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

Filing 56

ORDER denying 33 39 Christine E. Marfut's Motions to Strike Defendants' Motion to Dismiss. 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 25 is GRANTED. Defendants Gardens of Gulf Coast Property Owner's Association, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson's Motion to Dismiss 30 is GRANTED. Defendants Gardens of Gulf Coast Property Owner's Association, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson's Second Motion to Dismiss 38 is DENIED. Plaintiff Christine E. Marfut's Complaint 1 is DISMISSED without prejudice. Plaintiff Christine E. Marfut may file an amended complaint on or before February 23, 2018. Failure to do so will may result in this case being dismissed with prejudice. Signed by Judge Sheri Polster Chappell on 2/7/2018. (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, NAJMY THOMPSON
PL, STEPHEN W. THOMPSON,
JOSEPH NAJMY, LOUIS NAJMY,
RICHARD WELLER, RANDOLF L.
SMITH and MICHAEL J. SMITH,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on 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 (Doc. 25) filed
on November 27, 2017. Pro se Plaintiff Christine E. Marfut (“Marfut”) filed an objection to
the Najmy Defendants’ Motion to Dismiss (Doc. 31) on December 8, 2017. Defendants
Gardens of Gulf Coast POA, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred

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Streif, and John Anderson (collectively “Association Defendants”) filed a Motion to
Dismiss (Doc. 30) on December 5, 2017, and a Second Motion to Dismiss2 (Doc. 38) on
January 4, 2018.
In addition, this Court will consider Marfut’s Motion to Strike (Doc. 33) Najmy
Defendants’ Motion to Dismiss, and her Motion to Strike (Doc. 39) Association
Defendants’ Motion to Dismiss. The Najmy Defendants filed a Response to Marfut’s
Motion to Strike (Doc. 45) on January 11, 2018. The Association Defendants filed a
Response to Marfut’s Motion to Strike (Doc. 48) on January 22, 2018. These matters are
ripe for review.
BACKGROUND
As best the Court can discern, the pertinent facts are as follows. This matter stems
from fraudulent actions associated with an ongoing state foreclosure case. (Doc. 1).
Marfut owns a home in Port Charlotte, Florida, and is a member of a homeowner’s
association, Gardens of Gulf Cove, POA. (Doc. 1 at 2). Defendants John Anderson,
Breen Lucille, Jack Arlinghaus, Herman Dahl, and Fred Streif are officers or directors at
Gardens of Gulf Cove, POA. (Doc. 1 at 2). Defendant Najmy Thompson, PL is the law
firm responsible for collections for Gardens of Gulf Cove, POA, and Stephen W.
Thompson, Joseph Najmy, Louis Najmy, Richard Weller, Randolph L. Smith, and Michael
J. Smith are principal members or associates at that law firm. (Doc. 1 at 2).

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The Court is unsure as to why the Association Defendants filed a Second Motion to
Dismiss. (Doc. 38). Accordingly, the Court will deny the Association Defendants’ Second
Motion to Dismiss because it is procedurally improper, but it will consider the Association
Defendants earlier filed Motion to Dismiss.

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According to Marfut, Defendants engaged in calculated fraudulent actions in an
attempt to obtain title to her home through an ongoing foreclosure case. (Doc. 1) In
particular, Defendants fabricated debt, fined Marfut illegally, and falsified amounts owed
by Marfut. (Doc. 1 at ¶¶ 8, 12, 52). Defendants then created fraudulent liens on Marfut’s
home that serve as the basis for the foreclosure action. (Doc. 1 at ¶¶ 8, 12, 52). In
response, Marfut brought this action and seeks injunctive relief stopping the foreclosure
action and monetary damages. (Doc. 1).
Now, Defendants move to dismiss Marfut’s Complaint under various legal theories.
And Marfut seeks to strike Defendants’ Motions under Rule 12(f). After review, the Court
denies Marfut’s Motions to Strike and dismisses the Complaint.
STANDARD OF REVIEW
A. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), a “court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Rule 12(f) motions are limited to striking pleadings, which include complaints, answers,
and a reply to an answer. See Fed. R. Civ. P. 12(f); see also Fed. R. Civ. P. 7 (limiting
pleadings to complaints, answers, and certain replies). So these type of motions cannot
be used to strike other motions. See Feingold v. Budner, 08-80539-CIV, 2008 WL
4610031, at *3 (S.D. Fla. Oct. 10, 2008). Further, motions to strike are considered
dramatic remedies and are disfavored by courts. See Blake v. Batmasian, 318 F.R.D.
698, 700 (S.D. Fla. 2017); Gilbert v. State Farm Mut. Auto. Ins. Co., 95 F. Supp. 3d 1358,
1361 (M.D. Fla. 2015).

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B. Motion to Dismiss
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)(1). Rule 8 also requires that defendants
have sufficient notice of the claims against them. See Carvel v. Godley, 404 Fed. Appx.
359, 361 (11th Cir. 2010). Shotgun pleadings, which have been consistently condemned
by the Eleventh Circuit, are the antithesis of a short and plain statement under Rule 8.
See Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). These type of pleadings
fall into four categories:
[t]he most common type—by a long shot—is a complaint containing multiple
counts where each count adopts the allegations of all preceding counts,
causing each successive count to carry all that came before and the last
count to be a combination of the entire complaint. The next most common
type, at least as far as our published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of re-alleging all preceding
counts but is guilty of the venial sin of being replete with conclusory, vague,
and immaterial facts not obviously connected to any particular cause of
action. The third type of shotgun pleading is one that commits the sin of not
separating into a different count each cause of action or claim for
relief. Fourth, and finally, there is the relatively rare sin of asserting multiple
claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of the
defendants
the
claim
is
brought
against.
Weiland v. Palm Beach County Sheriff's Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015).
The tether that ties these pleadings together is the failure to give defendant’s notice of
the claims against them. Id. Against that backdrop, the Court turns to the issues at hand.

