Marfut v. The Gardens of Gulf Cove POA, Inc et al

Filing 101

ORDER granting 76 Defendants Najmy Thompson, P.L., Stephen W. Thompson, Joseph Najmy, Louis Najmy, Richard Weller, Randolph L. Smith, and Michael J. Smith's Motion to Dismiss the Second Amended Complaint. Plaintiff Christine E. Marfut's Second Amended Complaint is DISMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment accordingly, terminate all pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 8/22/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTINE E. MARFUT,
Plaintiff,
v.

Case No: 2:17-cv-595-FtM-38CM

THE GARDENS OF GULF COVE
POA, INC, JOHN ANDERSON,
BREEN LUCILLE, JACK
ARLINGHAUS, DAHL HERMAN,
FRED STREIF, NAMY THOMPSON
PL, STEPHEN W. THOMPSON,
JOSEPH NAJMY, LOUIS NAJMY,
RICHARD WELLER, RANDOLF L.
SMITH, MICHAEL J. SMITH, MARY
VANDERBUILT, HELEN M.
RAIMBEAU, REED ELL, RAY
FORSHEE, SANDY WEAVER, JIM
NEWKIRK and TOM SULLIVAN,
Defendants.
/
OPINION AND ORDER1
Before this Court is Defendants Najmy Thompson, P.L., Stephen W. Thompson,
Joseph Najmy, Louis Najmy, Richard Weller, Randolph L. Smith, and Michael J. Smith’s
(collectively “Najmy Defendants”) Motion to Dismiss the Second Amended Complaint

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(Doc. 76) and Marfut’s Response in Opposition (Doc. 99).2 Defendants The Gardens of
Gulf Cove Property Owner’s Association, Inc., John Anderson, Jack Arlinghaus, Herman
Dahl, Lucille Breen, and Fred Streif (collectively “Association Defendants”) joined the
Najmy Defendants’ Motion to Dismiss.3 (Doc. 77). This matter is ripe for review.
BACKGROUND
This case stems from an alleged scheme to defraud Marfut of her home. (See
Doc. 75). Marfut’s home is located within The Gardens of Gulf Cove Community and its
Property Owner’s Association. (Doc. 75 at ¶ 13). Marfut claims she paid her annual
assessment, but The Gardens of Gulf Cove Association and its collection agent, the law
firm of Najmy Thompson P.L., sent Marfut collection letters for overdue assessments and
other fines. (Doc. 75 at ¶ 20). Marfut alleges the Association changed the annual
assessment due date without notice, which began this series of events. (Doc. 75 at ¶
15).

Since then, Marfut claims both the Najmy Defendants and the Association

Defendants fraudulently billed her for sham homeowner’s violations and fabricated fines.
(See e.g., Doc. 75 at 20, 31 – 33). Marfut then received a letter threatening foreclosure
unless she paid Najmy’s Law Firm on behalf of The Gardens of Gulf Cove. (Doc. 75 at ¶
31).
In response, Marfut sued. The Court dismissed Marfut’s original complaint without
prejudice as a shotgun pleading and directed her to review the Federal Rules of Civil
Procedure. (Doc. 56). Marfut then filed an amended complaint alleging mail fraud, honest

Marfut’s Response was untimely, but the Court reviewed and considered her arguments
because of her pro se status.
3 The Association Defendants subsequently filed their own Motion to Dismiss Plaintiff’s
Second Amended Complaint outside the relevant time period. (Doc. 98). Regardless,
the Court need not consider this Motion to arrive at its decision.
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services fraud, and violations of the Fair Debt Collection Practices Act (“FDCPA”). (Doc.
64). The Court dismissed Marfut’s claims of mail fraud and honest services fraud with
prejudice but granted her the opportunity to allege an FDCPA claim within the statute of
limitations. (Doc. 71 at 4). In that order, the Court also directed Marfut to “plainly state
her claim against each Defendant in compliance with the Federal Rules of Civil
Procedure” and granted her one final opportunity to amend her pleading. (Doc. 71 at 67). Marfut then filed her Second Amended Complaint, and as best the Court can tell, she
now alleges a violation of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). (Doc. 75 at 1). Defendants move to dismiss the Second Amended Complaint.
(Docs. 76, 77).
LEGAL STANDARD
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.” A complaint
must include plausible factual allegations sufficient to raise a right to relief above the
speculative level. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). This
requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Further, a plaintiff must
avoid shotgun pleadings, which are those type of pleadings that “fail to one degree or
another, and in one way or another, to give the defendants adequate notice of the claims
against them and the grounds upon which each claim rests.” See Weiland v. Palm Beach
County Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015) (defining the four rough types
of shotgun pleadings).

