Stearns Bank National Association v. Shiraz Investments, LLC et al
Filing
40
ORDER granting 18 Motion to Dismiss Counterclaim. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/31/2012. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEARNS BANK, N.A.,
Plaintiff,
Case No.: 8:12-cv-313-T-33TGW
v.
SHIRAZ INVESTMENTS, LLC, ET AL.,
Defendants.
__________________________________/
SHIRAZ ORIENTAL RUG GALLERY, INC.,
ET AL.,
Counterclaimants,
v.
STEARNS BANK, N.A.,
Counterclaim Defendant.
____________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Stearns Bank, N.A.’s Motion to Dismiss Counterclaim (Doc. #
18), filed on April 19, 2012.
Alaedin
&
Majdi
Investments,
Shiraz Investments, LLC,
Inc.,
Shiraz
Oriental
Rug
Gallery, Inc., Alaedin Falasiri, and Majdi Falasiri (the
“Shiraz Defendants”) filed a Response in Opposition to the
Motion to Dismiss Counterclaim (Doc. # 20) on May 2, 2012.
For the reasons that follow, the Court grants the Motion to
Dismiss.
I.
Background
Between
March
2003
and
September
2005,
the
Shiraz
Defendants entered into four separate loan agreements with
First State Bank.
(Doc. # 1).1
Plaintiff, Stearns Bank N.A.,
as successor to First State Bank by asset acquisition from the
Federal Deposit Insurance Corporation, filed a Complaint for
Commercial
Foreclosure
against
the
Shiraz
Defendants
on
February 14, 2012. Id.
On or about February 20, 2012, Stearns Bank, N.A.,
1
(1) Loan number 1010890463; principal amount equals
$650,000; loan date March 7, 2003; borrower Alaedin & Majdi
Investments, Inc.; lender First State Bank; collateral
commercial properties located at or between 2819 - 2825 S.
Macdill Ave. Tampa, Fla. 33629;
(2) Loan number 101890464; principal amount equals $375,000;
loan date March 14, 2003; borrower Alaedin & Majdi
Investments, Inc.; lender First State Bank; collateral
interests include: mortgage on and assignment of rents for
various commercial properties located at 3109 Bay to Bay Blvd.
Tampa, Fla. 33629;
(3) Loan Number 1017628463; principal amount equals $732,000;
loan date August 30, 2005; borrower Shiraz Investment, LLC;
lender First State Bank; collateral interests include: a
mortgage on and assignment of all rents on a commercial
property located at 2905 West Kennedy Blvd, Tampa, Fla. 33609
as well as all commercial fixtures located therein;
(4) Loan Number 1017624163; principal amount equals
$1,040,000; loan date September 23, 2005; borrower Shiraz
Investment, LLC; lender First State Bank; collateral interests
include: a mortgage on and assignment of all rents on a
commercial property located at the southwest corner of U.S. 41
and South Lake Shore Drive, Sarasota, Fla. 34231.
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mistakenly served the Complaint not upon one of the Shiraz
Defendants but, instead, upon L'Bella Style Lounge, a tenant
of Shiraz Oriental Rug Gallery, Inc., which leases property at
3105 W. Bay to Bay Boulevard, Tampa, Florida.
17, ¶ 1).
(Doc. # 12 at
As stated by the Shiraz Defendants, "it is clear
that Stearns does not have a mortgage as to Shiraz's property
at 3105 W. Bay to Bay Boulevard
. . . and Stearns now readily
admits this." (Doc. # 20 at 5).
The Complaint inadvertently served upon L'Bella alleges
that the Shiraz Defendants defaulted on each of the four loan
agreements entered into with First State Bank.
(Doc. # 1).
The Complaint also indicates that Stearns Bank, N.A. seeks to
(1) accelerate all amounts due under the loans; (2) attach all
eligible rents associated to the collateralized properties as
outlined in the loan documents; and (3) recover all related
costs, interest, and fees resulting from the foreclosure
proceeding.
Id.
In response to the mistakenly served Complaint, the
Shiraz Defendants filed a Counterclaim on March 19, 2012,
asserting: (1) Slander of Title; (2) Defamation Per Se; and
(3) “Defamation, Libel, and Slander.” (Doc. # 12 at 17-18, ¶¶
1-9).
The Shiraz Defendants indicate that their tenant,
L'Bella, "is now under the belief that, among other things, it
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is subject to foreclosure and eviction as a result of this
lawsuit." (Doc. # 12 at 17, ¶ 3).
The Shiraz Defendants also
assert in the Counterclaim that in unjustifiably serving the
summons and Complaint on L'Bella, "Stearns Bank has subjected
Counter-Claimant to hatred, distrust, ridicule, contempt, or
disgrace, in its trade or profession, and/or has falsely
attributed to the Counter-Claimant conduct, characteristics,
or conditions incompatible with the proper exercise of a
lawful business, trade profession." Id. at 18, ¶ 7.
Stearns Bank, N.A. filed the instant Motion to Dismiss
the Shiraz Defendants’ Counterclaim on April 19, 2012.
# 18).
(Doc.
