Dyck-O'Neal, Inc. v. England

Filing 27

ORDER denying 7 Defendant Brandt England's Motion to Dismiss. Defendant Brandt England is DIRECTED to file an Answer to the Complaint on or before May 4, 2015. Signed by Judge Sheri Polster Chappell on 4/27/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DYCK-O'NEAL, INC.,
Plaintiff,
v.

Case No.: 2:15-cv-27-FtM-38DNF

BRANDT ENGLAND,
Defendant.
___________________________________/
ORDER1
This case is before the Court on Defendant Brandt England's Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(3) and Fed. R. Civ. P. 12(b)(6) filed on February 4, 2015.
(Doc. #7). The Court granted Plaintiff Dyck-O'Neal, Inc. an extension of time to file a
response, which it did on April 8, 2015. (Doc. #18; Doc. #19; Doc. #20). The parties
appeared before the undersigned for a preliminary pretrial conference on April 23, 2015,
at which time the parties also argued their positions on Defendant's motion. Accordingly,
this matter is ripe for review.
BACKGROUND
On November 30, 2006, Defendant executed a promissory note to secure a
mortgage on a single-family condominium unit located in Cape Coral, Florida. (Doc. #3

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at ¶ 2). When Defendant failed to pay the monthly installments due on the note, Fifth
Third Mortgage Company brought a mortgage foreclosure action against him in state
court. (Id. at ¶ 3). On January 22, 2009, the state court issued a final judgment of
foreclosure against Defendant for $370,421.70, and ordered the condominium to be sold.
(Id. at ¶¶ 4-5; Doc. #7 at 4). In this judgment, the state court retained "[j]urisdiction over
this action . . . to enter such further Orders to give [Fifth Third Mortgage Company]
adequate and complete relief as may be necessary and proper, including the entry of a
deficiency decree[.]"

(Doc. #1-1 at 25).

The condominium was then sold at the

foreclosure sale for $100.00. (Doc. #3 at ¶ 6).
On or about January 9, 2012, Fifth Third Mortgage Company assigned its interest
in the foreclosure judgment and promissory note to Federal Home Loan Mortgage
Corporation. (Doc. #1-1 at 31). Federal Home Loan Mortgage in turn assigned its interest
in the foreclosure judgment and promissory note to Plaintiff. (Id. at 32; Doc. #3 at ¶ 8).
Armed with the Assignment of Judgment and Note (Doc. #1-1 at 32), Plaintiff
commenced this action in state court under Florida Statute § 702.06 to collect a deficiency
sum of $195,421.70 plus interest, costs, and attorneys' fees. (Doc. #3 at ¶¶ 7, 9). This
deficiency allegedly arises out of the above-described judgment and foreclosure sale.
Defendant thereafter removed the case to this Court, citing diversity jurisdiction
under 28 U.S.C. § 1332 as grounds for removal. (Doc. #1). Two weeks later, Defendant
filed the instant motion to dismiss under Rules 12(b)(6) and 12(b)(3) of the Federal Rules
of Civil Procedure. (Doc. #7).

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STANDARDS OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether
the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555; Byrnes v.
Small, No. 8:14-CV-1726-T-36MAP, 2015 WL 1243219, at *3 (M.D. Fla. Mar. 18, 2015).
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading 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). "[T]he pleading standard Rule 8 announces does not require 'detailed

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factual allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. See id. at 678-79. Mere naked assertions are also inadequate. See id.
B. Federal Rule of Civil Procedure 12(b)(3)
Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on
improper venue. Fed. R. Civ. P. 12(b)(3); see also Brown v. Brown, No. 8:06-cv-1028,
2007 WL 949424, at *2 (M.D. Fla. Mar. 27, 2007) (citation omitted). As with a motion to
dismiss in general, a court must accept the plaintiff's allegations in the complaint as true
and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See
Whitwam v. JetCard Plus, Inc., 34 F. Supp. 3d 1257, 1259 (S.D. Fla. 2014). In evaluating
a Rule 12(b)(3) motion, however, "the court may consider matters outside the pleadings
such as affidavit testimony." Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D.
Fla. 2004). Thus, "[t]o resolve such a motion, the Court accepts all allegations of the
complaint as true, unless contradicted by the defendant's [evidence], and draws all
reasonable inferences and resolves all factual conflicts in favor of the plaintiff." Brown,
2007 WL 949424, at *2 (citation omitted). Finally, in responding to motion under Rule
12(b)(3), the plaintiff has the burden of showing that venue is proper in its chosen forum.
See id.
DISCUSSION
A. Pre-Suit Notice of Assignment
Florida Statute § 559.715 permits a creditor to assign its right to bill and collect a
consumer debt, and the assignee "may bring an action to collect a debt that has been

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assigned to the assignee and is in default." However, "the assignee must give the debtor
written notice of such assignment as soon as practical after the assignment is made, but
at least 30 days before any action to collect the debt." Fla. Stat. § 559.715.
Here, Defendant moves to dismiss under Rule 12(b)(6), arguing that Plaintiff failed
to establish in the Complaint that it complied with the aforementioned notice of § 559.715.
(Doc. #7 at 8-9). Although the Complaint alleges "all conditions precedent to bringing this
action have been complied with or occurred, including, but not limited to, all applicable
contractual and statutory notice provisions," (Doc. #3 at ¶ 10), Defendant maintains this
barebones allegation is insufficient. (Doc. #7). Defendant further notes that Plaintiff
neither attached a copy of the required notice nor alleged a factual basis to determine the
required notice was sent to Defendant. (Id. at 9). Defendant thus argues the Complaint
lacks a plausible basis to conclude that Plaintiff complied with § 559.715. (Id. at 9).
In response, Plaintiff neither refutes Defendant's claim nor attempts to show
compliance with Florida Statute § 559.715.

