Green v. Desiree E. Bannasch, P.A. et al

Filing 57

ORDER denying 36 Motion to Dismiss for Failure to State a Claim. Signed by Judge Roy B. Dalton, Jr. on 6/1/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JULIE GREEN,
Plaintiff,
v.

Case No. 6:14-cv-1676-Orl-37KRS

DESIREE E. BANNASCH, P.A.;
DESIREE E. BANNASCH; and R. LEE
DOROUGH,
Defendants.

ORDER
This cause is before the Court on the following:
1.

Defendants’ [sic] Desiree E. Bannasch, P.A., Desiree E. Bannasch, and
R. Lee Dorough’s Joint Motion to Dismiss and Motion to Strike with
Memorandum of Law (Doc. 36), filed March 10, 2015; and

2.

Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss
(Doc. 37), filed March 16, 2015.

Upon consideration, the Court finds that the Motion is due to be denied.
BACKGROUND 1
Plaintiff brings this declaratory judgment action seeking to determine the extent of
her obligation for fees to her prior lawyers, Defendant attorneys Desiree E. Bannasch and

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The facts in this section are taken as true and construed in favor of Plaintiff solely
for the purpose of this motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
They are not the Court’s findings of fact.

R. Lee Dorough and the Defendant firm Desiree E. Bannasch, P.A. (the “Firm”). (Doc. 33.)
Defendants were Plaintiff’s counsel in prior litigation against Racetrac Petroleum, Inc.
(“Racetrac”) for personal injuries Plaintiff sustained in November of 2000 (the “Underlying
Action”). (Id.) In 2006, Plaintiff entered into a contingency fee agreement (the
“Agreement”) with Bannasch and the Firm to assume her representation in the Underlying
Action on retirement of her prior lawyer. (Id. ¶¶ 11–13; Doc. 33-1.) The Agreement
contained a discharge penalty provision, which provided that, upon discharge of
Bannasch and the Firm, Plaintiff would be “responsible for the greater of the total value
of attorney’s services, or the contingent fee percentage in effect at the time of the
discharge for the largest settlement offer prior to the discharge.” (Doc. 33, ¶ 14; Doc. 331, pp. 1–2.)
After taking on the case, Bannasch introduced Plaintiff to attorney Dorough and
told her that Dorough “would sit in the trial to assist Bannasch by passing her notes.”
(Doc. 33, ¶ 15–16.) “Plaintiff never signed[] a written representation agreement with
Dorough or Dorough’s law firm, or an agreement authorizing a division of fees between
lawyers in different firms.” (Id. ¶ 18.) Nevertheless, when the Underlying Action went to
trial in April of 2012, Dorough acted as lead counsel. (Id. ¶¶ 19–20.)
On April 25, 2012, the Underlying Action resulted in a jury verdict “that allocated
100% of the fault to [Racetrac] and awarded Plaintiff $2,100,000.00 in damages.” (Id.
¶ 21; Doc. 33-2.) Over one year later, on May 1, 2013, Defendants secured final judgment
in the Underlying Action, which “awarded the principal amount of $1,951,000.00 2 and
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While the record before the Court contains no explanation for the difference
between the final judgment amount and the verdict, the Court assumes that the likely
explanation is a reduction for collateral medical benefits.

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reserved the state trial court’s jurisdiction solely for ruling on taxable costs.” (Doc. 33,
¶¶ 22, 26; Doc. 33-3.) No motion for costs was filed. (Doc. 33, ¶ 27.)
Racetrac timely appealed the final judgment, Defendants filed a cross-appeal, and
the Florida Fifth District Court of Appeal referred the appeal to appellate mediation. (Id.
¶¶ 28–29.) During pendency of post-trial proceedings, Plaintiff became “frustrated” with
her counsel over a lack of responsiveness and ultimately terminated her relationship with
Bannasch and the Firm. (Id. ¶¶ 33; see also id. ¶¶ 23–32.)
In August of 2013, Bannasch and Dorough filed motions to withdraw, “but [they]
never secured orders from the state trial court confirming their withdrawal.” (Id. ¶ 34.) On
September 9, 2013, Bannasch and Dorough, but not the Firm, filed a Notice of Charging
Lien (“Charging Lien”) in state court under the case number for the Underlying Action. (Id.
¶ 35; Doc. 33-4.)
On September 19, 2013, Plaintiff, represented by new counsel, participated in
appellate mediation, which resulted in a settlement agreement with Racetrac for
$1,350,000. (Doc. 33, ¶ 36; Doc. 33-5, p. 2.) Effort was made through the mediator to
resolve the Charging Lien as part of the appellate mediation, but Bannasch and Dorough
“both refused meaningful dialogue regarding their fee claim and made no counter-offer or
demand.” (Doc. 33, ¶¶ 37–39.) Plaintiff contends she has “communicated her willingness
to mediate” the Charging Lien claim and that Bannasch and Dorough “did not agree to
participate in mediation before the filing of this action and have thus far not produced
documentation supporting their fees and costs claims.” (Id. ¶¶ 41–42.)
Thereafter, Bannasch and Dorough filed a motion to enforce the Charging Lien
with no specific amount of attorney’s fees claimed. (Id. ¶ 43; Doc. 33-5.) The state court

