Tracey M. Chance v. Ariel Cook, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11699
____________________
TRACEY M. CHANCE,
Plaintiff-Appellant,
versus
ARIEL COOK,
HEATHER ENCINOSA,
MARGARET ZABIJAKA,
CONSTANGY BROOKS SMITH & PROPHETE LLP,
NABORS GIBLIN & NICKERSON PA,
Defendants-Appellees.
____________________
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2 Opinion of the Court 20-11699
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:19-cv-00335-MW-CAS
____________________
Before LAGOA , BRASHER , and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
Tracey Chance appeals the dismissal of her complaint
against several attorneys under 42 U.S.C. § 1985(2) for obstruction
of justice. Because Chance has not sufficiently alleged that the
defendants in this case acted outside the scope of their representa-
tion, we affirm.
I.
Beginning in 2004, Chance, a female employee of Wakulla
County (“the County”), worked for the County’s building de-
partment.1 She maintained that her supervisor within the build-
ing department prevented her from being promoted because she
had a preexisting hip injury. She also explained that this supervi-
sor made inappropriate comments to her and harassed her both
personally and indirectly when he directed other employees with-
1 These background facts are drawn from the complaint in Chance’s first
case against the County for sexual harassment (“the sexual harassment
case”).
See Case No. 4:18-cv-00586-MW-CAS (N.D. Fla. 2018). The defense
attorneys’ conduct in the sexual harassment case is the basis for Chance’s
conspiracy claims under 42 U.S.C. § 1985(2) in this case.
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20-11699 Opinion of the Court 3
in the department to do the same. Ultimately, she was suspended
and faced a demotion from her position within the building de-
partment, and she was later transferred to another job within the
County. As a result of the way she was treated within the build-
ing department, Chance filed a lawsuit in federal district court for,
among other claims, the County’s violation of Title VII of the
Civil Rights Act of 1964 and for the County’s violation of Title VII
of the Florida Civil Rights Act. Attorneys Ariel Cook and Marga-
ret Zabijaka represented the County in this sexual harassment
case, and attorney Heather Encinosa consulted on the case.2
Cook and Zabijaka work for Constangy, Brooks, Smith &
Prophete, LLP, which represented Wakulla County in the law-
suit. Encinosa works for Nabors, Giblin, and Nickerson, P.A.
After filing suit, and while still working for the County,
Chance was frightened by the retaliation she was facing from
those who worked within the building department. So, Chance
recorded numerous conversations between herself and others and
“made no secret” about it. The Wakulla County building in
which she worked was already subject to audio and video record-
ing, and her building supervisor frequently stated that County
employees could record anyone without consent.
During discovery, the attorneys for the County requested
these recordings. Chance produced the recordings. One of the
2 These facts and the ones to follow are alleged in the amended complaint in
the present case.
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4 Opinion of the Court 20-11699
County’s defense attorneys, Zabijaka, wrote to Chance’s attorney
that some of the recordings violated Florida’s privacy law, Fla.
Stat. § 934.03.3 Zabijaka also asked Chance’s attorney whether he
planned to introduce the recordings at trial and explained that the
defense would move to strike them if the recordings were intro-
duced. Chance’s attorney responded that the criminal accusation
was “irresponsible,” and that in his opinion, “judicial applications
of section 934.03 in the workplace were vanishingly small.”
The defense attorneys for the County then went to the
“law enforcement authorities with jurisdiction over Wakulla
County . . . seeking the arrest and prosecution of . . . Chance for
making the workplace recordings.”4 A detective for the Wakulla
County Sheriff’s Office then obtained a search warrant for
Chance’s home from a state circuit judge.5 The officers executing
3 Florida law generally bans the intentional interception of any “wire, oral,
or electronic communication.” Fla. Stat. § 934.03(1) (2012).
4 Chance labels the defense attorneys’ reporting of the information about her
recordings as a “criminal complaint,” but it is unclear how formal the report-
ing was and to which law enforcement entity the Wakulla attorneys reported
this information.
5 In her complaint, Chance does not take issue with this judge’s probable
cause analysis for the search warrant or the issuance of the search warrant
itself.
