Dorsten et al v. SLF Series G, LLC et al

Filing 69

ORDER denying as moot 12 Motion to Dismiss 1 Notice of Removal (State Court Complaint) for Failure to State a Claim; denying as moot 12 Motion to Dismiss 1 Notice of Removal (State Court Complaint) for Lack of Jurisdiction; denying as moot 16 Motion to Strike Claim for Attorney Fees; granting 23 Motion to Dismiss Amended Complaint for Failure to State a Claim; granting 23 Motion for More Definite Statement; Dismissing with prejudice Counts IV, V and XI of the Amended Complaint ; denying as moot 24 Motion to Strike Allegations regarding Insurance Coverage; denying without prejudice 25 Motion to Dismiss 1 Notice of Removal (State Court Complaint) for Failure to State a Claim; denying without prejudice 25 Motion fo r More Definite Statement; granting 25 Motion to Change Venue; denying without prejudice 25 Motion to Dismiss 1 Notice of Removal (State Court Complaint) for Lack of Jurisdiction; denying as moot 24 Motion for Attorney Fees; denying 38 Motion to Remand to State Court; Transferring this Action to the District of Utah; Closing Case. Signed by Judge Beth Bloom on 9/21/2015. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-CIV-61235-BLOOM/Valle
In the Receivership of:
HUNTER HOSPITALITY LLC, a Wyoming
Limited Liability Company.
_____________________________________/
RALPH AND MARY LYNN DORSTEN, et al.,
Plaintiffs,
v.
SLF SERIES G, LLC, et al.,
Defendants.
_____________________________________/
ORDER
DENYING MOTION TO REMAND
GRANTING MOTION TO DISMISS AND
GRANTING MOTION TO TRANSFER VENUE
THIS CAUSE is before the Court upon the following motions: (1) Defendant Bo
Brower’s motion to dismiss the Amended Complaint, ECF No. [1-1] filed by Plaintiffs Ralph
and Mary Lynn Dorsten, et al. (“Plaintiffs”), for lack of personal jurisdiction and failure to state
a claim, ECF No. [12] (Bo Brower’s “Motion to Dismiss”); (2) Defendant Westcor Land Title
Insurance Company’s (“Westcor”) motion to strike Plaintiffs’ claim for attorney fees, ECF No.
[16] (Westcor’s “Motion to Strike”); (3) Defendant Columbia Pacific Income Fund I, P.L.’s
(“Columbia”) motion to dismiss for failure to state a claim or for a more definitive statement,
ECF No. [23] (Columbia’s “Motion to Dismiss”); (4) Columbia’s motion to strike Plaintiffs’
allegations regarding insurance coverage and demand for award of attorney’s fees, ECF No. [24]
(Columbia’s “Motion to Strike”); (5) Defendants Lee Brower; SLF Series G, LLC (“SLF Series

Case No. 15-CIV-61235-BLOOM/Valle
G”); Pompano Waterway Development, LLC (“PWD”); Secured Lending Fund, LLC (“SLF”);
NA-SLF, LLC (“NA-SLF”); K-Bro Enterprises LLC (“K-Bro”), and Zama, LLC’s (“Zama”)
(together, the “Utah Defendants”) motion to transfer venue, dismiss for failure to state a claim, or
for a more definitive statement, ECF No. [25] (the “Motion to Transfer”); and (6) Plaintiffs’
motion to remand this action to state court, ECF No. [38] (the “Motion to Remand”). The
motions were fully briefed. See ECF Nos. [40], [41], [42], [43], [44], [45], [46], [47], [48], [49],
[51], [52], [53], [55], [56], [57], [58], [64]. The Court had the benefit of oral argument from the
parties on the motions at a hearing held on August 19, 2015, see ECF No. [60] (the “Hearing”),
as well as Plaintiffs’ Proposed Second Amended Complaint, ECF No. [65] (“PSAC”), and
supplemental briefing, ECF Nos. [66], [67], [68], submitted at the Court’s direction. The Court
has carefully considered the motions, all supporting and opposing submissions on each of the
motions, the arguments presented at the Hearing, the record in this case, and applicable law. For
the reasons set forth below, the Court denies the request to remand, dismisses all counts against
Columbia, and transfers this action to the District of Utah for further proceedings.
I.