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declined to consider the Charging Lien, having lost jurisdiction to consider the matter due
to the appeal from the final judgment which did not reserve jurisdiction for determination
of fees. (Doc. 33, ¶ 45; Doc. 33-6.) Bannasch and Dorough did not appeal the state court’s
dismissal order, nor have they “taken any action to have the amount of their charging lien
claim settled or adjudicated since rendition of the amended dismissal order.” (Doc. 33,
¶ 46.) On August 25, 2014, Plaintiff made another attempt by letter to settle the Charging
Lien claim via tender check in the amount of $505,000.00, and Defendants negotiated the
tender check “on or about December 18, 2014.” (Id. ¶¶ 48–54; Docs. 33-7–33-10.)
Bannasch has advised Plaintiff’s current counsel that she and Dorough will accept
“no less than fees based on the verdict amount, plus costs” in excess of $145,000.00.
(Doc. 33, ¶¶ 61–62.) Plaintiff contends that this state of affairs leaves her in “doubt about
her rights and [] the amount of attorney’s fees and costs she owes under the limited
quantum meruit rule,” and she seeks a declaratory judgment pursuant to
28 U.S.C. § 2201. (Id. ¶¶ 58–69.) Defendants move to dismiss the action (Doc. 36),
Plaintiff opposes (Doc. 37), and the matter is now ripe for the Court’s adjudication.
DISCUSSION
Defendants move to: (1) dismiss the action pursuant to 12(b)(6) for Plaintiff’s failure
to state a cause of action; (2) dismiss the action or require joinder of Racetrac under
12(b)(7); and (3) strike certain allegations of the Amended Complaint. (Doc. 36.) The
Court will address each request in turn.
I.

Motion to Dismiss Pursuant to Rule 12(b)(6)
In moving to dismiss the action under 12(b)(6), Defendants argue that “plaintiff has

failed to plead adequate facts to state a cause of action that would entitle her to relief”

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and that she has “attempted to state several causes of action in one count.” 3 (Doc. 36,
pp. 2–3, 4–9.) Indeed, the Amended Complaint is verbose, contains extraneous
allegations, and is not a model of clarity. Nevertheless, it states a claim for declaratory
relief. (See Doc. 33.) To the extent that Plaintiff seeks damages or other relief, the Court
notes that such relief is not available. 4
If a complaint does not comply with minimum pleading requirements or otherwise
fails to “state a claim to relief that is plausible on its face,” the defendant may seek
dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6). See Ashcroft
v. Iqbal, 556 U.S. 662, 672, 678–79 (2009). When resolving a Rule 12(b)(6) motion, courts
must limit their consideration to the complaint, its attachments, “documents incorporated
into the complaint by reference, and matters of which a court may take judicial notice.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007); e.g., GSW, Inc.
v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993). Courts also must accept all well-

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Throughout their motion, Defendants criticize the quality of Plaintiff’s pleading,
arguing that it “reads more like an angry rant than a Complaint intended to give legal
notice to Defendants of actionable wrongs.” (Doc. 36, p. 5.) This is true. While in the
process of throwing stones, Defendants should assess the quality of their own filing,
which: (1) fails to include the relevant legal standards for their grounds for dismissal (id.
pp. 4, 9, 11, 13); (2) argues that Plaintiff failed to allege elements of claims that she did
not plead (id. pp. 4–9); and (3) requests to dismiss as moot a claim that Plaintiff did not
even assert (id. pp. 9–11).
4 This seems to be a primary concern of the Defendants. (See Doc. 36, pp. 4–9
(arguing that Plaintiff is attempting to “plead several causes of action in one count,”
including legal malpractice, forfeiture, and intentional infliction of emotional distress, but
that she fails to allege the elements for any of those causes of action).) However, Plaintiff
acknowledges that she is not suing or seeking relief for malpractice, forfeiture, or
emotional distress. (Doc. 37, p. 2.) To that extent, the Court rejects Defendants’ motion
to dismiss “the portions of the Complaint attempting to claim malpractice as moot” (see
Doc. 36, pp. 9–11) with the observation that the practice of “emotive” pleading rarely
illuminates the legal controversy and all too commonly draws a response in kind, which
then leaves it to the Court to attempt to discern the actual claim and defenses.

