undisputed). 

Indeed, “[t]o determine if a statement is defamatory, it must be considered in the 

context of the publication.” Parekh v. CBS Corp., No. 19-11794, 2020 WL 3400679, at 

*3 (11th Cir. June 19, 2020) (internal quotation marks omitted).

2 Ex. A p. 2.

3 Id.

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On March 21, 2019, Rubin interviewed Grippa and concluded that she was not 

qualified for the position and that he did not want to hire her.

4

 That evening, Mitchell 

called Rubin and screamed, “I spoke with Kim [Grippa]. What the hell is wrong with 

you? She said you called her incompetent!”5

 Rubin responded that he had not said 

Grippa was incompetent but rather that she was not qualified to be OFR’s enforcement 

director, to which Mitchell replied, “Her qualifications are irrelevant. You were just 

supposed to hire her!”6

The following day, Mitchell told Rubin to interview Abigail Vail for the position 

of OFR Deputy Commissioner (to be renamed Chief of Staff) with no one else present.7

 

Although he was uncomfortable with the situation, Rubin did as Mitchell had 

instructed.8

 Following the interview, Mitchell texted Rubin that Vail had told him that 

4 Am. Compl. [ECF No. 1-2, pp. 18-33] ¶ 7; see also 2d Am. Compl., Rubin v. Mitchell, 

Fla. Cir. Ct. Case No. 2019-CA-2535 (Ex. B) ¶ 17. By alleging that it contains 

defamatory statements, Grippa also incorporates by reference Rubin’s Second 

Amended Complaint filed against Mitchell in state court. See supra note 1. The Court 

also “may take judicial notice of publicly filed documents such as those in state court 

litigation, at the Rule 12(b)(6) stage.” United States ex rel. Osheroff v. Humana, Inc., 776 

F.3d 805, 811 n.4 (11th Cir. 2015).

5 Ex. A p. 4.

6 Id.

7 Ex. B ¶ 20.

8 Id.

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the interview “went great!”9 Rubin hired Vail and she began working at OFR on April 

22, 2019.10

On April 29, 2019, Rubin took an employee (“EE”) to lunch, and the two 

stopped by his unfinished apartment on the way to and from lunch so he could check

whether the baseboards had been painted.11 Over lunch, Rubin talked about his family 

and asked EE about hers.12 The following day, West and Vail told Rubin that EE had 

said she felt awkward working for Rubin, based on the lunch.13 Shortly thereafter, Vail 

reassigned EE to work directly for her and moved EE to a different floor.14 

Throughout the following week, the OFR Resource Management Administrator 

repeatedly told Rubin that EE was fine and doing well in her new role.15

On May 2, 2019, Mitchell told Rubin that EE and Vail had complained about 

Rubin and that EE would file a sexual harassment complaint against him if he did not 

immediately resign.16 Mitchell then emailed to Rubin a resignation letter that he had 

9 Id. ¶ 21.

10 Id. ¶ 23.

11 Id. ¶ 24; Ex. A pp. 6-7.

12 Id. p. 7; Ex. B ¶ 24.

13 Id. ¶ 25.

14 Id.

15 Id.

16 Id. ¶ 26.

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prepared and told Rubin to sign it.17 Knowing he had not sexually harassed anyone, 

Rubin refused to sign the letter and refused to resign.

18

On the morning of Friday, May 10, 2019, Vail told Rubin that, if he did not 

immediately resign, EE would file a sexual harassment complaint against him and that 

Patronis would publish the complaint.19 Rubin again refused to resign.

20 That 

afternoon, Vail convinced EE to submit a written complaint about the “awkward” 

lunch.21 That same day, DFS General Counsel Peter Penrod reversed Rubin’s earlier 

refusal to hire Grippa and offered her a deputy counsel position reporting directly to 

Penrod (who reports directly to Patronis).22 That evening, Patronis issued a press 

release and published EE’s complaint on the internet, calling it a “sexual harassment” 

complaint even though it did not allege conduct constituting sexual harassment under 

DFS policy or the law.

23

On Monday, May 13, 2019, Grippa sent an email to West alleging that Rubin had 

made discriminatory statements and committed “inappropriate acts” during her March 

17 Id.

18 Id.

19 Id. ¶ 32.

20 Id.

21 Id. ¶ 33.

22 Id. ¶ 35.

23 Id. ¶ 36.

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21 interview.24 Patronis quickly published Grippa’s complaint and it became part of 

DFS’ investigation.