PROCEDURAL BACKGROUND

Plaintiffs initiated this action in the Circuit Court of the Seventeenth Judicial Circuit in
and for Broward County, Florida (the “Circuit Court”) on October 7, 2014. That case was
consolidated into a pending receivership action also before the Circuit Court, which was itself
initiated on August 13, 2013. Plaintiffs filed their Amended Complaint in February, 2015.
Process was served on Defendant Bo Brower on May 11, 2015. Bo Brower removed the action
to this Court on June 10, 2015. ECF No. [1]. On June 11, 2015, the Court entered its order of
procedure in removed actions, setting certain deadlines, ECF No. [6], and on July 10, 2015,
entered a preliminary scheduling order to streamline and harmonize consideration of filed or
impending motions to dismiss and remand, ECF No. [37]. Per the Court’s instruction at the

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Case No. 15-CIV-61235-BLOOM/Valle
August 19, 2015 Hearing, Plaintiffs submitted their Proposed Second Amended Complaint on
August 28, 2015, and Plaintiffs, Columbia and the Utah Defendants filed supplemental briefing
with respect to the Motion to Transfer on September 10, 2015. The six substantive motions
under review are now ripe for adjudication.
II.

FACTUAL ALLEGATIONS

Plaintiffs’ claims center on a failed land development investment involving real property
located in in Pompano Beach, Florida. This background (except where indicated) is derived
from the allegations in Plaintiffs’ Amended Complaint.
Plaintiffs invested in a real estate development project (the “Pompano Project”) through
SLF Series G, a subsidiary SLF, and its affiliated managers and members. The project failed
during the real estate downturn and recession in the late 2000s. Plaintiffs allege that SLF Series
G and the entities and persons which operated that entity – what the Amended Complaint defines
as the “Issuer Defendants” (which include SLF Series G, PWD, SLF, NA-SLF, K-Bro, Zama, TCapital Partners, LLC, Lee Brower, Bo Brower, David Sheffield, Rick Bigelow and Private
Consulting Group, Inc. (“PCG”)) – along with what the Amended Complaint defines as the
“Fraudulent Conveyance Defendants” (which include Workmen’s Development Group, LLC
(“Workmen’s”), Hillsborough Development, LLC (“Hillsborough”), and Hunter Hospitality,
LLC (“Hunter”)), defrauded them in a variety of ways related to the initial and subsequent
investments in SLF Series G and the eventual sale of the Pompano Property in which SLF Series
G invested.
As SLF Series G promised to Plaintiffs as part of the original solicitation of funds, the
investment was secured by a first priority mortgage (the “Development Mortgage”) on the
development property held by SLF Series G – which was in fact given when SLF Series G lent
money to the developer, United South Florida Enterprises, Inc., sometime prior to February,

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Case No. 15-CIV-61235-BLOOM/Valle
2007 (the “Developer Loan”). Due to non-payment, SLF Series G initiated a foreclosure action
on the Developer Mortgage on February 7, 2007 (the “Foreclosure Action”), and recorded a lis
pendens on February 8, 2007. Plaintiffs were allegedly defrauded into making subsequent
investments from 2008 to 2010, which were secured by subsequent mortgages on the Pompano
Property (“Subsequent Mortgages”). The fraud involved SLF Series G withholding information
about the pending foreclosure on the first priority Developer Mortgage and about the consequent
worthlessness of the Subsequent Mortgages (which would be extinguished through that
Foreclosure Action).

The fraud also involved SLF Series G accepting a deed in lieu of

foreclosure, the temporary conveyance of title in the Pompano Property to a newly created straw
affiliate, Defendant PWD, and issuance of the Subsequent Mortgages by PWD, during the
foreclosure proceedings. While PWD was added to the Foreclosure Action as a defendant, SLF
Series G never filed an amended lis pendens to add PWD. Plaintiffs further allege that the Issuer
Defendants misrepresented to Plaintiffs that that mechanism – having a deed issued to PWD in
lieu of foreclosure from the developer – would help “scrub” the property of (ostensibly other)
junior liens and thereby permit development of the property, ultimately to the benefit of
Plaintiffs’ investments. Finally, Plaintiffs allege that this fraud was perpetuated on them and on
the Circuit Court in the Foreclosure Action.
A judgment of foreclosure foreclosing the Developer Mortgage was entered by the
Circuit Court in the Foreclosure Action on January 6, 2011, and a certificate of title in the
Pompano Property was issued to SLF Series G on March 5, 2011. The property was transferred
free and clear of any encumbrances.