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pled factual allegations—but not legal conclusions—in the complaint as true. Tellabs,
551 U.S. at 322. Disregarding allegations that “are not entitled to the assumption of truth,”
the court must determine whether the complaint includes “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” See Iqbal, 556 U.S. at 663, 679 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)).
The Declaratory Judgment Act (the “Act”) states that, “[i]n a case of actual
controversy,” federal courts “may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a).
The declaratory judgment remedy is an all-purpose remedy
designed to permit an adjudication whenever the court has
jurisdiction, there is an actual case or controversy and an
adjudication would serve a useful purpose. The act is
remedial and is to be liberally construed to achieve its
wholesome and salutary purpose.
Allstate Ins. Co v. Emp’rs Liab. Assurance Corp., 44 F.2d 1278, 1280 (5th Cir. 1971).
“The existence of another adequate remedy does not preclude a declaratory judgment
that is otherwise appropriate.” Id.; see also Fed. R. Civ. P. 57 (stating that the Federal
Rules of Civil Procedure govern declaratory judgment actions). “[T]he threshold question
is whether a justiciable controversy exists,” Atlanta Gas Light Co. v. Aetna Cas. & Sur.
Co., 68 F.3d 409, 414 (11th Cir. 1995), which is determined on a case-by-case basis,
U.S. Fire Ins. Co. v. Caulkins Indiantown Citrus Co., 68 F.3d 409, 414 (11th Cir. 1995).
“For a controversy to exist, ‘the facts alleged, under all the circumstances, [must] show
that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’”

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Atlanta Gas. Light Co., 68 F.3d at 414 (quoting Md. Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 273 (1941)). 5
Taking the relevant allegations asserted in the Amended Complaint as true, the
Court finds that Plaintiff has sufficiently alleged a claim upon which this Court could grant
declaratory relief. The Amended Complaint alleges (albeit abstrusely) the existence of an
actual controversy over the amounts owed Defendants for their work in the Underlying
Action. (See Doc. 33 ¶¶ 55, 58, 59, 60, 69; see also ¶¶ 13, 18, 20, 33–35, 37–48); see also
Feldkamp v. Long Bay Partners, LLC, No. 2:09-cv-253-FTM-29SPC, 2010 WL 3610452,
*5 (M.D. Fla. Sept. 14, 2010) (finding that a “real and immediate actual, continuing
controversy” existed when the “parties [did] not agree as to the appropriate interpretation
and application of the contract”). From the Amended Complaint, the Court distills the
following: (1) Defendants will “accept no less than fees based on the verdict amount, plus
costs” (id. ¶¶ 61–62); and (2) Plaintiff contends she does not owe this amount (id. ¶¶ 63–
66). Plaintiff is unsure (a) how much she owes Defendants under the quantum meruit rule
(id. ¶¶ 55, 57, 69), (b) whether she even owes Defendant Dorough anything (id. ¶ 66),
and (c) whether the Charging Lien is valid and enforceable (id. ¶ 59). Thus, the Court
finds that the parties “have adverse legal interests, that a definite and concrete dispute

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The Act “confers discretion on the courts rather than an absolute right upon the
litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995). “[W]here another suit is
pending in a state court presenting the same issues, not governed by federal law,
between the same parties,” “it would be uneconomical as well as vexatious for a federal
court to proceed in a declaratory judgment suit.” Brillhart v. Excess Ins. Co. of Am.,
316 U.S. 491, 495 (1942). However, to “dismiss a declaratory judgment action in favor of
a state court proceeding that does not exist” would constitute an abuse of discretion.
Fed. Reserve Bank of Atlanta v. Thomas, 220 F.3d 1236, 1247 (11th Cir. 2000). Because
there currently is no pending state law action, the Court will exercise its discretionary
jurisdiction over the action.

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exists between them, and that an opinion on the merits would not be merely advisory in
character,” Argonide Corp. v. In-Tec Water Prods., LLC, No. 6:09-cv-852-Orl-28DAB,
2009 WL 4667398, *3 (M.D. Fla. Dec. 3, 2009), but would “provide complete relief as to
[their] particular controversy,” Gianassi v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv1078-Orl-31TBS, 2014 WL 4999443, *4 (M.D. Fla. Oct. 7, 2014).
II.

