Phillips et al v. Epic Aviation, LLC
Filing
27
OPINION AND ORDER denying 19 Renewed Motion for Mandatory Injunction; granting in part and denying in part 20 Motion to dismiss for lack of jurisdiction and for failure to state a claim as set forth in the Opinion and Order; denying as moot 25 Request for Expedited Consideration of Renewed Motion for Mandatory Injunction and Motion to Dismiss. Signed by Judge John E. Steele on 3/19/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BONITA
B.
PHILLIPS
JEFFREY S. PHILLIPS
and
Plaintiffs,
v.
Case No: 2:13-cv-410-FtM-29DNF
EPIC
AVIATION,
LLC,
Oregon corporation,
an
Defendant.
OPINION AND ORDER
This matter comes before the Court on three motions:
(1)
Plaintiffs' Renewed Motion for Mandatory Injunction (Doc. #19),
and
defendant’s
Response
(Doc.
#21)
thereto;
(2)
defendant’s
Motion to Dismiss Amended Complaint for Lack of Subject Matter
Jurisdiction and Pursuant to Rule 12(b)(6) for Failure to State a
Claim (Doc. #20), and plaintiffs’ Response in Opposition (Doc.
#23); and (3) plaintiff’s Request for Expedited Consideration of
Their Renewed Motion for Mandatory Injunction and Defendant’s
Motion to Dismiss (Doc. #25) filed October 8, 2013, and defendant’s
Response (Doc. #26) filed on October 22, 2013.
Plaintiffs’ Amended Complaint (Doc. #18) sets forth claims of
slander of title (Count I) and quiet title (Count II), and seeks
a mandatory injunction (Count III).
(Doc. #18, ¶¶ 49-72.)
These
claims relate to prior bankruptcy proceedings and three appeals
from the Bankruptcy Court to the district court.
See 2:12-cv-585-
FTM-29; 2:12-cv-669-FTM-29; 2:13-CV-113-FTM-29.
Appeals of the
district court’s orders are pending before the Eleventh Circuit in
each of these three prior cases.
The undersigned was the judge
in the three prior bankruptcy appeals, and assumes familiarity by
all parties with the procedural history of the cases.
begins
with
the
motion
challenging
its
The Court
subject-matter
jurisdiction.
A.
Subject-Matter Jurisdiction
Defendant alleges that the district court lacks subject-
matter jurisdiction over this case because of the pending appeals
with the Eleventh Circuit from the district court’s prior orders
issued in three related cases.
Defendant argues that the claims
in the Amended Complaint “are procedurally improper collateral
attacks on claims and defenses that are currently on appeal and
within the jurisdiction of the Eleventh Circuit . . . arising from
the Plaintiffs’ bankruptcy cases. . . .”
(Doc. #20, p. 1.)
Subject-matter jurisdiction refers to a tribunal’s power to
hear a case.
Union Pac. R. Co. v. Bhd. of Locomotive Eng’r &
Trainmen Gen., 558 U.S. 67, 81 (2009).
Defendant is correct that
a district court is generally divested of jurisdiction over a case
upon the filing of a notice of appeal in that case.
It is well
established that “[t]he filing of a notice of appeal. . . confers
jurisdiction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
- 2 -
58 (1982).
The notices of appeal were not filed in this case, and
no aspect of this case is directly involved in the appeals.
No
stay has been issued in those cases, and deciding the current case
will not interfere with the ability of the Eleventh Circuit to
decide the issues before them.
The pendency of the appeals may
impact the wisdom of proceeding to judgment, but that is a merits
issue and not a jurisdictional issue.
Therefore, the district
court has subject-matter jurisdiction over this case.
B.
Renewed Motion for Permanent Injunction
By separate motion (Doc. #19), plaintiffs seek a mandatory
injunction pursuant to Count III of their Amended Complaint (Doc.
#18).
Plaintiffs attached two Declarations in support regarding
the inability to sell the property due to the cloud on their title.
(Doc. #10, Exh. F.)
A district court may grant a preliminary injunction only if
the moving party shows that: “(1) it has a substantial likelihood
of success on the merits; (2) irreparable injury will be suffered
unless the injunction issues; (3) the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) if issued, the injunction would not be
adverse to the public interest.”
1176
(11th
Cir.
2000).
“A
Siegel v. LePore, 234 F.3d 1163,
preliminary
injunction
is
an
extraordinary and drastic remedy not to be granted unless the
movant clearly established the ‘burden of persuasion’” for each
prong of the analysis. Id.
Similarly, a mandatory injunction is
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an extraordinary remedial process compelling an act.
Alabama v.
United States, 304 F.2d 583, 611 n.6 (5th Cir. 1962).
A mandatory
injunction at the preliminary stage of a case, “should not be
granted except in rare instances in which the facts and law are
clearly in favor of the moving party.”
Miami Beach Fed. Sav. &
Loan Ass’n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958)1.
The proposed injunction would require defendant to execute
and deliver a form of release similar to the one executed by the
U.S. Trustee to clear title, or failing that, the appointment of
another person to act on behalf of defendant pursuant to Fed. R.
Civ. P. 70.
The Court finds no extraordinary circumstances
warranting a mandatory injunction, and finds that plaintiffs have
not
satisfied
at
least
preliminary injunction.
C.
the
first
three
requirements
for
a
Therefore, the motion will be denied.
Failure to State A Claim
Defendant also asserts that the Amended Complaint fails to
state causes of action upon which relief may be granted.
Under
Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain
a “short and plain statement of the claim showing that the pleader
is entitled to relief.”
“requires
more
than
Fed. R. Civ. P. 8(a)(2).
labels
and
conclusions,
This obligation
and
a
formulaic
recitation of the elements of a cause of action will not do.”
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
- 4 -
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.”
