           Case: 16-15959   Date Filed: 07/31/2017    Page: 1 of 28


                                                           [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-15959
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cv-00711-CEM-TBS




ISMAEL LOZADA,

                                                Plaintiff - Appellant,

                                  versus

HOBBY LOBBY STORES, INC.,

                                                Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 31, 2017)

Before HULL, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Michael Licari, manager of the Kissimmee, Florida Hobby Lobby store,

called law enforcement to report that one of his employees, Ismael Lozada, was

planning a mass shooting. Sheriff’s deputies, including Tate Wilson, responded to

the store and interviewed Licari, who related a series of troubling conversations

among the store’s employees about Lozada. After that interview, Wilson located

Lozada and civilly committed him pursuant to Florida’s Baker Act. Fla. Stat.

§ 394.451 et seq. Lozada was detained for approximately 36 hours. He was

released, and no further action was taken against him.

      Lozada filed this case alleging Florida state law claims of defamation and

false arrest against Hobby Lobby Stores, Inc. 1 After discovery, the district court

entered summary judgment for Hobby Lobby on both claims. The court granted

summary judgment on Lozada’s defamation claim because the allegedly

defamatory statements on which it was based either were protected by qualified

privilege or not attributable to Hobby Lobby under Florida law. The court granted

summary judgment on Lozada’s false arrest claim because Hobby Lobby did not

instigate Lozada’s arrest by law enforcement. Lozada challenges each of these

rulings, but we agree with the district court that the undisputed evidence supported

summary judgment. We therefore affirm.




      1
          Lozada also alleged malicious prosecution, but he voluntarily dismissed that claim.


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                                      I. BACKGROUND

A.     Hobby Lobby Employee Conversations

       After they left the store on the evening of Tuesday, February 24th, 2015,

Hobby Lobby employees Ray Dendariarina, Corey Cozzens, and Destinie Crupi

had a conversation in the store’s parking lot. Cozzens mentioned “how negative”

their fellow employee, Lozada, “was being.” Cozzens Statement, Doc. 33-17 at 8.2

Dendariarina responded that Lozada was angry and had told Dendariarina that

Lozada would shoot up3 the store on the coming Saturday if he was not promoted

from part-time to full-time status.

       The next day, Wednesday, February 25th, Cozzens approached Mary

Dellofano, the store’s assistant manager, and reported what Cozzens had heard

from Dendariarina. Dellofano in turn reported the conversation to Licari, who took

charge of the store’s investigation.

B.     Hobby Lobby’s Investigation

       Cozzens told Licari what she had heard. Licari contacted his district

manager, who told Licari to have Cozzens write out a statement. Cozzens wrote

out a statement explaining that Dendariarina had told her that Lozada was angry at

being asked to clock out early that day and that Lozada had said he would shoot up

       2
           Citations to “Doc.” refer to the numbered entries in the district court record of the case.
       3
        Cozzens reported hearing Dendariarina say that Lozada threatened to blow up the store.
Throughout this opinion, we refer to a threatened mass shooting, but a threatened bombing
would not alter our conclusions.


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the store if not promoted to full-time status by Saturday. She also reported that

Lozada legally carried firearms in his vehicle.

      At the request of a human resources employee, Licari also spoke with Crupi

and had her write out a statement. Crupi repeated Dendariarina’s statement that

Lozada threatened the store if he did not get what he wanted by Saturday. In her

written statement, Crupi said that Lozada had told her several times that he was

“tired of waiting for what was promised to him.” Crupi Statement, Doc. 33-17 at

7. Crupi also related that she had heard Lozada complaining to other employees

about the “full/part time” situation. Id. Crupi wrote that on Monday, Lozada had

“that he was very mad about leaving early on a day he was not scheduled to leave

until closing.” Id. (internal quotation marks omitted). From previous

conversations, Crupi knew that Lozada had firearms and kept one in his vehicle.

She concluded her statement by warning that she did not know Lozada well

enough to say that he was making hollow threats, “but with his temper lately and

conversations, [she] g[o]t the feeling his threats [we]re everything but hollow.” Id.

      When Dendariarina arrived at work the next day, Thursday, February 26th,

Licari and Dellofano called him into the office. Dendariarina told them that for a

month Lozada had been speaking about coming to the store, shooting it up, and

then killing himself. Dendariarina also related that Lozada had said he would

commit a violent act on the coming Saturday if he was not promoted. At Licari’s



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request, Dendariarina wrote out a statement explaining what he had heard from

Lozada over the past month. He wrote that Lozada told him Licari had lied to

another manager, and as a result Lozada would not be getting full-time status.

