UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:22-CV-81908-ROSENBERG/REINHART

MARC M. DULCIO,

 Plaintiff, 

v. 

ARCADIS U.S., INC., et al., 

 Defendants. 

_____________________________/ 

OMNIBUS ORDER ON MOTIONS TO DISMISS SECOND AMENDED COMPLAINT

This cause is before the Court on the following Motions to Dismiss: 

1. Defendant Arcadis U.S., Inc.’s (“Arcadis”) Motion to Dismiss Second Amended 

Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [DE 

77]; 

2. Defendants Jason Andreotta (“Andreotta”), Alannah Irwin (“Irwin”), Staci Kichler

(“Kichler”), and Romina Lancellotti’s (“Lancellotti”) (collectively “FDEP 

Individual Defendants”) Motion to Dismiss Second Amended Complaint Pursuant 

to Federal Rule of Civil Procedure 12(b)(6) [DE 78]; 

3. Defendant Earth Tech Drilling, Inc.’s (“Earth Tech”) Motion to Dismiss Second 

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6) [DE 79];

4. Defendant GPI Properties, Inc.’s (“GPI”) Motion to Dismiss Second Amended 

Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [DE 

86]. 

Plaintiff, Marc M. Dulcio, filed responses to the Motions, DE 83-85, 87, and Defendants filed 

replies. DE 88-89, 92-94. As set forth below, the Motions are granted in part and denied in part. 

I. BACKGROUND AND FACTUAL ALLEGATIONS 

Plaintiff, who is proceeding pro se, filed his original Complaint, [DE 1], on December 9, 

2022, then filed his Amended Complaint on January 3, 2023, before any motion practice ensued. 

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DE 7. The Amended Complaint asserted 13 claims against 22 Defendants. Id. All Defendants 

moved to dismiss the Amended Complaint, and, after a lengthy analysis, the Court dismissed some 

claims with prejudice and some claims without prejudice, and gave Plaintiff leave to file a Second 

Amended Complaint consistent with the Court’s Order. DE 74. In that Order, the Court 

specifically explained to Plaintiff that he needed to allege specific acts and omissions regarding 

specific Defendants in support of each claim, to include only those Defendants against whom he 

has legally cognizable claims, to allege precise facts identifying the particular constitutional right 

that was violated, and to explain how the violation fell outside the scope of the Defendant’s duties. 

Id. at 37-38. In the Second Amended Complaint, DE 75, Plaintiff narrowed his claims and reduced 

the number of Defendants, and now asserts six claims against seven Defendants:

Count I: Violation of Florida Statutes § 376.313 against Arcadis;

Count II: Violation of Florida Statutes § 376.313 against GPI;

Count III: Violation of Florida Statutes § 376.313 against Arcadis;

Count IV: Violation of Florida Statutes § 376.313 against Earth Tech;

Count V: Conspiracy to Interfere With Civil Rights in Violation of 42 U.S.C. § 1985 

against Arcadis, Andreotta, Irwin, and Lancellotti; and 

Count VI: Action for Neglect to Prevent in Violation of 42 U.S.C. § 1986 against Kichler. 

The allegations below are taken from the Complaint and accepted as true for purposes of the 

Motions. 

Sometime before December 2017, the Florida Department of Environmental Protection 

(“FDEP”) assigned Arcadis to perform an Initial Site Assessment of the dry-cleaning site (“LSC 

Plant”) that Plaintiff later purchased. DE 75 ¶ 31. Arcadis was responsible for recognizing that the 

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LSC Plant should be classified as a “DNAPL1 site” at that time and reporting that characterization 

to FDEP. Id. ¶¶ 32-34. From December 3, 2018, to January 11, 2019, Arcadis and GPI performed 

a site assessment. Id. ¶ 35. Prior to drilling, Arcadis and GPI failed to perform a proper 

underground survey, which resulted in Arcadis and GPI damaging pipes leading to and from the 

LSC Plant’s septic tanks. Id. ¶¶ 35-36. 

On June 5, 2019, Plaintiff acquired the Life Style Cleaners dry cleaning business and 

equipment “for zero dollars and secured 9 months of free rent, and sign[ed] a lease agreement to 

lease the LSC-Plant site for 5 years.” Id. ¶ 37. On or about July 25, 2019, FDEP employees 

performed a compliance evaluation of the LSC Plant, at which Irwin was present. Id. ¶ 39. Irwin 

did not issue any violations and Plaintiff was given one recommendation, and also advised to 

complete various registrations. Id. ¶¶ 39, 43. During the inspection, Irwin made an incorrect 

statement relating to perchloroethylene (“PERC”), apparently telling Plaintiff to dispose of the 

PERC rather than its byproduct. Id. ¶ 40. When Plaintiff alerted Irwin to the mistake, she “became 

irate,” “proceeded to double down on her assertions,” and became “increasingly agitated with 

Plaintiff.” Id. ¶ 41. 

Following the inspection, Plaintiff called FDEP “to confirm if the false information he 

received from [Irwin] was correct” and spoke with Irwin’s supervisor, “Norva.” Id. ¶ 44. Norva 

“agreed with Plaintiff that PERC does not expire and contended that Plaintiff may have 

misunderstood and/or misheard [Irwin]. Id. ¶ 45. Plaintiff reiterated that he did not misunderstand 

and asked to file a complaint against Irwin; Norva assured Plaintiff that a complaint was not 

necessary and she would attend to Irwin. Id. ¶¶ 45-46.

1 DNAPL is defined by the United States Department of Environmental Protection as Dense Non-Aqueous Phase 

Liquid contaminated sites. 