SLF Series G then sold the Pompano Property to

Workmen’s, who sold it to Hillsborough, who finally sold it to Hunter. Plaintiffs allege that
those conveyances were fraudulent (despite, or perhaps in part because of, communications to

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Case No. 15-CIV-61235-BLOOM/Valle
Plaintiffs seeking approval for sale of the Pompano Property). Hunter purchased the property in
2011. Subsequently, on February 17, 2012, Columbia loaned money to Hunter, secured by a lien
on the Pompano Property. Westcor acted as Columbia’s title insurance carrier with respect to
that transaction. Hunter itself later failed and went into receivership in Washington State. Jack
Rader was appointed as the Florida receiver (the “Receiver”). The Receiver initiated an ancillary
receivership action before the Circuit Court – the same umbrella action into which this action
was consolidated prior to removal. Hunter was liquidated and the Pompano Property sold in
January, 2015. As part of a stipulation and agreement entered into between the Receiver,
Columbia and certain Plaintiffs, and confirmed by order of the Circuit Court in the ancillary
receivership action, the Pompano Property was sold free and clear, and any liens Plaintiffs may
have in the property were transferred to the sale proceeds. See ECF No. [65-12], Exh. 12 to
PSAC (stipulation and approved orders). Columbia’s secured claim was recognized and its loan
fully repaid by that liquidation sale. The remainder of the sale proceeds are being held in escrow
by the Receiver.
On March 10, 2015, Plaintiffs commenced an action in the United States District Court
for the District of Utah, Dorsten, et al. v. Secured Lending Fund LLC, et al., Case No. 15-CV00153 (PMW) (the “Utah Action”). See ECF No, [25-1] (amended complaint in Utah Action).1
Most, but not all, of the Defendants named here are named in the Utah Action. Plaintiffs’ claims
there involve an overarching fraud allegedly perpetuated by SLF and the Utah Defendants, along
with other parties not named here (including certain investment advisors), encompassing a

1

The Court may also take judicial notice of the public records in the Utah Action. See Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999) (court may take judicial notice of public filings “for the purpose
of determining what statements the documents contain and not to prove the truth of the documents’ contents”);
Universal Express, Inc. v. SEC, 177 F. App’x. 52, 53 (11th Cir. 2006) (courts may take judicial notice of public
records, such as a complaint filed in another court); Klopfenstein v. Deutsche Bank Sec., Inc., 592 F. App’x 812, 816
n. 5 (11th Cir. 2014) (same).

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considerably larger lending operation and a broader set of investments and investment properties.
Specifically, Plaintiffs allege there that SLF, through sub-entities (including SLF Series G), sold
promissory notes to investors in order to finance a hard money lending operation which would
make bridge loans to various developers of various investment properties, located in
Washington, Oregon and Florida, secured by those properties. Id. ¶ 4. Plaintiffs allege that SLF
and its owners and sub-entities defrauded their investors in issuing the notes, diligencing the
property investments, managing the bridge loans, and manipulating sales of the investment
properties through foreclosure or otherwise once the development loans failed. See generally id.
¶¶ 89-108. Those properties were sold, along with the Pompano Property, to Workmen’s in
2011. Id. ¶¶ 106-108. As with the Pompano Property, the investment properties were later sold
to downstream purchasers. Id. In the Utah Action, as here, Plaintiffs are suing SLF and its
related entities, the investment advisors, and all downstream purchasers and interest holders, for
(as applicable) fraud, breach and rescission of contract, unjust enrichment, fraudulent
conveyance, declaratory relief asserting the priority of their interests in the investment properties,
appointment of a receiver, class certification, and are seeking control of, or the proceeds from
sale of, the investment properties. Id. ¶¶ 5, 117-170, wherefore clause F. Plaintiffs specifically
carved out the Pompano Property from the Utah Action. Id. ¶ 5.
Plaintiffs here assert fourteen counts in the Amended Complaint: non-payment by the
Issuer Defendants of mortgage notes with respect to the Subsequent Mortgages (Counts I and
VII); declaratory judgment invalidating the lis pendens in the Foreclosure Action (Count II);
vacation of the foreclosure judgment issued by the Circuit Court in the Foreclosure Action,
allegedly obtained by intrinsic and extrinsic fraud (Count III); foreclosure of the Subsequent
Mortgages or constructive trust on proceeds of the sale of the Pompano Property (Count IV);