25

In late May 2019, Rubin submitted a written statement to state investigators, 

responding to the published allegations against him, which included Grippa’s May 13 

email.26 Approximately 4 pages of the 11-page written statement related to his interview 

of Grippa.27 After describing the circumstances that led to the interview, Rubin stated 

that the interview “did not go well from [his] perspective.”28 He then detailed Grippa’s 

behavior that formed the basis for that conclusion, including that:

• She told him she had done no research on him, had read none of his articles, 

and knew very little about him.29

• She placed a printout of OFR’s organizational chart on the table and said she 

had reviewed it and would like to be deputy commissioner (to which he 

replied that he was reorganizing the agency and converting the deputy 

commissioner position to chief of staff).30

• When he told her he considered the head of the enforcement division to be 

the second-most important job (after the commissioner’s) in the new 

organizational structure, she immediately said, “Okay, I’ll take that job.”31 He 

responded that, based on her résumé, “enforcement director was the one job 

she could not be expected to perform” because “the person in that role would 

24 Id. ¶ 46(a); Am. Compl. ¶¶ 8-9.

25 Id. ¶ 11; Ex. B ¶¶ 45-46.

26 Ex A; Ex. B ¶ 51; Am. Compl. ¶16.

27 Ex. A pp. 1-5.

28 Id. p. 2.

29 Id.

30 Id. p. 3.

31 Id. p. 4.

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have to be an experienced litigator with some combination of expertise in 

securities law, consumer finance law, criminal law and banking law.”32 She 

replied that she had worked in environmental administrative law from 1997 

to 2001.33

In his statement, Rubin also recounted the portion of his conversation with 

Mitchell about Grippa’s interview described above.

34 He further stated that, in that 

conversation, he told Mitchell that he had hoped to hire Grippa but she “was so 

unpleasant, and had such an air of entitlement, that [he] feared she would make [his] 

staff and other OFR employees miserable.”35 He also reported that, when West had 

mentioned Grippa’s interview during a conversation on April 30, he told West that she 

“had not even pretended [their] lunch was a real interview, and that she was angry 

because [he] had treated it as a real interview.”36

In June 2019, Rubin filed a state-court lawsuit against Mitchell in which he 

alleged that Patronis, West, Mitchell, Penrod, Vail, Grippa and others are members of 

an “enterprise” that uses a “pay to play” system of blackmail and intimidation to extract 

illegal campaign contributions, install loyalist patrons, and eliminate “outsiders” who 

might expose their unlawful activities.

37 On June 21, 2019, Rubin’s counsel sent letters 

32 Id.

33 Id.

34 Id.

35 Id. p. 5.

36 Id. p. 8.

37 Ex. A.

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to Governor Ron DeSantis and Chief Inspector General Melinda Miguel, the latter of 

which included a hyperlink to Rubin’s state-court complaint, requesting that the Chief 

Inspector General’s Office open an investigation into the misuse of public office by 

Patronis and his inner circle.

38

GRIPPA’S ALLEGATIONS

To support her defamation claim, Grippa alleges:

1) Rubin “filed several lawsuits (including Case No. 2019 CA 002535) 

wherein GRIPPA is listed as a co-conspirator of the ‘enterprise’ that 

Rubin claims blackmailed, intimidated and extorted him and that she was 

associated with ‘racketeering, political corruption, abuse of power, and 

misuse of taxpayer money at the highest levels of DFS.’”39 Grippa asserts

that Rubin’s accusations are false.40

2) Rubin’s June 21, 2019 letters to Gov. DeSantis and Chief IG Miguel 

“detailed improper, unethical and seemingly unlawful conduct on the part 

of” Grippa, which letters “publicly and falsely disparaged” her.41

3) In his written statement, which Grippa alleges was incorporated into an 

article published on “FLAPOL, a publication through 

floridapolitics.com,” Rubin falsely stated that Grippa:

a. “was not ‘qualified to be the agency’s enforcement director’”;

b. “’had an air of entitlement and that [he] feared she would make [his] 

staff and other OFR employees miserable’”; and

38 Id. ¶ 15; see also 6/21/19 Letters (Composite Ex. C). Grippa incorporated the letters 

into her complaint by alleging that they contain defamatory statements. See supra note 

1.

39 Am. Compl. ¶ 13. In truth, the Mitchell case is the only lawsuit Rubin filed that names

Grippa as a member of the “enterprise.”