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On September 19, 2019, Plaintiff received a warning letter from FDEP stating that he failed 

to rectify violations that were verbally brought to his attention during the inspection, including 

“[f]ailure to provide secondary containment for the chemicals on the shelving units adjacent to the 

perchloroethylene storage area, pursuant to sub-section 376.3078(9)(a) F.S.” Id. ¶ 47. However, 

Irwin never verbally communicated this violation to Plaintiff during the inspection. Id. ¶ 49. The 

letter also referenced possible and potential violations that Plaintiff would need to correct so that 

he would not be further in violation. Id. ¶ 50. Plaintiff again called Norva, who advised Plaintiff 

not to worry about the violation and to perform maintenance of the dry cleaning machine. Id. ¶ 52. 

During the July 25, 2019 inspection, Irwin and John Bryant informed Plaintiff that 

inspections are never spontaneous and that the FDEP would always call to schedule an inspection. 

Id. ¶ 53. Over a year later, on September 9, 2020, and September 10, 2020, Arcadis and Earth Tech 

began drilling at the LSC Plant without performing a proper survey, and “punctured and/or further 

damaged the pipes located at the LSC-Plant site causing additional soil contamination to leech into 

the septic tank, and creating an additional pathway for contamination to enter into the 

groundwater.” Id. ¶ 55. 

On or about March 25, 2021, an inspection was requested to be performed to verify the 

status of the facilities. Id. ¶ 56. The week prior to April 13, 2021, Plaintiff observed an FDEP 

vehicle in the LSC Plant parking lot on two occasions, but no one ever exited the vehicle. Id. ¶ 58. 

Then, on April 13, Plaintiff was absent from the site when the FDEP vehicle returned and 

Lancellotti appeared on the site. Id. ¶ 59. Lancellotti entered the building and demanded to perform 

an inspection; however, neither Plaintiff nor his manager was aware of an inspection being 

scheduled. Id. ¶ 60. Given Irwin’s past statements that FDEP would always schedule inspections 

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in advance, the fact that Plaintiff had never met Lancellotti, and that Lancellotti did not present a 

credential, Plaintiff was “apprehensive” about the inspection’s legitimacy and asked if the 

inspection could be rescheduled. Id. Lancellotti stated that if Plaintiff did not grant her immediate 

access, he would be guilty of hindering an investigation and would be issued violations for other 

offenses. Id. ¶¶ 61-63. When Plaintiff advised Lancellotti that he could not grant access at that 

moment, Lancellotti “became very irate” and referred to Plaintiff by “Sucio,” which is a 

“derogative racial slur within the Spanish speaking community.” Id. ¶ 64. Plaintiff asked 

Lancellotti to stop speaking to him in such a manner, and Lancellotti complied; Plaintiff and his 

manager arranged for the inspection to be conducted later that afternoon, but Lancellotti did not 

appear at the site. Id. ¶¶ 65-68. 

On April 14, 2021, Plaintiff received an email from Irwin stating that Lancellotti is an 

FDEP employee and Irwin is her superior, and Plaintiff apologized and promised no further issues 

with future inspections. Id. ¶ 69. In response, Irwin threatened Plaintiff with violations, fees, and 

fines, in violation of the FDEP enforcement manual. Id. ¶ 70. On April 16, 2021, Lancellotti 

performed another inspection. Because Plaintiff could not attend, he asked his employee to record 

the inspection, but Lancellotti threatened the employee with arrest if he continued recording. Id.

¶¶ 72-73. At the end of the inspection, Lancellotti did not issue any violations or provide any 

verbal recommendations; however, on May 19, 2021, FDEP issued Plaintiff three violations based 

on that inspection. Id. ¶¶ 74-75. Plaintiff called Lancellotti, who told him she knew the violations 

were not valid but that Plaintiff should resolve them anyway as a “good practice.” Id. ¶ 75. Plaintiff 

resolved the violations and submitted all requested documents to FDEP to get back into 

compliance. Id. ¶ 76-77. 

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On September 1, 2021, Plaintiff, Andreotta, and Lancellotti had a conference call to address 

the outstanding violations. During the call, Andreotta advised Plaintiff that recording an inspection 

was unlawful, and Plaintiff was informed that the FDEP suspected he caused new discharges due 

to the increase in PERC and the septic tank samples. Id. ¶ 80-82. 

Between November 1, 2021, and July 5, 2022, Plaintiff reviewed the site assessments and 

studies that Arcadis submitted to FDEP, and then called Arcadis employee Douglas McGlone to 

gain clarity on the studies. Id. ¶ 83. As Plaintiff began to ask questions, McGlone became “a bit 

agitated” and then said, “Those things don’t matter, the real problem is they have a black business 

owner that didn’t give them access. He’s basically digging his own grave.” Id. ¶ 84. Plaintiff 

interpreted that statement to mean that the difficulties he was encountering with Irwin and 

Lancellotti were racially motivated. Id. ¶ 85. 

On December 1, 2021, Plaintiff received a Notice of New Discharge and Non-Compliance 

Issues, which accused Plaintiff of causing a new discharge of contamination and violating state 

laws. Id. ¶ 86. Then, on February 10, 2022, the FDEP issued Plaintiff an Official Notice of 

Violation, and on May 4, 2022, Plaintiff became aware of a criminal investigation that the FDEP 

had opened against him. Id. ¶¶ 87-88. Plaintiff contacted Kichler, an FDEP attorney, who informed 

him that the “sampling of MW003 and the sediment of the septic tank along with consultation 

from Arcadis were their basis for launching a formal enforcement effort and initiating a criminal 

investigation into Plaintiff.” Id. ¶ 89. On May 18, 2022, FDEP acquired a search warrant and 

executed a search of the LSC Plant with ten police officers. Id. ¶ 90. 

