Dimuccio v. D'Ambra

• Decision Date: 04 October 1991
• Docket Number: No. 90-271-CIV-T-17A.,90-271-CIV-T-17A.
• Citation: 779 F. Supp. 1318
• Parties: Anna DIMUCCIO and Frank Ciaramello, Jr. as Executors of the Estate of Frank B. Ciaramello, a/k/a, Bartholomeo Ciaramello, Sr., a/k/a, Bartholomeo Ciaramello, Plaintiffs, v. Gladys D'AMBRA, Gabriel D'Ambra and Louis Kirchenbaum, Defendants.
• Court: U.S. District Court — Middle District of Florida

779 F. Supp. 1318

Anna DIMUCCIO and Frank Ciaramello, Jr. as Executors of the Estate of Frank B. Ciaramello, a/k/a, Bartholomeo Ciaramello, Sr., a/k/a, Bartholomeo Ciaramello, Plaintiffs, v. Gladys D'AMBRA, Gabriel D'Ambra and Louis Kirchenbaum, Defendants.

No. 90-271-CIV-T-17A.

United States District Court, M.D. Florida, Tampa Division.

October 4, 1991.

Steven Gale Nilsson, Clearwater, Fla., for plaintiffs.

Thomas D. Shults, Shults & Pomeroy, Sarasota, Fla., for defendants Gladys and Gabriel D'Ambra.

Thomas Theron Steele, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, Fla., for defendants Louis and Frances G. Kirshenbaum.

ORDER ON MOTIONS

KOVACHEVICH, District Judge.

This cause is before the court on the following:

Dkt. # 66 Defendants', Gladys D'Ambra and Gabriel D'Ambra, motion to dismiss the Second Amended Complaint, motion for Rule 11 sanctions, motion to discharge lis pendens and accompanying memorandum of law.

Dkt. # 67 Plaintiffs', Anna Dimuccio and Frank Ciaramello, Jr., response to Defendants' motions and memorandum of law.

Dkt. # 46 Plaintiffs' motion for rehearing and reconsideration of order dismissing with prejudice Plaintiff's claim for civil theft, request for permission to take immediate appeal and accompanying memorandum of law.

Dkt. # 59 Defendants' response to Plaintiffs' motion and memorandum of law.

In this case, a brother and sister, as executors of their dead father's estate, sue their eldest sister and her husband, alleging fraud, undue influence and breach of fiduciary duty. See, Dimuccio v. D'Ambra, 750 F.Supp. 495 (M.D.Fla.1990).

Plaintiffs, Anna Dimuccio and Frank Ciaramello, Jr., contend their father intended that upon his death his five children should share equally of his property. Plaintiffs allege Defendants, Gladys and Gabriel D'Ambra, exercised undue influence and used material misrepresentations to induce Decedent to place a substantial portion of his property in joint ownership with his daughter, Gladys.¹ Plaintiffs assert the transfers were premised on Defendants' promise that the property "would be divided pro-rata among the Decedent's five children at the time of his death." (Paragraph 22(iii) of the Second Amended Complaint). When the father died in 1988, Gladys became sole owner of the property by operation of law. Plaintiffs contend Defendants breached their pledge to divide the property among the five children, damaging the estate.

On October 9, 1990, this Court dismissed with prejudice Count III, civil theft, of the Second Amended and Supplemental Complaint, and dismissed with leave to amend counts I and II, which sought declaratory judgments under Florida Statutes chapter 86. This Court granted Plaintiffs "leave to amend their complaint to state a cause of action other than an action for declaratory judgment." Dimuccio, at 500.²

Plaintiffs filed a Second Amended Complaint with two counts largely identical to the dismissed actions, but without mention of Fla.Stat. Ch. 86. The complaint seeks a judgment holding that transfer of the property into joint ownership was the result of fraud, undue influence and breach of fiduciary duty; that the property belonged solely to Decedent and passed to his estate; that any co-ownership interest of Defendants in the subject property is null and void; and that the estate be awarded such portions of financial accounts that remain in existence and all other appropriate relief, including damages, costs, fees, and interest.

Now before the Court are Plaintiffs' motion for rehearing and reconsideration of the dismissal with prejudice of their earlier civil theft claim and Defendants' motion to Dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. 41(b), motion for sanctions under Fed.R.Civ.P. 11 and motion to discharge lis pendens.

MOTION TO DISMISS PURSUANT TO RULE 41(b)

Defendants urge that Plaintiffs refiled an identical complaint based on the same declaratory judgment action, directly contravening the order granting leave to amend. Defendants argue the relief now sought mirrors the declaratory judgment relief previously dismissed, and that such conduct constitutes willful disobedience to orders of this Court. The Court is therefore asked to dismiss the Second Amended Complaint with prejudice. However, while the complaints bear close resemblance, the Second Amended Complaint contains no request invoking the Court's powers to declare rights under Fla.Stat. § 86.011. The Court finds that sanctions are not warranted.

