Battles v. Clarfield, Okon, Salomone & Pincus, P.L. et al

Filing 15

ORDER denying 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge Gregory A. Presnell on 10/27/2014. (JU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RITA K. BATTLES,
Plaintiff,
v.

Case No: 6:14-cv-1337-Orl-31KRS

CLARFIELD, OKON, SALOMONE &
PINCUS, P.L. and NATIONAL
COLLEGIATE STUDENT LOAN TRUST
2005-3,
Defendants.

ORDER
This matter is before the Court on Defendant’s Motion to Dismiss (Doc. 10) and Plaintiff’s
Response in Opposition (Doc. 11).
I.

Introduction

This matter arises out of a state lawsuit 1 that Defendants (“Lenders”) 2 filed to collect funds
from Plaintiff (“Borrower”) for allegedly defaulting on student loans. In this case, the Borrower has
alleged that the Lenders violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692 et seq. by filing the state court lawsuit. The Lenders asserts that this lawsuit is prohibited due
to Florida’s litigation privilege.

1

The state lawsuit was filed in Orange County, Florida and styled National Collegiate
Student Loan Trust 2005-3 v. Rita Battles, Case No. 2014-CC-007416-O.
2

Based on the allegations, National Collegiate Student Loan Trust 2005-3 is the lender,
while Clarfield, Okon, Salomone & Pincus, P.L. is its law firm. However, for purposes of addressing
this simple matter, they are referred to cumulatively as “Lenders.”

II.

Standard

In ruling on a motion to dismiss, the Court must view the complaint in the light most
favorable to the Plaintiff, see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.
1994), and must limit its consideration to the pleadings and any exhibits attached thereto. Fed. R.
Civ. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The
Court will liberally construe the complaint’s allegations in the Plaintiff’s favor. Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
III.

Analysis

In support of its motion, Lenders rely on an Order of this Court in Acosta v. James A.
Gustino, P.A., 6:11-CV-1266-ORL, 2014 WL 1764713 (M.D. Fla. May 2, 2014). However, the
Order relied upon by Lenders was later withdrawn and substituted with an Order holding that the
Florida litigation privilege only applies to state law claims. Id. (Doc. 107). 3 Accordingly, it is
ORDERED, that Defendant’s Motion (Doc. 10) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on October 27, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Party

3

At the time of this Order, it does not appear that Westlaw or LexisNexis have recognized
the withdrawal and replacement of the May 2, 2014 Order, and accordingly Lenders’ reliance upon
it is understandable.

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