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

Filing 71

ORDER GRANTING in part and DENIED in part the 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 Amended Complaint 65 , and Defend ants The Gardens of Gulf Cove Property Owner's Association, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson's Motion to Dismiss the Amended Complaint 66 . a. Plaintiff Christine E. Marfut's claims for mail fraud and honest services fraud are DISMISSED with prejudice. b. Plaintiff Christine E. Marfut's claim for violating the Fair Debt Collection Practices Act is DISMISSED without prejudice. c. Plaintiff Christine E. Marfut may file a secon d amended complaint on or before April 30, 2018. Failure to do so WILL result in this case being dismissed with prejudice. d. Plaintiff Christine E. Marfut must effectuate service on the Association Defendants or provide proof of such service under Federal Rule of Civil Procedure 4(l) on or before June 30, 2018. Signed by Judge Sheri Polster Chappell on 4/17/2018. (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, HERMAN DAHL,
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 the Amended
Complaint (Doc. 65), and Defendants The Gardens of Gulf Cove Property Owner’s
Association, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John
Anderson’s (collectively “Association Defendants”) Motion to Dismiss the Amended

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Complaint (Doc. 66).

Pro se Plaintiff Christine E. Marfut has filed Responses in

Opposition. (Docs. 67; 69). Marfut has also filed a “Motion to Compel Defendants to
Answer Plaintiff’s Amended Complaint” (Doc. 70) that the Court construes as an
additional response.2 These matters are ripe for review.
BACKGROUND
This case stems from an alleged scheme to defraud Marfut of her home. (Doc.
64). Marfut was a member of a property owner’s association, The Gardens of Gulf Cove
Property Owner’s Association, Inc. (Doc. 64 at 3). Marfut received mailings from The
Gardens of Gulf Cove and its collection agent, Najmy Thompson P.L., about unpaid
annual assessments and other fines. (Doc. 64 at 3-7). Marfut maintains that she not only
paid her annual assessment but that the other fines were fabricated. (Doc. 64 at ¶¶ 6,
22). These events occurred over several years, finally coming to a head when Najmy
Thompson P.L. mailed a letter to Marfut seeking $30,000 in liens and attorney’s fees and
threatening to foreclose on Marfut’s home if she did not pay. This string of events led to
a state foreclosure action against Marfut. (Doc. 64 at ¶ 34).
In response, Marfut sued. The Court dismissed Marfut’s first complaint as a
shotgun pleading but granted her leave to amend. (Doc. 56). Marfut then filed an
Amended Complaint alleging mail fraud, honest services fraud, and violations of the Fair
Debt Collection Practices Act (“FDCPA”). (Doc. 64). Defendants now move to dismiss
the Amended Complaint.3 (Docs. 65; 66).

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Although Marfut filed her additional response (Doc. 70) outside the fourteen-day period,
the Court will consider it because of her pro se status. In the future, Marfut must comply
with all applicable deadlines.
3 The Association Defendants joined the Najmy Defendants’ Motion to Dismiss. (Doc.
68).

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STANDARD OF REVIEW
To survive a motion to dismiss, a pleading must contain sufficient factual material
to raise a claim for relief above the speculative level. See Bell A. Corp. v. Twombly, 550
U.S. 544, 554 (2007). “[D]etailed factual allegations” are not required, but a plaintiff must
allege more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (internal quotations omitted). Reviewing
courts must accept all factual allegations as true but need not accept legal conclusions
as true. See id. at 678. A court must identify the factual allegations, assume their
veracity, and then determine whether the facts give rise to a plausible claim for relief. See
id. at 679.
Courts must also consider a plaintiff’s pro se status. If a plaintiff is pro se, she is
entitled to leniency, and courts will construe a pro se pleading liberally. See Miller v. Bank
of New York Mellon, 228 F. Supp. 3d 1287, 1290 (M.D. Fla. 2017). But “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). Against that backdrop,
the Court turns to Defendants’ arguments for dismissing the Amended Complaint.
DISCUSSION
Marfut alleges three separate causes of action: (1) mail fraud; (2) honest services
fraud; and (3) violations of the FDCPA. Yet problems still exist with these claims.
A. Mail Fraud and Honest Services Fraud
As stated in the Court’s prior order, there are no private causes of action for mail
fraud under 18 U.S.C. § 1341 or honest services fraud under 18 U.S.C. § 1346 as pled
by Marfut. (Doc. 56 at 6 n.5); see also Marfut v. City of N. Port, Fla., 8:08-CV-2006-T-

