Littell v. U.S.

• Decision Date: 11 March 2002
• Docket Number: No. 8:99CV2808T17EAJ.,8:99CV2808T17EAJ.
• Parties: Howard J. LITTELL, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

191 F.Supp.2d 1338

Howard J. LITTELL, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

No. 8:99CV2808T17EAJ.

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

March 11, 2002.

Phillip J. Lindenmuth, Federal Deposit Ins. Corp., Washington, DC, for Federal Deposit Ins. Corp., receiver.

Leonard Selig Englander, Englander & Fischer, P.A., St. Petersburg, FL, T. Patton Youngblood, Jr., T. Patton Youngblood, Jr., P.A., Tampa, FL, for Howard J. Littell, Robin Brandt, Gary Brandt, David Goldstein, plaintiffs.

Roberta M. Klosiewicz, Warren A. Zimmerman, U.S. Attorney's Office, Tampa, FL, for U.S., defendant.

Timothy M. Cerio, Gray, Harris, Robinson, Shackleford, Farrior, Tampa, FL, Brett J. Preston, Benjamin H. Hill, III, Mark J. Criser, Hill, Ward & Henderson, P.A., Tampa, FL, Gary Hill Larsen, Dickinson and Gibbons, P.A., Sarasota, FL, for Cascade Savings Bank, F.S.B., defendant.

Warren A. Zimmerman, U.S. Attorney's Office, Tampa, FL, for Doug Loveland, defendant.

William J. Cook, Barker, Rodems & Cook, P.A., Tampa, FL, for John Ray McFerren, defendant.

ORDER

KOVACHEVICH, Chief Judge.

This cause comes before the Court for consideration of Defendant's Motion to Dismiss (Dkt. 29, filed Dec. 4, 2000) the First Amended Complaint in this case and Memorandum of Law in support thereof (Dkt.30, Dec. 4, 2000), and Plaintiff's Response in Opposition to Defendant's Motion to Dismiss and Memorandum of Law in support thereof (Dkt. 45, filed Jan. 12, 2001).

I. Standard of Review

A district court should not dismiss a complaint unless if appears, "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claims in and the grounds upon which it rests." See Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, the court may only examine the four corners of the plaintiff's complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D.Fla.1995). "The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). In addition, a court must accept the plaintiff's well-pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the action is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991).

II. Background

On December 10, 1999, Plaintiffs filed a Complaint and Demand for Jury Trial with this Court. (Dkt.1). On September 5, 2000, Plaintiffs filed a First Amended Complaint, (Dkt.7), alleging violations of the Federal Tort Claim Act, Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, (1971)("Bivens"), and the Fourth and Fifth Amendments to the United States Constitution.

The following factual allegations are taken from Plaintiffs' First Amended Complaint. (Dkt.7). Within the First Amended Complaint, Plaintiffs allege that Cascade Savings Bank, F.S.B., American Bank, Mid City Bank, American Valley Bank, and The Bank of San Diego are, and were, at all times material to the action, federally insured depository institutions that engaged in and conducted business within the State of Florida, and therefore, are subject to this Court's jurisdiction, under Florida Statute Section 48.193.

In Count I, Plaintiffs allege that the United States engaged in the malicious prosecution of Plaintiffs. Plaintiffs state that they have exhausted their administrative remedies, with respect to Count I, by complying with 28 U.S.C. § 2675. Factually, Plaintiffs allege that in, or about, December of 1993, and continuing thereafter, the United States investigated, obtained information, and caused to be initiated, or commenced, a criminal action in, or about, August of 1995, in the form of a raid and the seizure of a business, Professional Rate Services, that was owned and operated by Plaintiff Littell, and the employer of Plaintiff Brandt and Plaintiff Goldstein.

Plaintiffs state that the United States investigated, obtained information, and caused to be initiated the subject criminal action, by and through the actions of employees and/or agents of the FDIC and or FDIC (Receiver), while acting within the course and scope of their respective employment or agency, and in their respective capacity as agents of the United States. According to Plaintiffs, the raid and prosecution of Professional Rate Services was based on information that the United States knew, or should have known, was false, or based on information without probable cause to support the information.