On July 5, 2022, Plaintiff emailed FDEP and various governmental entities that the LSC 

Plant was a DNAPL site and had been miscategorized and subsequently mishandled by Arcadis, 

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Earth Tech, and GPI, which caused the chemical spike in the groundwater samples. Id. ¶¶ 91-92. 

Then, on July 7, 2022, an independent firm, Alpha-Omega Training and Compliance (“AOTC”), 

was contracted to perform confirmatory sampling of the LSC Plant site. Id. ¶ 93. AOTC concluded 

that the site was a DNAPL site “and that a new discharge by Plaintiff was not possible given the 

evidence.” Id.

Plaintiff alleges the spike of chemicals in the monitoring well MW003 was caused by 

Arcadis’ and GPI’s well development from December 2018 through January 2019, and that the 

pollution found in monitoring wells MW006-007 was caused by Arcadis’ and Earth Tech’s drilling

in September 2020. Id. ¶¶ 94-95. These Defendants developed monitoring wells “in the heart of a 

DNAPL plume” and caused the pollution. Id. One indication that the wells were developed in a 

DNAPL zone is the sudden spike of chemicals in the next sampling following the development, 

which corresponds to Arcadis, GPI, and Earth Tech’s work. Id. at ¶¶ 97-102. 

II. LEGAL STANDARDS UNDER RULE 12(B)(1) AND 12(B)(6)

Federal Rule of Civil Procedure 12(b)(1) applies to challenges to a court’s subject matter 

jurisdiction. Fed. R. Civ. P. 12(b)(1). In ruling on a Rule 12(b)(1) motion to dismiss for lack of 

subject-matter jurisdiction, courts may consider matters outside the pleadings without converting 

the motion into one for summary judgment. See Fed. R. Civ. P. 12(d). When a defendant properly 

raises a factual challenge to subject matter jurisdiction under Rule 12(b)(1), “no presumptive 

truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not 

preclude the trial court from evaluating for itself the merits of the jurisdictional issue.” Id. at 925

(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When resolving a factual 

attack, the Court may look beyond the four corners of the complaint and consider extrinsic 

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evidence. Id.; see also Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this 

Court must accept all factual allegations in a complaint as true and take them in the light most 

favorable to the plaintiff; however, a plaintiff is still obligated to provide grounds of his or her 

entitlement to relief which requires more than labels, conclusions and a formulaic recitation of the 

elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563 (2007). 

Unwarranted deductions of fact in a complaint cannot be admitted as true for the purposes of 

testing the sufficiency of the allegations. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 

1242, 1248 (11th Cir. 2005). The facts as pled must state a claim for relief that is plausible on the 

face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009).

III. ANALYSIS

A. Motions to Dismiss Under Rule 12(b)(1) for Eleventh Amendment Immunity

Arcadis asserts that the Court lacks subject matter jurisdiction over it because it is an arm

of the state and entitled to Eleventh Amendment immunity. DE 77. GPI argues that because it 

performed work as a subcontractor of Arcadis, it is also entitled to immunity as an arm of the state. 

DE 86. “The Eleventh Amendment prohibits federal courts from exercising subject matter 

jurisdiction in suits brought against a state by a citizen of that state.” Schopler v. Bliss, 903 F.2d 

1373, 1378 (11th Cir.1990). The resulting immunity from suit in federal court extends to state 

agencies acting under the state's control. Id.; Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., 

421 F.3d 1190, 1192 (11th Cir. 2005) (“The law is ‘well-settled that Eleventh Amendment 

immunity bars suits brought in federal court when an arm of the State is sued.’”) (quoting Manders 

v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 

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Inc., 506 U.S. 139, 144 (1993). This immunity also bars both federal and state law claims against 

the agency. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Eleventh 

Amendment immunity may be lost only if Congress abrogates a state’s immunity or the state 

waives immunity for a certain type of suit. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54-56 

(1995); Hill v. Dep’t of Corrections, State of Fla., 513 So. 2d 129, 131 (Fla. 1987).

Eleventh Amendment immunity may extend to an official or entity when it acts as “an arm 

of the state.” Lake v. Skelton, 840 F.3d 1334, 1337 (11th Cir. 2016). When determining whether 

an entity is acting as an arm of the state, courts consider “(1) how state law defines the entity; (2) 

what degree of control the State maintains over the entity; (3) where the entity derives its funds; 

and (4) who is responsible for judgments against the entity.” Id. (quoting Manders v. Lee, 338 F.3d 

1304, 1308 (11th Cir. 2003)). “Analysis under Manders is function specific; in addition to 

determining the defendant’s general status under state law, we also ask whether the defendant was 

acting as an arm of the state ‘in light of the particular function in which the defendant was engaged 

when taking the actions out of which liability is asserted to arise.’” Freyre v. Chronister, 910 F.3d 

1371, 1380 (11th Cir. 2018) (quoting Manders, 338 F.3d at 1308). Courts are “reluctant to extend 

state and governmental immunity to private entities simply because they perform governmental 

functions.” Edison v. Douberley, 2008 WL 4194813, at *6 (M.D. Fla. Sept. 9, 2008) (citing various 

cases); see also Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1047 (11th Cir. 

2007) (“The standard for Eleventh Amendment immunity has never been held to apply simply 

because an independent contractor performs some government function.”). 

