Durso v. Summer Brook Preserve Homeowners Ass'n

• Decision Date: 23 June 2008
• Docket Number: No. 6:07-cv-2007-Orl-19KRS.,6:07-cv-2007-Orl-19KRS.
• Citation: 641 F.Supp.2d 1256
• Parties: Patrick DURSO, Plaintiff, v. SUMMER BROOK PRESERVE HOMEOWNERS ASSOCIATION, David Roach, Colin Walker, Elizabeth McCabe, Kimberly Kanarick, Louis Seiler, Samir Singh, Aldo Martin, Brian Perrier, Jeannette Egerton, Ann Reinhart, Fred Douglas, Deborah Steen, Fred Cato, Susan Graudins, William Vogt, Defendants.
• Court: U.S. District Court — Middle District of Florida

641 F.Supp.2d 1256

Patrick DURSO, Plaintiff, v. SUMMER BROOK PRESERVE HOMEOWNERS ASSOCIATION, David Roach, Colin Walker, Elizabeth McCabe, Kimberly Kanarick, Louis Seiler, Samir Singh, Aldo Martin, Brian Perrier, Jeannette Egerton, Ann Reinhart, Fred Douglas, Deborah Steen, Fred Cato, Susan Graudins, William Vogt, Defendants.

No. 6:07-cv-2007-Orl-19KRS.

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

June 23, 2008.

COPYRIGHT MATERIAL OMITTED

Patrick Durso, Melbourne, FL, pro se.

Cynthia Joan Kohn, Marshall, Dennehey, Warner, Coleman & Goggin, Paul S. Jones, Thomas Walker Farrell, Luks, Santaniello, Perez, Petrillo & Gold, LLC, Robert James Jack, Rissman, Barrett, Hurt, Donahue & McLain, PA, Orlando, FL, for Defendants.

ORDER

PATRICIA C. FAWSETT, Chief Judge.

This case comes before the Court on the following:

1. Motion of the Summer Brook Preserve Defendants¹ to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) for Failure to State a Claim or Cause of Action, [ ] Motion for More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e) [,] Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f) [,] and Incorporated Memorandum of Law (Doc. No. 22, filed Jan. 10, 2008);

2. Motion and Memorandum of Law in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction by Defendants Susan Graudins and William Vogt (Doc. No. 23, filed Jan. 14, 2008);

3. Response to Defendant[s] Graduins[ ] and Vogt's Motion to Dismiss Complaint and Memorandum of Law by Plaintiff Patrick Durso (Doc. No. 34, filed Jan. 25, 2008);

4. Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) for Failure to State a Claim or Cause of Action, [ ] Motion for More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e) [,] Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f) [,] and Incorporated Memorandum of Law by Defendant Fred Cato (Doc. No. 40, filed Feb. 4, 2008);

5. Amended Response to [the Summer Brook Preserve] Defendants' Motion to Dismiss Complaint and Memorandum of Law by Plaintiff (Doc. No. 45, filed Feb. 8, 2008);

6. Opposed Motion to Strike Defendant Cato's Motion to Dismiss and Memorandum of Law by Plaintiff (Doc. No. 57, filed Feb. 19, 2008);

7. Response in Opposition to Plaintiff's Motion to Strike by Defendant Fred Cato (Doc. No. 65, filed Mar. 3, 2008);

8. Response to Defendant Cato's Motion to Dismiss Complaint and Memorandum of law by Plaintiff (Doc. No. 71, filed Mar. 18, 2008);

9. Document Entitled "Adding Defendant DeLeo to Count One" by Plaintiff (Doc. No. 74, filed Mar. 24, 2008);

10. Motion to Strike Plaintiff's Purported Pleading Entitled "Adding Defendant DeLeo to Count One," or in the Alternative[,] Motion to Dismiss and Incorporated Memorandum of Law by the Summer Brook Preserve Defendants (Doc. No. 79, filed Apr. 7, 2008);

11. Motion to Strike Pleading Entitled "Adding Defendant DeLeo to Count One["] and/or in [the] Alternative, Motion to Dismiss by Defendant Fred Cato (Doc. No. 80, filed Apr. 9, 2008);

12. Response to [the Summer Brook Preserve] Defendant[s'] Motion to Strike Plaintiff's Purported Pleading Entitled "Adding Defendant DeLeo to Count One," or in the Alternative, Motion to Dismiss and Incorporated Memorandum of Law by Plaintiff (Doc. No. 81, filed Apr. 17, 2008); and

13. Response to Defendant Cato's Motion to Strike Pleading Entitled "Adding Defendant DeLeo to Count One," and/or in the Alternative, Motion to Dismiss by Plaintiff (Doc. No. 82, filed Apr. 17, 2008).

Background

Pro se Plaintiff Patrick Durso brings this action against Defendants Summer Book Preserve Homeowners Association Inc., David Roach, Colin Walker, Elizabeth McCabe, Kimberly Kanarick, Louis Seiler Samir Singh, Aldo Martin, Brian Perrier, Jeannette Egerton, Ann Reinhart, Fred Douglas, and Deborah Steen (collectively, the "Summer Brook Preserve Defendants"), as well as Defendants Fred Cato, Susan Graudins, and William Vogt. (Doc. No. 1, filed Dec. 20, 2007.)² The Complaint is 90 pages long and contains 16 counts and 234 pages of exhibits. (Doc. Nos. 1, 1-2, 1-3, 1-4, 1-5; Ex. 66-126.³) Four counts allege violations of federal statutes: (1) unlawful debt collection under the Fair Debt Collection Practices Act (Count I); (2) violation of the Racketeer Influenced and Corrupt Organizations Act (Count II); harassment under 18 U.S.C. § 214 (Count V); and tampering with United States mail and invasion of privacy in violation of 18 U.S.C. § 1705 (Count XII). (Doc. No. 1 at 30-36, 45-48, 66-68.) The remaining twelve counts appear to be based on state law: (1) violation of Chapter 720, Florida Statutes (Count III); (2) breach of fiduciary duty (Count IV); (3) slander and libel (Count VI); (4) retaliatory conduct (Count VII); (5) misappropriation of community funds (Count VIII); (6) defamation of character (Count IX); (7) violation of the "business judgment rule" (Count X); (8) insurance fraud (Count XII); (9) "invalidity of Summer Brook Preserve Homeowners Association covenants, codes, and restrictions by means of selective enforcement" (Count XIII); (10) "receivership" (Count XIV); (11) injunctive relief against Defendant Summer Brook Preserve (Count XV); and (12) injunctive relief against Defendants Graudins, Vogt, Egerton, and Seiler (Count XVI). (Id. at 36-45, 48-65, 68-89.)