Dendariarina cautioned that Lozada may have been speaking out of anger, and

Dendariarina did not think Lozada would do what he was threatening. “[B]ut,” he

concluded, “you never [k]no[w] people’s anger” when “they think they [are] going

to get something right away and they don[’]t.” Dendariarina Statement, Doc. 33-

17:11.

         Licari forwarded the written statements to Hobby Lobby’s corporate office.

He then received a call from David Williams, who worked in Hobby Lobby’s loss

prevention department. Williams advised Licari that Williams did not want

Lozada in the store anymore, that Lozada no longer worked for Hobby Lobby, and

that Licari should contact law enforcement. Williams also told Licari to have law

enforcement put Williams’s name down as the chief complainant on the case

report.

C.       Law Enforcement’s Investigation

         Late in the afternoon on Thursday, February, 26th, law enforcement received

a call about Lozada’s threats. Deputy Wilson went to the store with at least one

other sheriff’s deputy. Licari told Wilson that several employees had approached

him to report that Lozada was planning to shoot up the store and kill himself if he



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did not get what he wanted by Saturday. On a sheriff’s office form, Licari wrote

out a statement for Wilson summarizing what he had heard from the employees.

The words “Baker Act” appear handwritten in a box marked “Offense” above

Licari’s statement. Osceola Cty. Sheriff’s Office Statement, Doc. 33-2 at 91.

Following Licari’s instruction, Licari asked to have Williams named as chief

complainant, but Licari was named instead because Williams was located outside

Florida. One of the deputies said he would go speak with Lozada and assess

Lozada’s mental state to determine if he was a threat to himself or others. The

deputies told Licari they could not tell Lozada he was fired. But they would

contact Licari to let him know if Lozada was detained under the Baker Act. Licari

did not ask that Lozada be detained.

      Wilson left the store and visited Lozada at the hotel where he was living. He

spoke with Lozada about his troubles at Hobby Lobby and determined that Lozada

should be detained under the Baker Act. Lozada was detained and brought to a

mental health treatment facility, where he remained for approximately 36 hours

before being released.

D.    Procedural History

      Lozada filed this case in Florida state court, and Hobby Lobby removed it to

federal district court. The parties proceeded to discovery. Lozada testified that he

never made any threats against the store. He had, however, spoken with



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Dendariarina about the bad culture at the Kissimmee store, the gossiping and

favoritism there, and about how the manager had lied to him. Once while

discussing the store’s bad culture, Lozada brought up recent shootings and

remarked that it would be crazy if somebody took out his frustration on the store

that way. Lozada acknowledged that Dendariarina may have said that Lozada

threatened the store because Dendariarina misinterpreted this conversation. But

Lozada also said that Dendariarina might have reported him because Dendariarina

was jealous or fighting for position, as was common at the store.

      The Hobby Lobby employees testified consistently with their written

statements. Licari believed the statement he gave Wilson to be true. He felt at the

time that his life was in danger, and he knew from speaking with Lozada that

Lozada owned a firearm. Licari did not believe that Cozzens, Crupi, or

Dendariarina was lying. He observed that Cozzens appeared fearful when writing

out her statement.

      In her deposition, Crupi added context to the period leading up to Lozada’s

civil commitment. In the months prior to the events of this case, Lozada told Crupi

several times that “[i]f they d[id]n’t make [him] a full-time, they’re not going to

like what they see.” Crupi Dep. 14–15, Doc. 35-1. Then, on Monday, February

23rd, Crupi observed that Lozada was very upset at being sent home early when he

expected to work until closing. Lozada said he was “sick of this,” “[t]hey’re not



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going to like what they see,” and “they just need to watch out.” Id. at 12, 14.

Crupi was unsure how to interpret this remark at the time but thought that Lozada

might be preparing to start a physical altercation with one of the managers. Crupi

also explained that Lozada and Dendariarina spoke frequently and that

Dendariarina often tried to make Lozada feel better. After Lozada was sent home

on Monday, Crupi asked Dendariarina how Lozada was doing, and Dendariarina,

who had spoken to Lozada on the phone, replied that Lozada was upset and mad

and “it was just like pure anger that was spewing out.” Id. at 13. After work on

Tuesday, Dendariarina followed up on this earlier conversation by mentioning the

threats that Lozada had made. Crupi characterized this conversation with Cozzens

and Dendariarina about Lozada’s temper as gossip. Crupi confirmed Licari’s

account of how the investigation proceeded from there. She also testified that

Dellofano informed her on Thursday that law enforcement would detain Lozada

for 72 hours once they found him.

