Gaspari v. U.S. Bank National Association

Filing 34

OPINION AND ORDER granting 25 Motion to dismiss to the extent it seeks to dismiss the Amended Complaint for failure to comply with Rule 9 of the Federal Rules of Civil Procedure and denying the motion in all other respects as stated in the Opinion and Order. Plaintiff's Amended Complaint is dismissed without prejudice with leave to amend within twenty-one (21) days of this Opinion and Order. Signed by Judge John E. Steele on 2/17/2012. (SVC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CESARE GASPARI,
Plaintiff,
vs.

Case No.

2:11-cv-32-FtM-29SPC

U.S. BANK NATIONAL ASSOCIATION, as
assignee of CAPITAL ONE, N.A., as
assignee of CHEVY CHASE, FSB ,
Defendant.
__________________________________
OPINION AND ORDER
This matter comes before the Court on U.S. Bank’s Motion to
Dismiss Amended Complaint (Doc. #25) filed on August 8, 2011.
Plaintiff Cesare Gaspari (Gaspari or plaintiff) filed a response in
opposition on August 22, 2011.

(Doc. #26.)
I.

Plaintiff contends that on or about December 22, 2005, he
executed a purchase money mortgage in the amount of $1,221,250.00
payable to Chevy Chase, FSB (Chevy Chase)1, a bank doing business
in Collier County, Florida.

The money was used to purchase real

estate known as “The Dunes” located at 285 Grande Way, Unit # 1401
in Naples, Florida.
$1,495,000.00.

1

The purchase price of the property was

(Doc. #26, ¶¶2, 4-6.)

Plaintiff does not name Chevy Chase as a defendant in this
matter. Instead, he names U.S. Bank National Association (U.S.
Bank) as a defendant as an assignee of Capital One, N.A. and Chevy
Chase, FSB.

Plaintiff contends that prior to the execution of the mortgage
and

promissory

representations

note,

employees

concerning

of

material

Chevy

Chase

facts.

made

false

Specifically,

he

asserts that the Chevy Chase employees knowingly made the false
representation “that the appraised market value of the property was
$1,495.000.00” (Id. at ¶11) and communicated this information to
induce plaintiff to rely and act on it by executing the mortgage.
Plaintiff further contends that although the mortgage loan was
originated by Chevy Chase, the mortgage was assigned to U.S. Bank
and is presently being serviced by U.S. Bank. Therefore, U.S. Bank
stands in the shoes of Chevy Chase and is vicariously liable.
(Id., ¶¶ 11-21.)
Plaintiff filed a one (1) Count Amended Complaint (Doc. #26)
alleging common

law

fraud

against

defendant.

The

Court

has

diversity jurisdiction pursuant to 28 U.S.C. § 1332.2

2

The Court notes that this matter was removed to Federal Court
on January 26, 2011, on the basis of diversity jurisdiction. (Doc.
#1.) Plaintiff’s Amended Complaint asserts “this matter exceeds
$15,000 and is within the jurisdiction of this Honorable Court.”
(Doc. #24, ¶3.) The jurisdictional minimum in diversity cases is
$75,000.00.
28 U.S.C. § 1332. Nonetheless, “[w]e measure the
amount in controversy on the date on which the court’s diversity
jurisdiction is invoked, in this case on the date of removal. . .
[and] ‘events occurring after removal, which may reduce the damages
recoverable below the amount in controversy requirement, do not
divest the district court of jurisdiction’” The Burt Co. v.
Clarendon Nat. Ins. Co., 385 Fed. App’x 892 (11th Cir. 2010);
quoting Poore v. American-Amicable Life Ins. Co., 218 F.3d 1287,
1290-91 (11th Cir. 200) overruled in part on other grounds in
Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 640-41 (11th Cir.
2007). At the time of removal, plaintiff demanded recision of his
(continued...)
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U.S. Bank seeks to dismiss the complaint with prejudice
because it is time-barred, fails to meet Rule 9's heightened
pleading

standard,

and

fails

to

state

a

cognizable

claim.