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declaratory judgment, effective against all downstream interests in and purchasers of the
Pompano Property, regarding proceeds of the sale of the Pompano Property (Count V); fraud by
the Issuer Defendants related to the sale of the subsequent notes (Count VIII); rescission of sale
to the Fraudulent Conveyance Defendants based on fraudulent conveyance (Count X);
declaratory judgment or equitable lien on sale proceeds and damages against Columbia and
Westcor (Count XI); fraudulent conveyances against the Fraudulent Conveyance Defendants
(Count XII); violations of securities laws by PCG (Count XIII); joinder of the Receiver (Count
XIV); and class representation of certain plaintiffs for Counts I through V (Count VI) and of
certain plaintiffs for Counts VII and VIII (Count IX).
III. DISCUSSION
Ultimately, this is the wrong forum for Plaintiffs’ claims. They are either part and parcel
of the Utah Action, or belong before the Circuit Court by virtue of Plaintiffs’ requested relief to
vacate the foreclosure judgment. Plaintiffs’ allegations here and in the Utah Action illustrate an
integrated fraud scheme, involving the same Plaintiffs and the same bundle of Defendants and
encompassing SLF Series G, the Pompano Property and the Foreclosure Action. In addition,
Plaintiffs fundamentally seek the same relief in the Utah Action as to all of their investments and
all of the investment properties – damages from the investment-side Defendants for their alleged
fraud, and reanimation of their interests in the properties, or in the proceeds from sale of those
properties, to gain damages from the purchase-side Defendants (whether knowledgeable of the
fraud, as bad-faith subsequent transferees, or not). As such, the Court declines to exercise its
discretion to remand this action to the Circuit Court and transfers this action to the District of
Utah.

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Case No. 15-CIV-61235-BLOOM/Valle
A.

Westcor’s Motion to Strike

On August 24, 2015, Plaintiffs, consistent with their representations at the Hearing,
voluntarily dismissed all claims against Wesctor.

ECF No. [61]. The Court subsequently

dismissed Wesctor without prejudice. ECF No. [63]. Accordingly, Westcor’s Motion to Strike
is denied as moot.
B.

Plaintiffs’ Motion to Remand

Plaintiffs ask the Court to remand this action to the Circuit Court for want of subject
matter jurisdiction. They argue that the Rooker-Feldman doctrine2 mandates remand based on
their request in Count III of the Amended Complaint. Thus, “at the heart” of this matter,
Plaintiffs seek to vacate the judgment of foreclosure entered by the Circuit Court in the
Foreclosure Action in January, 2011, and all intertwined claims.

They argue further that,

because Rooker-Feldman divests this Court of jurisdiction over the request to vacate and will
therefore result in a parallel state court action, Colorado River abstention is proper with respect
to the remainder of the action.
1.

Rooker-Feldman Is Inapplicable

Rooker-Feldman is inapplicable here. “The Rooker-Feldman doctrine makes clear that
federal district courts cannot review state court final judgments because that task is reserved for
state appellate courts or, as a last resort, the United States Supreme Court.” Casale v. Tillman,
558 F.3d 1258, 1260 (11th Cir. 2009); see also Nicholson v. Shafe, 558 F.3d 1266, 1271 (11th
Cir. 2009) (federal district courts have “no authority to review final judgments of a state court”);
Doe v. Florida Bar, 630 F.3d 1336, 1340-41 (11th Cir. 2011) (where applicable, RookerFeldman deprives federal court of subject matter jurisdiction). Rooker-Feldman is “confined to

2

Rooker v. Fid. Trust. Co., 263 U.S. 413 (1923); Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S.
462 (1983).