See, e.g.,
United States v. Lopez, 649 F.3d 1222, 1246 (11th Cir. 2011)
(explaining that “the information supporting the government’s application
for a warrant must show that probable cause exists at the time the warrant
issues” (quoting
United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir.
2000))). The complaint alleges that there “was never a finding of probable
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20-11699 Opinion of the Court 5
the warrant then searched her residence “for the recordings and
any devices related to the recordings.” The Assistant State Attor-
ney with jurisdiction over the case then determined that Chance
did not violate Florida law and informed Chance’s attorney that
he would not seek prosecution.
Chance alleged that the execution of the search warrant
and the defense attorneys’ behavior terrified her and were aimed
to intimidate her to not testify in her sexual harassment case. The
sexual harassment case settled a few months after this incident,
and Chance alleged that the search warrant’s execution motivated
her in part to settle.
All these facts bring us to the crux of the present case. In
this case, Chance filed a five-count complaint against the defense
attorneys for the County and their respective law firms. Counts
One through Three alleged that the individual defense attorneys
engaged in a conspiracy to deter Chance from testifying in the
sexual harassment case against the County under § 1985(2).
Counts Four and Five alleged that the defense attorneys’ law
firms neglected to prevent the conspiracy under 42 U.S.C. § 1986.
The defense attorneys and their law firms filed several motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6). The Dis-
cause for
Defendants’ criminal complaint against Plaintiff.” But, for a §
1985(2) claim, we aren’t looking at whether a defense attorney had probable
cause to tell officers that a crime had been committed, but rather whether a
defense attorney was acting within the scope of representation when report-
ing that conduct to the officer, as explained
infra Part III.A.
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6 Opinion of the Court 20-11699
trict Court dismissed the complaint, explaining that Chance’s al-
leged facts did not demonstrate that the defense attorneys for the
County had engaged in a conspiracy that met the elements of 42
U.S.C. § 1985(2). Chance then filed an amended complaint that
contained more factual allegations. The defense attorneys and
law firms then filed another set of motions to dismiss under Fed-
eral Rule of Civil Procedure 12(b)(6). The District Court again
dismissed Chance’s complaint, holding that Chance had failed to
allege facts to suggest that the defense attorneys acted outside the
scope of their representation when they reported the recordings
to local law enforcement. The Court dismissed the claims with
prejudice, and Chance timely appealed.
II.
We review a district court’s grant of a motion to dismiss
for failure to state a claim
de novo, “accepting the complaint’s al-
legations as true and construing them in the light most favorable
to the plaintiff.”
Fox v. Gaines, 4 F.4th 1293, 1295 (11th Cir.
2021). “[A] complaint must [] contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’”
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 1974 (2007)).
III.
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20-11699 Opinion of the Court 7
A.
We start with the language of the statute. Section 1985(2)
makes it unlawful for “two or more persons” to “conspire to de-
ter, by force, intimidation, or threat, any party or witness in any
court of the United States from attending such court, or from tes-
tifying to any matter pending therein.” 42 U.S.C. § 1985(2). Spe-
cifically, a § 1985(2) deterrence claim like Chance’s requires that
the plaintiff prove (1) a conspiracy; (2) to deter a witness by force,
intimidation, or threat from attending or testifying before a Unit-
ed States court; and (3) injury to the plaintiff.
See Morast v.
Lance, 807 F.2d 926, 930 (11th Cir. 1987). And when the defend-
ant in a § 1985(2) case is an attorney, we’ve held that “as long as
an attorney’s conduct falls within the scope of the representation
of his client, such conduct is immune from an allegation of a §
1985 conspiracy.”
Farese v. Scherer, 342 F.3d 1223, 1232 (11th
Cir. 2003). In other words, unless a plaintiff alleges facts to estab-
lish that the attorney was acting outside the scope of the represen-
tation when he or she committed the alleged violation(s) of §
1985(2), a plaintiff cannot maintain a cause of action under §
1985(2) against the attorney.
We created this rule regarding attorneys because civil liti-
gation is adversarial by nature. Expanding § 1985(2) to include
the conduct of attorneys acting within the scope of their represen-
tation would most certainly have a chilling effect upon the zeal-
ous advocacy we expect out of lawyers.