40 Id. ¶ 14.

41 Id. ¶ 15.

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c. “had ‘not even pretended [their] lunch was a real interview and ...

she was angry because [he] had treated it as a real interview.’”42

LEGAL STANDARD

The Rule 8 pleading standard “demands more than an unadorned, thedefendant-unlawfully harmed me accusation.”43 A complaint must set forth factual 

content from which the Court may draw a reasonable inference that the defendant is 

liable for the misconduct alleged.44

In considering a motion to dismiss, the Court must accept the factual allegations 

in the complaint as true and evaluate all inferences derived from those facts in the light 

most favorable to the plaintiff.45 But the Court should disregard bald assertions, 

subjective characterizations, and legal conclusions.46

42 Id. ¶ 16.

43 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see also FED. R. CIV. P. 8(a)(2) (requiring “a 

short and plain statement of the claim”). Although Plaintiff filed her Amended 

Complaint in state court, the Federal Rules of Civil Procedure “apply to a civil action 

after it is removed from a state court.” FED. R. CIV. P. 81(c)(1); see also McDowell v. 

Brown, 392 F.3d 1283, 1294 (11th Cir. 2004) (pursuant to Erie, federal law governs postremoval procedural issues involving state-law claims). “The scope of the Court’s review 

on a motion to dismiss is a procedural issue, and thus, governed by federal law.” Eiras 

v. Fla. Dep’t of Bus. & Prof’l Reg., 239 F. Supp. 3d 1331, 1340 n.12 (M.D. Fla. 2017).

44 Iqbal, 556 U.S. at 678; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] 

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.”).

45 See, e.g., Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994).

46 Iqbal, 556 U.S. at 678-79 (reversing denial of 12(b)(6) motion to dismiss upon finding 

that, after conclusory allegations were disregarded, the remaining allegations failed to 

plausibly state a claim).

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DISCUSSION

1. Rubin’s allegations in the Mitchell lawsuit are absolutely privileged. 

In alleging that Rubin’s pleadings in the Mitchell lawsuit are defamatory,

47 Grippa 

ignores longstanding precedent establishing that statements made in the course of 

judicial proceedings are absolutely privileged if they are “connected with, or relevant or 

material to, the cause in hand or subject of inquiry,”48 regardless of “how false or 

malicious the statements may be.”49

Although courts have described the litigation privilege as an affirmative defense, 

“Florida courts have also made it abundantly clear that any affirmative defense, 

including the 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.”50

The litigation privilege bars defamation claims if “the defamatory statements at 

issue were made either in front of a judicial officer or in pleadings or documents filed 

47 Grippa also fails to identify any false statements of fact in Rubin’s pleadings. “The 

first element of the claim, a false statement of fact, is the sine qua non for recovery in a 

defamation action.” Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378 (S.D. Fla. 2006) 

(emphasis added) (alterations and internal quotation marks omitted).

48 Myers v. Hodges, 44 So. 357, 361 (Fla. 1907); see also Echevarria, McCalla, Raymer, Barrett 

& Frappier v. Cole, 950 So. 2d 380, 383 (Fla. 2007) (noting that Myers “recognized the 

principle of the litigation privilege in Florida, essentially providing legal immunity for 

actions that occur in judicial proceedings”).

49 Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla.1992).

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

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with the court or quasi-judicial body.”51 The litigation privilege thus bars Grippa’s 

claim to the extent it is based on Rubin’s pleadings in the Mitchell case.52

2. Grippa cannot maintain a claim based on Rubin’s letters to the Governor 

and Chief Inspector General.

a. The letters were not about Grippa.

To state a claim for defamation under Florida law, a plaintiff must allege that: 

“(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third 

party; and (4) that the falsity of the statement caused injury to the plaintiff.”53 Grippa 

cannot maintain a defamation claim based on the letters to Gov. DeSantis and Chief 

IG Miguel because no statements in the letters were about her. In the letters, Rubin 

requested that the Chief IG open an investigation into “misuse of public office by CFO 

51 DelMonico v. Traynor, 116 So. 3d 1205, 1217 (Fla. 2013) (emphasis added). 

52 See, e.g., Huls v. Llabona, 437 F. App’x 830, 833 (11th Cir. 2011) (per curiam) (affirming 

dismissal on litigation-privilege grounds of claims alleging attorney misrepresented the 

language of a court order in a subsequent motion for contempt); see also EMI Sun Vill., 

Inc. v. Catledge, 779 F. App’x 627, 635-36 (11th Cir. 2019) (per curiam) (affirming 

dismissal on litigation-privilege grounds of abuse-of-process claim alleging defendants 

improperly initiated litigation against plaintiff); Madura v. Bank of Am., N.A., 767 F. 

