In re Nofziger

• Decision Date: 27 November 2006
• Docket Number: Adversary No. 06-ap-00035.,Bankruptcy No. 6:05-bk-03222-KSJ.,Adversary No. 05-ap-00185.,Bankruptcy No. 6:04-bk-09253-KSJ.
• Citation: 361 B.R. 236
• Parties: In re Linda J. NOFZIGER, Debtor. Mitchel Kalmanson, Plaintiff, v. Linda Nofziger, Defendant. In re Nancy Lynn Adams, Debtor. Mitchel Kalmanson, Plaintiff, v. Nancy Lynn Adams, Defendant.
• Court: U.S. Bankruptcy Court — Middle District of Florida

Page 236

361 B.R. 236

In re Linda J. NOFZIGER, Debtor.

Mitchel Kalmanson, Plaintiff, v. Linda Nofziger, Defendant.

In re Nancy Lynn Adams, Debtor.

Mitchel Kalmanson, Plaintiff, v. Nancy Lynn Adams, Defendant.

Bankruptcy No. 6:04-bk-09253-KSJ.

Bankruptcy No. 6:05-bk-03222-KSJ.

Adversary No. 06-ap-00035.

Adversary No. 05-ap-00185.

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

November 27, 2006.

COPYRIGHT MATERIAL OMITTED

Arlys Buschner, Orlando, FL, for Linda J. Nofziger, Debtor.

Richard W Hennings, Richard W. Hennings, P.A., Tavares, FL, for Nancy Lynn Adams, Debtor.

MEMORANDUM OPINION PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT IN AP. NO. 06-35 AND GRANTING DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT IN AP. NO. 05-18

KAREN S. JENNEMANN, Bankruptcy Judge.

In these two consolidated adversary proceedings, the plaintiff/creditor, Mitchel Kalmanson, argues that the alleged debt due to him by the two defendants/debtors, Linda Nofziger and Nancy Adams, is not dischargeable, under Section 523(a)(6) of the Bankruptcy Code,¹ because the debt arose from a "willful and malicious injury." These alleged injuries arose during the course of a very contested divorce between Kalmanson and his former wife, Donna. The debtors, Adams and Nofziger, are both acquaintances of Donna. They assisted her in the divorce, and Kalmanson says that, in the process of helping Donna, they defamed him and participated in a civil conspiracy whose sole purpose was to harm him.

Kalmanson initially sued the debtors for their actions in the Florida state courts.² When both debtors filed these bankruptcy cases, he, in turn, filed the two pending adversary proceedings asserting similar claims. The Court previously has dismissed the initial complaint filed in both adversary proceedings, holding that the prior complaints failed to state a claim for nondischargeability against the debtors;³ however, Kalmanson was given the opportunity to file an amended complaint, which he did. The debtors now ask this Court to dismiss the amended complaints, again asserting that they fail to state a claim upon which relief can be granted.⁴ For the reasons explained below, the Court will grant Adam's motion to dismiss and will partially grant Nofziger's motion to dismiss, holding that Kalmanson has properly pled one count of defamation against her.

Kalmanson's allegations against Nofziger and Adams are similar but not identical. In Count 1 of both Complaints, Kalmanson alleges that the defendants conspired to commit criminal practices. In Count 2 of Adams' Complaint and in Count 3 of Nofziger's Complaint, Kalmanson alleges that the defendants conspired to commit defamation. In Count 2 of Nofziger's Complaint, Kalmanson alleges that Nofziger directly defamed him. Therefore, as to Adams, the only allegations are that she participated in a conspiracy with Nofziger either to commit criminal acts or to defame Kalmanson. As to Nofziger, Kalmanson alleges the same conspiracy counts but also includes a separate count for defamation. In both cases, Kalmanson seeks a non-dischargeable judgment for certain costs and damages for alleged willful and malicious injuries pursuant to Bankruptcy Code Section 523(a)(6).

The defendants assert the Complaints should be dismissed for failing to state any cognizable tort they committed against Kalmanson that could result in a nondischargeable debt under Section 523(a)(6).⁵ In considering motions to dismiss a complaint for failure to state a claim upon which relief could be granted, the reviewing court must accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Financial Security Assur., Inc. v. Stephens, Inc., 450 F.3d 1257, 1262 (11th Cir.2006) (citing Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1307 (11th Cir.1998)). "[A] a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Financial Security, 450 F.3d at 1262 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is, as we have stated previously, `exceedingly low.'" Financial Security, 450 F.3d at 1262 (citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citing Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev., 711 F.2d 989, 995 (11th Cir.1983))). "That said, `while notice pleading may not require that the pleader allege a "specific fact" to cover every element or allege "with precision" each element of a claim, it is still necessary that a complaint "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory."'" Financial Security, 450 F.3d at 1262 (citing Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit A, 1981))).