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DISCUSSION
To start, the Court will address Marfut’s Motions to Strike. (Docs. 33; 39). The
Court denies both Motions for two reasons.3 First, Marfut failed to comply with Local Rule
3.01(g), which requires, in part, that
[b]efore filing any motion in a civil case . . . the moving party shall confer
with counsel for the opposing party in a good faith effort to resolve the issues
raised by the motion, and shall file with the motion a statement (1) certifying
that the moving counsel has conferred with opposing counsel and (2) stating
whether counsel agree on the resolution of the motion.
M.D. Fla. Local Rule 3.01(g). Marfut did not provide the requisite certifications that she
conferred with opposing counsel before filing her Motions to Strike. And even though
Marfut is proceeding pro se, she must still follow the Local Rules, which can be found of
the Court’s website.4 Second, the Court cannot grant the relief Marfut requests because
she improperly seeks to strike Defendants’ Motions to Dismiss under Rule 12(f). As
stated, a Rule 12(f) motion allows a court to strike pleadings, not motions. See Harrington
v. RoundPoint Mortg. Servicing Corp., 215CV322FTM38MRM, 2017 WL 1331072, at *1
(M.D. Fla. Apr. 11, 2017). For these two reasons, Marfut’s Motions to Strike are denied.
Next, the Court turns to Defendants’ Motions to Dismiss. The Court will start with
the most basic argument: whether the Complaint violates Rule 8. (Doc. 30 at 5). The
Court finds that it does. The Complaint fails to notify the Defendants of all the claims

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Marfut also argues that attorney Randolph L. Smith must be disqualified from
representing the Najmy Defendants. Magistrate Judge Mirando considered the issue in
Marfut’s Motion to Disqualify and found that Marfut did not present sufficient grounds to
disqualify Mr. Smith. (Doc. 52). In addition, Magistrate Judge Mirando noted that Mr.
Smith obtained “informed consent in writing from each of his clients.” (Doc. 52 at 3). The
Court finds that reasoning sound and denies Marfut’s arguments for the same reasons.
4
Or Marfut can find the Local Rules through a direct link to
https://www.flmd.uscourts.gov/forms/USDC-MDFL-LocalRules12-2009.pdf.

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against them because it is rife with vague, conclusory allegations and groups separate
legal theories into the same claim. See Weiland, 792 F.3d at 1321–23. And depending
on how the Complaint is read, and the best the court can discern, it contains between
three and six claims.
Indeed, the biggest issue with Marfut’s Complaint is that it is unclear, at times, what
claims she seeks to plead. For instance, it appears that Marfut strives to plead mail fraud,
honest services fraud, and violations of the Fair Debt Collection Practices Act.5 (Doc. 1
at 5-12). Outside of those claims, the Complaint also contains allegations related to the
Racketeer Influenced and Corrupt Organizations Act (“RICO”) (Doc. 1 at 3), a potential
breach of fiduciary duty claim (Doc. 1 at 3, 12), and violations of Marfut’s Fifth, Seventh,
and Fourteenth Amendment rights under 42 U.S.C. § 1983. (Doc. 1 at 13-14). It remains
to be seen if Marfut seeks to plead a RICO claim, a breach of fiduciary duty claim, or a
section 1983 claim, or if the allegations referencing those statutes, amendments, or rules
of law are there for another purpose.
At bottom, Marfut’s Complaint fails to notify Defendants of all the claims against
them, and the Court will dismiss the Complaint without prejudice and grant Marfut a
chance to amend. The Court need not address the Defendants’ other arguments at this
time because compliance with Rule 8 is mandatory. As guidance for future pleadings,
the Court points Marfut to the United States District Court for the Middle District of
Florida’s website, which provides basic information to individuals who proceed without

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At this point, the Court would be remiss if it did not note that there are no independent
civil claims for mail fraud under 18 U.S.C. § 1341 or honest services fraud under 18 U.S.C.
§ 1346. See Ayres v. Gen. Motors Corp., 234 F.3d 514, 519 n.8 (11th Cir. 2000); Marfut
v. City of N. Port, Fla., 8:08-CV-2006-T-27EAJ, 2009 WL 790111, at *9 (M.D. Fla. Mar.
25, 2009).

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lawyers in civil cases.6 Marfut should also review the Federal Rules of Civil Procedure,
notably Rules 7, 8, 9, and 10.
Accordingly, it is now
ORDERED:
(1) Christine E. Marfut’s Motions to Strike Defendants’ Motion to Dismiss (Docs.
33; 39) are DENIED.
(2) 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 (Doc. 25) is GRANTED.
(3) Defendants Gardens of Gulf Coast Property Owner’s Association, Inc., Lucille
Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson’s Motion
to Dismiss (Doc. 30) is GRANTED.
(4) Defendants Gardens of Gulf Coast Property Owner’s Association, Inc., Lucille
Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson’s
Second Motion to Dismiss (Doc. 38) is DENIED.
(5) Plaintiff Christine E. Marfut’s Complaint (Doc. 1) is DISMISSED without
prejudice.
(6) Plaintiff Christine E. Marfut may file an amended complaint on or before
February 23, 2018. Failure to do so will may result in this case being
dismissed with prejudice.

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The Court's website is http://www.flmd.uscourts.gov/pro_se/default.htm.

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DONE and ORDERED in Fort Myers, Florida this 5th day of February, 2018.

Copies: All Parties of Record

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