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1. How Arcadis is Defined Under State Law

The FDEP’s contract with Arcadis provides that Arcadis “shall perform as an independent 

contractor and not as an agent, representative or employee of the [FDEP]” except for signing 

manifests for waste management. DE 77 at 27, 46. The term “independent contractor” is “legally 

significant” and, while not dispositive, “serves as persuasive evidence that [a contractor] did not 

act as an agent of the state under Florida law.” Freyre v. Chronister, 910 F.3d 1371, 1381-82 (11th

Cir. 2018). In Freyre, the Eleventh Circuit explained that “Florida statutes draw a distinction 

between ‘independent contractors,’ who are often solely liable for their actions, and ‘agents,’ to 

whom the state extends sovereign immunity. Florida case law states the point even more clearly.” 

Id. (citing Dorse v. Armstrong World Indus., Inc., 513 So. 2d 1265, 1268 (Fla. 1987)); see also 

Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1044-45 (11th Cir. 2007) 

(contract defining entity as an independent contractor rather than agent indicated entity was not 

arm of the state). 

The contract also provides that Arcadis “has been determined to be a vendor to the [FDEP] 

under this Contract,” further indicating that it is not an agent of the State DE 77 at 27. Arcadis 

ignores these contractual provisions and argues simply that because Arcadis contracted with FDEP 

as part of a statutory program, it must be defined as an arm of the state. DE 77 at 7. However, 

simply because the contract contemplates work to be performed pursuant to a statutory program 

or requirement does not mean the state defines the contractor as a governmental agency. 

Accordingly, this factor weighs against arm-of-the-state status. 

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2. Degree of Control the State Maintains Over Arcadis 

Arcadis argues that this factor is satisfied because it performed the work “directly pursuant 

to the Contract, and in furtherance of FDEP’s statutory Program obligations” and cites various 

contractual provisions in support. DE 77 at 8-9. For example, Arcadis asserts that FDEP assigned 

work in its sole discretion, directed the requirements for sampling and analysis, determined if 

Arcadis performed services in a satisfactory manner, assumed ownership of any documents 

Arcadis created, specified which subcontractors could be used, and directed the manner in which 

Arcadis should maintain records. Id. However, there is no indication in Arcadis’ argument or in 

the contract that FDEP maintains any control over Arcadis’ day-to-day work or the specific ways

in which Arcadis performs the work, nor does FDEP appear to supervise Arcadis’ activities. DE 

77-1. See Rosario, 506 F.3d at 1045 (state attorney’s office required entity to use approved form 

letters but did not exercise other control over day-to-day activities, so the state did not maintain 

control over the entity for Eleventh Amendment purposes); Isler v. Adelusola, No. 08-cv-60257, 

2008 WL 11409458 (S.D. Fla. Sept. 26, 2008) (state did not exert sufficient control over contractor 

for child placement services when the state did not have control over daily decision-making even 

though contractor was required to follow standards created by the state); United States v. Fla. 

Birth-Related Neuro. Injury Comp. Ass’n, No. 20-cv-13448, 2022 WL 1180142, at *5 (S.D. Fla. 

Apr. 21, 2022) (entity established by Florida legislature was not under state control for Eleventh 

Amendment purposes when it had autonomy over its day-to-day operations). Rather, the contract 

indicates the scope of work to be performed and leaves it to Arcadis to perform that work, with 

obligations and requirements that one might find in any contract. Further, the contract affords 

Arcadis discretion to reject any assignments and discretion in the way it completes projects and 

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work under the contract. Thus, this factor also weighs against finding that Arcadis is an arm of the 

state. 

3. Where Arcadis Derives Its Funds

Arcadis does not receive funding directly from the state; rather, the state allocates funds 

for the Program, and Arcadis is paid an amount provided by contract for its work. DE 77. It argues, 

without providing any legal authority, that because the Florida legislature must appropriate funds 

for the Program, the third Manders factor is satisfied. The fact that FDEP pays Arcadis for its work 

through state-appropriated funds does lend support for Arcadis’ position, but it is not dispositive 

of whether Arcadis is an arm of the state. See Fla. Birth-Related Neuro., 2022 WL 1180142, at *6-

7 (entity funded partially through legislative appropriations and also through voluntary 

assessments and investment income did not satisfy third Manders factor). Thus, this factor is 

neutral as to whether Arcadis may be considered an arm of the state. 

4. Who Is Responsible for Judgments Against Arcadis 

The Eleventh Circuit has stated that the most important factor in determining whether an 

entity is an arm of the state is whether the state treasury would be burdened by a judgment against 

the entity. Freyre, 910 F.3d 1371, 1384; Rosario, 506 F.3d at 1046. Arcadis argues that because 

the claims against it are solely related to its work on behalf of FDEP, this factor is satisfied. DE 

77 at 10. However, it appears from the contract that a judgment would be paid either by Arcadis 

or by the liability insurance it is contractually obligated to purchase. DE 77 at 37 (“The Contractor 

shall secure and maintain during the life of the Contract comprehensive general liability coverage 

with limits of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate for bodily 

injury and property damage”). The contract also contains an indemnification provision stating that 

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Arcadis “shall be fully liable for the actions of its agents, employees, partners, or subcontractors 

and shall fully indemnify, defend, and hold harmless the State” for actions arising from damage 

Arcadis causes. DE 77 at 101. Arcadis asserts that this provision is irrelevant because FDEP has 

potential liability for Arcadis’ actions and cites Rosario in support. DE 77 at 10 n. 4. However, the 

Rosario court rejected a similar argument and concluded that the indemnity provision in the 

contract at issue indicated that a money judgment against the contractor would not impose liability 

against the state. Rosario, 506 F.3d at 1046. Thus, this factor weighs against a finding that Arcadis 

is an arm of the state. 