      Deputy Wilson testified about his investigation and Lozda’s detention.

When Lozada questioned him about whether his investigation would have

proceeded differently if he had known that only one employee had approached the

store’s management about Lozada’s threats, Wilson refused to speculate.

      After the parties concluded discovery, Hobby Lobby moved for summary

judgment. The district court granted the motion. This is Lozada’s appeal.



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                         II.   STANDARD OF REVIEW

      We review the district court’s grant of summary judgment to Hobby Lobby

de novo, applying the same legal standards used by the district court. Info. Sys. &

Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). We view

the evidence and all reasonable inferences from the evidence in the light most

favorable to Lozada and resolve all reasonable doubts about the facts in his favor.

Id. Summary judgment is appropriate when 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). Mere speculation is insufficient to create a genuine issue of material

fact. See Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).

                               III.   DISCUSSION

A.    Dendariarina’s Statement to Cozzens and Crupi Was Not Attributable
      to Hobby Lobby.

      Hobby Lobby was entitled to summary judgment on Lozada’s defamation

claims based on Dendariarina’s statement to Cozzens and Crupi because under

Florida law, the statement could not be attributed to Hobby Lobby. Lozada

contends that the district court ignored Hobby Lobby’s burden of proof and failed

to draw all reasonable inferences in Lozada’s favor. We disagree and affirm the

district court’s grant of summary judgment.

      Dendariarina’s statement that Lozada intended to shoot up the Kissimmee

store could only be attributed to Hobby Lobby if Dendariarina made that statement


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within the scope of his employment. Defamation is an intentional tort. See Rowell

v. Holt, 850 So. 2d 474, 478 n.1 (Fla. 2003). An employer generally is not liable

for a tort committed by its employee. See City of Miami v. Simpson, 172 So.2d

435, 437 (Fla. 1965). That employer becomes liable, however, if it authorized the

tort or if the employee committed the tort while acting within the real or apparent

scope of his employment. See Life Ins. Co. of N. Am. v. Del Aguila, 417 So. 2d

651, 652 (Fla. 1982); Simpson, 172 So. 2d at 437. Lozada does not contend that

Hobby Lobby authorized Dendariarina to defame him, so Dendariarina’s statement

could only be attributed to Hobby Lobby if Dendariarina made it within the scope

of his employment.

      Dendariarina did not make his statement about Lozada’s plan within the

scope of his employment. “Under Florida law, an employee acts within the scope

of his employment ‘if his act is of the kind he is employed to perform, it occurs

substantially within the time and space limits of employment and it is activated at

least in part by a purpose to serve the master.’” Nadler v. Mann, 951 F.2d 301,

305 (11th Cir. 1992) (quoting Kane Furniture Corp. v. Miranda, 506 So. 2d 1061,

1067 (Fla Dist. Ct. App. 1987)). “The purpose of the employee’s act, rather than

the method of performance thereof, is said to be the important consideration.”

McGhee v. Volusia Cty., 679 So. 2d 729, 732 (Fla. 1996) (citation omitted). “The

question as to whether or not [an] employee is acting within the scope of his



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employment in a particular instance is a question of law for the court if there is no

conflict in the facts.” Johnson v. Gulf Life Ins. Co., 429 So. 2d 744, 746 (Fla. Dist.

Ct. App. 1983).

      The undisputed facts of this case support the district court’s determination

that Dendariarina did not make his statement about Lozada for the purpose of

serving Hobby Lobby. First, the context in which Dendariarina made the

statement suggested a personal motive. The conversation during which

Dendariarina spoke about Lozada took place in the parking lot, after work, as

Dendariarina and his co-workers were about to leave for the evening. Crupi

characterized the conversation as gossip about Lozada’s temper. Cozzens

explained that Dendariarina made his statement in response to her talking about

“how negative [Lozada] was being.” Cozzens Statement, Doc. 33-17 at 8. Lozada

testified that gossiping was a problem at Hobby Lobby. He singled out Cozzens as

one who “loved to gossip.” Lozada Dep. 53, Doc. 33-1. This context suggests that

Dendariarina had nothing other than a personal motive—gossiping with

coworkers—for making his statement about Lozada.

      Second, Dendariarina’s failure to report Lozada’s comments to Hobby

Lobby’s management supported the determination that he was not acting for the

purpose of serving the company. Dendariarina wrote in his statement for Hobby

Lobby that Lozada had been expressing his anger against the store for about a



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month. Yet, during that month, Dendariarina never approached store management.

And when Dendariarina finally chose to speak about Lozada, he did so to co-

workers rather than management, even though Hobby Lobby’s employee

handbook directed him to express any job related concerns to a superior. See Emp.

