Myers v. US Bank National Association et al
Filing
28
OPINION AND ORDER granting 16 US Bank's Motion to Dismiss; granting 24 Deluca Law Group's Motion to Dismiss to the extent that plaintiff has failed to state a claim for relief under 42 U.S.C. § 1983, and the Complaint is a shotgun pleading. The motions are otherwise denied. The Complaint is dismissed without prejudice to filing an Amended Complaint within 14 days. Signed by Judge John E. Steele on 1/27/2025. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GREGORY B. MYERS,
Plaintiff,
v.
Case No:
2:24-cv-370-JES-KCD
US
BANK
NATIONAL
ASSOCIATION, as trustee for
Credit Suisse First Boston
CSFB 2004-11 and DELUCA LAW
GROUP,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant U.S. Bank’s
Motion to Dismiss (Doc. #16) filed on October 16, 2024, and
defendant Deluca Law Group’s Motion to Dismiss (Doc. #24) filed on
October 28, 2024.
No response has been filed to either motion and
the time to respond to the motions has expired.
The individual
defendants were previously dismissed without prejudice for lack of
timely service of process. (Doc. #23.)
A Suggestion of Bankruptcy
(Doc. #26) was filed on November 25, 2024, indicating that 700
Trust, By Gregory B. Myers as Trustee, filed a voluntary petition
in the Northern District of Florida.
The 700 Trust is not a party
in this case and the Court finds that the motions to dismiss may
be considered.
I.
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.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
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).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
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,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
liability
fall
2
short
of
being
facially
plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted).
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.”
Iqbal, 556
U.S. at 679.
A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a
complaint and amended complaint liberally.
Jones v. Fla. Parole
Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). However, the court’s
“duty to liberally construe a plaintiff's complaint in the face of
a motion to dismiss is not the equivalent of a duty to re-write
it.” Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006)
(quotation omitted).
II.
The three-count Complaint was filed in federal court based on
a federal question jurisdiction, citing 28 U.S.C. § 1331 (federal
question), 28 U.S.C. § 1343 (actions dealing with civil rights
granted under 42 U.S.C. § 1985), 42 U.S.C. § 1983 (civil rights
under color of state law) and 42 U.S.C. § 1985 (conspiracy to
impede official duties, obstructing justice, intimidation, and to
deprive persons of rights).
Supplemental jurisdiction over state
claims is asserted under 28 U.S.C. § 1367.
3
(Doc. #1 at ¶ 8.)
The
general
allegations
stated
in
the
Complaint
follows:
10. The real property located at 700 Gulf
Shore Boulevard North, Naples, Florida 34102,
is owned by Barbara Ann Kelly and Gregory B.
Myers as tenants by the entireties (the
“Naples Property”).
11. The Naples Property is Plaintiffs exempt
homestead under Article X, Section 4 of the
Florida Constitution.
12. On May 10, 2022, in the case styled US
Bank National Association, as Trustee for
Credit Suisse First Boston CSFB 2005-11 v.
Barbara Ann Kelly, et al., Case No. 11-2009CA-010813, pending in the Circuit Court in and
for Collier County, Florida (the “State Court
Litigation”), Defendant US Bank conceded in
court filings that Plaintiff is not a party
to, nor is he otherwise obligated on, any note
or mortgage in connection with the Naples
Property (i.e., “all while not being a party
to the original loan documents”) (emphasis
original).
13. On or about November 14, 2016, Myers and
U.S. Bank entered into a written agreement
(the “Agreement”).
14. On April 18, 2022, in Case No. 2:21-bk00123 in the United States Bankruptcy Court
for the Middle District of Florida (the “Myers
Bankruptcy Case”), US Bank filed papers
arguing the Agreement is an “agreement to
settle a legal dispute” and is an enforceable
contract in which “each party agrees to
‘extinguish those legal rights it sought to
enforce through litigation in exchange for
those rights secured by the contract’,” citing
Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir.
1989).
15. On July 15, 2022, US Bank stated in open
court in the Myers Bankruptcy Case, “[t]his
was the parties’ agreement...[a]nd both sides,
4
are
as
you know, provided consideration. We agreed
that, you know, we couldn't foreclose.”
(Emphasis supplied).
(Id. at ¶¶ 10-15.)
There are no facts referencing any other
defendant other than U.S. Bank.
claim.
Count III is the only federal
In Count III, plaintiff alleges a legal interest in the
Property.
Plaintiff further alleges that by attempting to reset
a foreclosure sale of the Property in the state court litigation,
“defendants”
deprived
plaintiff
of
his
rights
and
privileges
protected by the United States Constitution and federal law.
Plaintiff
alleges
physical
and
that
the
regulatory
deprivation
taking
of
is
“an
plaintiff’s
uncompensated
property
and
constitutes a violation of plaintiff’s substantive due process
rights.