App’x 868, 873 (11th Cir. 2019) (per curiam) (affirming dismissal of claim alleging law 

firm and attorneys engaged in fraudulent conduct during a judicial proceeding, based in 

part on litigation privilege).

53 Matonis v. Care Holdings Grp., LLC, 423 F. Supp. 3d 1304, 1315 (S.D. Fla. 2019) 

(emphasis added) (internal quotation marks omitted).

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Patronis and his inner circle.”54 Neither letter mentioned Grippa.55 As such, she cannot 

maintain a defamation claim based on the letters.56

b. The letters were qualifiedly privileged and Grippa does not allege 

facts to overcome the privilege.

Grippa’s claim based on the letters also fails because the letters were qualifiedly 

privileged. Whether qualified immunity applies is a question of law.57 Under Florida

law, defamatory statements made to investigative authorities “prior to the institution of 

criminal charges are presumptively qualifiedly privileged.”58 Rubin’s letters requested 

an investigation of Patronis for misuse of public office by the Chief Inspector General, 

as authorized by statute.59 As such Rubin’s letters were qualifiedly privileged.

60

54 Ex. C.

55 See id.

56 See Parekh, 2020 WL 3400679 at *4 (affirming dismissal of defamation claim based on 

statement in news report about whether plaintiff’s former girlfriend falsified existence 

of a doctor who reportedly treated her for cancer, because statement was not about 

plaintiff).

57 Regions Bank v. Kaplan, No. 8:12-CV-1837, 2013 WL 1193831, at *19 (M.D. Fla. Mar. 

22, 2013).

58 Fridovich, 598 So. 2d at 69.

59 Florida Statutes § 14.32(2) mandates that the Chief Inspector General “(a) [i]nitiate, 

supervise, and coordinate investigations ... to deter, detect, prevent, and eradicate ... 

abuse, mismanagement, and misconduct in government [and] (k) [c]onduct special 

investigations ... at the request of the Governor.”

60 See Kaplan, 2013 WL 1193831 at *20 (finding reports to Secret Service that 

counterclaim/crossclaim plaintiffs were kiting checks were qualifiedly privileged 

because Secret Service investigates financial fraud).

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To overcome a qualified privilege, a plaintiff must plead express malice.61 Florida 

courts have defined express malice as “ill will, hostility and an evil intention to defame 

and injure,” and have stated that “the gravamen of express malice is the abuse of a 

privileged occasion by improper motives on the part of the speaker.”62 Although 

Grippa alleges that Rubin’s statements “were malicious and intended to harm” her, 

these conclusory allegations do not meet the Iqbal/Twombly standard.63 Accordingly, 

Grippa’s claim based on Rubin’s letters fails as a matter of law.64

3. Rubin’s subjective assessment of Grippa’s conduct and qualifications

were non-actionable statements of opinion.

The First Amendment protects from defamation actions “[t]rue statements, 

statements that are not readily capable of being proven false, and statements of pure 

opinion.”65 Under Florida law, a publication constitutes “pure opinion” when “the 

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

61 See, e.g., Jarzynka v. St. Thomas Univ. Sch. of Law, 310 F. Supp. 2d 1256, 1268 (S.D. Fla. 

2004). 

62 Id. (internal quotation marks omitted).

63 See Baker v. Joseph, 938 F. Supp. 2d 1265, 1269 (S.D. Fla. 2013) (“[T]he operative 

complaint asserts only that ‘Defendants statements were made with actual malice.’ This 

statement is a legal conclusion and, as such, does not satisfy the well-pleaded allegation 

requirement as set forth in Bell Atlantic Corp. v. Twombly ....”).

64 See Jarzynka, 310 F. Supp. 2d at 1268 (dismissing with prejudice defamation claims 

because complaint showed that defendant’s remarks were privileged, and plaintiff failed 

to overcome privilege by alleging facts showing that defendant acted with malice).

65 See, e.g., Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018).

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publication.”66 Whether a statement is pure opinion is a question of law.67 In

determining whether an expression is fact or opinion, “the court must examine the 

statement in its totality and the context in which it was uttered or published” and “must 

consider all of the words used, not merely a particular phrase or sentence.”68 The court 

also “must give weight to cautionary terms used by the person publishing the statement 

and consider all of the circumstances surrounding the statement.”69

Applying these standards, Rubin’s allegedly defamatory remarks in his written 

statement are pure opinion. It is apparent from the nature of the remarks that Rubin 

was merely expressing his opinions.