Handbook 10, Doc. 33-10 at 7 (“Employees are encouraged to discuss any

concerns with their immediate supervisor, other members of management, or the

Company’s Human Resources Department.”); id. at 12, Doc. 33-10 at 9 (“If an

employee has any problem relating to his/her job, the employee should promptly

and frankly discuss it with his/her supervisor.”). The handbook also required that

Dendariarina report comments inappropriate for the workplace to a higher-up. See

id. at 30, Doc. 33-12 at 7 (“If an employee feels that he/she has been subjected to

Inappropriate Conduct . . . he/she must immediately report the conduct to his/her

supervisor, OR any other appropriate member of management . . . .”); id. at 29,

Doc. 33-12 at 6 (defining “Inappropriate Conduct” to include “comments or

actions that are inappropriate for the workplace [or] disrupt and/or interfere with

work performance”). But the undisputed evidence showed that Dendariarina did

not speak to Hobby Lobby’s management about Lozada until two days after

speaking with his co-workers, and even then only after he was questioned by

management.




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      Lozada contends that Dendariarina made his statement about Lozada at least

in part for the purpose of serving Hobby Lobby. He offers three arguments. First,

Lozada insists that Hobby Lobby failed to establish that Dendariarina acted solely

from personal motives, so the burden did not shift to Lozada to point out a genuine

dispute of material fact about Dendariarina’s motives. We disagree based on the

evidence we discussed above. Second, Lozada points to his own testimony as

evidence that Dendariarina may have erroneously interpreted Lozada’s statements

as a threat and therefore been motivated by a “reckless concern for the safety of

himself and his coworkers.” Appellant’s Br. 16. Although Lozada testified that

Dendariarina may have misinterpreted a conversation between them, the only

motive he ascribed to Dendariarina was “jealous[y] or fighting for a position.”

Lozada Dep. 49, Doc. 33-1. Both jealousy and angling for position would be

entirely personal motives rather than for the purpose of serving Hobby Lobby.

Third, Lozada asserts that the most natural inference from the record evidence as a

whole was that Dendariarina perceived a threat to himself and his fellow

employees and communicated it in the interest of the safety of the Kissimmee

store. In effect, Lozada argues for a rule that every employee who makes a

statement to a co-worker about another co-worker’s alleged workplace threat

automatically does so for the purpose of serving their employer. While that may

often be the case, we disagree that workplace safety motivated Dendariarina here



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in light of all the evidence pointing to a personal motive. On this record, the

inference Lozada asks us to draw is too speculative to withstand summary

judgment. See Cordoba, 419 F.3d at 1181. Because there was no dispute of

material fact as to Dendariarina’s motivation for making his statement about

Lozada to Crupi and Cozzens, the district court properly concluded that

Dendariarina did not make that statement within the scope of his employment by

Hobby Lobby. We therefore affirm the district court’s grant of summary judgment

to Hobby Lobby on Lozada’s defamation claim based on Dendariarina’s statement

to Cozzens and Crupi. 4

B.     Hobby Lobby’s Statements Were Protected by Qualified Privilege.

       Summary judgment for Hobby Lobby on Lozada’s remaining defamation

claims against the company was appropriate because even assuming the statements

attributable to Hobby Lobby were defamatory, those statements were protected by

qualified privilege. Florida law provides that some defamatory statements are

protected by privilege. See, e.g., Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla

1984). There are two types of privilege applicable to defamation claims: absolute




       4
         The district court also determined that Dendariarina was acting outside the scope of his
employment based on where and when Dendariarina made his statement. Lozada makes several
persuasive arguments challenging the district court’s reasoning. We need not review the court’s
determination, however, because our conclusion that Dendariarina did not act with the purpose
of serving Hobby Lobby is sufficient to affirm the district court’s grant of summary judgment.


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and qualified. See Fridovich v. Fridovich, 598 So. 2d 65, 66–69 (Fla. 1992). In

Nodar, the Supreme Court of Florida explained qualified privilege as follows:

      A communication made in good faith on any subject matter by one
      having an interest therein, or in reference to which he has a duty, is
      privileged if made to a person having a corresponding interest or duty,
      even though it contains matter which would otherwise be actionable,
      and though the duty is not a legal one but only a moral or social
      obligation.

462 So. 2d at 809. A plaintiff can nevertheless overcome a defendant’s qualified

privilege by establishing that the defendant acted with express malice in making

the defamatory statements. See Fridovich, 598 So. 2d at 69.