Cf. Harrell v. Florida Bar,
608 F.3d 1241, 1254–55 (11th Cir. 2010) (examining a lawyer’s
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8 Opinion of the Court 20-11699
First Amendment claim that a Florida bar rule chilled his speech).
At the same time, to define the parameters of § 1985(2) to exclude
the conduct of attorneys acting within the scope of their represen-
tation does not mean that the attorneys’ conduct cannot be ad-
dressed by another vehicle. “The appropriate forum [in such cas-
es] would be the court where the wrongful conduct occurred.
We have long held that powers incidental to the federal court in-
clude the authority to ‘control and discipline attorneys appearing
before it.’”
Farese, 342 F.3d at 1232 n.11 (quoting
In re Mroz, 65
F.3d 1567, 1575 (11th Cir. 1995)). In short, we do not give a free
pass to attorneys who engage in less-than-ethical conduct on be-
half of their clients. We simply require plaintiffs to bring that
conduct to the attention of the court under whose jurisdiction the
underlying case is being litigated rather than bringing a subse-
quent § 1985(2) claim.
B.
Turning to the present case, Chance alleges that when the
County’s defense attorneys reported the recordings to local law
enforcement as potentially violative of Fla. Stat. § 934.03, the de-
fense attorneys were not acting within the scope of their repre-
sentation and that such a reporting constituted using force, threat,
or intimidation to deter Chance from continuing her lawsuit for
sexual harassment against the County. We do not address
whether force, threat, or intimidation was used here because
Chance has not adequately alleged that the County defense attor-
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20-11699 Opinion of the Court 9
neys were acting outside the scope of their representation. And,
under
Farese, that ends the matter.
Per
Farese, it is Chance’s burden to allege facts that estab-
lish that the County defense attorneys were acting outside the
scope of their representation when they told law enforcement
about Chance’s recordings.
See id. at 1231–32. We could not say
on the facts of
Farese that threats by defense attorneys and their
clients to fire a plaintiff’s family members and accompanying friv-
olous lawsuits against the plaintiff’s family members “were be-
yond the scope of the attorney-client relationship so as to make
them susceptible to characterization as a conspiracy under §
1985.”
Id. at 1232. So, what’s really before us is an
a fortiori ques-
tion. If we held that it was within the scope of representation for
a defense attorney to make threats and file frivolous lawsuits on
behalf of his client, then is it also within the scope of representa-
tion for a group of defense attorneys to report discovery material
that they believe might be a violation of state law? We say yes.
In her complaint, Chance explains that “[u]nder no possible
scenario was the conduct of [the defense attorneys] in conspiring
to make or in making a criminal complaint against Plaintiff within
the scope of their representation in the sexual harassment case.”
But she never alleges any facts to plausibly suggest that, by mak-
ing a criminal complaint, the defense attorneys acted outside the
scope of their representation. Indeed, her complaint suggests that
the defense attorneys filed the complaint for the “sole benefit of
their client rather than for their own personal benefit.”
Id. at
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10 Opinion of the Court 20-11699
1232. In other words, this is argument without substantiating
plausible allegations.
See Am. Dental Ass’n, 605 F.3d at 1290 (ex-
plaining that the court must eliminate “merely legal conclusions”
not supported by well-pled factual allegations in a Rule 12(b)(6)
analysis). Chance alternatively points to the fact that the County
defense attorneys had been aware of Chance’s recordings for
many months and only reported her recordings to law enforce-
ment when they learned that Chance “insist[ed] on her right to
testify in federal court about the recordings and present them as
evidence” in the sexual harassment case. This allegation misses
the mark too. This allegation goes to whether the defense attor-
neys were trying to intimidate Chance but in no way suggests
that the defense attorneys were acting outside the scope of their
representation. Because Chance cannot clear the
Farese bar, her §
1985(2) claims were properly dismissed.6
AFFIRMED.
6 Chance did not appeal the dismissal of her claims under 42 U.S.C. § 1986,
so we do not address them here.
See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004). And, in any event, they fall with the
§ 1985(2) claims.