This Court has authority under Fed. R.Civ.P. 41(b) to dismiss for failure to comply with court orders or federal rules. Rule 41(b) provides, in pertinent part:

Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication on the merits.

The legal standard to be applied under Rule 41(b) is whether there is a "clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983). The propriety of a Rule 41(b) dismissal is commended to the trial court's broad discretion. See, Carter v. United States, 780 F.2d 925, 927 (11th Cir.1986). The Court approaches the issue mindful that dismissal with prejudice "is a sanction of last resort, applicable only in extreme circumstances, and generally proper only where less drastic sanctions are unavailable. A finding of such extreme circumstances necessary to support the sanction of dismissal must, at a minimum, be based on evidence of willful delay; simple negligence does not warrant dismissal." McKelvey v. AT & T Technologies, Inc., 789 F.2d 1518, 1520 (11th Cir.1986).

In short, the Court does not find that by removing all references to the statutory declaratory judgment rules and powers as ordered, Plaintiffs engaged in the "contumacious indifference to the Court of the kind we generally regard as requisite to the use of this severe sanction." International Association of Heat and Frost Insulators and Asbestos Workers v. Leona Lee Insulation and Specialties, Inc., 516 F.2d 504, 505 (5th Cir.1975). It is true that the Second Amended Complaint contains the same allegations, and requests much the same relief. However, the previously dismissed claims expressly sought remedy under the declaratory judgment statute. The present complaint no longer seeks refuge under an inapplicable state statute.

Defendants cite a series of cases in support of their Rule 41(b) motion, including Fendler v. Westgate-California Corp., 527 F.2d 1168 (9th Cir.1975); Mangan v. Weinberger, 848 F.2d 909 (8th Cir.1988); Maddox v. Shroyer, 302 F.2d 903 (D.C.Cir. 1962); Nevijel v. North Coast Life Insurance Co., 651 F.2d 671 (9th Cir.1988), and Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985). In all these cases, circuit courts affirmed Rule 41(b) dismissals with prejudice. However, each case turned on its own singular fact pattern, none particularly analogous to the issue at hand.

For instance, Fendler involved a many faceted complaint. The court noted the matter "seemed to be in the nature of a derivative action and seemed to allege injury" to the corporation as a result of transactions between some of the 46 defendants. Fendler at 1169. More defendants were added later. The complaint was dismissed with leave to amend limited to certain expressly stated claims. When plaintiff failed to meet the court's specifications, the court dismissed the refiled complaint with prejudice, a ruling the Ninth Circuit found well within the trial court's discretion.

In Mangan, the initial 432-page complaint was characterized chiefly by rambling factual allegations and a number of blank pages. When the complaint was dismissed, plaintiff had succeeded in whittling it down to a mere 24 pages and 364 paragraphs with 15 causes of action (including attachments of a 17 page "Continuation of the Facts", a television "I-Team Report" and exhibits) that the Eighth Circuit called unreasonably verbose, confusing and conclusory. Mangan at 911. Dismissal with prejudice was affirmed on appeal because the pleading failed Fed.R.Civ.P. 8 requirements that a complaint be "simple, concise and direct."

Maddox involved pleadings that "offended every rule in the Rules of Civil Procedure." Mangan at 903. At pretrial, the trial judge pointed out that the rules had not been breached inadvertently, but had been ignored in "vicious and grievous" violations, and instructed plaintiff to amend his complaint to bring it in line with the rules of procedure. When plaintiff made no effort to correct his failings, the complaint was dismissed with prejudice and the ruling was affirmed on appeal.

The Court notes these particular procedural nightmares to point out that rarely will the facts of one dismissal for failure to obey a court order fit neatly with those of another. Defendants do not suggest how the cases cited apply to the matter at hand and any similarity eludes the Court.

It is settled law that the function of a complaint under the federal rules is to give the defendant fair notice of plaintiff's claim and the grounds on which the plaintiff relies. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The fact that a plaintiff pleads an improper legal theory does not preclude recovery under the proper theory. Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir.1979). The sufficiency of a pleading is tested by the statement of the claim, and the demand for judgment is not considered part of the claim. Fed.R.Civ.P. 54(c). Selection of an improper remedy in the demand is not fatal if the claim indicates the pleader is entitled to some other relief. See, 5 C. Wright & A. Miller, "Federal Practice and Procedure" § 1255 (1990).

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