Luft v. Citigroup Global Markets Realty Corporation et al
Filing
30
OPINION AND ORDER granting 27 Motion to Dismiss First Amended Complaint. The First Amended Complaint is dismissed without prejudice. Plaintiff may file a Second Amended Complaint within Twenty One (21) days of this Opinion and Order. Denying as moot 28 Motion to Discharge Notice of Lis Pendens. See Opinion and Order for details. Signed by Judge John E. Steele on 1/16/2013. (AAA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARRIE LUFT,
Plaintiff,
vs.
Case No.
2:11-cv-703-FtM-29SPC
CITIGROUP GLOBAL MARKETS REALTY
CORP., CITI PROPERTY HOLDINGS, INC.,
formerly
known
as
LIQUIDATION
PROPERTIES, ACCREDITED HOME LENDERS,
INC.,
MORTGAGE
E LECTRONIC
REGISTRATION SYSTEMS, INC., LONE
STAR FUNDS, INC., and DOES 1-10,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on a Motion to Dismiss
First Amended Complaint by Defendants Citigroup Global Markets
Realty Corp. and Citi Property Holdings, Inc. f/k/a Liquidation
Properties, Inc. (Doc. #27) filed on July 3, 2012.
On July 20,
2012, plaintiff filed a Response in Opposition (Doc. #29). For the
reasons set forth below, the motion is granted.
I.
On June 26, 2012, plaintiff Carrie Luft filed a pro se fourcount
First
Amended
Complaint
(Doc.
#26)
against
defendants
Citigroup Global Markets Realty Corp., Citi Property Holdings, Inc.
f/k/a Liquidation Properties, Inc., Accredited Home Lenders, Inc.,
Mortgage Electronic Registration Systems, Inc., Lone Star Funds,
Inc., and Does 1-10.
Plaintiff asserts that she lost her home in
state court foreclosure proceedings as a result of a conspiracy
between the banks, Florida state court judges and The Florida Bar
to fix the outcome of mortgage foreclosure cases in favor of the
banks.
(Doc. #26, ¶¶ 5, 10, 14, 15, 31.)
Conceding that she
cannot meet the pleading standards to set forth her conspiracyrelated
claims,
the
First
Amended
Complaint
seeks
(1)
a
constitutional declaratory judgment that the Federal Rules of Civil
Procedure must not be construed so as to deny the First Amendment’s
right to petition; (2) a constitutional declaratory judgment for
the right to collateral attack protected by the First, Ninth, and
Fourteenth Amendments; (3) discovery prior to collateral attack
under
Rule
27;
and
(4)
an
extension
of
lis
pendens.
Read
liberally, as is required due to plaintiff’s pro se status, Hughes
v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003), plaintiff requests
the Court to: (1) relax the pleading requirements set out in Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal,
556 U.S. 662 (2009); (2) limit the application of the RookerFeldman doctrine;1 (3) fashion or adopt a constitutional writ of
amparo, as the civil equivalent of habeas corpus; (4) allow presuit discovery pursuant to Fed. R. Civ. P. 27(a)-(b); and (5)
extend the application of the notice of lis pendens filed by
plaintiff until the Eleventh Circuit has ruled on an appeal.
1
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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II.
Defendants seek dismissal pursuant to Fed. R. Civ. P. 12(b)(6)
because the First Amended Complaint does not state a claim upon
which relief can be granted, and under Rule 12(b)(1) for lack of
subject matter jurisdiction.
A.
(Doc. #27.)
Count I
Plaintiff seeks a “constitutional” declaratory judgment that
the Federal Rules of Civil Procedure must not be construed so as to
deny
her
First
Amendment
right
to
petition
the
court.
Specifically, plaintiff requests that the Court relax the pleading
requirements set out in Twombly, 550 U.S. 544 and Iqbal, 556 U.S.
662 and limit the application of the Rooker-Feldman doctrine.
The
purported
Court
cause
“constitutional”
lacks
of
subject
action.
declaratory
matter
There
jurisdiction
is
judgment,
no
such
Willing
over
claim
v.
this
as
a
Chicago
Auditorium Ass’n, 277 U.S. 274 (1928), and therefore no possibility
that a cause of action is stated, and thus no subject matter
jurisdiction over such a claim.
Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83 (1998).
If jurisdiction otherwise exists, a federal district court may
issue declaratory relief pursuant to the Declaratory Judgment Act.2
2
“In a case of actual controversy within its jurisdiction . .
. any court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.”
(continued...)
-3-
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
This,
however, provides no assistance to plaintiff.
To establish the existence of an actual controversy
within the meaning of the Declaratory Judgment Act, the
party invoking a federal court’s authority must show: (1)
that they personally have suffered some actual or
threatened injury as a result of the alleged conduct of
the defendant; (2) that the injury fairly can be traced
to the challenged action; and (3) that it is likely to be
redressed by a favorable decision.
State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr.,
Inc., 427 F. App’x 714, 721 (11th Cir. 2011)(citations and internal
quotation marks omitted). Seeking a procedural ruling which may be
beneficial to plaintiff in a subsequent proceeding does not state
a
case
Judgment
or
controversy
Act.
within
Calderon
v.
the
meaning
Ashmus,
523
of
the
U.S.
Declaratory
740
(1998).
Additionally, such a claim would be futile because the relief
plaintiff seeks in modifying existing Supreme Court precedent is
unavailable.
See Jaffree v. Wallace, 705 F.2d 1526, 1532 (11th
Cir. 1983)(“Federal district courts and circuit courts are bound to
adhere to the controlling decisions of the Supreme Court.”).
Therefore, Count I is dismissed without prejudice for lack of
subject matter jurisdiction, or in the alternative, is dismissed
for failure to state a claim upon which relief may be granted.
2
(...continued)
28 U.S.C. § 2201(a).
-4-
B.
Count II
Plaintiff seeks a “constitutional” declaratory judgment that
the Court should recognize, as a matter of federal common law, an
American version of juicio de amparo or vindicatio as the civil
equivalent of habeas corpus.
For the reasons stated above, there
is no such claim as a constitutional declaratory judgment, but the
Court will construe this request as an action for declaratory
judgment
under
the
Declaratory
Judgment
Act.
In
Count
II,
plaintiff again fails to allege a viable cause of action or any of
the three prongs necessary to establish the existence of an actual
controversy.
In
addition,
the
writ
plaintiff
seeks
is
not
recognized by the jurisprudence of the United States. See Lewis v.
Morrison, Civil Case No. 11-663 (RJL), 2012 WL 32586, at *1 (D.D.C.
Jan. 6, 2012), aff’d, 468 F. App’x 6 (D.C. Cir. 2012).
Plaintiff
also does not allege she is in any form of custody within the
meaning of the federal habeas corpus statutes.
Accordingly, Count
II is dismissed without prejudice for lack of subject matter
jurisdiction, or in the alternative, is dismissed for failure to
state a claim upon which relief may be granted.
C.
Count III
Plaintiff seeks discovery pursuant to Fed. R. Civ. P. 27(a)(b)3 and In re Sims, 389 F.2d 148 (5th Cir. 1967), prior to
3
Fed. R. Civ. P. 27(b) is not applicable as there is no appeal
pending.
-5-
formalizing the “probable cause” of the civil conspiracy claim she
wishes to bring.
Rule 27(a) provides:
(a) Before an Action is Filed.
(1) Petition. A person who wants to perpetuate testimony
about any matter cognizable in a United States court may
file a verified petition in the district court for the
district where any expected adverse party resides. The
petition must ask for an order authorizing the petitioner
to depose the named persons in order to perpetuate their
testimony.
The petition must be titled in the
petitioner's name and must show:
(A) that the petitioner expects to be a party to an
action cognizable in a United States court but cannot
presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the
petitioner's interest;
(C) the facts that the petitioner wants to establish by
the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the
petitioner expects to be adverse parties and their
addresses, so far as known; and
(E) the name, address, and expected substance of the
testimony of each deponent.
Fed. R. Civ. P. 27(a).
