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 FOR SUMMARY JUDGEMENT 

This Court has considered, without hearing, Defendant’s motion for summary 

judgement, ECF No. 110, Plaintiff’s response, ECF No. 125, Defendant’s reply, ECF 

No. 128, and Plaintiff’s sur-reply, ECF No. 132. For the reasons provided below, 

Defendant’s motion for summary judgment is DENIED. 

I 

Plaintiff claims that Defendant defamed her when Defendant, through his 

former counsel Michael Tein (“Tein”), sent letters to Florida Governor Ron DeSantis 

and Chief Inspector General Melinda Miguel (the “Tein Letters”), each of which 

implied that Plaintiff violated numerous Florida laws. ECF No. 1-2 at 2-6; ECF No. 

125 at 2. At the time the Tein Letters were sent to their respective recipients, 

Defendant was under investigation by Florida’s Department of Financial Services 

(“DFS”) for sexual misconduct. ECF No. 109-1 at 2. The Tein Letters urged 

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Governor DeSantis and General Miguel to “assume jurisdiction over the pending 

investigation of [Defendant] and to open an investigation into heavily corroborated 

evidence of misuse of public office by CFO Jimmy Patronis and his inner circle . . . 

.” ECF Nos. 109-3 at 2; 109-4 at 2; 124-9 at 4; 124-10 at 1. Both letters go on to 

accuse CFO Patronis (“Patronis”) and “his inner circle” of violating numerous 

Florida laws pertaining to extortion, unlawful compensation, and misuse of 

confidential information. Id. Both letters also reference a lawsuit that Defendant 

filed against Florida lobbyist R. Paul Mitchell (the “Mitchell Lawsuit”), where 

Defendant alleged “improper, unethical, and perhaps unlawful conduct on the part 

of [Patronis] and his enterprise . . . .” ECF Nos. 109-3 at 3; 109-4 at 2; 124-9 at 4; 

124-10 at 2. The Tein Letters encourage their recipients to review the civil complaint 

filed in conjunction with the Mitchell Lawsuit (the “Mitchell Complaint”), which,

both letters claim, includes “attach[ments] and hyperlinks to supporting 

documentary evidence, including public records, email, and text messages.” Id. The 

Mitchell Complaint names Plaintiff as a member of Patronis’s criminal enterprise 

and alleges that Plaintiff and others “carr[ied] out a pattern of criminal activity for 

their own benefit, aimed at [Defendant], other individuals and the Citizens of the 

State of Florida.” ECF No. 124-13 at 10.

Defendant moves for summary judgment and raises several arguments as to 

why he is entitled to judgement as a matter of law. First, Defendant argues that 

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Plaintiff’s claims are barred by Florida’s absolute privilege. ECF No. 110 at 7–9. 

Second, Defendant argues that Plaintiff’s claims are barred by Florida’s qualified 

privilege, in the event that Florida’s absolute privilege does not apply. Id. at 11–15. 

Third, Defendant argues that he cannot be held vicariously liable for Tein’s 

publication of the Tein Letters because (i) Plaintiff failed to properly plead vicarious 

liability under Florida law and (ii) Tein exceeded the scope of his employment by 

publishing the Tein Letters. Id. at 9–11. Fourth, Defendant argues that Plaintiff 

cannot show that she suffered damages because (i) Plaintiff has not actually suffered 

any damages and (ii) Plaintiff cannot show that the Tein Letters proximately caused

of any of her purported damages. Id. at 15–17. Plaintiff opposes each of Defendant’s 

arguments. 

II

Summary judgment is appropriate when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). A “genuine” dispute exists “if the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts are “material” with 

respect to the substantive law if they form disputes that are not “irrelevant or 

unnecessary” and have the potential to “affect the outcome of the suit.” Id. A moving 

party is entitled to summary judgment when the nonmoving party fails to prove an 

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essential element of its case, an element for which the nonmoving party has the 

burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This 

Court accepts the facts in the light most favorable to the nonmovant. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008). 

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

defamation. 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. 

