Ziemniak v. Goede & Adamczyk, PLLC et al
ORDER granting 43 Motion to Dismiss; granting 30 Motion to Dismiss; granting 35 Motion to Dismiss for Failure to State a Claim. Counts 1 through 4 are dismissed without prejudice. Counts 5 and 6 are dismissed with prejudice. Signed by Judge James I. Cohn on 11/19/2012. (ams)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62286-CIV-COHN
GOEDE & ADAMCZYK, PLLC;
AVENTINE AT MIRAMAR
CONDOMINIUM ASSOCIATION, INC.;
and NEW HOUSE TITLE, LLC,
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
THIS CAUSE is before the Court on Defendant Aventine at Miramar
Condominium Association, Inc.’s Motion to Dismiss Count IV and Count V of Plaintiff’s
Amended Complaint [DE 30] (“Aventine’s Motion”), Defendant Goede & Adamczyk,
PLLC’s Motion to Dismiss Amended Complaint [DE 35] (“Goede’s Motion”), and
Defendant New House Title, LLC’s Motion to Dismiss [DE 43] (“New House’s Motion”)
(collectively, “Motions”). The Court has considered the Motions, their respective
responses and replies, the record, and is otherwise fully advised in the premises.
On October 25, 2011, Plaintiff Jacqueline Ziemniak (“Plaintiff”) brought this
action against Defendants Aventine at Miramar Condominium Association, Inc.
(“Aventine”), and Goede & Adamczyk, PLLC (“Goede”), alleging that they attempted to
collect a debt from Plaintiff in a manner that violated the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. §§ 1692e(2), 1692f(1) , and the Florida Consumer Collection
Practices Act (“FCCPA”), Florida Statutes §§ 559.72(9), 559.75. See Compl. [DE 1],
¶ 20. On April 16, 2012, Plaintiff filed an Amended Complaint [DE 27], adding a statelaw negligence claim against New House Title, LLC (“New House”), which issued her
title insurance policy. Plaintiff alleges that New House “intentionally or negligently failed
to disclose to Plaintiff that there were several years of past due condominium payments
due and owing when Plaintiff purchased the dwelling at issue.” Am. Compl., ¶ 35.
In their Motions to Dismiss, Goede and Aventine contend that Plaintiff has failed
to state a claim under the FDCPA or FCCPA. New House, in its Motion to Dismiss,
asserts that the Court lacks supplemental subject-matter jurisdiction over Plaintiff’s
state-law negligence claim. New House further contends that, even if the Court had
jurisdiction, the claim would be barred by the economic loss rule.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). The complaint must “give the defendant fair notice of what the  claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)
(citations omitted). “While a complaint 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 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
At this stage in the litigation, the Court must consider the factual allegations in
the Complaint as true and accept all reasonable inferences therefrom. Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Nevertheless, the Court
may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” Marshall Cnty.
Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
A. Plaintiff’s FDCPA and FCCPA claims
Here, Plaintiff brings claims against Goede and Aventine under the FDCPA and
FCCPA. In order to state a claim under the FDCPA, a plaintiff must allege that: “(1) the
plaintiff has been the object of collection activity arising from consumer debt, (2) the
defendant is a debt collector as defined by the FDCPA, and (3) the defendant has
engaged in an act or omission prohibited by the FDCPA.” Kaplan v. Assetcare, Inc., 88
F. Supp. 2d 1355, 1360-61 (S.D. Fla. 2000). The FCCPA has parallel requirements to
state a claim. See Elmore v. Ne. Fla. Credit Bureau, Inc., Case No. 3:10-cv-573-J37JBT, 2011 WL 4480419, at *2 n.5 (M.D. Fla. Sept. 27, 2011). In Count 1 of the
Amended Complaint, Plaintiff alleges that Goede violated the FDCPA, but does not cite
a specific section thereof. See Am. Compl. ¶¶ 23-25. In Count 2, Plaintiff claims that
Goede violated 15 U.S.C. § 1692e(2), which prohibits the false representation of the
status of any debt, or of the compensation that a debt collector may receive.
See 15 U.S.C. § 1692e(2); Am. Compl. ¶¶ 26-28. In Count 3, Plaintiff avers that Goede
violated 15 U.S.C. § 1692f(1), which prevents debt collectors from collecting any
amount other than that expressly permitted by law or the agreement creating the debt.
See 15 U.S.C. § 1692f(1); Am. Compl. ¶¶ 29-31. Count 4 alleges that Goede and
Aventine violated Florida Statutes § 559.72(9), which prohibits collecting on consumer
debts that the collector knows are not legitimate. See Fla. Stat. § 559.72(9); Am.