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cases of the kind from which the doctrine acquired its name: ‘cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.’”
Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1072 (11th Cir. 2013) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
As the Supreme Court has explained, “Rooker-Feldman [is] inapplicable where the party
against whom the doctrine is invoked was not a party to the underlying state-court proceeding.”
Lance v. Dennis, 546 U.S. 459, 464 (2006); see also Shuler v. Swatek, 465 F. App’x 900, 902
(11th Cir. 2012) (citing Lance for the same). Further, [t]he Rooker-Feldman doctrine does not
bar actions by nonparties to the earlier state-court judgment simply because, for purposes of
preclusion law, they could be considered in privity with a party to the judgment.” Lance, 546
U.S. at 466.
Plaintiffs were not a party to the state court proceeding that rendered the judgment of
foreclosure at issue. In fact, their Complaint is premised on the allegations that they had no
notice of and were not parties to the Foreclosure Action. Accordingly, Plaintiffs are not “statecourt losers” seeking redress for injuries caused by a state court judgment, and Rooker-Feldman
is inapplicable.3
Because the Court is not divested of jurisdiction by operation of Rooker-Feldman and
need not remand any part of this action to the Circuit Court on that basis, Plaintiff’s argument for
Colorado River abstention is a non-starter:

there is no parallel state court proceeding in

3

The Supreme Court declined to completely rule out “whether there are any circumstances, however
limited, in which Rooker-Feldman may be applied against a party not named in an earlier state proceeding.” Lance,
546 U.S. 459 n.2 (emphasis in original). As an example, the Lance court offered an estate bringing a de facto appeal
in a district court of an earlier state decision involving the decedent. Plaintiffs do not stand in the shoes of or
otherwise seek to represent parties to the Foreclosure Action. Again, a premise of their action is that they were
fraudulently prevented from participating in the Foreclosure Action, to the detriment of their own interests.
Accordingly, they do not fit into the potential space left open by Lance.

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Case No. 15-CIV-61235-BLOOM/Valle
deference to which to abstain.4 The Motion to Remand, on the basis of the Rooker-Feldman
doctrine, must be denied.
2.

This Court Can Grant Relief With Respect to Count III

Despite the inapplicability of Rooker-Feldman to divest this Court of jurisdiction,
Plaintiffs raise a practical issue with regard to the ability of this Court to issue relief as to Count
III of their Amended Complaint. Again, Plaintiffs seek vacation of the foreclosure judgment
rendered by the Circuit Court in the Foreclosure Action, which they allege was obtained by
intrinsic and extrinsic fraud. Plaintiffs question the Court’s ability to vacate the foreclosure
judgment. After all,
This Court has held on numerous occasions that federal district courts do not have
jurisdiction under . . . any [] theory to reverse or modify the judgments of state
courts. We echo that it is axiomatic that a federal district court, as a court of
original jurisdiction, lacks appellate jurisdiction to review, modify, or nullify a
final order of a state court. The proper forum for [such] relief . . . [is] the United
States Supreme Court.
Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir. 1980) (quoting Lampkin-Asam v.
Supreme Court of Florida, 601 F.2d 760 (5th Cir. 1979) and citing 28 U.S.C. § 1257).5
First, Plaintiffs’ argument is somewhat circular. The authority which limits a federal
court’s jurisdiction to upset or vacate a state court judgment ultimately stems from the Supreme
Court cases which interpret 28 U.S.C. § 1257 and establish Rooker-Feldman. See, e.g., Kimball,
632 F.2d at 1284; In re James, 940 F.2d 46, 53 (3d Cir. 1991) (citing Feldman – which “made it
clear that federal district courts and federal courts of appeals lack jurisdiction to review or
reverse a state court judgment on the merits” – in holding that a federal court can vacate a state
court judgment only when that judgment is void ab initio); Brinkmann v. Johnston, 793 F.2d