A statement is considered defamatory per se when “considered alone without 

innuendo: (1) it charges that a person has committed an infamous crime; (2) it 

charges a person with having an infectious disease; (3) it tends to subject one to 

hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his 

trade or profession.” Blake v. Giustibelli, 182 So. 3d 881, 884 (Fla. 4th DCA. 2016)

(citing Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)). 

Florida law also recognizes that some statements can be considered 

defamatory based on the implications that can be drawn from them, which is 

otherwise known as defamation by implication. Jews For Jesus, Inc. v. Rapp, 997 

So. 2d 1098, 1106 (Fla. 2008). “Defamation by implication arises, not from what is 

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stated, but from what is implied when a defendant (1) juxtaposes a series of facts so 

as to imply a defamatory connection between them, or (2) creates a defamatory 

implication by omitting facts, [such that] he may be held responsible for the 

defamatory implication . . . .” Id. (citations omitted).

III 

Defendant first argues that, based on the undisputed material facts of this case,

Plaintiff’s claims are barred by Florida’s absolute privilege. The crux of Defendant’s 

argument is that the Tein Letters don’t specifically identify Plaintiff and that 

Plaintiff’s supposedly criminal activity would only be known after reading the 

Mitchell Complaint, which is subject to Florida’s absolute privilege.

1 This Court 

finds Defendant’s argument unpersuasive.

The absolute privilege provides absolute immunity to “any act occurring 

during the course of a judicial proceeding, regardless of whether the act involved a 

defamatory statement . . . so long as the act has some relation to the proceeding.”

DelMonico v. Traynor, 116 So. 3d 1205, 1216 (Fla. 2013) (citing Levin, 

Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire 

Insurance Co., 639 So. 2d 606, 608 (Fla. 1994)). “In cases where [the Florida 

Supreme Court] has applied the absolute privilege to issues involving defamation, 

1 In its order granting in part and denying in part Defendant’s motion to dismiss, this Court 

determined that the Mitchell Complaint is subject to Florida’s absolute privilege. ECF No. 22 at 

7–9.

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the defamatory statements at issue were made either in front of a judicial officer or 

in pleadings or documents filed with the court or quasi-judicial body.” DelMonico,

116 So. 3d at 1217. The safeguards present in a formalized judicial environment 

“facilitate[] and promote[] an unimpeded speaking environment while protecting an 

individual from false or malicious statements . . . .” Id. This privilege does not extend 

to the Tein Letters, as they are neither communications before a judicial officer nor 

part of pleadings or documents that filed with a court or quasi-judicial body. See id.

Defendant’s argument might have merit if the Tein Letters included the 

Mitchell Complaint as an attachment or simply referenced the existence of the 

Mitchell Lawsuit. See Stewart v. Sun Sentinel Co., 695 So. 2d 360, 362 (Fla. 4th 

DCA 1997) (holding that an attorney who provided a reporter with a notice of claim 

to a reporter was entitled to absolute immunity for the statements contained within 

the notice); Ball v. D’Lites Enterprises, Inc., 65 So. 3d 637, 641 (Fla. 4th DCA 2011)

(interpreting Stewart to hold that the publication of a complaint and its 

corresponding documents are covered by absolute immunity because those 

documents “are part of the judicial proceeding”). The Tein Letters, however, go a 

step further, as they (i) include a separate statement that alleges the existence of a 

criminal enterprise at DFS, whose members violated numerous Florida laws, and (ii) 

encourage the recipients to review the Mitchell Complaint, which specifically names 

Plaintiff as a member of that criminal enterprise. Defendant does not need to use 

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Plaintiff’s name in the Tein Letters for those statements to be defamatory, as it is 

enough for Defendant to claim that a criminal enterprise exists in the Tein Letters 

and then imply that Plaintiff is a member of that enterprise by directing readers to 

the Mitchell Complaint. See Jews For Jesus, Inc., So. 2d at 1107. Accordingly, 

Plaintiff’s claims are not barred by Florida’s absolute privilege.

