Westley v. Mann, Civil No. 11–3704 (JNE/JSM).

Citation896 F.Supp.2d 775
Decision Date14 September 2012
Docket NumberCivil No. 11–3704 (JNE/JSM).
PartiesJohn D. WESTLEY, Plaintiff, v. James Robert MANN et al., Defendants.
CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota

OPINION TEXT STARTS HERE

John D. Westley, St. Paul, MN, pro se.

Mitchell P. Korus, Miami Beach, FL, pro se, and for James Robert Mann.

Christian A. Brandt, Kelly S. Hadac, Murnane Brandt, PA, John S. Garry, St. Paul, MN, Andrew W. Davis, Lowell J. Noteboom, Leonard Street and Deinard, PA, Kaisa M. Adams, Thomas B. Caswell, III, Zelle Hofmann Voelbel & Mason LLP, Minneapolis, MN, John A. Moore, Pathman Lewis LLP, Miami, FL, Mark S. Dunn, Office of the Attorney General, State of Florida, Tallahassee, FL, for Defendants.

ORDER

JOAN N. ERICKSEN, District Judge.

In a Report and Recommendation dated August 15, 2012, the Honorable Janie S. Mayeron, United States Magistrate Judge, recommended that several defendants' motions to dismiss be granted. The Court construed a motion filed by John Westley as objections to the Report and Recommendation. Michael Tilson Thomas, the City of Miami Beach, and Max Sklar responded. The Court has conducted a de novo review of the record. SeeD. Minn. LR 72.2(b). Based on that review, the Court adopts the Report and Recommendation [Docket No. 107]. Therefore, IT IS ORDERED THAT:

1. Defendant Michael Tilson Thomas's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 6] is GRANTED. The Complaint as to Thomas is dismissed WITHOUT PREJUDICE.

2. Defendant Victoria Sigler's Motion to Dismiss [Docket No. 11] is GRANTED. The Complaint as to Sigler is dismissed WITHOUT PREJUDICE.

3. Defendants City of Miami Beach and Max Sklar's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 21] is GRANTED. The Complaint as to City of Miami Beach and Max Sklar is dismissed WITHOUT PREJUDICE.

4. Defendants Steven P. Kalka and Silver Hill Financial, LLC's Motion to Dismiss Plaintiff's Complaint and/or for Summary Judgment [Docket No. 60] is GRANTED. All claims in the Complaint against Steven P. Kalka are dismissed WITHOUT PREJUDICE. All claims against Silver Hill Financial pertaining to fraud in the inducement (and associated claims of breach of contract, breach of a fiduciary duty and unjust enrichment) related to Westley's guaranty of the purchase and financing of the Property are barred under the doctrine of res judicata and are dismissed WITH PREJUDICE. Any purported claims against Silver Hill Financial under OSHA, TILA, FERA, the “Federal UCC,” the “Federal UBC,” wire and mail fraud statutes (18 U.S.C. § 1341 and 18 U.S.C. § 1343), and USERRA are dismissed WITH PREJUDICE. The remaining claims against Silver Hill Financial pertaining to “Federal Civil Rights,” RICO, the ADA, and the FCRA are dismissed WITHOUT PREJUDICE.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came on before the undersigned upon Defendant Michael Tilson Thomas's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 6]; Defendant Victoria Sigler's Motion to Dismiss [Docket No, 11]; Defendant City of Miami Beach and Max Sklar's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 21]; and Defendants Steven P. Kalka and Silver Hill Financial, LLC's Motion to Dismiss Plaintiff's Complaint and/or for Summary Judgment [Docket No. 60].

Plaintiff John D. Westley appeared pro se. Lowell J. Noteboom, Esq. and Andrew W. Davis, Esq. appeared for defendants City of Miami Beach, Max Sklar and Michael Tilson Thomas; John S. Garry, Esq. and Mark S. Dunn, Esq. appeared on behalf of defendant Victoria Sigler; and KellyS. Hadac, Esq. appeared on behalf of defendants Steven P. Kalka and Silver Hill Financial.

These motions have been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).

I. BACKGROUND

Plaintiff John D. Westley has brought an action against James Robert Mann, Mitchell P. Korus, Steven P. Kalka, Max Sklar, Wayne M. Pathman, Dylan Pukel, Judge Victoria Sigler, Jennifer Viciedo Ruiz, Michael Thomas Tilson,1 Silver Hill Financial, and the City of City of Miami Beach.2 According to the Complaint, all of these defendants reside in Florida. See Complaint [Docket No. 1], pp. 1–3. Westley asserted that the basis for venue in the District of Minnesota was that he permanently resides in Minnesota; the facts alleged in the Complaint “primarily occurred thru Federal Wire transfers and United States Postal Service Money Orders originating in the jurisdiction of the Federal District Court of Minnesota;” Westley has been barred from pursuing legal claims in Florida courts; Defendants and their related agents are attempting to collect a fraudulently obtained judgment against Plaintiff's personal property located in Minnesota;” he was “unlawfully detained by Florida law authorities under the direction of Florida courts due to local public corruption, bias and prejudice designed to prevent public equal protection access sought in Florida civil courts for relief and restitution;” and “the records for the facts alleged in Complaint are stored and filed in Minnesota and kept by the State of Minnesota.” Id., p. 4.

