LYNX Reply in Support of Motion to Dismiss — Wall v. CDC

Record facts

U.S. District Court for the Middle District of Florida (Orlando Division) · No. 6:21-cv-00975-PGB-DCI · Doc. 146 · 2021-09-02 · Docket on CourtListener

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58802442;2 
UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION 
CASE NO.: 6:21-cv-00975-PGB-DCI 
LUCAS WALL, 
Plaintiff, 
v. 
CENTERS FOR DISEASE CONTROL 
& PREVENTION, DEPARTMENT OF 
HEALTH & HUMAN SERVICES, 
TRANSPORTATION SECURITY  
ADMINISTRATION, DEPARTMENT OF 
HOMELAND SECURITY, DEPARTMENT 
OF TRANSPORTATION, JOSEPH BIDEN, 
in his official capacity as President of the 
United States of America, GREATER 
ORLANDO AVIATION AUTHORITY, and 
CENTRAL FLORIDA REGIONAL 
TRANSPORTATION AUTHORITY, 
Defendants. 
_______________________________________/ 
DEFENDANT CENTRAL FLORIDA REGIONAL TRANSPORTATION 
AUTHORITY'S REPLY IN SUPPORT OF MOTION TO DISMISS 
Defendant, Central Florida Regional Transportation Authority, d/b/a LYNX 
("LYNX"), pursuant to the Court's Order dated August 26, 2021 [D.E. 139], files its 
reply in support of LYNX's Dispositive Motion to Dismiss Count 18 of Plaintiff's 
Complaint (the “Motion”), filed on July 6, 2021. [D.E. 82.] In support, LYNX states 
as follows. 
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MEMORANDUM OF LAW 
I.
Plaintiff's Response Is Inapt Because the Complaint Neither Seeks a Writ of Quo 
Warranto Nor Alleges a Cause of Action for Invasion of Privacy. 
Count 18 of the Complaint attempts to state a claim against LYNX for violation 
of Executive Order 21-102. However, in his Response, Plaintiff claims that it is 
"immaterial" whether there is a private right of action under Executive Order 21-102. 
[D.E. 101 at p. 1.] Instead, Plaintiff chooses to argue the merits of claims not pleaded 
in his Complaint. Specifically, the Response consists largely of argument regarding 
unpleaded claims under the doctrine of quo warranto [D.E. 101 at pp. 1-5], and for an 
alleged violation of his right to privacy under the Florida Constitution [D.E. 101 at pp. 
2-6, 8, 12-13.]. However, Plaintiff's Response cannot amend nor enlarge the narrow 
claim actually pleaded in Count 18 – a claim seeking a declaration that LYNX's alleged 
mask mandate violates Executive Order 21-102 and a request for such mandate to be 
enjoined. 
The Eleventh Circuit has held that plaintiffs may not assert new claims via 
opposition briefs. Menzie v. Ann Taylor Retail Inc., 549 F. App'x 891, 895–96 (11th Cir. 
2013) (finding that plaintiff could not raise a hostile work environment claim in an 
opposition brief where the "the words 'hostile work environment' never even appear in 
her complaint."). Indeed, given that Plaintiff fails to allege any constitutional violation 
in his Complaint, he cannot allege such a violation through briefing in opposition to 
LYNX's motion to dismiss. Booth v. City of Roswell, No. 117CV02490LMMCMS, 2018 
WL 10798041, at *6 (N.D. Ga. Feb. 22, 2018), report and recommendation adopted, 
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No. 1:17-CV-2490-LMM, 2018 WL 10798045 (N.D. Ga. Mar. 13, 2018), aff'd, 754 F. 
App'x 834 (11th Cir. 2018) (holding that, where the complaint was devoid of any 
reference to a constitutional violation, plaintiff could not assert a constitutional 
violation through a response in opposition to a motion to dismiss). 
Here, the Complaint does not seek a writ of quo warranto, nor does it contain a 
single mention of the word "privacy," much less any allegation of an invasion of 
Plaintiff's right to privacy.  As such, Plaintiff's argument in the Response regarding the 
doctrine of quo warranto and his various assertions regarding an invasion of his right to 
privacy should be disregarded for purposes of the Court's consideration of LYNX's 
Motion to Dismiss, as neither such claim was asserted in the Complaint. 
II.
Even Assuming Arguendo the Complaint Sought a Writ of Quo Warranto and 
Asserted a Constitutional Violation of his Right to Privacy, Neither Such 
Claim Would Be Actionable. 
Even had the Complaint included claims regarding quo warranto or invasion of 
privacy, neither claim would be actionable in the present case. First, with respect to 
quo warranto, this Court does not possess quo warranto jurisdiction. The former Fifth 
Circuit held that federal courts "have not the right to exercise the quo warranto
jurisdiction." Morin v. City of Stuart, 111 F.2d 773, 775 (5th Cir. 1940).1 Rather, 