IV

Next, Defendant argues that, based on the undisputed material facts of this 

case, Florida’s qualified privilege applies to the Tein Letters and that the privilege 

bars Plaintiff’s complaint. This Court disagrees.

“Whether a statement is protected by a qualified privilege is a question of law 

for the court to decide only if the circumstances surrounding the communication are 

undisputed or so clear under the evidence as to be unquestionable.” Falic v. Legg 

Mason Wood Walker, Inc., 347 F. Supp. 2d 1260, 1264 (S.D. Fla. 2004) (citing 

Nodar v. Galbreath, 462 So.2d 803, 810 (Fla. 1984)) (emphasis added); see 

Glickman v. Potamkin, 454 So. 2d 612, 613 (Fla. 3rd DCA 1984) (“In a defamation 

action, the affirmative defense[] of . . . qualified privilege present[s] factual 

questions for resolution by the jury.”). Florida’s qualified privilege has five 

elements: “(1) good faith; (2) an interest in the subject by the speaker or a subject in 

which the speaker has a duty to speak; (3) a corresponding interest or duty in the 

listener or reader; (4) a proper occasion; and (5) publication in a proper manner.”

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Falic, 347 F. Supp. 2d at 1264 (citing Thomas v. Tampa Bay Downs, Inc., 761 So.

2d 401, 404 (Fla. 2d DCA 2000)). A defendant asserting a qualified privilege has 

the burden of demonstrating that a defamatory statement is protected by the 

privilege. Randolph v. Beer, 695 So. 2d 401, 404 (Fla. 5th DCA 1997).

Defendant fails to show that, based on the undisputed material facts of this 

case, the Tein Letters are subject to Florida’s qualified privilege. For example, 

Defendant fails to show that it is undisputed that the Tein Letters were published in 

a proper manner. While it is true that the Tein Letters were sent to individuals that 

had the authority to intervene in Defendant’s sexual harassment investigation 

pursuant to Fla. Stat. § 14.32, the letters were also sent to numerous other Florida 

officials that did not have the authority under Fla. Stat. § 14.32 to intervene in 

Defendant’s investigation.

2 ECF Nos. 109-3 at 3; 109-4 at 2; 124-9 at 4; 124-10 at 3 

(noting that copies of the letters were sent to Inspector General Bradley Perry, 

Attorney General Ashley Moody, and Chief Financial Officer Jimmy Patronis).

Plaintiff argues that the Tein Letters were sent to these other Florida officials in an 

2 Based on the contents of the Tein Letters, their purpose was to convince Governor 

DeSantis and General Miguel to intervene in Defendant’s sexual misconduct investigation 

pursuant to section 14.32, Florida Statutes. Under Florida law, Florida’s Chief Inspector General 

has the authority to intervene in investigations of potential government misconduct. Fla. Stat. § 

14.32(2)(a). Florida’s Governor also has the authority to direct the Chief Inspector General to 

conduct investigations of government misconduct. Fla. Stat. § 14.32(2)(k). Florida’s Inspectors 

General, Florida’s Attorney General, and Florida’s Chief Financial Officer are not authorized to 

intervene in such investigations under section § 14.32, Florida Statutes.

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attempt to derail the investigation of Defendant because Plaintiff was seeking 

employment with their respective agencies. ECF No. 125 at 26.

Based on the language of the Tein Letters and their intended recipients, there 

exists a genuine dispute of material fact as to whether or not the Tein Letters were 

published in a proper manner. Thus, this Court is unable to determine at this juncture 

if Florida’s qualified privilege applies to the Tein Letters.

3 Accordingly, this Court 

finds Defendant’s argument unpersuasive.

V 

Defendant’s next two argument center around vicarious liability. Defendant 

also argues that summary judgement should be granted in its favor because (i) 

Plaintiff did not plead a separate count for vicarious liability in her complaint, as 

required under Florida law, and (ii) Tein exceeded the scope of his employment by 

publishing the Tein Letters, which Defendant claims he did not authorize and could 

not reasonably foresee Tein doing. This Court does not find Defendant’s arguments 

convincing. 

