Jacobbi et al v. Aldridge Pite LLP et al
Filing
41
ORDER granting 10 Motion to Dismiss and 16 Motion to Dismiss to the extent that the Court will abstain and this action is STAYED; finding as moot 29 Plaintiffs' Motion for Leave to File Amended Complaint. The Clerk shall terminate any pending deadlines and motions and close the file, to be reopened if any party moves to lift the stay following the conclusion of the state foreclosure action. Signed by Judge Timothy J. Corrigan on 2/23/2017. (ALB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MARK J JACOBBI and DIANA
JACOBBI,
Plaintiffs,
v.
Case No. 3:16-cv-553-J-32JRK
ALDRIDGE PITE LLP, TARA N.
CASTILLO, JACQUELINE
GARDINER, KIMBERLY TALBOTT,
and CITIMORTGAGE INC., Successor
by Merger to ABN AMRO Mortgage
Group Inc.,
Defendants.
ORDER
Mark and Diana Jacobbi, proceeding pro se, allege that Defendants, a mortgage
holder, law firm, and attorneys employed by that firm who brought a state foreclosure
action against the Jacobbis, engaged in conduct that violates the federal Fair Debt
Collection Practices Act, the Florida Consumer Collection Practices Act, and Florida
Deceptive and Unfair Trade Practices Act. Defendants seek dismissal of the Complaint
because it fails to state a claim and the law firm Defendants are entitled to immunity
under Florida’s Litigation Privilege. Defendants also contend that this Court should
abstain from exercising jurisdiction in light of the pending state court action. The
Court finds that abstention is appropriate under the Colorado River abstention
doctrine.
I.
FACTS1
Plaintiffs purchased the property located at 1076 Durbin Parke Drive (“the
Property”) on October 11, 2002, which was secured by a mortgage. Mortgage Source
Inc., the original creditor, recorded the mortgage in the official records of St. Johns
County, Florida. The same day, Mortgage Source, Inc. assigned Plaintiffs’ mortgage to
ABN AMRO Mortgage Group, Inc. Plaintiffs made payments on their loan until
August 2005, when they began having financial difficulty and thereafter only made
sporadic payments. On September 1, 2007, ABN AMRO Mortgage Group, Inc. merged
with CitiMortgage, Inc.
Plaintiffs ceased making payments on the loan altogether in March 2008, and
in about mid-October 2008, CitiMortgage filed a foreclosure complaint against
Plaintiffs in the Seventh Judicial Circuit Court in and for St. Johns County, Florida.
In 2012, CitiMortgage moved to voluntarily dismiss the foreclosure case. In February
2016, CitiMortgage filed a second foreclosure action which is currently set for trial in
state court on March 29, 2017. Plaintiffs filed this federal action in May 2016.
II.
DISCUSSION
A.
Colorado River Abstention
“Abstention from the exercise of federal jurisdiction is the exception, not the
rule,” and is warranted only in “exceptional circumstances.” Colorado River Water
Conservation District v. United States, 424 U.S. 800, 813 (1976) (quotation marks
The Court accepts as true the allegations in the Complaint and views them in
the light most favorable to Plaintiffs for purposes of ruling on Defendants’ motions to
dismiss. Michel v. NYP Holdings, Inc., 816 F.3d 686, 706 (11th Cir. 2016).
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omitted). When analyzing whether abstention under Colorado River is appropriate,
the Court undertakes two inquiries, beginning with whether the state and federal
proceedings are parallel. Ambrosia Coal and Constr. Co. v. Pages Morales, 368 F.3d
1320, 1329-30 (11th Cir. 2004). If the actions are parallel, the Court then considers six
factors in determining whether abstention is appropriate: “(1) whether one of the
courts has assumed jurisdiction over property, (2) the inconvenience of the federal
forum, (3) the potential for piecemeal litigation, (4) the order in which the fora
obtained jurisdiction, (5) whether state or federal law will be applied, and (6) the
adequacy of the state court to protect the parties’ rights.” Id. at 1331; Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983). While “[t]he weight
to be given any one factor may vary greatly depending on the case … the balance is
‘heavily weighted’ in favor of the federal court exercising jurisdiction.” Amer. Bankers
Ins. Co. of Fla. v. First State Ins. Co., 891 F.2d 882, 884 (11th Cir. 1990) (citing Moses
H. Cone, 460 U.S. at 16).
1.