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A heightened pleading standard is applicable if a plaintiff alleges fraud. The
plaintiff must “state with particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b).

These circumstances include “(1) the precise statements,

documents, or misrepresentations made; (2) the time, place, and person responsible for
the statements; (3) the content and manner in which these statements misled the
[p]laintiff[]; and (4) what the defendants gained by the alleged fraud.” Fortson v. Best
Rate Funding, Corp., 602 F. App’x 479, 483 (11th Cir. 2015); see also Am. Dental Ass’n
v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). A complaint against multiple
defendants must allege facts about each defendant’s participation in the fraud. Am.
Dental Ass’n, 605 F.3d at 1291.
In reviewing a motion to dismiss, courts must accept all factual allegations as true
and construe them in the light most favorable to the plaintiff. Ashcroft, 556 U.S. at 678.
Courts must also consider a plaintiff’s pro se status and construe a pro se pleading
liberally. Miller v. Bank of New York Mellon, 228 F.Supp. 3d 1287, 1290 (M.D. Fla. 2017).
However, “pro se complaints . . . must [still] comply with the procedural rules that govern
pleadings.” Beckwith v. Bellsouth Telecomm. Inc., 146 F.App’x. 368, 371 (11th Cir. 2005).
DISCUSSION
Defendants argue that the Second Amended Complaint must be dismissed
because it violates this Court’s previous orders and Rule 8. (Doc. 76). Defendants also
argue that the Second Amended Complaint fails to allege predicate acts with the required
specificity to state a RICO claim. (Doc. 76). Marfut contends that she pled a RICO
violation. (Doc. 99). After review, the Court finds the Second Amended Complaint fails
to comply with the federal rules of civil procedure.

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The Second Amended Complaint is rife with conclusory, vague, and confusing
allegations. It also lumps Defendants together despite the Court’s cautionary instruction
against doing so. (Doc. 71 at 6). The Second Amended Complaint adds seven new
Defendants but does not specify how these Defendants’ actions factor into the alleged
RICO violation.

(Doc. 75).

This pleading deficiency is not limited to just the new

Defendants. Indeed, the specific allegations against almost all Defendants are limited to
their names and positions. (Doc. 75 at ¶¶ 11-12). These Defendants are then never
again mentioned individually, and their involvement is impossible to determine. (Doc. 75).
And identifying the specific actions of the Defendants is even more important in a RICO
claim because the heightened pleading standard of Rule 9(b) applies. See Brooks v.
Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1380 (11th Cir. 1997). But here,
neither the Court nor the Defendants can discern which parties are responsible for what
acts.

Even reading the Second Amended Complaint with the utmost leniency, the

jumbled conclusory allegations do not give rise to a plausible right for relief. In short, the
Second Amended Complaint does not comply with Rule 8 or the heightened pleading
standard of Rule 9(b).
Thus, the Second Amended Complaint is due to be dismissed. And because this
is the third time the Court has dismissed a pleading, it will do so with prejudice. See
Nurse v. Sheraton Atlanta Hotel, 618 F. App’x. 987 (11th Cir. 2015) (affirming district
court’s dismissal of pro se plaintiff’s amended complaint with prejudice as a shotgun
pleading that failed to comply with court rules, ignored advice in a court order, and was
just as confusing as the initial complaint).
Accordingly, it is now

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ORDERED:
(1) Defendants Najmy Thompson, P.L., Stephen W. Thompson, Joseph Najmy,
Louis Najmy, Richard Weller, Randolph L. Smith, and Michael J. Smith’s Motion
to Dismiss the Second Amended Complaint (Doc. 76) is GRANTED. Plaintiff
Christine E. Marfut’s Second Amended Complaint is DISMISSED with
prejudice.
(2) The Clerk of Court is DIRECTED to enter judgment accordingly, terminate all
pending motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 21st day of August 2018.

Copies: All Parties of Record

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