3 Defendant also argues that, based on the undisputed material facts of this case, Plaintiff 

cannot show express malice on the part of Defendant, which is necessary to overcome Florida’s 

qualified privilege. ECF No. 110 at 13; see Jarzynka v. St. Thomas Univ. of Law, 310 F. Supp. 2d 

1256, 1268 (S.D. Fla. 2004) (“The Florida courts have further stated, the gravamen of express 

malice is the abuse of a privileged occasion by improper motives on the part of the speaker.”) 

(citations omitted). However, because this Court has not determined if Florida’s qualified privilege 

applies to the Tein Letters, this Court need not address that argument at this juncture. In any event, 

the issue of malice is likely a question for the jury. 

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Under Florida Rule of Civil Procedure 1.110(b)(2), plaintiffs are required to 

allege vicarious liability as a separate count within a complaint. See Goldschmidt v. 

Holman, 571 So. 2d 422, 423 (Fla. 1990) (citing Designers Tile International Corp. 

v. Capital C Corp., 499 So.2d 4 (Fla. 3d DCA 1986) (holding that a separate cause 

of action for vicarious liability must be plead)). This case, however, is before a 

federal court, where “the rules of pleading . . . are established by the Federal Rules 

of Civil Procedure, not by state law.” Inland Dredging Co., L.L.C. v. Panama City 

Port Auth., 406 F. Supp. 2d 1277, 1279 (N.D. Fla. 2005). And the Federal Rules of 

Civil Procedure contain no similar requirement. Thus, Defendant’s argument that 

Plaintiff improperly alleged vicarious liability is without merit.

Next, Defendant argues that the undisputed material facts of this case show 

(i) that Tein exceeded the scope of his employment when sending the Tein Letters 

and (ii) that it was not reasonably foreseeable that Tein would commit defamation 

on Defendant’s behalf. ECF No. 110 at 10–11 (citing Jones v. City of Hialeah, 368 

So. 2d 398, 400 (Fla. 3rd DCA. 1979) (“There is no liability where the agent has 

stepped aside from his employment to commit a tort which the principal neither 

directed in fact, nor could be supposed, from the nature of his employment, to have 

authorized or expected the agent to do.”)). In support, Defendant points to his sworn

declaration, where Defendant states that (i) Defendant relied entirely on Tein’s 

professional judgement in all actions taken on his behalf, (ii) Defendant was not 

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aware that Tein sent the Tein Letters until after they were sent, (iii) Tein did not ask 

for Defendant’s approval before taking actions on his behalf, and (iv) Defendant did 

not author, contribute, direct, or approve the Tein Letters. ECF No. 109 at 2–3. 

Defendant claims that there is “no contrary evidence that Defendant directed Tein to 

send the [Tein Letters]” within the record before this Court. ECF No. 110 at 10 

(citing to ECF No. 109-1 ¶¶ 5–6). 

But as Plaintiff points out, Defendant ignores the language within the Tein 

Letters in making his argument. Both letters include language suggesting that 

Defendant was speaking directly through Tein by sending the letters and that 

Defendant authorized their publication. See ECF No. 109-3 at 2–3 (“We respectfully 

request that you direct [General Miguel] to assume jurisdiction . . . . We are not 

impugning the integrity of the inspectors general . . . our point is that there is 

necessarily an institutional conflict . . . .) (emphasis added); ECF No. 109-4 at 2 (We

respectfully request that you assume jurisdiction . . . . The grounds for our request

are described in our letter . . . .) (emphasis added). Furthermore, email 

correspondence between Defendant, his former attorney Jared W. Whaley 

(“Whaley”), and Defendant’s media consultant also suggest that Defendant 

maintains close control over correspondences sent on his behalf. For example, in an 

email from Defendant to Whaley, Defendant suggested adding language he 

personally drafted to a press release concerning Defendant’s sexual harassment 

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investigation and the need for General Miguel to intervene in the investigation. ECF 

No. 124-14 at 63. Other emails show that Defendant directed Whaley to send a letter 

to the Orlando Sentinel requesting corrections to an article about Defendant’s 

investigation. Id. at 103. The emails also show that Defendant prefers to have his 

attorneys send correspondence on his behalf, as Defendant’s media consultant 

indicated that he was “baffled” when Defendant requested that his attorney send the 

correction letter to the Orlando Sentinel and that no one has ever “suggested that 

such communication come from an attorney.” Id. at 108. 