Whether the cases are parallel
Cases are “parallel” for Colorado River abstention purposes “when federal and
state proceedings involve substantially the same parties and substantially the same
issues.” Ambrosia Coal, 368 F.3d at 1330. The state foreclosure case and this federal
case are parallel. Although not identical, the parties are substantially the same.
Plaintiffs and CitiMortgage are parties to both actions. While the law firm Defendants
are not parties to the state foreclosure action, they are representing CitiMortgage in
the state case and Plaintiffs’ claims asserted against the law firm Defendants in this
action are common to those asserted against CitiMortgage in the state case. See
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Hendricks v. Mortgage Electronic Registration Sys., Inc., No. 8:12-cv-2801-T-30TGW,
2013 WL 1279035, *3 (M.D. Fla. Mar. 28, 2013) (finding federal case and state
foreclosure case involved substantially the same parties because the federal plaintiffs
were the defendants in the state case, the federal defendant (the bank) was the state
plaintiff, and the addition of additional defendants in the federal action did not destroy
the
similarity);
Burgos
v.
SunTrust
Bank,
N.A.,
No.
13-21197-CIV-
MARTINEZ/TORRES, 2014 WL 11880360, *2 (S.D. Fla. Nov. 17, 2014) (“[T]he parties
are substantially similar. Plaintiff is the defendant in the state foreclosure action and
Defendants are the plaintiffs. Although Plaintiff added two more defendants in this
[federal] proceeding, that does not destroy the substantial similarities between the
parties.” (citing Hendricks, 2013 WL 1279035, *3)), adopted by 2015 WL 11201189
(S.D. Fla. Jan. 26, 2015). The issues are also substantially similar. Plaintiffs bring this
lawsuit primarily based upon the state foreclosure action allegedly being “time
barred,” which is also the affirmative defense to foreclosure asserted by Plaintiffs in
the state proceeding. Thus, in both cases, Plaintiffs seek to avoid foreclosure by
asserting a statute of limitations argument.
2.
Whether one court has assumed jurisdiction over the
property
The filing of a Notice of Lis Pendens in the state foreclosure case on February
8, 2016 is evidence that the state court has assumed jurisdiction over the Property.
Hendricks, 2013 WL 1279035, *4 (“The first factor weighs in favor of abstention as the
state court has already asserted its jurisdiction as evidenced by the Notice of Lis
Pendens filed in the state court proceeding…. See Black’s Law Dictionary 950 (8th ed.
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2004) (defining ‘lis pendens’ as ‘[t]he jurisdiction, power, or control acquired by a court
over property while a legal action is pending.’).”); Burgos, 2014 WL 11880360, *3
(Notice of Lis Pendens filed in state action evidenced state court’s assumption of
jurisdiction over property at issue).
Other courts to address the propriety of abstention where the parallel
proceeding is a foreclosure action have noted this is the “most important” factor and
similarly concluded it weighs “heavily” in favor of abstention. Sergeon v. Home Loan
Ctr., Inc., No. 3:09-cv-1113-J-32JBT, 2010 WL 5662930, *6 (M.D. Fla. Oct. 26, 2010)
(“In the Court’s view, [that the state court has assumed jurisdiction over the property]
is the most important Colorado River factor in this case, and it weighs heavily in favor
of abstention.”), adopted by 2011 WL 308176 (M.D. Fla. Jan. 27, 2011); Beepot v. J.P.
