Peklun v. Tierra Del Mar Condo. Ass'n
| Decision Date | 03 August 2015 |
| Docket Number | CASE NO. 15–80801–CIV–BLOOM/VALLE |
| Citation | 119 F.Supp.3d 1361 |
| Parties | Alexander Peklun, as Personal Representative of the Estate of Sergey Peklun, Deceased, and Victoria Peklun, individually Plaintiffs, v. Tierra Del Mar Condominium Association, and Maria Verduce, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Hubert S. McGinley, Jack M. Sobel, Schwed, Adams, Sobel & McGinley, P.A., Palm Beach Gardens, FL, Peter Edwin Saunders Wallis, J.M. Wallis, P.A., Pompano Beach, FL, for Plaintiffs.
David Paul Bradley, Cole Scott and Kissane PA, Adam Zhamukhanov, West Palm Beach, FL, David Ben Israel, The Law Offices of David Ben Israel, P.A., Davie, FL, for Defendants.
THIS CAUSE comes before the Court on: (1) Defendant Maria Verduce's Motion to Dismiss, ECF No. [7], filed under Fed. R. Civ. P 12(b)(6), seeking dismissal of Plaintiffs' First Amended Complaint; and (2) Defendant Tierra Del Mar Condominium Association, Inc. ("TDM")'s Motion for Summary Judgment, ECF No. [13], seeking the entry of summary judgment in its favor under Fed.R.Civ.P. 56.1 The Court is fully advised after careful review of the Motions, the parties' briefs, the record, and the applicable law.
Plaintiffs filed the instant action in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which was removed to federal court on June 4, 2015. Plaintiffs allege violations of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et. seq., the Florida Fair Housing Act ("FFHA"), Fla. Stat. § 760.20, et seq. , as well as claims of negligence under the Florida Wrongful Death Act ("FWDA"), Fla. Stat. § 768.20, and the Florida Survival Statute, Fla. Stat. § 46.021. See ECF No. [20–2].
This case was filed after the decedent, Sergey Peklun, committed suicide. Before that time, Mr. Peklun resided with his wife, Victoria Peklun, in a condominium he owned, located in the Tierra Del Mar community that Defendant TDM operated and maintained. Defendant Verduce was a Board member on Defendant TDM's Board of Directors, and also served as the Board's president.
Plaintiffs allege that "Sergey Peklun was disabled due to multiple medical and psychological conditions, including heart disease
, lung disease, high blood pressure, kidney disease, sleep disturbances and apnea, anxiety and depression." ECF No. [20–2] at 3. In 2011, Mr. Peklun adopted a dog named Julia, which Plaintiffs allege was "essential to his physical and emotional well-being, his will to live, and his enjoyment and use of his dwelling." Id. Plaintiffs allege that "[o]n or about July 29, 2011, Sergey Peklun applied to the Board of TDM for a reasonable accommodation to allow him to keep Julia in his condominium unit as an Emotional Support Animal." Id. Plaintiffs allege that in the fall of 2011, "the Board of TDM granted Mr. Peklun a reasonable accommodation which allowed Julia to live with him in his condominium unit, TDM's no-pet rule notwithstanding." Id. Plaintiffs allege that "TDM did not publish, record or document the fact that it had granted Mr. Peklun's accommodation request," and that "in subsequent years, the composition of the Board changed and the management company employed by TDM changed." Id. at 4.
Plaintiffs allege that the Board sent Sergey Peklun a Notice of Violation on November 26, 2012, "accusing him of violating its no pet rule and, on or about February 21, 2013, wrongfully demanding that Sergey Peklun seek a recertification of the earlier accommodation." Id. at 5. Sergey Peklun filed a complaint with the Palm Beach County Office of Equal Opportunity on September 26, 2013, alleging Defendant TDM's failure to provide a reasonable accommodation.See ECF No. [20–3] at 1. Frank Speciale, an owner of another condo in the Tierra Del Mar community, sued Sergey and Victoria Peklun in state court on October 25, 2013, seeking a preliminary injunction for the removal of Julia. Defendant Maria Verduce filed an affidavit with the state court on behalf of Defendant TDM's condominium association, indicating that Sergey and Victoria Peklun owned Julia and kept her within their unit "without the approval of Tierra Del Mar Condominium Association, Inc." ECF No. [20–1] at 48. The state court granted a preliminary injunction against Sergey and Victoria Peklun on March 11, 2014. See ECF No. [20–5]. The Palm Beach County Office of Equal Opportunity issued a notice of determination and reasonable grounds on May 5, 2014, finding that there were reasonable grounds to believe that Defendant TDM discriminated against Sergey Peklun on the basis of his disability. See ECF No. [20–3] at 6–7. Frank Speciale filed a motion for contempt in the state court proceeding on December 4, 2014. See ECF No. [20–6] at 1–5. Mr. Peklun committed suicide on February 12, 2015.
A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and 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) ; see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (). Nor can a complaint rest on " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). "To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.2012) ; Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.2002). While the Court is required to accept all of the allegations contained in the complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.2006) () (internal quotation marks omitted).
A party may obtain summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The parties may support their positions by citation to the record, including inter alia, depositions, documents, affidavits, or declarations. Fed.R.Civ.P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505 ). The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in the party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Further, the Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.2007) (quoting Carlin Comm'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.1986) ).
The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). Once this burden is satisfied, "the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ " Ray v. Equifax Info. Servs., L.L.C., 327 Fed.Appx. 819, 825 (11th Cir.2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Instead, "the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.’ " Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in the non-moving party's favor. Shiver, 549 F.3d at 1343. Even "where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from those facts," summary judgment may be inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983).
Defendant Verduce argues that dismissal is warranted because the Amended Complaint fails to allege any specific and detailed allegations against her individually. She also argues that the negligence claims should be dismissed in their entirety, and that...
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Surloff v. Regions Bank
...and control," a duty is not present. See Tuten, 84 So.3d at 1068. See also Peklun v. Tierra Del Mar Condo. Ass'n, 25 Fla. L. Weekly Fed. D 226, 119 F.Supp.3d 1361, 2015 WL 4638602 (S.D.Fla. Aug. 4, 2015) (holding a condominium association had no duty to a woman who had committed suicide aft......