pursuant to the Florida Constitution, quo warranto jurisdiction rests with the Florida 
Supreme Court and Florida's appellate district courts and circuit courts. See art. V, §§ 
1 The former Fifth Circuit's rulings are binding precedent for the Eleventh Circuit. Bonner v. City of 
Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc).
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3(b)(8), 4(b)(3) and 5(b), Fla. Const. Accordingly, Plaintiff's argument regarding quo 
warranto is inapplicable where the Court lacks jurisdiction to grant such a writ. 
Even if this Court possessed quo warranto jurisdiction, the doctrine cannot be 
used to test the legality of LYNX's alleged application of a mask mandate. As recently 
explained by the Southern District of Florida, the remedy of quo warranto is "employed 
to test the actual right to an office or franchise." Behr v. Ticktin, No. 9:19-CV-80722, 
2019 WL 11639535, at *2 (S.D. Fla. June 7, 2019) (concluding that quo warranto was 
inapplicable where plaintiff did not allege that the official was not entitled to her 
position, but, instead, only challenged her performance once she was already invested 
with her official position.) Quo warranto cannot "afford [] relief for official misconduct 
and can not be employed to test the legality of the official action of public or corporate 
officers.'" Id. quoting Smith v. Dearborn Fin. Servs., Inc., 982 F.2d 976, 981 (6th Cir. 
1993) (additional citations omitted). Accordingly, Plaintiff's arguments regarding quo 
warranto are substantively inapplicable. 
Finally, Plaintiff's various assertions regarding an invasion of his right to privacy 
are similarly unavailing. The Response relies heavily upon an inapposite case where, 
unlike here, the plaintiff asserted constitutional violations in his Complaint. Green v. 
Alachua Cty., No. 1D20-1661, 2021 WL 2387983, at *1 (Fla. 1st DCA June 11, 2021). 
Indeed, Green has no bearing whatsoever on Plaintiff's claims against LYNX for 
violation of Executive Order 21-102, as the complaint in Green was filed before the 
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Executive Order was issued and the plaintiff in Green did not bring any claims 
regarding an alleged violation of such Executive Order.  
In any event, constitutional challenges to mask mandates have been found not 
to implicate the right to privacy. Machovec v. Palm Beach Cnty., 310 So. 3d 941, 946 
(Fla. 4th DCA 2021). Indeed, before the right to privacy is implicated, a reasonable 
expectation of privacy must exist, which must place "the individual in the context of a 
society and the values that the society seeks to foster." Winfield v. Div. of Pari-Mutuel 
Wagering, Dep't of Bus. Regul., 477 So. 2d 544, 547 (Fla. 1985); Machovec, 310 So. 3d at 
946. For example, "the spread of infectious or contagious diseases or other potential 
public calamity, presents an exigent circumstance before which all private rights must 
immediately give way under the government's police power." Id., quoting Davis v. City 
of S. Bay, 433 So. 2d 1364, 1366 (Fla. 4th DCA 1983). Accordingly, in the absence of 
a reasonable expectation of privacy, the right to privacy is not implicated, and the 
Response's arguments pertaining to an unpleaded violation of such privacy rights are 
inapplicable to the issues raised in LYNX's Motion.  
WHEREFORE, LYNX therefore respectfully requests the Court enter an order 
granting its Dispositive Motion to Dismiss Count 18 of Plaintiff's Complaint.  
Dated:  September 2, 2021. 
Respectfully submitted, 
/s/ David S. Wood 
David S. Wood, Esq., Trial Counsel 
Florida Bar No.:  289515 
Email:  david.wood@akerman.com
Monica M. Kovecses, Esq.  
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58802442;2 
Florida Bar No.:  105382 
Email:  monica.kovecses@akerman.com
AKERMAN LLP 
Post Office Box 231 
Orlando, Florida 32802-0231 
Phone:  (407) 423-4000 
Fax:      (407) 843-6610 
Attorneys for Defendant
CENTRAL FLORIDA REGIONAL 
TRANSPORTATION AUTHORITY 
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 2, 2021, a true and correct copy of 
the foregoing was filed with the Court using the CM/ECF system, which will send an 
electronic notice to all counsel and/or pro se parties of record. 
/s/ David S. Wood  
David S. Wood, Esq. 
Case 6:21-cv-00975-PGB-DCI   Document 146   Filed 09/02/21   Page 6 of 6 PageID 4811

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