Plaintiff disagrees and alternatively asserts that if his complaint
is deficient, he should be granted leave to amend.
II.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all well-pleaded factual allegations in a complaint as true
and take them in the light most favorable to plaintiff.

Erickson

v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S.
403,

406

(2002).

“To

survive

dismissal,

the

complaint’s

allegations must plausibly suggest that the [plaintiff] has a right
to relief, raising that possibility above a speculative level; if
they do not, the plaintiff’s complaint should be dismissed.” James
River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274
(11th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56 (2007)); see also Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010).

The former rule-that “[a] complaint should

be dismissed only if it appears beyond doubt that the plaintiffs
can prove no set of facts which would entitle them to relief,” La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.

2

(...continued)
mortgage valued at $1,121,250.00. (Doc. #2, p. 4.) This clearly
exceeds the jurisdictional minimum, and therefore, jurisdiction is
proper.
-3-

2004)-has been retired by Twombly.
at 1274.

James River Ins. Co ., 540 F.3d

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662

The Court need not accept as true legal conclusions or

mere conclusory statements.

Id.
III.

A.

Statute of Limitations
Under well-settled law, there are significant constraints on

a defendant’s ability to litigate a limitations defense at the
pleadings stage.

See, e.g., La Grasta v. First Union Sec., Inc.,

358 F.3d 840, 845 (11th Cir. 2004) (“A statute of limitations bar
is an affirmative defense and . . . plaintiffs are not required to
negate an affirmative defense in their complaint.”) (citation and
internal marks omitted); McMillian v. AMC Mortg. Servs., 560 F.
Supp. 2d 1210, 1213 (S.D. Ala. 2008) (“A statute of limitations
defense is generally not appropriate for evaluation on a Motion to
Dismiss. . . .”).

But a limitations defense may be properly raised

and litigated by Rule 12(b) motion if a claim is time-barred on the
face of the Complaint.

See Bhd. of Locomotive Eng’rs & Trainmen

Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., 522
F.3d 1190, 1194 (11th Cir. 2008) (“A Rule 12(b)(6) dismissal on
statute of

limitations

grounds

is

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appropriate

only

if

it

is

apparent

from

the

face

of

the

complaint

that

the

claim

is

time-barred.”) (citation and internal quotation marks omitted).
The parties agree that the applicable statute of limitations
to common law fraud in Florida is four (4) years.
§ 95.11(3)(j).

Florida Statutes

The statute of limitations for an action based on

fraud is strictly construed against the party bringing the action
and begins to run when the alleged basis for the action was either
discovered or should have been discovered by the exercise of due
diligence.

Matthews v. Matthews, 222 So. 2d 282, 284 (Fla. 2d DCA

1969).
The

Complaint

limitations defect.
true,

it

was

not

does

not

suffer

from

a

facially

apparent

Accepting the allegations of the Complaint as
until

“approximately

late

2008,”

that

plaintiff discovered that the representations were false.
#24, ¶16.)

the

(Doc.

Assuming that plaintiff discovered the fraud as early

as June 1, 2008, plaintiff would have had until June 1, 2012, to
file his claim.
26,

2010,

well

Plaintiff’s first Complaint was filed on October
within

the

applicable

period.

Accordingly,

defendant’s motion to dismiss, insofar as it seeks to dismiss the
Amended Complaint as time-barred, is denied.
B.

Pleading Requirements
Defendant also seeks to dismiss the Amended Complaint because

it fails to comply with the heightened pleading standards of Fed.
R. Civ. P. 9(b).

The Court agrees.

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The “essential elements” of common law fraud under Florida law
are: (1) a false statement of fact; (2) known by the person making
the statement to be false at the time it was made; (3) made for the
purpose of inducing another to act in reliance thereon; (4) action
by

the

other

person

in

reliance

on

the

correctness

statement; and (5) resulting damage to the other person.

of

the

Gandy v.