(Id. at ¶¶ 27-33.)
III.
Defendants both argue that this Court lacks jurisdiction
under Rooker-Feldman and the Complaint otherwise fails to state a
claim.
Defendant Deluca Law also argues that the Complaint is a
shotgun pleading.
As to the Section 1983 claim, both defendants
argue that they are private entities and not state actors.
Plaintiff has the obligation to sufficiently allege both
federal subject matter jurisdiction and a claim upon which relief
may
be
granted.
Before
a
Court
may
consider
whether
the
allegations support a cause of action, the Court must first have
subject matter jurisdiction.
Campbell v. Air Jamaica Ltd., 760
5
F.3d 1165, 1169 (11th Cir. 2014). Based on the limited allegations
and the face of the Complaint, plaintiff alleges subject matter
jurisdiction based on the federal question presented.
Assuming jurisdiction, a review of the Complaint reflects
general citations to federal statutes and the U.S. Constitution
without sufficient facts to show there is a cause of action as to
each defendant in violation of the federal claim in Count III.
Section 1983 provides a private cause of action against any person
who, under color of state law, deprives a person of “any rights,
privileges, or immunities secured by the Constitution and laws” of
the United States. 42 U.S.C. § 1983.
“To state a claim for relief
in an action brought under § 1983, plaintiffs must establish that
they were deprived of a right secured by the Constitution or laws
of
the
United
committed
under
States,
color
and
of
that
the
alleged
state
law.
Like
deprivation
the
was
state-action
requirement of the Fourteenth Amendment, the under-color-of-statelaw element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.”
Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–77
(11th Cir. 2003) (citation omitted).
To deem a private party a
state actor, one of these conditions are required: “(1) the State
has coerced or at least significantly encouraged the action alleged
to violate the Constitution (“State compulsion test”); (2) the
private parties performed a public function that was traditionally
6
the exclusive prerogative of the State (“public function test”);
or (3) “the State had so far insinuated itself into a position of
interdependence with the [private parties] that it was a joint
participant in the enterprise[]” (“nexus/joint action test”).”
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.
2001) (citing NBC, Inc. v. Communications Workers of America, 860
F.2d 1022, 1026–27 (11th Cir.1988).
“Use of the courts by private
parties does not constitute an act under color of state law.”
Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (citations
omitted).
There are simply no facts alleged under which defendants could
be deemed to have operated under color of state law.
Therefore,
the Complaint will be dismissed without prejudice and without the
need to consider whether Counts I and II also state claims.
Plaintiff will be provided an opportunity to amend. If the RookerFeldman issue of jurisdiction is raised after the amended complaint
is filed, the Court will address its application as set forth in
Efron v. Candelario, 110 F.4th 1229 (11th Cir. 2024).
IV.
The Court also notes that the Complaint is a shotgun pleading
and alternatively will be dismissed for this reason.
“A complaint
is a shotgun pleading if it contains pervasive conclusory and
immaterial facts not obviously connected to a specific claim or
asserts multiple claims without specifying who is responsible or
7
which persons the claim is brought against.
986 f.3d 1321, 1324-25 (11th Cir. 2021).
Barmapov v. Amuial,
A shotgun pleading makes
it virtually impossible to know which allegations of fact are
intended to support which claims for relief. Jackson v. Bank of
Am., N.A., 898 F.3d 1348, 1356 (11th Cir. 2018).”
Brown v.
Columbus Police Dep’t, No. 23-11896, 2024 WL 3451862, at *6 (11th
Cir. July 18, 2024).
In this case, plaintiff is “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 Cnty.
Sheriff's Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015). A liberal
reading of the Complaint shows no plain statement as to the role
each defendant played or how such role was under the color of state
law as discussed below.
There are no facts supporting how “[i]n
deliberately
engaging
intended
unlawfully
to
in
actions,
obtain
inactions,
Plaintiffs
and/or
omissions
homestead
property,
Defendants have failed to act with the care an ordinarily prudent
person in a like position would use under the same or similar
circumstances, with actual malice, and/or with reckless disregard
for Plaintiff's Florida homestead.”
Accordingly, it is now
ORDERED:
8
(Doc. #1 at 25.)
1. Defendant U.S. Bank’s Motion to Dismiss (Doc. #16) and
Defendant Deluca Law Group’s Motion to Dismiss (Doc. #24)
are GRANTED to the extent that plaintiff has failed to
state a claim for relief under 42 U.S.C. § 1983, and the
Complaint is a shotgun pleading.
The motions are otherwise
denied.
2. The Complaint is dismissed without prejudice to filing an
Amended Complaint within FOURTEEN (14) DAYS of this Opinion
and Order.
DONE AND ORDERED at Fort Myers, Florida, this
January 2025.
Copies:
Parties of record
9
27th
day of
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