      A defendant acts with express malice in making defamatory statements

when his “primary motive in making the statements [is] the intent to injure the

reputation of the plaintiff.” Id. “If the occasion of the communication is

privileged because of a proper interest to be protected, and the defamer is

motivated by a desire to protect that interest, he does not forfeit the privilege

merely because he also in fact feels hostility or ill will toward the plaintiff.”

Nodar, 462 So. 2d at 811–12. Indeed, “[s]trong, angry, or intemperate words do

not alone show express malice; rather, there must be a showing that the speaker

used his privileged position to gratify his malevolence.” Id. at 811 (internal

quotation marks omitted).

      The allegedly defamatory statements attributable to Hobby Lobby in this

case were protected by qualified privilege. “Where the circumstances surrounding

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a defamatory communication are undisputed, or are so clear under the evidence as

to be unquestionable, then the question of whether the occasion upon which they

were spoken was privileged is a question of law to be decided by the court.” Id. at

810. Here, the undisputed evidence established that two statements made by

Hobby Lobby employees and attributable to the company, Licari’s statement to

law enforcement and Dendariarina’s statements to his managers, were qualifiedly

privileged and made without express malice. We examine each of these statements

in turn.

       1.     Licari’s Statement to Law Enforcement Was Privileged.

       The district court did not err in granting summary judgment to Hobby Lobby

on Lozada’s defamation claim that was based on Licari’s statement to the sheriff’s

deputies. The undisputed facts demonstrated that this statement was qualifiedly

privileged and that Licari did not make it with express malice. On appeal, Lozada

identifies two misrepresentations 5 in Licari’s statement: (1) the number of

employees who heard Lozada threaten the store, and (2) the imminent nature of

Lozada’s threat. Lozada alleges these misrepresentations were made recklessly,

and contends that such reckless misrepresentations overcome qualified privilege



       5
          Lozada identified other alleged misrepresentations before the district court. But he
neither identifies them nor makes any arguments about them on appeal. He has therefore
abandoned any claims based on those misrepresentations. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (holding issues not adequately briefed on appeal are
abandoned).


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under Florida law. Even if Lozada’s interpretation of the law is correct, however,

neither of Licari’s alleged misrepresentations evinced any recklessness on his part.

We therefore affirm.

      Licari wrote about Lozada’s threat in his statement to the deputies:

      I was approached by some employees about threats that were made by
      Ismael Lozada (Izzy) that he was gonna shoot up the store and kill
      himself if he didn’t get what he wants. Izzy was stating if he didn’t
      get what he wants this Saturday . . . . Izzy has told me he has a full
      concealed carry permit and he Izzy has worked as a armed security
      guard which he has told me. He has shown employees pictures of his
      firearms.

Osceola Cty. Sheriff’s Office Statement, Doc. 33-2 at 91. Assuming this statement

was defamatory, “defamatory statements voluntarily made by [a] private

individual[] to the police . . . prior to the institution of criminal charges are

presumptively qualifiedly privileged.” Fridovich, 598 So. 2d at 69. Lozada does

not contest that Licari’s statement was voluntary, that he was a private individual,

or that he made his statement to law enforcement prior to the institution of criminal

charges. Licari’s statement thus was presumptively privileged.

      There is no evidence that Licari acted with express malice in making his

statement. To the contrary, the evidence demonstrated that Licari believed the

statement he provided to law enforcement to be true. He observed Cozzens to be

fearful when writing her statement, and he believed she was reporting in good faith

what she had heard. Licari also believed Dendariarina was truthful. And Crupi,



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whom he also believed, confirmed that Lozada was upset about the full-time/part-

time status situation. Licari knew Lozada owned a firearm, and at the time Licari

spoke with law enforcement, Licari felt that his life was in danger. None of this

evidence even hinted that Licari’s “primary motive in making his statements was

the intent to injure [Lozada’s] reputation,” as was required to find express malice.

Id. Because Licari’s statement was qualifiedly privileged and made without

express malice, the district court properly determined that Lozada’s defamation

claim based on the statement must be dismissed.

      Lozada argues that Licari’s statement to law enforcement was not privileged

based on a recent Supreme Court of Florida decision. See Valladares v. Bank of

Am. Corp., 197 So. 3d 1 (Fla. 2016). He cites Valladares as standing for the

proposition that reckless misrepresentations to law enforcement overcome

qualified privilege. This case is relevant, Lozada contends, because the

misrepresentations in Licari’s statement provide enough evidence to suggest

recklessness and therefore preclude summary judgment. We do not find this

argument persuasive.