The following facts have been alleged by Plaintiff in his Complaint.⁴ Plaintiff is a homeowner in a subdivision known as "Summer Brook Preserve" in Melbourne, Florida. (Id. at 2, ¶ 3.) Defendant Summer Brook Homeowners Association, Inc. ("the HOA") is a Florida Not-for-Profit Corporation operating as a homeowners association as defined by Chapter 720 of the Florida Statutes. (Id. at 3, ¶ 4.) Defendants David Roach, Colin Walker, and Elizabeth McCabe are members of the Board of Directors of the HOA. (Id. ¶¶ 5-7.) Defendants Kimberly Kanarick, Fred Douglas, Fred Cato, and Deborah Steen are former members of the Board of Directors of the HOA. (Id. at 3-4, ¶¶ 8, 10-11, 17.) Defendants Louis Seiler, Samir Singh, Aldo Martin, Brian Perrier, and Jeannette Egerton are members of the HOA Independent Hearing Committee. (Id. ¶¶ 9, 12-15.) Defendant Ann Reinhart is the chairman of the HOA Landscape and Maintenance Committee. (Id. at 4, ¶ 16.) Defendant Susan K. Graudins is a homeowner in Summer Brook Preserve, and her father, Defendant William Vogt, resides with her as a tenant. (Id. at 5, ¶¶ 18-19.) Plaintiff and his wife, Ellen C. Durso, purchased a home in Summer Brook Preserve on February 13, 2004. (Id. ¶ 21.) The subdivision is governed by the HOA, which operates under a Declaration of Covenants, Conditions, and Restrictions, as recorded in Official Record Book 3985, page 1157, of the Public Records of Brevard County, Florida. (Id. ¶ 22.)

This action arises from a series of disputes between Plaintiff and various members of the HOA. As a brief summary, Plaintiff has alleged that his neighbors and members of the HOA have harassed, threatened, and retaliated against him; selectively enforced HOA rules against him; defamed his character; tampered with his mail; barred his access to financial information and participation in HOA meetings; and failed to follow proper procedures for homeowners associations as established by Florida law. (Id. at 5-30, ¶¶ 21-108.) Several motions to strike are currently pending before the Court (Doc. Nos. 57, 79, 80), and all Defendants have moved to dismiss the Complaint (Doc. Nos. 22, 23, 40).

Analysis

I. Motions to Strike

A. Legal Standard

A trial court has the inherent power to impose sanctions for a party's failure to comply with court orders or the Federal Rules of Civil Procedure. E.g., Zocaras v. Castro, 465 F.3d 479, 490 (11th Cir.2006). The Court may, among other things, strike a non-compliant motion or other filing. E.g., Jones v. United Space Alliance, L.L.C., 170 Fed.Appx. 52, 57 (11th Cir. 2006) (finding a district court did not abuse its discretion in striking a motion that violated the district's local rules).

B. Application of the Law

1. Motion of Plaintiff

Plaintiff moves to strike the Motion to Dismiss by Defendant Fred Cato on the ground that "[a] default has been duly entered by the Clerk of the Court against [Cato]. Pursuant to Rule 55(b), [Cato] has no standing to file a Motion to Dismiss after entry of a default ...." (Doc. No. 57 at 4.) A default was entered against Cato on January 23, 2008 (Doc. No. 31); however, Cato moved to set aside this default on February 4, 2008 (Doc. No. 39). The Court granted this Motion on February 28, 2008, 2008 WL 553239. (Doc. No. 63.)⁵ Since Cato is no longer in default, the premise for Plaintiff's Motion to strike no longer exists. Therefore, the Court denies Plaintiff's Motion to strike Cato's Motion to dismiss.

2. Motions of the Summer Brook Preserve Defendants and Fred Cato

The Summer Brook Preserve Defendants and Defendant Fred Cato separately move the Court to strike Plaintiff's pleading entitled "Adding Defendant DeLeo to Count One." (Doc. Nos. 79, 80.)⁶ Previously, Plaintiff moved to add an "indispensable party," Joseph DeLeo, as a Defendant in this case. (Doc. No. 43, filed Feb. 8, 2008.) United States Magistrate Judge Spaulding granted Plaintiff's Motion as unopposed. (Doc. No. 69, filed Mar. 14, 2008.) Judge Spaulding further instructed:

Durso shall file and serve on all parties currently of record an amended complaint adding DeLeo as a party on or before March 24, 2008. In filing the amended complaint, Durso is instructed to comply with Rule 8 of the Federal Rules of Civil Procedure and to limit the amended complaint to a short and plain statement of the claim showing that he is entitled to relief. After filing the amended complaint, Durso must properly serve the complaint on DeLeo.

(Id. at 2.)

In response to this Order, Plaintiff filed a document entitled "Adding Defendant DeLeo to Count One." (Doc. No. 74.) In this...