Considering all four Manders factors, the Court concludes that Arcadis is not an arm of the 

state for Eleventh Amendment purposes. While FDEP assumes some control over Arcadis’ work 

in providing standards and expectations for the work, and pays Arcadis with state funds, the 

remaining facts strongly indicate that Arcadis is simply a contractor, including that the contract 

expressly defines Arcadis as an independent contractor, gives Arcadis discretion to perform its 

work and engage in its day-to-day management as it sees fit, allows Arcadis to reject assignments, 

and requires Arcadis to maintain liability insurance and assume liability for its work. To find that 

Arcadis is an arm of the state would essentially grant immunity to every entity that contracts with 

the state and receives payment from the state, which would render Eleventh Amendment immunity 

meaningless. 

Because Arcadis is not an arm of the state, it follows that Arcadis’ subcontractors Earth 

Tech and GPI also are not arms of the state. 

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B. Arcadis’ and Earth Tech’s Motions to Dismiss for Lack of Standing

Arcadis next argues that Plaintiff lacks standing because Plaintiff’s Amended Complaint—

which is not the operative complaint2 in this case—alleges that his claims were assigned to him 

by his company, when that allegation is not present in the Second Amended Complaint.3 DE 77 at 

12. Arcadis argues that because this Court may consider evidence outside the pleadings when 

analyzing subject matter jurisdiction under Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990), 

it should find that Plaintiff lacks standing based on an allegation from a previous pleading. 

However, Arcadis provides no authority for incorporating allegations from previous complaints 

into a Rule 12(b)(1) analysis, and the Court considers only the live pleading when considering 

whether Plaintiff has standing. Further, Plaintiff is suing on behalf of himself and the injuries he 

alleges he sustained personally and professionally as a result of Defendants’ actions. Accordingly, 

at this stage of the litigation, the Court concludes that he has standing.

4

In addition, Earth Tech argues that Plaintiff lacks standing because he only asserts statelaw claims against Earth Tech and there is no common nucleus of operative fact linking the claims 

against Earth Tech to the federal claims against the FDEP individual Defendants. DE 79 at 3-4. 

However, Plaintiff alleges that the actions of Earth Tech in drilling are at least partly responsible 

for the violations he received from FDEP. As a result, the Court concludes there is a common 

nucleus of operative fact. 

2 Plaintiff’s Second Amended Complaint, [DE 75], superseded his Amended Complaint, [DE 7]. See Lowery v. Ala. 

Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) (“[A]n amended complaint supersedes the initial complaint and 

becomes the operative pleading in the case.”). 3 Earth Tech adopts Arcadis’ argument by reference. DE 79 at 2 n. 1. 

4 Issues relating to standing and jurisdiction may be revisited at later stages of the litigation. See Wuesthoff Health 

Sys., Inc. v. Health First, Inc., No. 05-cv-1454, 2007 WL 9719123, at *4 (M.D. Fla. Jan. 29, 2007). 

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C. Motions to Dismiss Under Rule 12(b)(6)

All Defendants argue that the Second Amended Complaint should be dismissed under Rule 

12(b)(6) because it constitutes a shotgun pleading and because it fails to state a claim under the 

applicable statutes. 

1. Shotgun Pleading

A shotgun pleading violates the requirement in Rule 8 of the Federal Rules of Civil 

Procedure that a pleading contain a short and plain statement of the claim showing that the pleader 

is entitled to relief. Vibe Micro Inc. v. Shabanets, 878 F.3d 1291, 1294-95 (11th Cir. 2018); 

see Fed. R. Civ. P. 8(a)(2). A shotgun pleading fails to some degree to give the defendants 

adequate notice of the claims against them and the grounds on which each claim rests. Vibe Micro, 

878 F.3d at 1295. 

There are four basic categories of shotgun pleadings. Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). First, a shotgun pleading contains “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.” 

Id. Second, a pleading is shotgun if it is “replete with conclusory, vague, and immaterial facts not 

obviously connected to any particular cause of action.” Id. at 1322. Third, a pleading is shotgun 

if it does not separate each cause of action or claim for relief into a different count. Id. at 1323. 

Fourth and finally, a pleading is shotgun if it asserts “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.” Id.

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The Eleventh Circuit has criticized shotgun pleadings as wasting scarce judicial resources, 

inexorably broadening the scope of discovery, wreaking havoc on appellate court dockets, and 

undermining the public’s respect for the courts. See Vibe Micro, 878 F.3d at 1295; see also Wagner 

v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (“Shotgun pleadings wreak 

havoc on the judicial system. Such pleadings divert already stretched judicial resources into 

disputes that are not structurally prepared to use those resources efficiently.” (alteration and 

quotation marks omitted)). Thus, the Eleventh Circuit has said that, even in cases where the parties 

do not raise a shotgun pleading issue, courts have a “supervisory obligation” to address shotgun 

pleading problems sua sponte. Wagner, 464 F.3d at 1275 (“Given the district court's proper 

conclusions that the complaint was a shotgun pleading and that plaintiffs failed to connect their 

causes of action to the facts alleged, the proper remedy was to order repleading sua sponte.”); see 

also Vibe Micro, 878 F.3d at 1295 (“A district court has the inherent authority to control its docket 

and ensure the prompt resolution of lawsuits, which includes the ability to dismiss a complaint on 

shotgun pleading grounds.” (quotation marks omitted)).

