Drummond v. Zimmerman

• Decision Date: 13 April 2020
• Docket Number: CASE NO. 19-81532-CIV-SINGHAL
• Citation: 454 F.Supp.3d 1210
• Parties: James DRUMMOND, Marcia Clemmit, Tim Fry, Alan Withers and Maralago Cay Homeowners Association, Inc., f/k/a Arrowhead Mobile Homeowners Association, Inc., on behalf of themselves, the class of current and former mobile homeowners in the Park and all others similarly situated, Plaintiffs, v. Eric ZIMMERMAN, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHC Maralago Cay, L.L.C., Equity Lifestyle Properties, Inc., MHC Operating Limited Partnership, Joseph Allen Bobo, Lutz, Bobo & Telfair, P.A., d/b/a Lutz, Bobo, Telfair, Eastman & Bobo, f/k/a Lutz, Webb & Bobo, P.A., Defendants.
• Court: U.S. District Court — Southern District of Florida

454 F.Supp.3d 1210

James DRUMMOND, Marcia Clemmit, Tim Fry, Alan Withers and Maralago Cay Homeowners Association, Inc., f/k/a Arrowhead Mobile Homeowners Association, Inc., on behalf of themselves, the class of current and former mobile homeowners in the Park and all others similarly situated, Plaintiffs,

v.Eric ZIMMERMAN, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHC Maralago Cay, L.L.C., Equity Lifestyle Properties, Inc., MHC Operating Limited Partnership, Joseph Allen Bobo, Lutz, Bobo & Telfair, P.A., d/b/a Lutz, Bobo, Telfair, Eastman & Bobo, f/k/a Lutz, Webb & Bobo, P.A., Defendants.

CASE NO. 19-81532-CIV-SINGHAL

United States District Court, S.D. Florida.

Signed April 13, 2020

Daniel Wayne Perry, Law Office of Daniel Perry, Orlando, FL, for Plaintiffs.

Ali Vakili Mirghahari, Mahlon Herbert Barlow, III, Sivyer Barlow & Watson P.A., Tampa, FL, J. Allen Bobo, Pro Hac Vice, Jody Blouch Gabel, Lutz, Bobo & Telfair, P.A., Sarasota, FL, for Defendants.

ORDER

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE

THIS CAUSE has come before the Court upon several pending motions arising from the Complaint (DE [1] ) filed on behalf of Plaintiffs. Defendants Eric Zimmerman, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHC Maralago Cay, LLC, Equity Lifestyle Properties, Inc., and MHC Operating Limited Partnership (the "Park Defendants") filed a Motion to Dismiss (DE [10] ). Defendants Lutz, Bobo & Telfair, P.A., and Joseph Allen Bobo (the "Lawyer Defendants") filed a separate Motion to Dismiss (DE [15] ) and also specifically joined in the Motion to Dismiss (DE [10] ) filed by the Park Defendants. The Park Defendants have also specifically joined in the Motion to Dismiss filed by the Lawyer Defendants. Finally, all Defendants filed a Motion to Compel Plaintiffs to Post Bond Pursuant to the Florida Deceptive and Unfair Trade Practices Act (DE [25] ).

I. BACKGROUND

This case involves the Maralago Cay Mobile Home Park (the "Park") in Lantana, Florida. Plaintiffs are four individuals who rent or lease the lots underneath their mobile homes at the Park and the Maralago Cay Homeowners Association, Inc. (the "HOA"). Plaintiffs sue on behalf of themselves and a putative class "of over 1,000 elderly current and former mobile homeowners in the Park and all others similarly situated." (Complaint, ¶¶ 1, 2). The Complaint further defines the putative class as "all persons who are, were, or will become mobile homeowners in the Maralago Cay Mobile Home Park from 2009 to the present and have identical or similar underlying mobile home lot rental agreements." (Complaint, ¶ 22). Defendants are the Park owner, its holding company, various past and present employees of each, the Park's outside law firm, and one of the attorneys who drafted a settlement agreement and attended a mediation.

The Complaint alleges a host of wrongs attributed to Defendants. Counts I through IV allege violations of federal and Florida RICO statutes by various groups of Defendants. Count V alleges violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.204 and 501.211, by all the Defendants. Count VI, brought only by the HOA, alleges a denial of rights of access by several of the Park Defendants in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq . Count VII alleges breach of statutory duties under the Florida Mobile Home Act, Fla. Stat. § 723.022, et seq. , and breach of lot rental agreements by all Defendants. Count VIII alleges the exploitation of individuals over the age of 65 by all Defendants in violation of Fla. Stat. §§ 812.014 and 812.0145. Finally, Count IX alleges racial and national origin discrimination by several of the Park Defendants in violation of the federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq.

