Ahern v. Fidelity Nat. Title Ins. Co.
| Decision Date | 07 October 2009 |
| Docket Number | Case No. 6:09-cv-1047-Orl-31GJK. |
| Citation | 664 F.Supp.2d 1224 |
| Parties | Maurice AHERN et al., Plaintiffs, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Secret Lake Land Company, LLC, Polk Professional Title Services, Inc., Feltrim Development N.A., Inc., Cathedral Financial Consultants Limited, Florida Team Realty, Inc., and MAS Real Estate Services Co., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Ivania Perez, Thomas J. Fraser, Jr., Reznicsek, Fraser, Hastings, White & Shaffer, Pa, Jacksonville, FL, for Plaintiff.
David J. Kohs, Pohl & Short, PA, Winter Park, FL, Terrence Joseph McGuire, Fassett, Anthony & Taylor, PA, Orlando, FL, Christopher Charles Cathcart, Ossinsky & Cathcart, PA, Winter Park, FL, for Defendants.
This matter came before the Court without oral argument upon consideration of Defendants', Secret Lake Land Company, LLC ("Secret Lake") and MAS Real Estate Services Co. ("MAS") (collectively, "Defendants"), Motion to Dismiss (the "Motion") (Doc. 12), and Plaintiffs' response in opposition thereto (the "Response") (Doc. 16).
The twenty-two Plaintiffs in this case filed a ninety-two page, sixty-six count Complaint on June 18, 2009, alleging, inter alia, that they are all citizens of Ireland who purchased condominiums in the Osceola County development known as "The Villas at Secret Lake" (see generally Doc. 1). After learning of the investment opportunity through Defendants' agent in Ireland, Cathedral Financial Consultants, Ltd., Plaintiffs closed on their condominiums, only to learn shortly thereafter that their properties were significantly encumbered. Specifically, Plaintiffs allege that Defendants failed to inform them of a material amendment to their condominium declaration (the "Amended Declaration") that limited the use of their condominiums to short-term rentals and prohibited Plaintiffs from continuously living in their condominiums for more than six months.
Although some claims in the Complaint are asserted on a plaintiff-by-plaintiff basis each Plaintiff has asserted a claim for violations of the Interstate Land Sales Full Disclosure Act (see, e.g., Doc. 1 at 16, ¶¶ 100-108). Other claims, which are apparently asserted by only some Plaintiffs but not others, are predicated on violations of FLA. STAT. §§ 718.503 and 718.506, fraud, breach of contract, negligence, defective title, breach of fiduciary duty, and securities fraud (Doc. 1 at 2, ¶ 1).
Defendants have moved to dismiss the entire action pursuant to FED. R. CIV. P. 12(b)(3) based on a forum selection clause. Alternatively, Defendants move to dismiss Counts 1 through 37 and 60 through 63 pursuant to FED. R. CIV. P. 12(b)(6). The Court addresses Defendants' Motion pursuant to Rules 12(b)(3) and 12(b) (6), infra.
The Court has subject matter jurisdiction pursuant to, inter alia, 28 U.S.C. § 1332.1
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, 89 S.Ct. 1843, 23 L.Ed.2d 404 (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 a liberal 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint's factual allegations "must be enough to raise a right to relief above the speculative level," Id. at 555, 127 S.Ct. 1955, and cross "the line from conceivable to plausible." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950-1951, 173 L.Ed.2d 868 (2009).
The forum selection clause at issue in Plaintiffs' condominium purchase agreements states:
Venue. PURCHASER waives any and all privileges and rights which it may have under Chapter 47, Florida Statutes, relating to venue, as it now exists or may be amended, and any comparable statute or administrative provision; and PURCHASER agrees that any legal action brought on this Agreement shall be brought in the appropriate forum in Osceola County, Florida.
(see, e.g., Doc. 1-6 at 11) (emphasis added).
Notwithstanding the fact that the United States District Court in and for the Middle District of Florida clearly encompasses Osceola County, Florida, Defendants contend that, pursuant to the foregoing provision, this case may only be heard in an appropriate state circuit or county court located in Osceola County, Florida (Doc. 12 at 3).
Defendants' argument is without merit. Numerous federal courts have consistently found that forum selection clauses—such as the one in the parties' purchase agreement—are permissive and do not preclude litigation in the federal court that encompasses the county identified in the forum selection clause. See, e.g., Priority Healthcare Corp. v. Chaudhuri, Case. No. 08-CV-425, 2008 WL 2477623 (M.D. Fla. June 18, 2008) (); Links Design, Inc. v. Lahr, 731 F.Supp. 1535 (M.D.Fla.1990) ().
Count 1 purports to state a claim pursuant to FLA. STAT. § 718.503, which provides, in pertinent part:
Copies of documents to be furnished to prospective buyer or lessee.—Until such time as the developer has furnished the documents listed below to a person who has entered into a contract to purchase a residential unit or lease it for more than 5 years, the contract may be voided by that person, entitling the person to a refund of any deposit together with interest thereon as provided in Section 718.202 ....
FLA. STAT. § 718.503(1)(b).
Defendants contend that Section 718.503(1)(b) does not provide a remedy if the statutory right to rescission is not timely invoked (Doc. 12 at 7, citing, inter alia, McGuinness v. Prospect Aragon, LLC, 981 So.2d 496 (Fla. 3d DCA 2008)).
Plaintiffs do not address the argument in their Response. Accordingly, Defendants' Motion to Dismiss with respect to Count 1 will be granted as unopposed and Count 1 will be dismissed with prejudice.
Count 2 purports to state a claim pursuant to FLA. STAT. § 718.506, which provides, in pertinent part:
Any person who, in reasonable reliance upon any material statement or information that is false or misleading and published by or under authority from the developer in advertising and promotional materials ... shall have a cause of action to rescind the contract or collect damages from the developer ....
FLA. STAT. § 718.506(1).
Although the Complaint clearly states that Plaintiffs, after "relying on Secret Lake's false and misleading documents ... purchased and closed on their respective units" (Doc. 1 at 15, ¶ 98), Defendants contend that Plaintiffs' failure to include the word "reasonable," as used in Section 718.506(1), necessitates dismissal.
Defendants position is devoid of merit. Plaintiffs reliance must have been reasonable, but the Complaint as written is clearly sufficient in terms of providing Defendants with notice of Plaintiffs' ground for relief. Accordingly, Defendants' Motion to Dismiss with respect to Count 2 will be denied.
Defendants argue that Count 3 is subject to dismissal for improper venue (Doc. 12 at 8). For the reasons stated, supra, the Motion with respect to Count 3 will be denied.
Defendants contend that Count 4 fails to include two elements required to assert a claim for fraudulent inducement, namely that: (1) Plaintiffs justifiably relied on false statements to their detriment and (2) Defendants intended Plaintiffs to rely and act on those false statements (Doc. 12 at 9).
Although fraud must be pled with particularity,2 the first element has clearly been asserted in the Complaint (see Doc. 1, ¶ 115, "Plaintiffs each relied on Secret Lake's, Cathedral's and Feltrim's representations to their detriment"). The fact that Plaintiffs omit the word "justifiably" is immaterial. As to the Defendants' intent, Rule 9 clearly provides that "Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9(b). A fair reading the Complaint, then, makes plain that Plaintiffs have alleged that Defendants intended to defraud them.
Accordingly, Defendants' Motion to Dismiss with respect to Count 4 will be denied.
Defendants contend that Count 5, which is a separate fraud in the inducement claim asserted by Plaintiffs Ahern and Heaney only,...
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