The Defendants all argue that the Second Amended Complaint is a shotgun pleading, 

including the following: (1) Arcadis and Earth Tech5 argue that there are numbering defects that 

“cause complete confusion,” that the Second Amended Complaint contains paragraphs regarding 

“wholly unrelated” events, incorporates the wrong paragraphs in the counts against Arcadis, and 

“incorporated Counts within Counts”; DE 77 at 14-18; (2) The FDEP Individual Defendants argue 

that Plaintiff asserts multiple claims against multiple defendants and that the Second Amended 

Complaint is replete with conclusory allegations; DE 78 at 5-6; and (3) GPI argues the Second 

5 Earth Tech incorporates by reference and adopts Arcadis’ arguments. DE 79 at 10. 

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Amended Complaint is “confusing,” “rambling,” and lacks specificity regarding particular acts 

alleged against each Defendant. DE 86 at 6. 

The Second Amended Complaint is not a model of clarity and does contain unnecessary 

and irrelevant information, but it is sufficient to comply with Federal Rules of Civil Procedure 8 

and 10, particularly considering that Plaintiff is proceeding pro se, and provides fair notice to each 

Defendant of the facts alleged and claims asserted. Five of the six Counts in Second Amended 

Complaint assert a claim against only one Defendant, and the remaining Count is a conspiracy 

claim, which necessarily is brought against multiple Defendants. While there are numbering 

problems in the Second Amended Complaint that may make it more difficult for each Defendant 

to study and analyze the specific claims, these defects do not rise to the level of causing “complete 

confusion” or making it impossible for the Defendants to understand what Plaintiff is alleging 

against them. Because the Second Amended Complaint provides “adequate notice” to Defendants, 

it does not constitute a shotgun pleading. See Weiland, 792 F.3d at 1323, 1325 (“A dismissal under 

Rules 8(a)(2) and 10(b) is appropriate where ‘it is virtually impossible to know which allegations 

of fact are intended to support which claim(s) for relief.’”) (emphasis in original) (quoting 

Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). 

2. Conspiracy Claim Under 42 U.S.C. § 1985 (Count V) 

In Count V, Plaintiff asserts a claim for conspiracy to interfere with his civil rights under 

42 U.S.C. § 1985(3),6 alleging that Irwin, Lancellotti, and Andreotta, along with Arcadis, 

conspired to deprive Plaintiff of his rights under the Fourteenth Amendment. DE 75 at ¶¶ 162-70. 

To state a claim under § 1985(3), a plaintiff must allege (1) a conspiracy; (2) for the purpose of 

6 The Amended Complaint cites § 1985(c), which the Court construes as § 1985(3). 

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depriving any person of the equal protection of the laws; (3) an act in furtherance of the conspiracy; 

and (4) harm the conspiracy caused. Trawinski v. United Tech., 313 F.3d 1295, 1299 (11th Cir.

2002). The plaintiff must also allege that the conspiracy was “motivated by ‘some racial, or 

perhaps otherwise class-based, invidiously discriminatory animus.’” Tilton v. Richardson, 6 F.3d 

683, 686 (10th Cir.1993) (quoting Griffin v. Breckenridge, 403 U.S. 33, 101-02 (1971)); Dean v. 

Warren, 12 F.4th 1248, 1257 (11th Cir. 2021). “That animus standard requires that the defendant 

proceeded on his course of conduct ‘because of, not merely in spite of, its adverse effects upon an 

identifiable group.’” Id. at 1255 (citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 

271-72 (1993)). “[T]he linchpin for [any] conspiracy is agreement, which presupposes 

communication.” Bailey v. Bd. of Cty. Comm’rs of Alachua Cnty., 956 F.2d 1112, 1122 (11th Cir. 

1992). An agreement, however, may be inferred “from the relationship of the parties, their overt 

acts and concert of action, and the totality of their conduct.” Am. Fed’n of Labor and Congress of 

Indus. Orgs. v. City of Miami, FL, 637 F.3d 1178, 1192 (11th Cir. 2011) (internal marks omitted).

In sum, to state a claim, Plaintiff must allege facts that plausibly show Andreotta, Arcadis, Irwin, 

and Lancellotti reached an agreement to purposefully deprive Plaintiff of a specific right, they took 

steps in furtherance of the conspiracy, the conspiracy harmed Plaintiff, and the Defendants 

proceeded on their course of conduct because of Plaintiff’s race. 

Plaintiff’s allegations fail to satisfy the elements for a conspiracy claim under § 1985(3). 

First, Plaintiff fails to allege that these four Defendants ever reached an agreement of any kind; 

rather, he describes various actions each Defendant took that he perceives as being indicative of a 

conspiracy. For example, Plaintiff alleges that Lancellotti performed an inspection and issued 

violations to Plaintiff that she knew were false, that Irwin kept Plaintiff in “Non-Compliance” 

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status despite knowing the violations had been resolved, and Irwin gave Plaintiff false information 

about when he may be placed back into compliance, with little additional detail. Id. ¶¶ 154-57.

Arcadis participated in a conference call analyzing the spike in chemicals at the LSC-Plant site, 

and an Arcadis employee “recognized the conspiracy” and withheld unidentified “valuable and 

exculpatory” materials. Id. ¶¶ 158-59. Finally, Andreotta “knew or should have known” of the 

conspiracy because he participated in “the communication thread” prior to February 2022. Id. ¶

160. See Jackman v. 20th Jud. Cir. Ct. Admin., 2020 WL 3895425, at *3 (M.D. Fla. July 10, 2020) 

(allegations that defendants participated in a conspiracy and that listed a series of overt acts the 

defendants took failed to allege a factual basis showing an agreement were insufficient to state a 

§ 1985 conspiracy claim); Mickens v. Tenth Jud. Cir., 181 F. App’x 865, 876 (11th Cir. 2006) 

(“The core of a conspiracy claim is an agreement between the parties; thus, where the plaintiff fails 

to allege an agreement, the pleading is deficient and subject to dismissal,” and a plaintiff must 

specifically allege an agreement between conspiracy defendants.). 

