Filing # 57570598 E-Filed 06/09/2017 03:32:04 PM

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
CIVIL DIVISION

JAH E. REID,

PLAINTIFF,

V.
CASE NO.: 2017-CA-004383-O
UCF ATHLETICS ASSOCIATION, INC., a
Florida Corporation, and RISE AND
CONQUER, LLC,

DEFENDANTS.
_____________________________________/

MOTION TO DISMISS COMPLAINT AND CLAIM FOR PUNITIVE DAMAGES

COMES NOW, the Defendant, UCF ATHLETICS ASSOCIATION, INC., (UCFAA)

by and through its undersigned counsel and hereby files this Motion to Dismiss Plaintiffs

Complaint for failing to comply with Florida Statute 768.28 and 768.72, and as grounds

therefore states as follows:

A. The Plaintiff has failed to comply with the conditions precedent to bringing a
suit against the UCFAA.

1. On May 23, 2017, the Plaintiff served the subject Complaint on UCFAA.

2. The Plaintiffs complaint alleges that UCFAA violated Fla. Stat. Section 540.08 by

improperly using the Plaintiffs image, name, or likeness.

3. The Plaintiff, however, has failed to comply with the conditions precedent to bringing

said action and thus currently lacks standing to move forward with the cause of action against

UCFAA.

4. The Florida Supreme Court has previously determined that the UCFAA is entitled to

sovereign immunity under Florida Statute Section 768.28. See Plancher v UCF Athletics Assn,

Inc., et.al., 175 So.3d 724 (Fla 2015), (holding that the university exercised sufficient control

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over day to day operations of direct support organization to entitle organization to limited

sovereign immunity).

5. Under Florida Statute Section 768.28, a party must put the State Agency involved in

the claim and the Department of Financial Services on notice of their claim in writing. No suit

can be filed until after 180-day investigation period concludes.

6. In this case, the only official notification received was a letter mailed to UCFAA on

May 18, 2017. As such, the 180 days to fully investigate this alleged statutory violation has not

expired. Thus, the Plaintiff currently lacks standing to bring the subject action.

B. The Plaintiffs claim for Punitive Damages should be stricken.

1. Under the Plaintiffs prayer for relief, (p. 6, paragraph 3), the Plaintiff has requested

punitive damages in the amount of $600,000.

2. Pursuant to 768.72 in any civil action, no claim for punitive damages shall be

permitted unless there is a reasonable showing by evidence in the record or proffer by the

claimant to provide a reasonable basis to cover such damages.

3. Before a claim for punitive damages is allowed in an action arising from allegations of

unauthorized publication of name or likeness is permitted, a Plaintiff must first comply with

Section 768.72 of Fla. Stat., See WFTV, Inc. v. Hinn, 705 So.2d 1010 (Fla. 2nd DCA 1998).

(Holding that the Defendant was entitled to have punitive damages claim struck for plaintiffs

failure to follow procedural requirements.) The statute requires an initial showing by evidence in

the record or proffered by the claimant which would provide a reasonable basis for recovery of

such damages. A plaintiff must obtain leave from the trial court to amend the complaint before a

claim for punitive damages can be asserted. See Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996).

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 4. At this juncture, there has been no reasonable showing which would provide a basis

for recovery of such damages. As such, any claim for punitive damages should be stricken.

WHEREFORE, for the above reasons the UCF ATHLETICS ASSOCIATION, INC.

respectfully requests the Honorable Court to dismiss the Complaint and require the Plaintiff to

comply with Fla. Stat. Section 768.28 as well as Fla. Stat. Section 768.72.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been

furnished by e-mail delivery to Scott B. Chapman, Esq., Attorney for the Plaintiff, The

Chapman Law Firm, P.A., (schapman@thechapmanlawfirm.com, 7200 W. Camino Real, Suite

102, Boca Raton, FL 33433) on June 9, 2017.

By: /s/ Adam Kantor

Adam Kantor, Esquire
Banker Lopez Gassler P.A.
Service: service-akantor@bankerlopez.com
501 E. Kennedy Boulevard
Suite 1700
Tampa, Florida 33602
Phone: (813) 769-7779
Fax: (813) 222-3066
FBN: 0157643
Attorney for the Defendant

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