70 Further, he described in his statement Grippa’s 

actions on which he based his opinions that she had not treated the interview as a real 

interview and had an “air of entitlement,” including that she put the OFR organizational

chart on the table and stated that she would like to be deputy commissioner and then, 

after he told her he was reorganizing the agency to convert that position to chief of 

staff, declared that she would take the to-be-created, second-most important job at 

66 Id.

67 Id. at 1262-63.

68 Del Fuoco v. O’Neill, No. 8:09-CV-1262, 2011 WL 601645, at*7 (M.D. Fla. Feb. 11, 

2011) (quoting Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 460 (Fla. 5th DCA 

1999)). 

69 Id.

70 See generally Palm Beach Newspapers, Inc. v. Early, 334 So. 2d 50, 52 (Fla. 4th DCA 1976) 

(finding statements that tenure in office of superintendent of schools was unsuccessful 

and that superintendent was unfit to hold office because of ineptness, incompetence 

and indecisiveness “were clearly matters of opinion, not statements of fact”).

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OFR (enforcement director). Rubin also explained in his statement why he believed 

she was not qualified for that job: her résumé did not reflect that she had the experience

he was seeking for that role—which he also detailed—and she did not otherwise 

indicate that she did. Thus, the challenged remarks were “pure opinion” because the 

statement included the facts underlying those opinions.71

Furthermore, Rubin provided his written statement in response to the published 

accusations against him, including accusations made by Grippa. In his statement, he 

described some of the facts and events that supported his belief that the investigation 

was “the product of efforts by Mr. Mitchell and Mr. Grippa [Plaintiff’s ex-husband] to 

take political advantage of a concern informally voiced by [EE], in an attempt to force 

[him] to resign as commissioner, which [he was] unwilling to do.”72 These facts and 

events included West’s asking Rubin to interview Grippa, Mitchell’s telling Rubin that 

Patronis supplied Grippa’s résumé because Patronis’ friend (Grippa’s ex-husband) 

wanted her to get a job in Tallahassee, Grippa’s unusual interview behavior, and 

Mitchell’s angry reaction to learning that Rubin had considered Grippa’s qualifications 

71 See Del Fuoco, 2011 WL 601645 at *7 (finding defendant’s comment that plaintiff was 

“fixated on” him and that, because of that, others had suggested that he arm himself, 

was “pure opinion” because “the facts on which those opinions were based were 

disclosed in the statement itself”); Borislow v. Canaccord Genuity Grp. Inc., Case No. 14-

80134-CIV, 2014 WL 12580259 at *3 (S.D. Fla. June 27, 2014) (“Because the Report’s 

prediction that Borislow’s departure from magicJack should enable new management 

to achieve a stock price increase is an opinion supported by facts disclosed in the 

Report, it cannot be the basis of a defamation claim.”).

72 Ex. A p. 2.

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rather than simply hiring her outright. Thus, the context of Rubin’s allegedly 

defamatory statements further demonstrates they were non-actionable expressions of 

pure opinion.73

Indeed, Rubin’s statements are not readily capable of being proven false.

74 

Whether Grippa displayed an “air of entitlement” and whether she treated the interview 

like a real interview were Rubin’s subjective assessments of her conduct, which cannot 

form the basis for a defamation claim.75 Likewise, whether Grippa possessed the 

qualifications that Rubin envisioned for the yet-to-be-created position of enforcement 

director, is incapable of being proven false because only Rubin knew what qualifications 

he considered necessary for the position. Accordingly, Grippa’s claim based on Rubin’s 

written statement also necessarily fails.

73 See Del Fuoco, 2011 WL 601645 at *7, *8 (finding context of allegedly defamatory 

statements responding to request for defendant to address “Management Experience” 

in his application for U.S. Attorney position showed statements were “nothing more 

than an opinionated description of Plaintiff’s performance as an Assistant United States 

Attorney from [Defendant’s] perspective as Plaintiff’s Supervisor”).

74 See Michel v. NYP Holdings, Inc., 816 F.3d 686, 697 (11th Cir. 2016) (explaining 

difference between statements of opinion and statements of fact, noting that statements 

of fact are “readily capable of being proven true or false”).