Second, even if Plaintiff had alleged an agreement, he alleges no facts to support that any 

agreement was made for the purpose of depriving him of a constitutional right and does not identify 

the right he alleges was violated. Rather, Plaintiff alleges in a conclusory manner that the 

Defendants conspired to deprive him of equal protection in violation of the Fourteenth 

Amendment, and then suggests that Defendants targeted him when they should have pursued

Arcadis for the environmental violations because Arcadis carries liability insurance while Plaintiff 

does not and because Arcadis allegedly caused the same damage at another, unrelated remediation 

site. Id. ¶¶ 163-69. Such conclusory allegations are insufficient to state a claim for a conspiracy or 

violation of a civil right. See Smith v. Reg’l Dir. of Fla. Dep’t of Corrections, 3668 F. App’x 9, 

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12-13 (11th Cir. 2010) (citing Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)). 

Further, to establish that the Defendants violated his right to equal protection under the laws, he 

must allege facts that he was treated differently than similarly situated individuals on the basis of 

his race. See Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305-06 (11th Cir. 

2009); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274-75 (11th Cir. 2008) (plaintiff’s 

allegations that other government contractors were not subjected to the same testing procedures 

were conclusory and insufficient to state a claim); Lindbloom v. Steube, No. 8:10-cv-2108, 2011 

WL 13175835, at *3-4 (M.D. Fla. Jan. 27, 2011) (plaintiff who alleged that government officials 

issued him warnings for trespassing but allowed others on the property did not state a claim for 

violation of his equal protection rights); Wilson v. Boca W. Master Ass’n, 2019 WL 1258789, at 

*3 (S.D. Fla. Mar. 18, 2019) (Plaintiff failed to allege that an employee engaged in similar conduct 

was treated differently). Here, Plaintiff fails to allege that these Defendants treated him differently 

from others responsible for contaminated sites; for example, there are no allegations that owners

of other contaminated sites were not issued violations. 

Third, the factual allegations Plaintiff makes in the Second Amended Complaint fail to

support a claim that he was deprived of a right and indicate that the LSC Plant site was, in fact, 

contaminated and in violation of environmental regulations. DE 75. For example, Plaintiff does 

not contest the finding that there was a “new discharge” of contamination based on increased levels

of chemicals in the groundwater and in septic tank samples, admits there was a spike in certain 

chemicals, and does not argue that the site was not contaminated; he simply attempts to shift the 

blame for the contamination away from himself. Id. ¶¶ 34, 82, 95-104. The facts alleged in the 

Second Amended Complaint support the issuance of violations: the LSC Plant site was 

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contaminated and discharged new pollution, FDEP officials identified the contamination and spike 

in chemicals, and FDEP officials cited Plaintiff based on that contamination. See, e.g., Sokker v. 

Rizon E. Ass’n, Inc., 2017 WL 6371326, at *2-3 (S.D Fla. Dec. 13, 2017) (plaintiff failed to allege 

unlawful discrimination when allegations and attachments to complaint indicated disruptive

conduct and supported non-renewal of her residential lease). The Second Amended Complaint also 

alleges that each Defendant was performing his or her job relating to the LSC Plant site—Arcadis 

performed site assessments and took samples; Lancellotti and Irwin conducted inspections, 

provided recommendations and advice, and reviewed Plaintiff’s compliance status; and Andreotta 

explained FDEP policies and drafted correspondence.

Finally, Plaintiff alleges that the Defendants entered into the agreement “due to a mutual 

racial animus toward African Americans with a heightened dis[d]ain for those (African 

Americans) who are not subservient to their perceived authority to harm Plaintiff.” DE 75 at ¶ 

164. However, his only explanation for the racial animus is (1) that Irwin mispronounced his name 

with a derogatory slur and corrected her pronunciation when Plaintiff asked, and (2) a comment 

from an Arcadis employee that Plaintiff was “digging his own grave” as a “black business owner 

who didn’t give [FDEP inspectors] access.” Id. ¶ 84. Without more, these allegations are not 

enough to plausibly allege that the Defendants engaged in a conspiracy that was motivated by an

“invidiously discriminatory animus,” particularly in light of Plaintiff’s failure to allege a 

conspiracy as discussed above. Dean, 12 F.4th at 1257. Accordingly, Count V is dismissed. The 

Court's dismissal is with prejudice for all of the reasons set forth in Subsection 4 below.

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3. Count IX – 42 U.S.C. § 1986 

In Count IX, Plaintiff asserts a claim for “Neglect to Prevent” under 42 U.S.C. § 1986 

against Defendant Kichler, who is an in-house FDEP attorney. DE 75 ¶¶ 171-79. Section 1986 

provides, in relevant part, “Every person who, having knowledge that any of the wrongs conspired 

to be done, and mentioned in section 1985 of this title, are about to be committed, and having 

power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if 

such wrongful act be committed, shall be liable to the party injured . . . .” 42 U.S.C. § 1986. A 

section 1986 action “is predicated on a successful conspiracy action under § 1985.” Moore v. 