Motion to Dismiss Pursuant to Rule 12(b)(7)
Next, Defendants move to dismiss the Amended Complaint on the ground that

Plaintiff failed to join a required party—Racetrac—or, alternatively, to require joinder of
Racetrac. (Doc. 36, pp. 11–12.) In support, Defendants assert that Racetrac is a required
party because the Charging Lien is assumed to be valid and runs against both Plaintiff
and Racetrac, and that Racetrac has an interest in the action because it “assumes the
risk that the Plaintiff may or may not have reserved sufficient funds to pay the Defendants’
claim for fees and costs.” (Id. at 12.) Plaintiffs respond that Racetrac is not an
indispensable party because, as a Georgia corporation, it would not defeat diversity
jurisdiction. (Doc. 37, p. 9.) Additionally, it argues that Racetrac is not a required party
that must be joined because the “action concerns only the bilateral professional
relationship between Plaintiff and Defendants” and the amount that Plaintiff owes to
Defendants is a separate issue not dependent on the Charging Lien. (Id. at 8; see id. at
8–11.)
A defending party may move to dismiss an action for “failure to join a party under
Rule 19.” Fed. R. Civ. P. 12(b)(7). Under Rule 19, an action must be dismissed for failure
to join an indispensable party. Fed. R. Civ. P. 19(b); see also Focus on the Family v.
Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1279 (11th Cir. 2003).

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Rule 19 states a two-part test for determining whether a party
is indispensable. First, the court must ascertain under the
standards of Rule 19(a) whether the person in question is one
who should be joined if feasible. If the person should be joined
but cannot be (because, for example, joinder would divest the
court of jurisdiction) then the court must inquire whether,
applying the factors enumerated in Rule 19(b), the litigation
may continue.
Focus on the Family, 344 F.3d at 1279–80 (quoting Challenge Homes, Inc. v. Greater
Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982)).
If a party meets one of the Rule 19(a)6 standards and joinder is feasible, then that
party is deemed “required” or “necessary,” but not “indispensable.” Focus on the Family,
344 F.3d at 1280. In that case, the standard for dismissal under Rule 19(b) is not met and
the appropriate action is for the Court to join that party. Id. If, however, the “required” party
cannot be joined because, for example, its joinder would defeat diversity, then the Court

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Rule 19(a) reads, in pertinent part:
(1)

Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as party if:
(A)

in that person’s absence, the court cannot accord
complete relief among existing parties; or

(B)

that person claims an interest relating to the subject
of the action and is so situated that disposing of the
action in the person’s absence may:
(i)

as a practical matter impair or impede the
person’s ability to protect the interest; or

(ii)

leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations because of the
interest.

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must determine whether the action should proceed among the parties before it or whether
it should be dismissed, the absent party being indispensable. Id.; Mid-Continent Cas. Co.
v. Basdeo, No. 08-61473, 2009 WL 2450386, *2 (S.D. Fla. Aug. 7, 2009) (“[D]ismissal for
failure to join an indispensable party is only appropriate where the nonparty cannot be
made a party.”).
Racetrac’s absence is no impediment to an award of complete relief to the existing
parties to this action. Nor is Racetrac’s interest sufficient to make it a required party. First,
Racetrac has not claimed an interest in this action. See Fed. R. Civ. P. 19(a)(1)(B) (stating
that the party must be joined if it “claims an interest relating to the subject of the action”).
Second, Racetrac’s ability to protect its interest is not “impaired” or “impeded” by
resolution of this suit in its absence. The result of this action has nothing to do with how
payment would be made to Defendants. Thus, disposition of this action would not result
in any practical prejudice to Racetrac. See Notes of Advisory Committee on Rules to 1966
Amendment, Fed. R. Civ. P. 19. Third, the Court cannot foresee a situation whereby
disposition of this action would subject any of the existing parties to a risk of double,
multiple or inconsistent obligations. Fed. R. Civ. P. 19(B)(ii). The Court perceives no
reason to impose the hardship of litigation on a party who presumably has evaluated the
likelihood of being compelled to respond to a Charging Lien should a subsequent
enforcement action be necessary following a declaration of the parties legal obligations.
Thus, Racetrac is neither an indispensable nor a required party under Rule 19.
I.

Motion to Strike Pursuant to Rule 12(f)
As a final matter, the Court finds that Defendants’ motion to strike “certain

allegations made in the Amended Complaint as being immaterial and impertinent”

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(Doc. 36, pp. 13–14) is due to be denied. “The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f) (emphasis added). Courts, however, do not favor motions to strike.
Coca-Cola Foods v. Empresa Comercial Internacional De Frutas S.A., 941 F. Supp. 1182,
1184 (M.D. Fla. 1996). The extraneous allegations in the Amended Complaint (Doc. 33)
are so numerous that the Court could scarcely know where to begin. The Court declines
the invitation.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ [sic]
Desiree E. Bannasch, P.A., Desiree E. Bannasch, and R. Lee Dorough’s Joint Motion to
Dismiss and Motion to Strike with Memorandum of Law (Doc. 36) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 1, 2015.

Copies:
Counsel of Record

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