75 See, e.g., Turner, 879 F.3d at 1264 (finding statement that on at least one occasion 

plaintiff participated in “homophobic taunting” of a football player “is the Defendant’s 

subjective assessment of [Plaintiff’s] conduct and is not readily capable of being proven 

true or false”); Santilli v. Van Erp, Case No. 8:17-cv-1797, 2018 WL 2172554, at *6 

(M.D. Fla. Apr. 20, 2018) (“Labeling [plaintiff] a ‘mad professor,’ and a ‘fringe scientist,’ 

are subjective assessments of [plaintiff’s] work and not readily capable of being proven 

true or false.”).

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4. Rubin is entitled to fees and costs pursuant to Florida’s anti-SLAPP law.

It is “the declared policy of the State of Florida, as enunciated by the Legislature, 

... to spare individuals ... the burden and expense of defending meritless defamation 

claims, particularly as concerns issues of public interest.”76 To that end, the Florida 

anti-SLAPP statute prohibits bringing a lawsuit (a) that is without merit and (b) because 

the defendant has exercised “the constitutional right of free speech in connection with 

a public issue,”77 which is defined as any written or oral statement “made in or in 

connection with an issue under consideration or review by a governmental entity or ... 

made in or in connection with a ... news report, or other similar work.”78 Federal courts 

in Florida have applied anti-SLAPP statutes.79 Florida’s anti-SLAPP law provides that 

“[t]he court shall award the prevailing party reasonable attorney fees and costs incurred 

in connection with a claim that an action was filed in violation of this section.”80

76 Davis v. McKenzie, Case No. 16-62499-CIV, 2017 WL 8809359, at *16 (S.D. Fla. Nov. 

3, 2017).

77 FLA. STAT. § 768.295(3)

78 Id. § 768.295(2)(a).

79 See Tobinick v. Novella, 108 F. Supp. 3d 1299, 1305 & n.4 (S.D. Fla. 2015) (noting that 

“the majority of circuit courts have found anti-SLAPP motions to strike permissible” 

and finding California’s anti-SLAPP statute “protects substantive rights and thus 

applies in federal court”), aff’d, 848 F. 3d 935 (11th Cir. 2017); see also Davis, 2017 WL 

8809359 at *17-20 (granting summary judgment for defendant pursuant to Florida’s 

anti-SLAPP statute).

80 FLA. STAT. § 768.295(4).

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This case meets both requirements of Florida’s anti-SLAPP law. First, as detailed 

above, Grippa’s lawsuit is “without merit.”81 Specifically, her allegations do not support 

a defamation claim as a matter of law because the challenged statements are privileged, 

are not about her and/or are not defamatory. Second, this lawsuit arises out of Rubin’s 

exercise of his “constitutional right of free speech in connection with a public issue,”82

because the challenged publications constitute “written or oral statement[s] that [are]

protected under applicable law” and were “made in or in connection with an issue under 

consideration or review by a governmental entity or ... made in or in connection with a 

... news report, or other similar work.”83 Under the anti-SLAPP law, an award of 

reasonable attorney’s fees and costs is mandatory in these circumstances.84

CONCLUSION

Grippa’s Amended Complaint does not state a facially plausible claim for 

defamation. Accordingly, Rubin respectfully requests entry of an order dismissing this 

action in its entirety and awarding Rubin his attorney’s fees and costs pursuant to 

Florida Statutes § 768.295.

81 Id. § 768.295(3).

82 Id.

83 Id. § 768.295(2)(a).

84 Id. § 768.295(4); see also Parekh, 2020 WL 3400679 at *6 (affirming award of fees under 

anti-SLAPP statute in action alleging defamation under Florida law arising from news 

report allegedly implying that plaintiff was in on scheme perpetuated by former 

girlfriend, pursuant to which she allegedly pretended to have cancer and solicited funds 

to support purported medical treatment).

Case 4:20-cv-00457-MW-MAF Document 4 Filed 09/25/20 Page 18 of 19
19

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F)

I certify that this memorandum complies with Local Rule 7.1(F). According to 

the word count of the Microsoft word-processing program, this memorandum contains 

a total of 4,644 words.

Respectfully submitted,

TEIN MALONE PLLC

Counsel for Defendant Ronald Rubin

/s/ Gaye L. Huxoll

Michael R. Tein

Florida Bar No. 993522

tein@teinmalone.com

Gaye L. Huxoll

Florida Bar No. 149497

ghuxoll@teinmalone.com

(305) 442-1101

Case 4:20-cv-00457-MW-MAF Document 4 Filed 09/25/20 Page 19 of 19