Even if the Court were to construe Count
III as a verified petition pursuant to Fed. R. Civ. P. 27(a), it
fails to state a claim because plaintiff fails to satisfy the
requirements of Rule 27(a) by: (1) failing to provide the Court
with the address and expected substance of the testimony of each
deponent; and (2) failing to provide the names or a description of
the persons whom the petition expects to be adverse parties and
their addresses. Additionally, as noted by the magistrate judge in
her Order dated June 26, 2012 (Doc. #25), plaintiff’s reliance on
In re Sims is misplaced as it is factually distinct from this
-6-
matter.
Further, because the Federal Rules of Civil Procedure
provide adequate relief, federal law does not recognize an action
that simply seeks discovery so that another action may be filed.
E.g., Amand v. Pennsylvania R. Co., 17 F.R.D. 290 (D.N.J. 1955).
Therefore, Count III will be dismissed.
D.
Count IV
Plaintiff requests an extension of the notice of lis pendens
recorded on December 19, 2011.
“The purpose of a notice of lis
pendens is to alert creditors, prospective purchasers and others to
the fact that the title to a particular piece of real property is
involved in litigation.” Am. Legion Cmty. Club v. Diamond, 561 So.
2d 268, 269 n. 2 (Fla. 1990)(citation omitted).
A request to
extend a notice of lis pendens is not an independent cause of
action; instead, such a request should come in the form of a
motion.
See, e.g., De la Fuente v. Adrian Developers Corp., 967
So. 2d 251 (Fla. 3d DCA 2007).
Count IV fails to state any basis
for federal jurisdiction, and additionally fails to state a claim
upon which relief may be granted.
Accordingly, Count IV will be
dismissed.
The Court will provide plaintiff with one final chance to
amend her complaint to properly allege her claims.
In so doing,
plaintiff should adhere to the instructions and bear in mind the
rules of law addressed in this Opinion and Order.
In addition, the
Court encourages plaintiff to fully familiarize herself with the
-7-
federal pleading requirements.
The amended complaint should be
entitled the “Second Amended Complaint.”
Plaintiff may also take this opportunity to address any
additional pleading deficiencies.
For example, all four counts in
the First Amended Complaint contain a paragraph realleging the
allegations of all the preceding paragraphs. (Doc. #26, ¶¶ 6, 20,
30, 71.)
This is a shotgun pleading.
complaint
contains
reference
the
several
allegations
counts,
of
its
each
“The typical shotgun
one
incorporating
predecessors,
leading
to
by
a
situation where most of the counts [ ] contain irrelevant factual
allegations and legal conclusions.”
Strategic Income Fund, L.L.C.
v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.
2002); see also Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.
2001).
Plaintiff will be required to replead each of her claims
and to specify which factual allegations are relevant to each
count.
III.
Also before the Court is the Motion to Discharge Notice of Lis
Pendens by Defendants, Citigroup Global Markets Realty Corp. and
Citi Property Holdings, Inc. f/k/a Liquidation Properties, Inc.
(Doc. #28). Defendants request that the Court discharge the notice
of lis pendens recorded by plaintiff on December 19, 2011.
Fla.
Stat. § 48.23(2) provides that “[a] notice of lis pendens is not
effectual for any purpose beyond 1 year from the commencement of
-8-
the action and will expire at that time. . . .”
The statute lists
a number of exceptions but none of them apply here.
Because the
notice of lis pendens has now expired, defendants’ motion to
discharge notice of lis pendens is denied as moot.
Accordingly, it is now
ORDERED:
1.
Motion to Dismiss First Amended Complaint by Defendants,
Citigroup Global Markets Realty Corp. and Citi Property Holdings,
Inc. f/k/a Liquidation Properties, Inc. (Doc. #27) is GRANTED and
the First Amended Complaint is dismissed without prejudice.
2.
Plaintiff may file a Second Amended Complaint WITHIN
TWENTY ONE (21) DAYS of this Opinion and Order.
3.
Motion to Discharge Notice of Lis Pendens by Defendants,
Citigroup Global Markets Realty Corp. and Citi Property Holdings,
Inc. f/k/a Liquidation Properties, Inc. (Doc. #28) is DENIED as
moot.
DONE AND ORDERED at Fort Myers, Florida, this 16th day of
January, 2013.
Copies:
Counsel of record
Pro se parties
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