Trans World Computer Tech. Grp., 787 So.3d 116, 118 (Fla. 2d DCA
2001); see also Tucker v. Mariani, 655 So. 2d 221, 225 (Fla. 1st
DCA 1995).

Fed. R. Civ. P. 9(b) requires fraud allegations to be

plead “with particularity.” “In a complaint subject to Rule 9(b)'s
particularity requirement, plaintiffs retain the dual burden of
providing

sufficient

particularity

as

to

the

fraud

while

maintaining a sense of brevity and clarity in the drafting of the
claim, in accord with Rule 8.”

Wagner v. First Horizon Pharm.

Corp., 464 F.3d 1273, 1278 (11th Cir. 2006).

“Particularity means

that a plaintiff must plead facts as to time, place and substance
of the defendant’s alleged fraud, specifically the details of the
defendant[’s] allegedly fraudulent acts, when they occurred, and
who engaged in them.”

United States ex rel. Atkins v. McInteer,

470 F.3d 1350, 1357 (11th Cir. 2006) (citations omitted). See also
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)
(citation omitted); Garfield v. NDC Health Corp., 466 F.3d 1255,
1262 (11th Cir. 2006).

“This means the who, what, when [,] where,

and how: the first paragraph of any newspaper story.”

-6-

Garfield,

466 F.3d at 1262 (citations omitted).

“Failure to satisfy Rule

9(b) is a ground for dismissal of a complaint.”

Corsello v.

Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005), cert. denied,
549 U.S. 810 (2006).
Here,

plaintiff

generally

asserts

that

Chevy

Chase

bank

employees made the alleged false statements, but provides no other
identifying factors to help defendant identify “who” were the
alleged

wrongdoers.

Other

than

generally

noting

that

the

representations occurred prior to the execution of the mortgage on
December 22, 2005, the Amended Complaint does little to provide any
indication as to “when” the alleged misrepresentation occurred.
Plaintiff does not identify which branch of Chevy Chase bank
employed the individuals who made the alleged false statements, and
thus fails to allege “where” the fraud occurred. Most importantly,
the Amended Complaint inexplicably fails to describe “why” the
representation “that the appraised market value of the property was
$1,495,000.00"(Doc. #24, ¶11) was knowingly false.
Although the Second Amended Complaint focuses on alleged
misstatements

included

in

the

appraisal

of

the

property,

plaintiff’s response contends that the appraisal fraud merely
demonstrates “the beginning of the overall fraud.”
4.)

(Doc. #26, p.

Plaintiff then describes that “[l]ater, as discovery will

demonstrate, the bank performed another appraisal which drastically
reduced the actual value of the property.

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This second appraisal

wiped out most of the equity that the false appraisal initially
provided.

In turn, this caused the bank to greatly increase the

monthly payments made by [the plaintiff].”

(Doc. #26, pp. 4-5.)

These allegations, or any other allegations related to a larger
fraud scheme, are absent from the Amended Complaint.

Thus, the

Court finds that the Amended Complaint fails to put the defendant
on notice as to the basis of his fraud allegations and does not
comply with the Federal Rules.3

Accordingly, the Court grants

defendant’s motion to the extent it seeks to dismiss the complaint
for failure to meet Rule 9's heightened pleading requirement, but
will provide plaintiff with the opportunity to amend his complaint.
Accordingly, it is now
ORDERED:
1.

U.S. Bank’s Motion to Dismiss Amended Complaint (Doc.

#25) is GRANTED to the extent it seeks to dismiss the Amended
Complaint for failure to comply with Rule 9 of the Federal Rules of
Civil Procedure and is DENIED in all other respects as stated in
this Opinion and Order.
2.

Plaintiff’s

Amended

Complaint

is

dismissed

without

prejudice.

3

Because the Court finds that plaintiff’s claim was not pled
with the specificity required by Rule 9, the Court need not address
defendant’s argument that U.S. Bank is not an appropriate defendant
in this matter.
-8-

3.

Plaintiff may file

an Amended Complaint within twenty-

one (21) days of the signing of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2012.

Copies:
Counsel of record

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17th

day of