Catano v. Capuano
| Decision Date | 11 February 2020 |
| Docket Number | Case No. 18-20223-Civ-TORRES |
| Parties | ZORAIDA CATANO, Plaintiff, v. PAULINE CAPUANO and TRAVIS SCHIRATO, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
This matter is before the Court on Pauline Capuano's ("Defendant" or "Mrs. Capuano") motion to dismiss [D.E. 142] against Zoraida Catano ("Plaintiff"). Plaintiff responded to Defendant's motion on January 9, 2020 [D.E. 168] to which Defendant replied on January 17, 2020. [D.E. 171-1]. Therefore, Defendant's motion is now ripe for disposition. After careful consideration of the motion, response, reply, and relevant authority, and for the reasons discussed below, Defendant's motion is GRANTED in part and DENIED in part.1
In 2006, Mauricio Capuano ("Mr. Capuano"), as the sole shareholder, incorporated his company, GSA Realty. [D.E. 1 at ¶¶ 10, 12]. A few months after GSA Realty's formation, the company purchased real property (the "Property") in Miami for $2,600,000.2 See id. at ¶ 11. In 2007, Mr. Capuano separated from his wife, Mrs. Capuano, and remained estranged from her until his death in January 2014. See id. at ¶ 13. After the separation, Mr. Capuano began a romantic relationship with Plaintiff, in Guatemala, which resulted in a daughter who was born in November 2008. In the meantime, Mrs. Capuano moved to the Netherlands.
Several years later, in October 2013, Travis Schirato ("Mr. Schiarto"), Mrs. Capuano's nephew and a convicted felon, executed a purchase and sale agreement, to sell GSA Realty's Miami property to Laurinus Pierre and Michele Jean Gilles for $2,300,000. At the time, Mr. Schirato held no position with GSA Realty nor did he have any ownership interest in the company. A few months later, Mr. Capuano died in Miami on January 2, 2014. According to Mr. Capuano's 2009 will - submitted for probate in Guatemala - he devised half of his estate to Plaintiff and the other half to his adult daughter, Graziela Capuano.3
After Mr. Capuano's death, Plaintiff alleges that Defendants held a series of telephone calls in which they discussed the pending sale of the Property, agreed toembezzle the proceeds from GSA Realty, and to conceal the embezzlement through a series of transfers and financial transactions. Purporting to act on GSA Realty's behalf, Mr. Schirato, nearly three months after Mr. Capuano's death, attended the closing of the sale, receiving $300,000 on behalf of GSA Realty and obtaining a promissory note from the buyers for $2,000,000, also payable to GSA Realty.
Immediately after the closing on March 25, 2014, Mr. Schirato transferred the $300,000 from GSA Realty to himself or corporate entities under his control. Mr. Schirato then transferred $114,000, out of the $300,000, to Mrs. Capuano who then transferred those funds to a personal bank account in Guatemala. Plaintiff believes that, thereafter, Mr. Schirato transferred $26,666.68 in interest payments on the property to himself or his corporate entities. Subsequently, without any authority to do so, Mr. Schirato advised the buyers, by letter, that servicing of the loan was being transferred from GSA Realty to Mr. Schirato, individually. After the buyers sent him another series of interest payments, totaling $40,000.02, Mr. Schirato sent them another letter, stating that he had assigned the next thirty-six payments to two individuals in New York.
A short time later, on August 20, 2014, Mr. Schirato executed a balloon note endorsement and assignment of mortgage deed, in exchange for a substantial sum, purporting to assign the note from GSA Realty to the individuals in New York. Thereafter, Plaintiff alleges that Mrs. Capuano and Mr. Schirato persisted in conspiring to hide the embezzled funds, with Mrs. Capuano making falserepresentations to the probate court and further impeding the recovery of estate assets, continuously through the time of the filing of Plaintiff's complaint.
In ruling on Defendant's motion to dismiss, the Court takes the allegations in the complaint as true and construes the allegations "in the light most favorable to the [Plaintiff]." Rivell v. Private Health Care Systems, Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citing Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)). "When considering a motion to dismiss, all facts set forth in [Plaintiff's] complaint 'are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) "is granted only when the movant demonstrates that the complaint has failed to include 'enough facts to state a claim to relief that is plausible on its face.'" Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions . . . ." Twombly, 550 U.S. at 555 (internal citations and quotations omitted) (alteration in original). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . ." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint doesnot suffice "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557) (alteration in original). Factual content gives a claim facial plausibility. Id. "[A] court's duty to liberally construe a plaintiff's complaint in the face of a motion to dismiss is not the equivalent of a duty to re-write it for [the plaintiff]." Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).
On July 11, 2019, the Court granted in part and denied in part Defendant's motion for summary judgment. [D.E. 129]. In the interests of justice, the Court dismissed Plaintiff's federal RICO claims and gave Plaintiff leave to refile her complaint to set forth any viable causes of action to pair with her conspiracy claim. Plaintiff amended her complaint on August 15, 2019 [D.E. 138] and included claims for civil theft, constructive fraud, conversion, breach of fiduciary duty, and conspiracy. Defendant seeks to dismiss Plaintiff's complaint because (1) the Court lacks diversity jurisdiction, (2) the probate exception applies, (3) res judicata precludes Plaintiff's claims, (4) Plaintiff failed to state a claim for which relief can be granted, and (5) the Court should abstain from exercising jurisdiction pursuant to the Colorado River doctrine. We will address each argument in turn.
Defendant's leading argument is that the Court lacks subject matter jurisdiction because, without any federal question, there is not complete diversity between the parties. Plaintiff alleges that she is a citizen of Columbia and aresident of Guatemala whereas Defendant is "citizen of the United States, whose last established domicile was the State of Florida." [D.E. 138 at ¶¶ 2-3]. Defendant takes issue with this allegation because Defendant is domiciled in the Netherlands, not Florida. Defendant then reasons that subject matter jurisdiction does not exist because, without a federal question presented, Plaintiff - as a citizen of Columbia and a resident of Guatemala - cannot sue another alien in federal court. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011) (). Because Defendant is domiciled outside the United States with no intention of returning, Defendant requests that this case be dismissed for lack of subject matter jurisdiction.
We need not give much consideration to Defendant's argument because Defendant already presented it in November 2019 when requesting a motion to stay discovery. The same reasoning applies now, as it did then, because Defendant's statements with respect her domicile is inconsistent with her prior statements in this case. When Plaintiff filed her initial complaint in January 2018, she alleged that Defendant was a resident of the Netherlands. [D.E. 1]. This is consistent with Defendant's representation in her motion to dismiss for lack of subject matter jurisdiction. However, when Defendant filed her answer to Plaintiff's initial complaint in January 2019, Defendant denied that she was domiciled in the Netherlands. [D.E. 54]. It is therefore uncertain as to where Defendant isdomiciled because she previously denied being domiciled in the Netherlands and now claims the exact opposite in her motion to dismiss.
Given the lack of clarity on where Defendant is domiciled, the Court will not dismiss Plaintiff's complaint solely for a lack of subject matter jurisdiction because it would be unwise and premature to make this determination until Defendant's domicile can be conclusively determined. Defendant's argument is also unavailing because - even if the parties are not completely diverse - a federal court has the discretion to exercise supplemental jurisdiction over non-diverse state law claims when the court dismissed those claims over which it had original jurisdiction. See Smith v. City of Tallahassee, 2019 WL 5205969, at *4 (11th Cir. Oct. 16, 2019) () (quoting 28 U.S.C. § 1367(a)); Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1567 (11th Cir. 1994). Therefore, Defendant's motion to dismiss for...
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