      The Supreme Court of Florida recognized in Valladares that reckless

misrepresentations to law enforcement may overcome qualified privilege, id. at 12,

but it did so in the context of a cause of action for negligent reports to law

enforcement rather than the intentional tort of defamation. Id. at 7. The court



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called it “critical [to] recognize and maintain a real, meaningful distinction

between intentional torts, malicious prosecution, false arrest, and negligent acts

arising from conduct in” the context of false reports to law enforcement. Id. We

therefore doubt that Valladares altered the express malice requirement for

overcoming qualified privilege in the defamation context. We need not answer this

question of Florida law, however, because there was no evidence that Licari acted

recklessly in making his statement to law enforcement.

      To the extent that Licari made any misrepresentations to law enforcement,

they did not amount to recklessness. Recklessness in this context means

“negligence . . . of a gross and flagrant character, evincing reckless disregard of

human life, or of the safety of persons exposed to its dangerous effects . . . or a

grossly careless disregard of the safety and welfare of the public.” Id. at 11

(internal quotation marks omitted). The facts of Valladares are instructive. There,

a bank teller falsely identified plaintiff Rodolfo Valladares as a bank robber police

were searching for. Id. at 2. Valladares differed from the robber in both

appearance and ethnicity, but the teller nevertheless pushed her silent alarm as

Valladares approached her to cash a check. Id. Valladares handed the teller the

check and his identification, and he waited at the counter for 15 to 20 minutes as

the teller made excuses to delay him. Id. at 2–3. Eventually, Valladares gave up

on cashing his check and attempted to leave the bank. Id. at 3–4. But police



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officers arrived, and another bank employee pointed to Valladares as the robber.

Id. at 4. Valladares was injured severely when an officer kicked him in the head.

Id. The Supreme Court of Florida concluded that the bank employees’ behavior

constituted reckless, culpable conduct that they knew or should have known would

result in harm to others. Id. at 12.

       Neither of the two alleged misrepresentations Lozada identifies in Licari’s

statement approached the recklessness displayed in Valladares. First, Lozada

argues that Licari’s statement that he “was approached by some employees about

threats that were made by [Lozada]” was false because only one employee,

Cozzens, had approached Licari and using the word “some” implied that more than

one employee heard Lozada threaten to commit violence. Appellant’s Br. 21

(quoting Doc. 33-2:91). Although only Cozzens sought out the store’s managers 6

and only Dendariarina heard Lozada’s alleged threats, there is no indication that

writing “some employees” instead of “an employee” was so significant as to

evince a reckless disregard for human life. Lozada even asked Wilson at his

deposition whether Wilson’s investigation would have proceeded differently if he

knew that only one employee had approached management “about some rumor or

gossip they had heard from another employee about what that employee had heard

from [Lozada].” Wilson Dep. 23, Doc. 33-3. Wilson refused to speculate. Id. So

       6
        The record reflects that the store’s managers initiated the conversations with Crupi and
Dendariarina.


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do we. See Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015)

(“[S]peculation [is] insufficient to create a genuine issue of material fact.”).

      Second, Lozada insists that Licari misrepresented the imminent nature of

Lozada’s threat. According to Lozada, Licari’s statement that Lozada would shoot

up the store if he did not get what he wanted by the coming Saturday was

misleading because Dendariarina—the only one who heard Lozada’s threats—did

not include that information in the written statement Licari reviewed. Lozada

claims that the imminent nature of the threat was relevant to law enforcement’s

decision to detain him because detention under the Baker Act requires “a

substantial likelihood that . . . [a] person will cause serious bodily harm to himself

or herself or others in the near future.” Fla. Stat. § 394.463(1)(b)2 (emphasis

added). As such, Lozada asserts that Licari’s misrepresentation was reckless. Yet

it does not seem that Licari made such a misrepresentation. Dendariarina verbally

informed Licari about the Saturday threat. Dellofano, who was present at the

meeting between Dendariarina and Licari testified as much, and Lozada points to

no contrary evidence. But even if Licari did not learn about the significance of

Saturday from Dendariarina, Cozzens mentioned it in her written statement, and

Crupi mentioned it when Licari interviewed her. So, at worst, Licari’s

misrepresentation was the implication that he heard about the Saturday deadline

from the same person who heard Lozada’s initial threat instead of through an



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intermediary. Even if this was a misrepresentation, it was not so reckless as to

overcome Hobby Lobby’s qualified privilege.

       Licari’s statement to law enforcement was protected by qualified privilege,

and there was no evidence that Licari acted with express malice sufficient to

overcome that privilege. The Valladares case is inapposite because neither of

Licari’s alleged misrepresentations was reckless. We therefore affirm the district

court’s grant of summary judgment to Hobby Lobby on Lozada’s defamation claim

that is based on Licari’s statement to law enforcement.