In the Motion, Stearns Bank, N.A. contends that the
Counterclaim should be dismissed on two bases.
First, the
Counterclaim fails to allege facts showing a false statement
by Stearns Bank, N.A.
(Doc. # 18 at 1-2).
And second, “even
if a false statement was identified, a false statement made in
the course of a judicial proceeding is privileged and not
actionable.”
Id. at 2.
On May 2, 2012, the Shiraz Defendants filed a Response in
Opposition
to
Counterclaim.
Stearns
Bank,
(Doc. # 20).
N.A.'s
Motion
to
Dismiss
In their Response, the Shiraz
Defendants concede that the materials erroneously served on
Shiraz’s tenant do not explicitly contain a falsehood; but
-4-
instead “objectively gave the message that [Stearns Bank,
N.A.] sought to foreclose its interest in [3105 W. Bay to Bay
Blvd. Tampa, Fla. 33629].” Id. at 5, ¶ 12.
II.
Legal Standard
A motion to dismiss a counterclaim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure is evaluated in the same
manner as a motion to dismiss a complaint.
Stewart Title
Guar. Co. v. Title Dynamics, Inc., No. 2:04-cv-316-FtM-33SPC,
2005
WL
2548419,
at
*1
(M.D.
Fla.
Oct.
11,
2005).
A
counterclaim must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
R. Civ. P. 8(a)(2).
Fed.
In deciding a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), a court must
accept all factual allegations in the counterclaim as true and
construe them in the light most favorable to the counterclaim
plaintiff.
See United Techs. Corp. v. Mazer, 556 F.3d 1260,
1269 (11th Cir. 2009).
“While a [counterclaim] attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, . . . a plaintiff's obligation to provide the
grounds of his entitlement to relief 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) (internal citations and quotations
-5-
marks omitted).
a
right
to
“Factual allegations must be enough to raise
relief
above
the
speculative
level
on
the
assumption that all the allegations in the complaint are
true.”
Id. (internal citations omitted).
A counterclaim plaintiff must plead enough facts to state
a plausible basis for the claim. Id.; James River Ins. Co. v.
Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(“To survive dismissal, the [counterclaim's] allegations must
plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a speculative level; if they do
not, the plaintiff's [counterclaim] should be dismissed.”).
Additionally, “the tenet that a court must accept as true all
of
the
allegations
contained
in
a
[counterclaim]
is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009).
III. Analysis
In the instant case, the Shiraz Defendants contend that
although the Complaint did not contain a false statement, the
Counterclaim
should
survive
because
“a
trial
court
must
evaluate a publication alleged to be libelous ‘as the common
mind would naturally understand it.’” (Doc. # 20 at 5, ¶
-6-
12)(quoting McCormick v. Miami Herald Publ'g Co., 139 So. 2d
197, 200 (Fla. 2d DCA 1962)). However, the Shiraz Defendants'
reliance on McCormick is misplaced.
First, the question
addressed in McCormick was not whether the document imputed a
false belief, but instead whether “the libel as published
would have a different effect on the mind of the reader from
that which the pleaded truth would have produced.” McCormick,
139 So. 2d at 200 (citations omitted).
Second, unlike the
facts as presented in McCormick, the Shiraz Defendants concede
that
the
improperly
served
Complaint
did
not
contain
a
libelous falsehood.
It is well settled that in order to properly plead a
claim for defamation, a plaintiff must allege that (1) the
defendant
published
a
false
statement;
(2)
about
the
plaintiff; (3) to a third party; and (4) the falsity of the
statement caused injury to plaintiff.” Minsurg Int'l, Inc. v.
Frontier Devices, Inc., No. 8:10-CV-1589- T-33EAJ, 2011 WL
1326863, at *6 (M.D. Fla. Apr. 6, 2011)(citing Border Collie
Rescue, Inc. v. Ryan, 418 F. Supp. 2d 1330, 1348 (M.D. Fla.
2006); Bass v. Rivera, 826 So. 2d 534, 534 (Fla. 2d DCA
2002)); see also Sailboat Key, Inc. v. Garner, 378 So. 2d 47,
48
(Fla.
3d
DCA
1979)(explaining
that
slander
involves defamation of a property interest).
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of
title
In the instant case, the primary component to the Shiraz
Defendants’ defamation Counterclaim (the false statement,
which
is
required
to
concededly not present.
establish
each
claim
asserted)
is
Therefore, the Shiraz Defendants’
Counterclaim fails to contain a plausible basis for the relief
sought and is dismissed for failure to state a claim.
Having
dismissed the Counterclaim, it is not necessary for the Court
to address Stearns Bank, N.A.'s litigation privilege argument.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Stearns Bank, N.A.’s Motion to Dismiss the
Shiraz Defendants’ Counterclaim (Doc. # 18) is GRANTED.
The
Counterclaim,
and
as
asserted
in
Defendants’
Answer
Affirmative Defenses (Doc. # 12), is DISMISSED.
DONE and ORDERED in Chambers in Tampa, Florida, this 31st
day of July 2012.
Copies to:
All Counsel of Record
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