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27EAJ, 2009 WL 790111, at *9 (M.D. Fla. Mar. 25, 2009). Thus, Marfut’s mail fraud and
honest services fraud claims are dismissed with prejudice.
B. FDCPA
Marfut’s FDCPA claim contains one paragraph alleging that Defendant Stephen
Thompson claimed a $250 fee for an April 3, 2012 collection letter.4 And in the general
fact section, Marfut alleges that she received a second collection letter on May 24, 2012,
a “Photo Notice” on August 20, 2014, an invoice on August 25, 2014, and a “extortionist
letter” on March 11, 2016.5 (Doc. 64 at ¶¶ 12, 14, 21-22, 30). As best the Court can
discern, she alleges these mailings violated the FDCPA.
Defendants respond that Marfut’s FDCPA claim fails because the alleged
violations fall outside the one-year statute of limitations. (Doc. 65 at 2-3). Generally, “a
statute of limitations argument is ‘an affirmative defense, and . . . plaintiff[s] [are] not
required to negate an affirmative defense in [their] complaint.’” La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (alteration in original) (citation
omitted). But a court may determine whether a claim is barred by the statute of limitations
at the motion to dismiss stage if it is “apparent from the face of the complaint that the
claim is time-barred.” Id. (internal quotations omitted). Under the FDCPA, a plaintiff must
sue “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d);
see Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir. 1995). With mailings, like here, the day

The allegation reads, “Defendant Stephen W. Thompson on behalf of Najmy Thompson
PL, as a collection agent for . . . [The Gardens of Gulf Cove Property Owner’s Association,
Inc.] did, on April 3, 2012, mail Plaintiff a letter which cited the FDCPA. (Plaintiff’s Exhibit
“A”) Stephen W. Thompson did claim a $250 fee within this collection letter, presumably
for the letter/communication itself, which violates ss808 (5) of the act.” (Doc. 64 at ¶ 41).
5 Marfut also alleges that Defendants created a false claim of lien on May 23, 2012. (Doc.
64 at ¶ 7).
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after any letter is mailed “is the date from which the one-year period of limitations began
to run.” Maloy, 64 F.3d at 608. According to the Amended Complaint, the most recent
mailing occurred on March 11, 2016, nineteen months before Marfut filed this case on
October 31, 2017. (Doc. 1). Therefore, these mailings fall outside the statutory period
and cannot act as standalone violations of the FDCPA.
That said, Marfut makes several arguments related to the statutory period. She
first argues that Defendants reset the statute of limitations for the April 3, 2012 and May
24, 2012 collection letters because they were used in the state foreclosure action.6 (Doc.
67 at 3). In a companion argument, Marfut argues that the collection letters represent
“continuing violations” and therefore do not fall outside the statute of limitations. (Doc. 67
at 5). Marfut cites to no legal authority to support these arguments. (Doc. 67 at 3). For
the following reasons, the Court finds Marfut’s arguments unpersuasive.
While there is no Eleventh Circuit precedent on these issues, other courts have
addressed the applicability of the continuing violations theory to FDCPA claims. See e.g.
Arvie v. Dodeka, LLC, CIV.A. H-09-1076, 2010 WL 4312907, at *11 (S.D. Tex. Oct. 25,
2010) (aggregating conflicting cases on the continuing violations theory). And amongst
those cases, the Court finds that the better-reasoned approach, for statute of limitations
purposes, is to analyze discrete violations individually. See Arvie, CIV.A. H-09-1076,
2010 WL 4312907, at *9; see also Gajewski v. Ocwen Loan Servicing, 650 F. App’x. 283,
286 (7th Cir. 2016) (finding that the continuing violations doctrine did not apply to
defendants’ acts in a foreclosure action). Under this approach, “the claims based on acts

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The Court also notes that the Amended Complaint fails to identify any date or dates
associated with the state foreclosure action. (Doc. 64).

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occurring within the statute of limitations are not barred, but claims based on acts outside
the statute are barred.” Arvie, CIV.A. H-09-1076, 2010 WL 4312907, at *9. This construal
also avoids the potential pitfall that a discrete violation would never be time-barred
because a future violation could revive a time-barred violation. Applying this reasoning,
Marfut’s arguments to “reset” the statute of limitations or that the collection letters
represent a continuing violation fail. At bottom, such barred violations can no longer stand
as distinct claims under the FDCPA, although evidence of the barred violations may still
relate to an FDCPA claim within the statute of limitations.
Next, Marfut argues that her FDCPA claim is not barred by the statute of limitations
because she learned of the foreclosure suit less than a year before filing this action. (Doc.
67 at 4-6). As best the Court can discern, she is arguing that the foreclosure action itself
violates the FDCPA because Najmy Thompson P.L. failed to verify her debt under 15
U.S.C. § 1692g(b) before seeking to foreclose on Marfut’s home or because Najmy
Thompson P.L. misrepresented that a debt was due. (Doc. 67 at 4). But even viewing
the Amended Complaint liberally, it is unclear if Marfut pled that the foreclosure suit itself
violates the FDCPA. (Doc. 64). At most, Marfut alleges that the foreclosure action is
“fraudulent.” (Doc. 64 at 4). It is thus difficult to determine if Marfut’s entire claim fell
outside the statute of limitations.
In an abundance of caution and liberally construing Marfut’s Responses to argue
that the state foreclosure suit violated the FDCPA, the Court will grant Marfut one final
chance to amend her pleading. If she elects to do so, Marfut may plead the foreclosure
lawsuit violated the FDCPA. See generally Malowney v. Bush/Ross, 809-CV-1189-T30TGW, 2010 WL 3340493, at *3 (M.D. Fla. Aug. 25, 2010). (holding that to state an