Morgan Chase Nat. Corporate Servs., Inc., No. 3:10-cv-423-J-34TEM, 2011 WL
4529604, *8 (M.D. Fla. Sept. 30, 2011) (“Most significantly, the Florida court in the
State Court Foreclosure Proceeding has assumed jurisdiction of the Florida property,
satisfying the first, and in this case, the most important factor.”). Indeed, in Colorado
River, the Supreme Court noted that “the court first assuming jurisdiction over
property may exercise that jurisdiction to the exclusion of other courts.” 424 U.S. at
818; Beepot, 2011 WL 4529604, *8.
3.
The inconvenience of the federal forum
When analyzing this factor, courts “should focus primarily on the physical
proximity of the federal forum to the evidence and witnesses[.]” Ambrosia Coal, 368
F.3d at 1332. The Property is located in St. Johns County, Florida, which is also where
the state foreclosure action was filed. However, this Court is also located less than
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forty miles away. Sergeon, 2010 WL 5662930, *6. Accordingly, the state forum may be
slightly more convenient, but given the close proximity, this factor is basically neutral.
Id. (finding this factor “essentially neutral” as between St. Johns County, Florida court
and Jacksonville federal court).
4.
The potential for piecemeal litigation
This factor “does not favor abstention unless the circumstances enveloping
those cases will likely lead to piecemeal litigation that is abnormally excessive or
deleterious.” Ambrosia Coal, 368 F.3d at 1333. Here, if both the federal and state
actions proceed, there is a very real risk of piecemeal litigation and a risk that the two
courts may reach opposite results which could lead to uncertainty as to the proper
owners of the Property. Sergeon, 2010 WL 5662930, *7 (“Because this dispute
primarily involves rights in Florida real estate, it is obviously deleterious, to the point
of being ‘abnormally’ so, to have two separate courts trying to determine property
rights in” the plaintiff’s property); Beepot, 2011 WL 4529604, *9 (explaining that “a
state court adjudication of the State Court Foreclosure Proceeding creates a strong
possibility that the state court’s findings would have a preclusive effect on” the federal
case, and abstention thus would “reduce the cost of litigation, reduce duplicative
proceedings, promote judicial economy, and avoid inconsistent results.”). Accordingly,
this factor weighs heavily in favor of abstention.
5.
The order in which the courts obtained jurisdiction
The state court action was filed on February 5, 2016, three months before this
federal action was filed on May 5, 2016 (Doc. 1). When analyzing whether this factor
weighs in favor of abstention, courts may consider “how much progress has been made”
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in each case. Ambrosia Coal, 368 F.3d at 1333. In this case, although Defendants have
filed motions to dismiss and Plaintiffs seek to amend their complaint to add additional
parties, no discovery has taken place because discovery is currently stayed pending
resolution of the motions to dismiss. (Doc. 30.) In contrast, the state case has proceeded
past discovery and is currently set for a non-jury trial on March 29, 2017. See Order
Setting Trial Before the Court, CitiMortgage, Inc. v. Jacobbi, No. CA16-1351 (Fla. Cir.
Ct.) (entered Feb. 9, 2017). Accordingly, this factor also weighs heavily in favor of
abstention. Burgos, 2014 WL 11880360, *3 (finding this factor weighed in favor of
abstention where “[c]learly, the state court proceeding is closer to final resolution than
this [federal] one.”).
6.
Whether state or federal law will be applied
Plaintiffs’ federal complaint alleges that Defendants violated both federal
(FDCPA) and state laws (FCCPA, FDUTPA). However, “[t]he core dispute is a
mortgage foreclosure on residential real estate, a subject typically adjudged in the
state court and governed by state law[;]” also, “Florida state courts routinely entertain
federal statutory TILA, RESPA and FDCPA claims, and common law claims, as
counterclaims or affirmative defenses in state foreclosure actions.” Beepot, 2011 WL
4529604, *9 (quotation marks omitted). Accordingly, this factor is at least neutral, if
not weighing slightly in favor of abstention. Sergeon, 2010 WL 5662930, *7 (finding
this factor neutral where the dispute involved both federal and state claims).