The wrongdoing alleged in the Complaint spans decades and nearly every aspect of the Park's existence: the "illegal" purchase of the Park in 1997 by MHC Operating without granting the HOA the right of first refusal (Complaint, ¶¶ 28-32); the "illegal" sale or transfer of the Park to MHC Maralago in 2003 (Complaint, ¶ 33-38); the execution of an allegedly "illegal" long term rental agreement ("LTA") by the HOA in 2008 (Complaint, ¶¶ 39-49); the proposal of an "illegal" LTA in 2017 (Complaint, ¶¶ 50-59); "fraudulent and illegal" rental amounts, fees, and conditions for sale (Complaint, ¶¶ 60-63); contaminated water supply and outages (Complaint, ¶¶ 64-69); lack of handicap access at the Park (Complaint, ¶ 70); failure to maintain electrical utility pole connections and system (Complaint, ¶¶ 71-74); inoperative security gates (Complaint, ¶¶ 75-77); discrimination against persons with criminal convictions (Complaint, ¶¶ 78-84); diversion of prospective sales from homeowners (Complaint, ¶ 85); evictions for "hyper-technical" rule violations (Complaint, ¶ 87); and use of insecure filing cabinets to store Plaintiffs' financial information (Complaint, ¶ 88). Plaintiffs allege that Defendants and unnamed co-conspirators/agents used the U.S. Postal Service and interstate wires to defraud Plaintiffs and to commit the above-mentioned wrongful acts (Complaint, ¶¶ 89-99).

Defendants move to dismiss the Complaint on the grounds that (1) the Complaint is a shotgun pleading that fails to comply with federal pleading standards ( Fed. R. Civ. P. 8 and 9(b) ), (2) Plaintiffs lack standing, (3) the Complaint fails to state a claim upon which relief can be granted under RICO, the ADA, and FDUPTA, and (4) the purchase and transfer of ownership of the Park is beyond the applicable statutes of limitations. Defendants request that the Complaint be dismissed with prejudice.

II. LEGAL STANDARDS

At the pleading stage, a complaint must contain "a short and plain statement of the claim showing the [plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a). Although Rule 8(a) does not require "detailed factual allegations," it does require "more than labels and conclusions"; a "formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, "factual allegations must be enough to raise a right to relief above the speculative level" and must be sufficient "to state a claim for relief that is plausible on its face." Id. at 555, 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Authority , 566 U.S. 449, 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012).

In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally "limited to the four corners of the complaint." Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas County , 285 F.3d 1334, 1337 (11th Cir. 2002) ). In reviewing the complaint, the court must do so in the light most favorable to the plaintiff, and it must generally accept the plaintiff's well-pleaded facts as true. See Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ; Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1057 (11th Cir. 2007). But "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Jackson v. BellSouth Telecomms. , 372 F.3d 1250, 1262 (11th Cir. 2004) (citation omitted); see also Iqbal, 129 S. Ct. at 1949 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").

Further, Rule 9(b), Federal Rules of Civil Procedure, requires that allegations of fraud must be pled with particularity. "To comply with Rule 9(b), a plaintiff must allege: ‘(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.’ " Cardenas v. Toyota Motor Corp., 418 F.Supp.3d 1090, 1098 (S.D. Fla. 2019) (Moreno, J.) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1380-81 (11th Cir. 1997) (per curiam )). "At bottom, the purpose of particularity pleading is to alert defendants to their precise misconduct and protect them against baseless charges of fraudulent behavior." Id.

The opposite of a short and plain statement of the claim is what is known as a "shotgun" pleading. " ‘Shotgun’ pleadings are cumbersome, confusing complaints that do not comply with these pleading requirements. We have repeatedly condemned shotgun pleadings." See Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1321–23 nn.11–15 (11th Cir. 2015). There are four basic types of shotgun pleadings: (1) those in which each count adopts the allegations of all preceding counts; (2) those that do not re-allege all preceding counts but are replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; (3) those that do not separate each cause of action or claim for relief into a different count; and (4) those that assert multiple claims against multiple defendants without specifying which applies to which. Id. at 1321–23 (quotations omitted). "The unifying characteristic of all types of shotgun pleadings is that they fail to ... give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Id. at 1323 ; Yeyille v....