       2.     Dendariarina’s Statements to His Managers Were Privileged.

       The district court also properly granted summary judgment to Hobby Lobby

on Lozada’s defamation claim based on Dendariarina’s statement to his managers.7

This claim was based on both the oral statement Dendariarina made to Licari and

Dellofano and the written statement he provided at Licari’s request. The district

court concluded that qualified privilege applied to Dendariarina’s statements to his

managers, and Lozada does not challenge this conclusion. Instead, Lozada argues

that Dendariarina acted with express malice, which nullified the qualified

privilege. But the undisputed evidence did not support Lozada’s argument.

       7
         In his brief, Lozada frames his argument much more broadly to encompass allegedly
defamatory statements made by Cozzens and Crupi to Licari and Dellofano and by Licari to
members of Hobby Lobby’s upper management. But Lozada offers support only for his
contention that Dendariarina’s statements to his managers were made with express malice. We
therefore consider only these statements on appeal. See Sapuppo, 739 F.3d at 680–81.



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      Dendariarina did not act with express malice in making the statements about

Lozada to his managers. First, even assuming Lozada never actually told

Dendariarina he intended to shoot up the Kissimmee store, the evidence indicated

that Dendariarina misinterpreted a series of conversations he had with Lozada.

Lozada testified that he spoke with Dendariarina about the bad culture at the

Kissimmee store: “how it was unpleasant to work there, the gossiping, the

favoritism,” and about how the manager had lied to him. Lozada Dep. 45, Doc.

33-1. While discussing the store’s bad culture, Lozada once said that “because of

everything that was going on in the news[,] people shooting up, you know, schools

and everything that was going on, that [it] would be crazy if someone takes their

frustration out like that here . . . .” Id. at 46–47. Lozada admitted that

Dendariarina may have made the statements he did to Hobby Lobby’s management

because he misinterpreted this conversation about shootings. Second,

Dendariarina’s actions after having this conversation with Lozada did not indicate

that he acted with malice. Dendariarina did not provide the statements to his

managers until they called him into their office. And Dendariarina’s written

statement contained qualifications suggesting he was unsure of Lozada’s

intentions. It included that Lozada may have been speaking “out [of] anger,” in

which case Lozada “d[id]n’t mean it,” and that Dendariarina “d[id]n’t think

[Lozada] would do anything stupid like that,” although Dendariarina added that



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“you never [k]no[w] people’s anger.” Dendariarina Statement 1, 3, Doc. 33-17 at

9, 11. None of this evidence supported an inference that Dendariarina’s “primary

motive in making the statements was the intent to injure the reputation of” Lozada,

as required to find express malice. Fridovich, 598 So. 2d at 69.

      Lozada argues that his own testimony that he did not make the alleged

statements to Dendariarina is enough to establish that Dendariarina acted with

express malice because it shows that Dendariarina lied knowingly when speaking

to his managers. Yet, as we explained above, Lozada’s testimony established that

he and Dendariarina talked about an employee shooting up the Kissimmee store

and Lozada’s dislike of the culture at that store, and Lozada himself acknowledged

that Dendariarina may have misinterpreted this conversation. In light of this

evidence, Lozada’s argument that Dendariarina made the statements to his

managers primarily to injure Lozada’s reputation was too speculative to survive

summary judgment. We therefore affirm the district court’s grant of summary

judgment to Hobby Lobby on Lozada’s defamation claim that is based on

Dendariarina’s statements to his managers.

C.    Hobby Lobby Did Not Instigate Lozada’s Detention.

      Finally, the district court properly granted summary judgment for Hobby

Lobby on Lozada’s false arrest claim because Hobby Lobby did not instigate his

detention. Lozada claims there is evidence that Hobby Lobby, acting through



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Licari and Williams, procured Lozada’s detention, but the evidence on which he

relies merely indicates that Licari sought help from law enforcement at Williams’s

direction. We thus affirm the court’s grant of summary judgment.

       Hobby Lobby could be liable for false arrest based on Lozada’s detention

only if it instigated that detention.8 Florida law provides a claim for false arrest

when a defendant either directly or indirectly detains a plaintiff. Johnson v.

Weiner, 19 So. 2d 699, 701 (Fla. 1944). In the context of a private citizen’s report

leading to an arrest by law enforcement, a “private citizen may not be held liable in

tort where he neither actually detained another nor instigated the other’s arrest by

law enforcement officers.” Pokorny v. First Fed. Sav. & Loan Ass’n of Largo, 382

So. 2d 678, 681 (Fla. 1980). Because Lozada does not contend that Hobby Lobby

itself detained him, Hobby Lobby could be liable for false arrest only if it

instigated his detention by law enforcement.