The gravamen of Westley's complaint is that he guaranteed a loan by Silver Hill Financial to AFTEF for the purchase of property located in Miami Beach, Florida that had been bought by AFTEF 3 from Bayview Lincoln Road LLC,4 and for which Silver Hill Financial took a mortgage to secure the loan. Since the purchase of the property, Westley claims that AFTEF and he have been deprived of their use of the property through the acts of all of the defendants. The particulars of the dispute, as set forth in his Complaint, are as follows:

From November 2007 through January 2008, defendants Mann, Korus,5 Kalka and Silver Hill Financial, via emails, mailings and telephone phone calls to Westley in Minnesota, conspired to fraudulently induce Westley to personally guarantee AFTEF's purchase of property and related deed rights for Condominium Units 270 and 800 of 605 Lincoln Road, Miami Beach, Florida (“the Property”) from Bayview Lincoln Road, LLC by Special Warranty Deed dated January 10, 2009, which was recorded in Miami–Dade County Florida. Complaint, ¶ 7. The property was not marketable, usable or accessible in violation of “FILA,6 FERA, OSHA, ADA and UBC regulations.” Id. Westley had a legal and equitable interest in the Property and was damaged by the negligent acts, breaches of contract, neglect of fiduciary responsibilities, fraudulent misrepresentations and misleading acts of defendants Mann, Korus, Kalka and Silver Hill Financial in violation of federal law and regulations, who were unjustly enriched in violation of “TILA, FERA, RICO & UCC laws and Federal Mail & Wire Fraud regulations.” Id.

Further, defendants Mann, Korus, Kalka and Silver Hill Financial and their representative agents required Westley and AFTEF to obtain acceptable long term tenants for the Property, and incorporated the long term rental agreement into the mortgage terms and loan closing documents provided to Westley for the Property. Id. ¶ 8. Prior to entering into the lease, defendants Mann, Korus, Kalka and Silver Hill Financial and their representative agents made negligent, false and misleading representations to Westley and the tenants regarding the Property and use of the Property to induce Westley and other tenants into signing the long term rental agreement with AFTEF, including representations that the premises had the required Certificate of Occupancy, property access or a Certificate of Use, and was rented and occupied by Sony Music Disco, Inc., pursuant to a recorded lease and the Declarations of Condominium. Id. In fact, Mann, Korus, Kalka and Silver Hill Financial and their representative agents never obtained the required Certificate of Occupancy, property access or a Certificate of Use in violation of “Federal Uniform Building Codes, OSHA commercial property regulation standards, ADA, TILA and FERA federal laws.” Id.

From November 2007 through January 2008, defendants Mann, Korus, Kalka and Silver Hill Financial unjustly enriched themselves in violation of “TILA, FERA, RICO and UCC” and harmed Westley through fraudulent and misleading emails and mailings to Westley in Minnesota that provided tax records, documents and information regarding $117,000 in property fee payments for City of Miami Beach Concurrency Fees made to Senior Planner Henry Johnson in order to obtain Westley's personal guarantee. Id., ¶ 9. After the purchase of the Property, defendants Sklar and the City of Miami Beach informed Westley that the payments were not received and Johnson was subsequently convicted of embezzlement and solicitation of bribes as a public official. Id. Mann, Korus, Kalka, Sklar, the City of Miami Beach and Silver Hill Financial negligently violated contractual, fiduciary and administrative duties causing financial harm and damage to Westley. Id.

At the closing of the purchase of the Property, Westley was fraudulently induced by defendants Mann, Korus, Kalka and Silver Hill Financial to personally wire $10,000 from his Wells Fargo account in St. Paul, Minnesota to defendant Silver Hill Financial for property tax escrows, title insurance coverage, legal costs, condominium assessments, closing expenses and real estate agent fees. Id., ¶ 10. These actions violated “TILA, FERA, RICO and Federal UCC wire and mail fraud regulations.” Id.

In February and March 2008, defendants City of Miami Beach, Sklar, and representative agents realized that Westley and the tenants of the Property were doing business with African Americans, Haitians and Muslims on the premises and informed Westley that the Property could not be accessed and used because the $117,000 payment, described above, had not been paid to the City of Miami Beach. Id., ¶ 11. D...

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