Kalmanson's Conspiracy Claims Fail to State a Cause of Action under Section 523(a)(6) of the Bankruptcy Code

To say that Kalmanson's divorce was contested is a huge understatement. The divorce action has lasted years, has involved innumerable contested matters, and is still on-going. Kalmanson believes that the defendants' actions have increased the antagonism in his divorce and are responsible for additional attorney fees he has incurred. He asserts that Nofziger and Adams participated in a conspiracy to take various criminal acts designed to harm him in the divorce and to defame him.

In the earlier versions of the complaints filed against the defendants, the Court held that Kalmanson failed to allege the necessary elements to establish such a conspiracy, any underlying actionable wrong, and any special power of economic coercion held by the co-conspirators that would allow an independent action of civil conspiracy to proceed.⁶ In discussing how Kalmanson failed to establish a conspiracy, this Court observed that the "plaintiff fails to identify the co-conspirators, fails to identify any agreement between the coconspirators, fails to identify the purpose of the conspiracy, and fails to identify any specific acts taken by the co-conspirators, other than to include a laundry list of various generalized, ambiguous `improper, tortuous, and/or unlawful acts.'" (Adv. Pro.05-185, Doc. 30, p. 5).

The current Complaints fail to correct these deficiencies. Kalmanson now divides his conspiracy allegations into two categories — conspiracy to commit criminal acts and conspiracy to defame. In connection with the conspiracy to commit criminal practices, Kalmanson asserts that the defendants formed an enterprise with Kalmanson's ex-wife, Donna, and her divorce lawyer, Richard Ducote, to commit certain criminal activities and other wrongs in connection with the divorce.

The criminal improprieties that the defendants allegedly committed fall into three categories. First, Kalmanson alleges that Adams used the personal identification information of two witnesses, Susan Hawthorne and Glenda Harvey, to obtain private medical and automobile insurance records of those witnesses that Adams then provided to Nofziger, who gave them to Donna, who, in turn, gave them to Ducote to use to Donna's benefit in the divorce in violation of Florida Statutes 817.02⁷ and 817.568.⁸ Second, Kalmanson alleges that Nofziger and Adams engaged in the unlicensed and unauthorized investigation of Kalmanson and witnesses. Third, Kalmanson asserts that the defendants engaged in the unlicensed practice of law.

To support his criminal conspiracy allegations, Kalmanson attached "Exhibit A" to the Complaints, which is an "Order Imposing Sanctions on the Former Wife" (Donna) entered in the divorce case⁹ and dated April 8, 2003 (the "Sanctions Order"). The circuit court judge specifically found in the Sanctions Order that:

On or about March 20, 2003, Nancy Adams, a witness and friend of the Former Wife, obtained confidential medical records of Susan Hawthorne, a witness and friend of the Former Husband. Nancy Adams did this by falsely representing herself to Target pharmacy as Susan Hawthorne. She delivered the records to Linda Nofziger, who in turn delivered them to the Former Wife. Linda Nofziger is a witness and friend of the Former Wife who has worked as an unofficial investigator with her tacit approval. Linda Nofziger [sic] has furnished the attorney with background information on eight or more witnesses. The Former Wife delivered the medical records to her attorney to use in taking Susan Hawthorne's deposition. She furnished them to the attorney on March 24, 2003, the morning of the deposition. Mr. Ducote used the records in taking Susan Hawthorne's deposition.

On or about March 27, 2003, Nancy Adams obtained insurance records of Glenda Harvey from Progressive Insurance Company by representing herself as Glenda Harvey. She had the records faxed directly to Linda Nofziger. Linda Nofziger delivered the records to the Former Wife, to Mr. Ducote, or to Mr. Ducote's staff.

The judge then ruled that Donna was "prohibited from using the prescription drug records of Susan Hawthorne and the insurance records of Glenda Harvey in any way or disclosing the records or their contents to third parties" and specifically "reserve[d] jurisdiction to award attorneys' fees and costs to the Former Husband."

Turning to the second conspiracy category, that the defendants conspired to defame Kalmanson, the Complaints assert that Nofziger made two false police reports — once regarding a suspicious incident involving Nofziger's six-year-old daughter and one asserting that Kalmanson abused animals. The Complaints list no alleged defamatory statement made by Adams, although...