See Farese, 342 F.3d at 1232 n.12 (“Because § 1986 claims
are derivative of § 1985 claims . . . we also affirm the district court’s dismissal
of [the] § 1986 claim.”).
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20-11699 Brasher, J., Concurring 1
B RASHER , Circuit Judge, concurring in the judgment:
I write separately because I am not persuaded that the alle-
gations in Chance’s complaint support the conclusion that the
County’s attorneys were acting within the scope of their repre-
sentation when they reported Chance to the sheriff’s office. Be-
cause we are evaluating a complaint at the motion to dismiss
stage, we must give Chance all reasonable inferences in her favor.
And I believe one reasonable inference at this stage of the litiga-
tion is that the County’s lawyers in the underlying employment
discrimination lawsuit were not acting on behalf of their client
when they reported Chance’s alleged crime to the sheriff’s office.
Unlike writing letters and threatening countersuits, employment
discrimination lawyers do not usually file police reports on their
client’s behalf.
But I concur in the judgment because I believe Chance’s
complaint fails to state a claim for other reasons. Specifically, she
does not plausibly allege that the County’s defense attorneys used
“force, intimidation, or [a] threat” to deter her from pursuing her
sexual harassment case when they notified the sheriff’s office of
her audio recordings. Especially when it is supported by a reason-
able basis in law and fact, notifying law enforcement of possible
criminal activity does not violate Section 1985(2).
See Timmer-
man v. U.S. Bank, N.A., 483 F.3d 1106, 1124 (10th Cir. 2007) (con-
cluding that civil claims with “a reasonable basis in law and fact”
do not constitute “force or intimidation”). As a matter of plain
language, reporting an alleged crime to the police is not “force.”
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2 Brasher, J., Concurring 20-11699
Notifying law enforcement of a possible criminal activity does not
exert “[p]ower, violence, or pressure” against a person.
Force,
Black’s Law Dictionary (11th ed. 2019). Although law enforce-
ment may eventually exert power over someone in response to a
police report, the report itself does not. Likewise, reporting a pos-
sible crime is not “intimidation.”
Intimidation,
Black’s Law Dic-
tionary (11th ed. 2019) (defining intimidation as “[u]nlawful coer-
cion; extortion”). And it is not a “threat.”
Threat,
Black’s Law
Dictionary (11th ed. 2019) (“A communicated intent to inflict
harm or loss on another or on another’s property . . . .”).
This commonsense conclusion also accords with the histor-
ical context in which Congress enacted Section 2 of the Ku Klux
Klan Act of 1871, from which Section 1985(2) derives. Congress
passed this provision to “respon[d] to a rising tide of Klan terror-
ism against blacks and Union sympathizers and . . . to proscribe
conspiracies ‘having the object or effect of frustrating the consti-
tutional operations of government through assaults on the per-
son, property, and liberties of individuals.’”
McAndrew v. Lock-
heed Martin Corp., 206 F.3d 1031, 1041 (11th Cir. 2000) (quoting
Comment,
A Construction of Section 1985(c) in Light of its Origi-
nal Purpose, 46 U. Chi. L. Rev. 402, 402-03 (1979)). If informing
law enforcement of possible criminal activity violated the statute,
then a statute enacted to target efforts to obstruct justice would
itself be a tool for the obstruction of justice.
Finally, I am confident the County’s defense attorneys had
a reasonable basis in law and fact for making their report. Florida
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20-11699 Brasher, J., Concurring 3
has a two-party consent law, which generally bans the intentional
recording of private conversations without all parties’ consent. Fla
Stat. § 934.03(1) (2012). So, the County’s attorneys had reason to
believe that Chance violated Florida law when they obtained
Chance’s recordings of her conversations with coworkers. More-
over, Chance’s complaint alleges that, based on the report, inves-
tigators obtained a search warrant supported by probable cause,
and there is no allegation that they lied to or otherwise misled the
judge to obtain the warrant.
Because Chance’s complaint fails to plausibly allege that
the County’s attorneys used “force, intimidation, or [a] threat,” it
fails to state a claim for relief under Section 1985(2). Accordingly,
her Section 1985(2) claims were properly dismissed.
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