Acosta v. James A. Gustino, P.A.
| Decision Date | 18 November 2013 |
| Docket Number | Case No: 6:11-cv-1266-Orl-31GJK |
| Parties | DAVID ACOSTA, Plaintiff, v. JAMES A. GUSTINO, P.A., JAMES A. GUSTINO, TAYLOR & CARLS, P.A., PAUL T. HINCKLEY and ERIC F. WHYNOT, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter is before the Court on Defendant James A. Gustino ("Gustino") and James A. Gustino, P.A.'s (the "Gustino Firm") Motion to Dismiss the Amended Complaint (Doc. 69) ("Motion") and David Acosta's ("Acosta") Response in Opposition to the Motion (Doc. 70) ("Response").
According to the allegations of the First Amended Complaint, the instant case grows out of a dispute between the Plaintiff and the Alaqua Property Owners Association ("Alaqua"), which is not a party to this case. Alaqua contends that Acosta owes a number of years' worth of homeowner association maintenance assessments, plus interest charges, attorneys' fees, and other charges. Beginning in October 2007, Defendants Hinckley, Whynot, and the Taylor Firm (the "Taylor Firm Defendants") attempted to collect the purported obligation from Acosta, sending him a demand letter and, in April 2008, filing suit against him in Seminole County Circuit Court on behalf of Alaqua.
The Taylor Firm Defendants litigated that matter (the "State Action") on behalf of Alaqua until May 2009, when they were replaced by another law firm that is not a party to this lawsuit. Thereafter, Defendants Gustino and the Gustino Firm (the "Gustino Firm Defendants") took over the State Action from the firm that had replaced the Taylor Firm Defendants.
As set forth in the Amended Complaint (Doc. 37), in the State Action Alaqua is attempting to foreclose a lien on Acosta's property and to recover a money judgment from him. Acosta argues that both claims are time-barred. He argues that Alaqua's lien was recorded in December 2002 and expired five years later—several months before the State Action was filed. (Doc. 37 at 7). He also argues that Alaqua's claim of entitlement to a money judgment is based on "the exact same set of facts" as the lien foreclosure claim, and that the claim is subject to a four-year statute of limitations, so that it expired a year before Alaqua's lien did. (Doc. 37 at 7).1
Acosta also argues that the sum demanded on Alaqua's behalf by the Taylor Firm Defendants and the Gustino Firm Defendants (both in pre-litigation demand letters and in the State Action itself) "included interest charges exceeding the statutory limit imposed under [Florida law] for unpaid assessments". (Doc. 37 at 8). He further argues that this sum included assessments that were not properly authorized under Alaqua's bylaws. (Doc. 37 at 11). In addition, he alleges that the Defendants knew or should have known that the claims asserted in the State Action "falsely stated the amount, character and legal status of the disputed consumer debt." (Doc. 37 at 13). He contends that the actions of the Gustino Firm Defendants violate a number of federal and state laws, including the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq. (Counts I-VI), the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. § 559.55 etseq. (Counts VII-VIII), the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201 et seq. (Count IX), and constitute abuse of process (Count X).2
Acosta alleges that two acts by the Gustino Firm Defendants justify the counts against them—(1) sending a letter regarding mediation, amendment of the State Action complaint, and other litigation issues for the State Action (the letter was sent to Acosta's attorney on May 5, 2011 and is the "Gustino Letter") and (2) amending the complaint to reinstate a foreclosure count in the State Action. (Doc. 37 at 5-7). The Gustino Firm Defendants contend that the FDCPA claims were insufficiently pled and that the litigation privilege bars the state law claims. Thus, the Court first addresses the federal claims, then the state law claims before it on supplemental jurisdiction.
In ruling on a motion to dismiss, the Court must view the complaint in the light most favorable to the Plaintiff, see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994), and must limit its consideration to the pleadings and any exhibits attached thereto. Fed. R. Civ. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court will liberally construe the complaint's allegations in the Plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, "conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "courts must be mindful that the Federal Rules require only that the complaint contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.' " U.S. v. Baxter Intern., Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing Fed. R. Civ. P. 8(a)). This is aliberal pleading requirement, one that does not require a plaintiff to plead with particularity every element of a cause of action. Roe v. Aware Woman Ctr.for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001). However, a plaintiff's obligation to provide the grounds for his or her entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-555 (2007). The complaint's factual allegations "must be enough to raise a right to relief above the speculative level," Id. at 555, and cross "the line from conceivable to plausible." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950-1951 (2009).
The Gustino Firm Defendants assert that Acosta has not sufficiently alleged facts to establish that they are "debt collectors" within the meaning of the FDCPA. Because they are correct the FDCPA claims, Counts I - VI, must be dismissed.
The FDCPA defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6) (emphasis added). It is a predicate that the Gustino Firm Defendants be debt collectors to be liable under the FDCPA as alleged in Counts I - VI. See 15 U.S.C. § 1692e (); 15 U.S.C. § 1692f (same); 15 U.S.C. § 1692g (same).
Acosta asserts that he has sufficiently alleged the Gustino Firm Defendants were debt collectors based on paragraphs five, seven, and eight of the Amended Complaint and based on theGustino Letter. (Doc. 70 at 2-3). With regard to whether the Gustino Firm Defendants are debt collectors, those paragraphs assert:
Further, Acosta points to the section of the Gustino Letter that states that Gustino "represents the interests of Alaqua Property Owners Association, Inc. (the "Association") relative to its collection of outstanding homeowners association assessments, together with accrued interests, costs and attorney's fees." (Doc. 70 at 3 (emphasis added by Acosta)).
Absent from these allegations and the Gustino Letter is any indication as to whether the Gustino Firm Defendants' principle business purpose is collection of debts or whether they regularly collect or attempt to collect debts. Paragraph five gives no indication of the principle purpose of the Gustino Firm Defendants' business and gives no indication whether they regularly engage in the collection of consumer debt. Paragraph seven lumps together all the defendants that were part of the case as of the filing of the Amended Complaint and ascribes the legal label of "regularly engage in the collection of consumer debts" to the lot without factual elaboration as to any individual defendant or their individual business. Finally, paragraph eight merely incorporates the statutory definition without any facts. These allegations are merely legal conclusions, and do not provide the requisite factual basis to substantiate the FDCPA claims. See Correa v. BAC Home Loans Servicing LP, 6:11-CV-1197-ORL-22, 2012 WL 1176701, at *12 (M.D. Fla. Apr. 9, 2012) ( ; see also Swain v. CACH, LLC, 699 F. Supp. 2d 1109, 1112-13 (N.D. Cal. 2009) (); cf. Dunham v. Lombardo, Davis & Goldman, 830 F. Supp. 2d 1305, 1307 (S.D. Fla. 2011) ().
The Gustino Letter also fails to reveal whether the Gustino Firm Defendan...
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