       Hobby Lobby did not instigate Lozada’s detention. “If [a] private citizen

makes an honest, good faith mistake in reporting an incident, the mere fact that his

communication to an officer may have caused the victim’s arrest does not make

him liable when he did not in fact request any detention.” Id. at 682. Assuming

Licari’s statement about Lozada’s threat was mistaken, he made that statement in


       8
         Hobby Lobby does not deny that Licari and Williams each acted within the scope of
their employment, so Hobby Lobby could be liable for false arrest based on their actions. See
Del Aguila, 417 So. 2d at 652.


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good faith. 9 And he did not instigate Lozada’s detention. “To so ‘instigate’ an

arrest, the defendant must have taken an active role in encouraging or procuring

the wrongful arrest.” Harder v. Edwards, 174 So. 3d 524, 530 (Fla. Dist. Ct. App.

2015). Instigation in this context “is the equivalent in words or conduct of

‘Officer, arrest that man!’” Id. at 531 (quoting Restatement (Second) of Torts §

45A cmt. c.) (internal quotation marks omitted). Here, Licari, Dellofano, and

Wilson each testified about the meeting at which they discussed Lozada, and all of

them testified that Licari never requested that Lozada be detained. Instead, Licari

relayed to Wilson the information he learned from Dendariarina, Cozzens, and

Crupi. Wilson testified that he then visited Lozada and, after observing him,

decided to detain him. There is no evidence that Licari made any statements or

took any action equivalent to urging law enforcement to arrest Lozada. Hobby

Lobby therefore did not instigate Lozada’s detention.

       Lozada insists that the evidence reasonably gave rise to an inference that

Hobby Lobby instigated his detention. He highlights Licari’s testimony that

Williams instructed Licari that “he did not want Mr. Lozada in the building

anymore, [Lozada] was not going to work for Hobby Lobby anymore, and . . .

[Licari] needed to call the police and get the local law enforcement involved in it.”

Licari Dep. 40, Doc. 33-2. According to Lozada, “get the local law enforcement

       9
         As we explained above, the undisputed evidence supports the conclusion that Licari
acted without malice.


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involved in it” reasonably could have been a directive to have Lozada arrested.

This reading is purely speculative and runs counter to the evidence. Lozada also

points out that Williams wanted to be listed as the complainant on the statement to

law enforcement, but Lozada does not explain how this request is relevant to his

argument. 10 Lozada next argues that evidence that Licari asked Wilson to speak to

Lozada and inform him that he was fired went beyond merely reporting

information to law enforcement. Perhaps so, but it did not amount to instigation

because it was not equivalent to asking Wilson to arrest Lozada.

       Finally, Lozada contends that evidence of record demonstrated that Licari

spoke with law enforcement about detaining Lozada under the Baker Act, which

reasonably gave rise to the inference that Licari requested that detention. The

evidence on which Lozada relies is Licari’s request that law enforcement “contact

[him] to let [him] know if [Lozada] was backeracted [sic] which is a 72 hour

mandatory psych hold,” Crupi’s testimony that her managers 11 told her that law

enforcement would detain Lozada for 72 hours once they found him, and the title

“Baker Act” written in the “Offense” box over the statement Licari wrote for


       10
          Lozada asserts that when Wilson declined to list Williams as the complainant,
Williams directed Licari to become the complainant. There is no support in the record for this
assertion. And in any event, the identity of the complainant is irrelevant; it is what the
complainant asked law enforcement to do that matters. See Harder, 174 So. 3d at 531.
       11
          Lozada claims that Licari made this statement to Crupi. In fact, the record establishes
that Dellofano and an assistant manager informed Crupi about law enforcement’s intention to
detain Lozada.


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Wilson. These facts reasonably give rise to the inference that Hobby Lobby

employees spoke with law enforcement about detaining Lozada under the Baker

Act. To the extent that inference contradicts Wilson’s testimony that he did not

decide to detain Lozada until after seeing him, we must accept Lozada’s version of

events as true. But a conversation between Hobby Lobby employees and law

enforcement about detaining Lozada does not by itself reasonably give rise to the

inference that Licari requested that detention. Without any evidence to that effect,

we cannot agree with Lozada’s argument that there is a dispute of material fact as

to whether Hobby Lobby instigated his detention. We therefore affirm the district

court’s grant of summary judgment on this issue.

                              IV.    CONCLUSION

      For these reasons, the judgment of the district court is AFFIRMED.




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