(Doc. #20 at 9-10).

Instead, Plaintiff

maintains it has no obligation to allege compliance with § 559.715 affirmatively in the
Complaint, and that Defendant cites to no authority showing such an obligation. (Doc.
#20 at 9). Plaintiff further argues that Rule 9(c) of the Federal Rules of Civil Procedures
requires only a general allegation that conditions precedent have been fulfilled. (Doc.
#20 at 9). And because the Complaint contains such an allegation, Plaintiff argues
Defendant's position is meritless and the Court must deny the instant Motion to Dismiss.
(Doc. #20 at 9-10).
The Court begins with Plaintiff's Rule 9(c) argument. Plaintiff correctly maintains
that the rule states "[i]n pleading conditions precedent, it suffices to allege generally that

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all conditions precedent have occurred or been performed." (Doc. #20 at 9); Fed R. Civ.
P. 9(c). Plaintiff also correctly identifies the general allegation in the Complaint that states
"[a]ll conditions precedent to bringing this action have been complied with or occurred,
including, but not limited to, all applicable contractual and statutory notice provisions."
(Doc. #20 at 9; Doc. #3 at ¶ 10). However, Rule 9(c) also states "[b]ut when denying that
a condition precedent has occurred or been performed, a party must do so with
particularity." Fed. R. Civ. P. 9(c); see also Ardaman & Assoc., Inc. v. Travelers Cas. and
Sur. Co. of Am., No.3:08-cv-144, 2009 WL 161203, at *9 (N.D. Fla. Jan. 22, 2009) ("If the
defendant disagrees with the plaintiff's general allegations, it may deny 'with particularity'
in a responsive pleading that the preconditions have been fulfilled." (citation omitted)).
"Should a defendant make that denial, '[t]he plaintiff then bears the burden of proving that
the conditions precedent, which the defendant has specially joined in issues, have been
satisfied.'" Myers v. Central Fla. Investments, Inc., 592 F.3d 1201, 1224 (11th Cir. 2010)
(quoting Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1010 (11th Cir. 1982)).
As stated, the Complaint alleges "[a]ll conditions precedent to bringing this action
have been complied with or occurred, including, but not limited to, all applicable
contractual and statutory notice provisions." (Doc. #3 at ¶ 10). As a matter of pleading,
Plaintiff's general statement is sufficient to discharge his duty under Rule 9 of the Federal
Rules of Civil Procedure. See Ortino v. Sch. Bd. of Collier County, No. 2:14-cv-693, 2015
WL 1579460, at *4 (M.D. Fla. Apr. 9, 2015) (denying defendant's motion to dismiss
because "[s]atisfication of conditions precedent, such as exhaustion of administrative
remedies, need only be alleged generally"); Ardaman & Assoc., 2009 WL 161203, at *9
(rejecting defendant's that plaintiff's general allegation that all conditions precedent had

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been maintained was insufficient under Rule 9(c)). Although Defendant denied at the
preliminary pretrial conference having received notice of the assignment prior to Plaintiff
filing this deficiency action, the Court finds Defendant's argument to be premature at the
motion to dismiss stage. Defendant raises an issue of proof rather than pleading, which
is a matter more appropriate for summary judgment. See Ortino, 2015 WL 1579460, at
*4; Ardaman & Assoc., 2009 WL 161203, at *9.
Accordingly, the Court finds that the Complaint does not fail to state a claim upon
which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) and denies
Defendant's Motion to Dismiss.
B. Venue
Defendant next moves to dismiss under Rule 12(b)(3) based on the Fair Debt
Consumer Practices Act's ("FDCPA") venue requirement, 15 U.S.C. § 1692i(a). At the
preliminary pretrial conference, the parties acknowledged that no binding or persuasive
case law exists directly on point to the facts and circumstances of this case. They also
conceded that discovery is needed to flesh out Defendant's statutory venue challenge.
Accordingly, Defendant's venue argument is premature and the Court will deny
Defendant's motion on this ground. This is a matter more appropriate for summary
judgment.
Accordingly, it is now
ORDERED:
(1) Defendant Brandt England's Motion to Dismiss (Doc. #7) is DENIED.
(2) Defendant Brandt England is DIRECTED to file an Answer to the Complaint on
or before May 4, 2015.

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DONE and ORDERED in Fort Myers, Florida this 27th day of April, 2015.

Copies: All Parties of Record

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