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7.
Adequacy of the state court to protect the parties’ rights
“This factor will only weigh in favor or against abstention when one of the fora
is inadequate to protect a party’s rights.” Ambrosia Coal, 368 F.3d at 1334. Here,
neither party has suggested the inadequacy of either forum, so this factor is neutral.
8.
The reactive or vexatious nature of either action
Courts are also permitted to consider the “vexatious or reactive nature” of either
litigation. Moses H. Cone, 460 U.S. at 17 n.20; Ambrosia Coal, 368 F.3d at 1331
(quoting Moses H. Cone, 460 U.S. at 17 n.20). Here, Defendants claim that Plaintiffs
filed this suit either as retaliation for or an attempt to thwart the state foreclosure
action. Plaintiffs’ own complaint notes that their federal complaint is based on the
actions taken during or in relation to the state foreclosure. The Court agrees that this
case appears to have been filed in reaction to the state foreclosure proceedings, and
therefore this factor weighs heavily in favor of abstention. Sergeon, 2010 WL 5662930,
*8 (finding this consideration weighed in favor of abstention where “it appear[ed] that
this [federal] action was filed in reaction to the likelihood, imminence, or actual filing
of the mortgage foreclosure action” and thus was clearly “an attempt by Plaintiff to
thwart foreclosure of his home.”); Beepot, 2011 WL 4529604, *10 (“It is evident that,
the Beepots, with this later-filed federal action, are attempting to thwart foreclosure
of their home in the State Court Foreclosure Proceeding…. [S]uch a reactive use of the
federal court is inappropriate, and weights in favor of abstention.”).
B.
Summary
The state foreclosure and this federal proceeding are parallel. In assessing the
Colorado River factors under the Eleventh Circuit’s guidance in Ambrosia Coal, the
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first, third, and fourth factors weigh heavily in favor of abstention, as does the reactive
and vexatious nature of the federal litigation. The other factors are neutral. Upon
considering all the Colorado River factors “flexibly and pragmatically,” Ambrosia Coal,
368 F.3d at 1332, the Court finds that “this is a case presenting exceptional
circumstances in which notions of comity override this Court’s obligation to exercise
jurisdiction[,]” Sergeon, 2010 WL 5662930, *8.
III.
CONCLUSION
Abstention under Colorado River is appropriate and the case will be stayed
pending the final outcome of the foreclosure action. See Moorer v. Demopolis
Waterworks and Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004) (holding that a stay,
rather than dismissal, is the appropriate procedural mechanism when a court abstains
under Colorado River).2
Accordingly, it is hereby
ORDERED:
1.
The Motion to Dismiss Plaintiffs’ Complaint of Defendants, Aldridge Pite,
LLP, Tara Castillo, and Jacqueline Gardiner (Doc. 10) is GRANTED to the extent
that the Court will abstain and this action is stayed.
2.
Defendant CitiMortgage, Inc.’s Motion to Dismiss (Doc. 16) is
GRANTED to the extent that the Court will abstain and this action is stayed.
Because the Court is abstaining, it need not reach the other grounds asserted
in the motions to dismiss. However, it is likely that if this case were to be reopened,
Plaintiffs would need to file an amended complaint.
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3.
Plaintiff’s [sic] Motion for Leave to File Their First Amended Complaint
and Add Parties Matthew A. Ciccio esq. and Jennifer N. Lane esq. (Doc. 29) is MOOT.
4.
The Clerk shall terminate any pending deadlines and motions and close
the file to be reopened if any party moves to lift the stay following the conclusion of
the state foreclosure action.
DONE AND ORDERED in Jacksonville, Florida the 23rd day of February,
2017.
ab
Copies:
Counsel of record
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