Compl. ¶¶ 32-33. Count 5 claims that Goede and Aventine violated Florida Statutes
§ 559.75, which was repealed by the legislature on October 1, 1981. See Fla. Stat.
§ 559.75; Am. Compl. ¶ 34.
Plaintiff does not describe the nature or amount of the debt, except that it
“[arose] from transactions incurred for personal, family, or household purposes.”
See Am. Compl. ¶ 16. She does not allege the manner in which Goede and Aventine
tried to collect the debt, or the false representations that they made. She claims only
that they knew the debt was “not legitimate.” See id., ¶ 17. Counts 1 through 4, as
presently pleaded, do not give fair notice to Defendants as to the nature of the claims
asserted and will be dismissed without prejudice. Count 5 — alleging violation of a
repealed statute — does not state a claim for relief, and will be dismissed with
B. Plaintiff’s Negligence Claim
New House seeks to dismiss Plaintiff’s negligence claim (Count 6) for lack of
subject-matter jurisdiction and because it is barred by the economic loss rule. Federal
subject-matter jurisdiction generally exists only when a controversy involves a question
of federal law or diversity of citizenship between the parties. See 28 U.S.C. §§ 13314
1332. However, a court may assert supplemental jurisdiction over additional claims
when they arise from the same “nucleus of operative fact” as those over which there is
federal subject-matter jurisdiction. See Parker v. Scrap Metal Processors, Inc., 468
F.3d 733, 743 (11th Cir. 2006); 28 U.S.C. § 1367. Here, Plaintiff sued Goede and
Aventine under federal-question jurisdiction, and argues that her state-law claim against
New House arises from the same set of facts as her FDCPA claims. The Court
disagrees. Plaintiff has given almost no factual predicate for her federal claims. As a
result, she has not yet shown that the negligence claim and federal claims share a
common nucleus of operative fact. Therefore, the Court lacks supplemental jurisdiction
over the negligence claim and it must be dismissed.
If this were the claim’s only flaw, the Court might grant Plaintiff leave to amend it
to adequately allege subject-matter jurisdiction. However, the negligence claim is also
precluded by the economic loss rule. “The economic loss rule bars tort actions ‘when
the parties are in contractual privity and one party seeks to recover damages in tort for
matters arising from the contract.” See Chicago Title Ins. Co. v. Commonwealth Forest
Invs., Inc., 494 F. Supp. 2d 1332, 1337 (M.D. Fla. 2007) (citing Indem. Ins. Co. of N.
Am. v. Am. Aviation, 891 So. 2d 532, 536 (Fla. 2004)). The purpose of the economic
loss rule is to honor the contractual expectations and allocation of risk decided upon by
the parties. State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 427 F.
App’x 714, 719 (11th Cir. 2011) (per curiam). Here, the negligence claim arises from
New House’s alleged breach of a title insurance policy by failing to disclose that there
were payments due and owing on Plaintiff’s property. See First Am. Compl., ¶¶ 14, 35.
As the Chicago Title court noted, “The title search and list of encumbrances are integral
parts of a title insurance policy because they shape the allocation of risk between the
insurer and insured.” 494 F. Supp. 2d at 1337. Accordingly, the court concluded that a
negligence claim arising out of a title agent’s failure to disclose was precluded by the
economic loss rule. See id. at 1338. This Court agrees with the findings in Chicago
Title, and concludes that Count 6 is precisely the type of breach of contract for which
Plaintiff cannot recover in tort. Accordingly, Count 6 will be dismissed with prejudice.
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED as follows:
Defendant Goede & Adamczyk’s Motion to Dismiss Amended Complaint
[DE 35] is GRANTED. Counts 1, 2, and 3 of the Amended Complaint [DE
27] are DISMISSED without prejudice.
Defendant Aventine at Miramar Condominium Association, Inc.’s Motion
to Dismiss Count IV and Count V of Plaintiff’s Amended Complaint
[DE 30] is GRANTED. Counts 4 of the Amended Complaint is
DISMISSED without prejudice. Count 5 of the Amended Complaint is
DISMISSED with prejudice.
Defendant New House Title, LLC’s Motion to Dismiss [DE 43] is
GRANTED. Count 6 of the Amended Complaint [DE 27] is DISMISSED
The Court will enter a separate order concerning Plaintiff’s Motion for
Leave to File Second Amended Complaint [DE 60].
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 19th day of November, 2012.
Copies provided to:
Counsel of record via CM/ECF
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