Potter, 141 F. App’x 803, 806-07 (11th Cir. 2005) (quoting Morast v. Lance, 807 F.2d 926, 930 

(11th Cir. 1987)); Farese v. Sherer, 342 F.3d 1223, 1232 n.12 (11th Cir. 2003). To state a claim 

under § 1986, Plaintiff must allege that a person who has the power to prevent a § 1985 violation 

and has knowledge that the violation is about to occur neglects to prevent the violation. Steeprow 

v. Bush, No. 6:04-cv-1119, 2005 WL 1228285, at *6 (M.D. Fla. May 24, 2005) (citing Tilton v. 

Richardson, 6 F.3d 683, 686 (10th Cir. 1993)). A section 1986 action “is predicated on a successful 

conspiracy action under § 1985.” Moore v. Potter, 141 F. App’x 803, 806-07 (11th Cir. 2005) 

(quoting Morast v. Lance, 807 F.2d 926, 930 (11th Cir. 1987)); Farese v. Sherer, 342 F.3d 1223, 

1232 n.12 (11th Cir. 2003) (where there is no underlying conspiracy under § 1985, the derivative 

§ 1986 claim also fails). 

Plaintiff alleges that Kichler knew he was experiencing discrimination and failed to 

intervene on Plaintiff’s behalf. DE 75 ¶¶ 171-79. However, the Second Amended Complaint fails 

to allege sufficient facts to demonstrate Kichler knew of a conspiracy to deprive Plaintiff of his 

rights; rather, the allegations indicate Kichler reviewed materials, provided information to 

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Plaintiff, and received emails from Plaintiff about the treatment he was receiving from FDEP 

officials. Id. ¶¶ 89, 172-79. There are no factual allegations indicating Kichler knew that the other 

Defendants had an agreement to issue false violations to Plaintiff, or that Kichler had any power 

to stop them from issuing the violations. Further, because Plaintiff’s claim under § 1985 fails, his 

claim under § 1986 necessarily fails. Therefore, Count VI is dismissed. The Court's dismissal is 

with prejudice for all of the reasons set forth in Subsection 4 below. 

4. Dismissal of Counts V and VI With Prejudice

When a more carefully drafted complaint might state a claim for relief, a plaintiff generally 

must be given at least one chance to amend the complaint before a court dismisses the action with 

prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). A court need not allow 

amendment when (1) there has been undue delay, bad faith, dilatory motive, or a repeated failure 

to cure deficiencies by previously allowed amendments; (2) allowing amendment would cause 

undue prejudice to the opposing party; or (3) amendment would be futile. Id. 

Here, the Court concludes that these factors support dismissal with prejudice, particularly 

the first and second factors. First, Plaintiff has had three opportunities to file a complaint that 

states a claim, and was provided with extensive analysis and direction from the Court in its 40-

page Order Granting in Part Motions to Dismiss, DE 74, as well as from Defendants in their 

motions to dismiss, yet Plaintiff failed to cure those deficiencies. See DE 26, 49, 54, 57, 62, 77-

79, 86, 88-89, 92.; Letourneau v. City of Pembroke Pines, No. 17-cv-60082, 2017 WL 9362841, 

at *5 (S.D. Fla. Apr. 4, 2017) (second amended complaint dismissed with prejudice after plaintiff 

failed to cure deficiencies). Second, Defendants already have undergone two rounds of briefing on 

the motions to dismiss in which they filed lengthy motions and provided analysis on each of 

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Plaintiff’s claims, and it would be prejudicial for the Defendants to be required to participate in a 

third round of extensive motion practice. Colite Int’l Inc. v. Robert L. Lipton, Inc., No. 05-cv60046, 2006 WL 8431656, at *6 (S.D. Fla. June 6, 2006) (Dismissing complaint with prejudice 

and explaining that “the Defendants in this matter have spent a large amount of time and money 

defending against poorly drafted pleadings. Defendants have a right to be free from such 

prejudice.”) (citing Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 776 (7th Cir. 1994)). 

As a result, the Court concludes that Counts V and VI are dismissed with prejudice. 

5. Dismissal of Counts I-IV Without Prejudice 

Because the Court is dismissing with prejudice Counts V and VI, the two federal claims in 

this lawsuit, only state-law claims, Counts I-IV, remain. The Court declines to exercise 

supplemental jurisdiction over these remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“The 

district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) 

if . . . (3) the district court has dismissed all claims over which it has original jurisdiction.”); Parker 

v. Scrap Metal Processors, Inc., 468 F.3d 733, 743 (11th Cir. 2006). Because Plaintiff did not file

this action on the basis of diversity jurisdiction but, rather, on the basis of federal question 

jurisdiction, and because the Plaintiff and at least one of the remaining Defendants appear to be 

citizens of Florida, the Court can discern no basis for this case to remain in federal court. As a 

result, Counts I, II, III, and IV are dismissed without prejudice, and Plaintiff may elect to bring 

those claims in state court. 

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows: 

1. Defendants Kichler, Andreotta, Irwin, and Lancellotti’s Motion to Dismiss Second 

Amended Complaint, [DE 78], is GRANTED and all claims against these 

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Defendants are DISMISSED WITH PREJUDICE.

2. Counts V and VI are DISMISSED WITH PREJUDICE.

3. Counts I, II, III, and IV are DISMISSED WITHOUT PREJUDICE.

4. This case is CLOSED, all deadlines are TERMINATED, and all remaining 

Motions are DENIED AS MOOT.

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 3rd day of August, 

2023.

_______________________________ 

ROBIN L. ROSENBERG

UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record

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