Id. at 555.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than
an
unadorned,
accusation.”
Ashcroft
This requires “more
the-defendant-unlawfully-harmed-me
v.
Iqbal,
556
U.S.
662,
678
(2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
Mamani
2011)(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
1337
(11th
omitted).
Cir.
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
2012)(internal
quotation
marks
and
citations
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.”
(1)
Iqbal, 556 U.S. at 679.
Count One (Slander of Title)
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In
Count
I,
plaintiffs
allege
Title/Wrongful Lis Pendens”.
a
claim
for
“Slander
of
Plaintiffs claim is based on the
intentional and wrongful filing of various lis pendens and related
notices of appeal (the filings).
Plaintiffs allege that the
filings were “wrongful” (Doc. #18, ¶¶ 50, 51), constituted a
“slander of title” (id., ¶52), impaired the plaintiffs’ ability to
sell the property (id., ¶53), and “thwarted” the ability to close
on a pending contract (id., ¶54).
Plaintiffs further allege that
defendant knew of the wrongfulness of its conduct and the high
probability or resulting damage, and that plaintiffs have been
damaged.
(Doc. #18, ¶¶ 54-56.)
Defendant asserts that this count
fails to adequately allege a cause of action.
The elements of slander of title are that: “(1) A falsehood
(2) has been published, or communicated to a third person (3) when
the defendant-publisher knows or reasonably should know that it
will
likely
result
in
inducing
others
not
to
deal
with
the
plaintiff and (4) in fact, the falsehood does play a material and
substantial part in inducing others not to deal with the plaintiff;
and (5) [actual and/or] special damages are proximately caused as
a result of the published falsehood.”
Seville
Ass’n,
Inc.,
981
2008)(citations omitted).
So.
2d
McAllister v. Breakers
566,
573
(Fla.
4th
DCA
See also Residential Communities of Am.
v. Escondido Cmty. Ass’n, 645 So. 2d 149, 150 (Fla. 5th DCA
1994)(applying elements).
The recording of a notice of lis
pendens is simply a notice of pending litigation and “has no
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existence separate and apart from the litigation of which it gives
notice.”
1981).
Procacci v. Zacco, 402 So. 2d 425, 427 (Fla. 4th DCA
See also Bonded Inv. & Realty Co. v. Waksman, 437 So. 2d
162, 164 (Fla. 2d DCA 1983)(“the mere bringing of a legal action
on
a
claim
title.”).
relating
to
land
does
not
constitute
slander
of
The filing of the lis pendens is an appropriate manner
to notify prospective buyers that the property “would be subject
to the trial court's decree.”
omitted).
Miceli, 467 So. 2d at 406 (citations
“An intentional, wrongful filing of a notice of lis
pendens will support an action for slander of title.”
Miceli v.
Gilmac Developers, Inc., 467 So. 2d 404, 405-06 (Fla. 2d DCA
1985)(citing Atkinson v. Fundaro, 400 So. 2d 1324 (Fla. 4th DCA
1981)).
Plaintiffs have not alleged that the lis pendens was actually
false or filed maliciously, only that the filings were “wrongful”
and made knowingly and intentionally.
Although plaintiffs allege,
in response to the motion, Doc. #23, p. 2, that the lis pendens
includes the false statement that defendant has an interest in the
property, this is not alleged in Count I or in its incorporated
paragraphs.
Therefore, as currently pled, plaintiffs have failed
to state a claim for slander of title.
The motion to dismiss will
be granted, and defendant’s other arguments need not be addressed.
(2)
Count Two (Quiet Title)
In Count II, plaintiffs allege that they hold title to the
property; that defendant’s actions have clouded the title; and
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that defendant has no legal or equitable interest in the property.
Plaintiffs further allege that defendant’s only direct interest in
the property was avoided by the Bankruptcy Appeal and is not
subject of any pending appeal, and the only indirect interest has
been released and satisfied by the Trustee.
(Doc. #18, ¶¶ 59-63.)
Defendant argues that it would be inappropriate to determine the
validity of the claim because of the pending appeals and because
it necessarily requires the Court “to opine as to the ultimate
resolution” of the appeals.
(Doc. #20, p. 9.)
To state a claim for quiet title, plaintiffs must show that
they have title to the property, that a cloud on the property
exists, identify and show what is clouding the title, and allege
facts giving rise to the validity and invalidity of the claim.
Stark v. Frayer, 67 So. 2d 237, 239 (Fla. 1953).
The Court finds
that plaintiffs have stated a plausible cause of action and the
Court need not address the merits of the related bankruptcy appeals
to determine whether the elements are adequately pled.
The Court agrees that attorney’s fees are not available
damages in an action for quiet title, absent an independent
statutory or contractual basis, and therefore the motion to dismiss
is granted with respect to the request for attorney fees.
v. Taylor, 890 So. 2d 246, 250 (Fla. 2004).
Accordingly, it is hereby
ORDERED:
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Price
1.
Plaintiffs'
Renewed
Motion
for
Mandatory
Injunction
(Doc. #19) is DENIED.
2.
Defendant’s Motion to Dismiss Amended Complaint for Lack
of Subject Matter Jurisdiction and Pursuant to Rule 12(b)(6) for
Failure to State a Claim (Doc. #20) is GRANTED IN PART AND DENIED
IN PART as set forth above.
The motion is denied as to dismissal
for lack of subject-matter jurisdiction, granted without prejudice
as to the Slander of Title claim, denied as to the quiet title
claim,
and
granted
as
to
the
request
for
attorney
fees
in
connection with the quiet title claim.
3.
Plaintiff’s Request for Expedited Consideration of Their
Renewed Motion for Mandatory Injunction and Defendant’s Motion to
Dismiss (Doc. #25) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2014.
Copies: Counsel of Record
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19th
day
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