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FDCPA claim, a plaintiff must plead “(1) [s]he is the object of a collection activity arising
from a consumer debt, (2) [d]efendants are debt collectors as defined in the statute, and
(3) [d]efendants have engaged in an act prohibited by the statute.”). The Court also
cautions Marfut that lumping Defendants together or generally stating that the Defendants
are “jointly and severally liable” in her FDCPA claim is insufficient. Marfut must plainly
state her claim against each Defendant in compliance with the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8(a)(2).
One last point on Marfut’s potential FDCPA claim. The Association Defendants
argue that Marfut’s FDCPA claim must be dismissed because she failed to file it as a
compulsory counterclaim in the state foreclosure suit. (Doc. 66 at 9-11). To determine
whether a counterclaim is compulsory under Federal Rule of Civil Procedure 13, courts
use the logical relationship test. See Republic Health Corp. v. Lifemark Hosps. of Fla.,
Inc., 755 F.2d 1453, 1455 (11th Cir. 1985). “Under this test, there is a logical relationship
when the same operative facts serve as the basis of both claims or the aggregate core of
facts upon which the claim rests activates additional legal rights, otherwise dormant, in
the defendant.” Id. (internal quotation marks omitted). This Court has considered this
issue and determined that FDCPA claims are not logically related to foreclosure actions.
See Adams v. Albertelli, 215CV620FTM38MRM, 2016 WL 931103, at *3 (M.D. Fla. Mar.
11, 2016); see also Roban v. Marinosci L. Group, 34 F. Supp. 3d 1252, 1256 (S.D. Fla.
2014). At bottom, Marfut’s FDCPA claim was not a compulsory counterclaim, and she
did not need to file it in the state foreclosure suit.

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C. Service
The Association Defendants also argue that Marfut’s claims must be dismissed
because Marfut failed “to timely effectuate service of process in violation of Federal Rule
of Civil Procedure 4.” (Doc. 66 at ¶ 8). Federal Rule of Civil Procedure 4(m) provides
that “[i]f a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specific time
frame.” Here, the Association Defendants have not waived their objection to service of
process. (Docs. 30; 66). Thus, if Marfut chooses to amend her pleading, the Court orders
her to serve the Association Defendants with her amended pleading or provide proof of
such service under Rule 4(l) on or before June 30, 2018.
D. Conclusion
The Court dismisses Marfut’s claims for mail fraud and honest services fraud with
prejudice. It also dismisses Marfut’s FDCPA claim without prejudice and grants her one
final opportunity to amend to allege a violation in the one-year limitations period. If she
amends, Marfut must also serve the Association Defendants with her amended pleading
or provide proof of such service under Rule 4(l) on or before June 30, 2018.
Accordingly, it is now
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 Amended Complaint (Doc. 65), and Defendants The Gardens of
Gulf Cove Property Owner’s Association, Inc., Lucille Breen, Herman Dahl,

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Jack Arlinghaus, Fred Streif, and John Anderson’s Motion to Dismiss the
Amended Complaint (Doc. 66) are GRANTED in part and DENIED in part.
a. Plaintiff Christine E. Marfut’s claims for mail fraud and honest services
fraud are DISMISSED with prejudice.
b. Plaintiff Christine E. Marfut’s claim for violating the Fair Debt Collection
Practices Act is DISMISSED without prejudice.
c. Plaintiff Christine E. Marfut may file a second amended complaint on or
before April 30, 2018. Failure to do so WILL result in this case being
dismissed with prejudice.
d. Plaintiff Christine E. Marfut must effectuate service on the Association
Defendants or provide proof of such service under Federal Rule of Civil
Procedure 4(l) on or before June 30, 2018.
DONE and ORDERED in Fort Myers, Florida this 17th day of April, 2018.

Copies: All Parties of Record

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