While these emails do not concern the Tein Letters, Defendant’s history of 

involvement with drafting correspondences sent by his attorneys, coupled with the 

language of the Tein Letters themselves, shows that there is a genuine dispute of 

material fact regarding Defendant’s involvement with drafting and publishing the 

Tein Letters. Accordingly, Defendant is not entitled to summary judgement on these 

grounds.

VI

Defendant’s next two arguments relate to damages, an essential element of 

defamation under Florida law. Defendant claims that the undisputed facts of this 

case show that Plaintiff has not suffered any damages, since Plaintiff decided on her 

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own to decline an employment opportunity for DFS.

4 Defendant also argues that, 

based on the undisputed material facts of this case, Plaintiff cannot show that the 

Tein Letters proximately caused any of her purported damages. Since damages are 

a necessary element of defamation under Florida law, Defendant argues that 

Plaintiff’s inability to show damages entitles Defendant to summary judgement. This 

Court disagrees.

In response to Defendant’s arguments, Plaintiff argues that the statements 

within the Tein Letters constitute defamation per se, which would entitle Plaintiff to 

at least nominal damages. See Klayman v. Jud. Watch, Inc., 22 F. Supp. 3d 1240, 

1253 (S.D. Fla. 2014) (“As it is often difficult for a plaintiff to prove actual damages, 

courts and juries have historically presumed some level of damage from defamatory 

publications . . . ”) (citation omitted); Krauser v. Evollution IP Holdings, Inc., No. 

12–80977–CIV, 2013 WL 5313403, at *9 (S.D. Fla. Sept. 20, 2013) (explaining 

where a plaintiff does not proffer evidence of actual damages, presuming damages 

allows a defamation claim to survive summary judgment, and plaintiff may be 

awarded nominal damages at trial as vindication of his reputation). Because the Tein 

Letters accuse Plaintiff of committing multiple serious crimes, the letters

undoubtedly harm her profession as an attorney and may constitute defamation per 

4 Plaintiff asserts that she declined an employment offer from DFS in response to the Tein 

Letters. ECF No. 125 at 12.

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se on these grounds. Blake, 182 So. 3d at 884 (“A publication is libelous per se, or 

actionable per se, if, when considered alone without innuendo . . . it tends to injure 

one in his trade or profession.”) (citations omitted). Plaintiff may be entitled to 

additional damages besides nominal damages, but this Court need not determine that 

at this juncture. What is clear is that the undisputed facts of this case do not show 

what Defendant claims they do: that Plaintiff has suffered no damages. 

Defendant’s proximate causation argument is also insufficient, since Plaintiff 

does not need to show proximate causation for the damages resulting directly from

defamation per se. Under Florida law, damages for defamation per se are “those 

which the law presumes must naturally, proximately, and necessarily result from the 

publication of the libelous matter. They arise by inference of law, and are not 

required to be proven by evidence.” Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 

710, 727 (Fla. 4th DCA. 2010) (citing Campbell v. Jacksonville Kennel Club, 66 

So.2d 495 (Fla.1953)). In other words, some damages directly associated with 

defamation per se are presumed, and Plaintiff need not show that such statements 

proximately caused those damages. Whether or not Plaintiff can show that the Tein 

Letters were the proximate cause of other damages, such as Plaintiff’s missed 

employment opportunity, is another question entirely, but not one that this Court 

needs to address at this time. 

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* * *

Accordingly, for the reasons provided above, Defendant’s motion for 

summary judgement, ECF No. 110, is DENIED. 

SO ORDERED on March 22, 2023. 

s/Mark E. Walker ____

Chief United States District Judge

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