According to Plaintiffs, the criminal Indictment against Plaintiffs states that Plaintiffs:

... did knowingly and willfully combine, conspire, confederate[,] and agree with one another and with others known and unknown to the grand jury: (1) to defraud the United States by impeding, impairing, obstructing[,] and defeating the FDIC, an agency of the United States, in the lawful discharge of its functions relating to the examination, supervision, and insurance of deposits in financial institutions; [and] (2) to commit offenses against the United States, to wit: (a) to knowingly execute a scheme and artifice to defraud financial institutions, in violation of Title 18 U.S.C., Section 1334, and (b) to willfully falsify, conceal[,] and cover up by trick, scheme[,] or device material facts within the jurisdiction of the FDIC, and agency of the United States, in violation of Title 18, United States Code, Section 1001. execute [sic] a scheme and artifice to defraud the BANKS named herein, the accounts of which were insured by the FDIC, by falsely and fraudulently concealing from said BANKS Plaintiffs [sic] respective roles as deposit brokers in the placement of certificates of deposit (the seven of which were subject of the criminal proceeding).

(Dkt.7)

On December 11, 1996, Plaintiffs were acquitted of the charges contained in the criminal proceeding referenced above. According to Plaintiffs, the actions and omissions of the United States, in instituting, maintaining, and continuing the subject criminal prosecution of Plaintiffs were malicious, willful, and wanton disregard and reckless indifference to the rights, health, and welfare of Plaintiffs.

As a result of the United States' action, Plaintiffs state that they have suffered the following: distrust, ridicule, damage to reputation and obloquy; lost past and future earnings, revenues and profits, plus interest thereon; lost earning capacity; mental and emotional pain and suffering, embarrassment and humiliation; attorney's fees incurred in defense of the criminal action against them; and, Plaintiff Littell lost property that was seized by the federal government in the raid of the business premises, during his business hours.

In Count II, Plaintiffs allege, again, malicious prosecution in violation of 28 U.S.C. § 2674. Plaintiffs state that this Court has jurisdiction, pursuant to 28 U.S.C. § 1346(b), and that Plaintiffs have exhausted their administrative remedies by complying with 28 U.S.C. § 2675.

Factually, Plaintiffs allege the same information in Count II, against the United States, as was alleged in Count I, except that Plaintiffs base Count II on the alleged malicious prosecution of Counts II through VIII of the Indictment in the criminal action. The information contained within the Indictment, Counts II through VIII, includes allegations that Plaintiffs:

...did knowingly and willfully execute and attempt to execute a scheme and artifice to defraud the [BANKS named herein], the accounts of which were insured by the FDIC, by ... and through... false and fraudulent pretenses ...[and] aided and abetted by one another and by others known and unknown to the grand jury, did knowingly and willfully cause the [BANKS named herein] to issue [certain] certificates of deposit...

(Dkt.7). Plaintiff Littell was charged in Counts IV, V, VII and VIII of the Indictment. Plaintiff Goldstein was charged in Counts III, V, and VI of the Indictment. Plaintiff Brandt was charged in Count II and III of the Indictment.

Count III of the Plaintiffs' First Amended Complaint alleges the same factual information, against the United States, as was contained within Count I of Plaintiffs' First Amended Complaint, except that Plaintiffs base Count III on the alleged malicious prosecution of Counts IX and XV of the Indictment. Counts IX and XV of the Indictment allege, according to the Plaintiffs, that Plaintiffs:

...aided and abetted by one another and by other persons known and unknown to the Grand Jury, did knowingly and willfully by a trick, scheme, and device, cause the [BANKS named herein] to conceal from the FDIC a material fact, required to be disclosed in the Call Reports filed by such bank at the end of each quarter, to wit: that the placement of [certain certificates of deposits] had been facilitated by a deposit broker...

(Dkt.7). Plaintiff Littell was charged within Counts XI, XII, XIV, and XV of the Indictment. Plaintiff Goldstein was charged in Counts X, XI, and XII of the Indictment. Plaintiff Brandt was charged in Counts IX and X of the Indictment. Plaintiffs state that the criminal action...