4

“Colorado River addresses the circumstances in which federal courts should abstain from exercising their
jurisdiction because a parallel lawsuit is proceeding in one or more state courts.” Ambrosia Coal and Constr. Co. v.
Pagés Morales, 368 F.3d 1320, 1327 (11th Cir. 2004).
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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111, 113 (5th Cir. 1986) (citing to Feldman, its progenitors and progeny in holding that “litigants
may not obtain review of state court actions by filing complaints about those actions in lower
federal courts cast in the form of civil rights suits” and that “[e]rrors committed by state judges
in state courts are for correction in the state court system”). But, as explained above, the
Supreme Court, “emphasiz[ing] the narrowness of the Rooker-Feldman rule” and that “the
doctrine applies only in limited circumstances,” explained that Rooker-Feldman’s limitation of a
district court’s jurisdiction applies only to suits brought by state court losers “in effect seek[ing]
to take an appeal of an unfavorable state-court decision to a lower federal court” – which
Plaintiffs are not. Lance, 546 U.S. at 464, 466.
Second, this Court’s ability to grant relief in this action is at least equal to that of the
Circuit Court from which this case was removed. Because removed state court proceedings are
treated as if they originated in the district court, “[a] federal district court may dissolve or modify
injunctions, orders, and all other proceedings which have taken place in state court prior to
removal.” Jackson v. Am. Sav. Mortgage Corp., 924 F.2d 195, 199 (11th Cir. 1991). Under
Florida law, a successor court may modify or vacate rulings or orders of its predecessor, prior to
final judgment. Hull & Co., Inc. v. Thomas, 834 So. 2d 904, 906 (Fla. 4th DCA 2003) (“As a
matter of ‘comity and courtesy,’ a judge should hesitate to undo the work of another judge who
presided earlier in the case. However, prior to final judgment, a successor judge has the power to
vacate or modify a predecessor’s interlocutory rulings, such as an order on a motion for summary
judgment.”) (citing Tingle v. Dade County Bd. of County Comm’rs, 245 So. 2d 76, 78 (Fla. 1971)
(“While a judge should hesitate to undo his own work, and should hesitate still more to undo the
work of another judge, he does have, until the final judgment, the power to do so and may
therefore vacate or modify the interlocutory rulings or orders of his predecessor in the case.”));

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Wasa Int’l Ins. Co. v. Hurtado, 749 So. 2d 579, 580 (Fla. 3d DCA 2000) (“Because the trial
judge here had not entered a final judgment in the case, she could modify her previous rulings
and those of her predecessor.” (citing Tingle). Accordingly, if and to the extent the Circuit Court
in this proceeding prior to removal was empowered to modify or vacate the foreclosure judgment
entered in an earlier and separate proceeding before the same court but presided over by another
judge, this Court can do so as well.6
Third, even were this Court unable to vacate the foreclosure judgment, it can still grant
money damages to Plaintiffs with respect to Court III – relief which Plaintiffs explicitly request.
Plaintiffs specifically “request that judgment be entered against the Issuer Defendants and the
Fraudulent Conveyance Defendants, and each of them, for all damages caused by their fraud”
which allegedly resulted in the foreclosure judgment, extinguishment of Plaintiffs’ Subsequent
Mortgages, and consequent losses to Plaintiffs. That relief is squarely within this Court’s
capabilities. At bottom, Plaintiffs do not seek reinstatement of their interests in the Pompano
Property, but to be made whole with respect to their lost investments those interests represented
– practically speaking, from the long trail of the sale proceeds. Money damages can do that.
Regardless of the Court’s power to modify or vacate the foreclosure judgment, it can still grant

6

The Court also notes that, under Fed. R. Civ. P. 60(b), a district court may, in an independent action,
relieve a party from a final judgment issued by another district court where the specific circumstances required by
the rule permit. See Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 222 (4th Cir. 1999) (“[A]n ‘independent
action’ under Rule 60(b) may be brought by one who was not a party to the original action . . . [and] may be brought
in a court other than the one that issued the contested order.”); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.
2002) (implying that district court could modify or vacate order issued by separate district court under Rule 60(b),
but not sua sponte); Budget Blinds, Inc. v. White, 536 F.3d 244, 251-52 (3d Cir. 2008) (registering court can vacate
final order issued by rendering court where Rule 60(b)(6) “exceptional” criteria are met); Harper Macleod Solicitors
v. Keaty & Keaty, 260 F.3d 389, 394 (5th Cir. 2001) (same under Rule 60(b)(4), where registering court determines
that rendering court lacked jurisdiction); Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 732 (2d Cir. 1980)
(same); Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 152 (10th Cir. 1946) (“Historically, it has been
within the equitable powers of a federal court to grant relief from a civil judgment issued by another federal court.”).
Given that Rooker-Feldman does not apply here, this Court may be able to address the relief sought by Plaintiffs in
Count III of their Amended Complaint within the arguably larger reaches of Rule 60(b).

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legal and equitable relief in the form of monetary damages against those active or complicit in
the alleged fraud.
C.

Columbia’s Motion to Dismiss

Columbia argues that Plaintiffs’ claims against it – the downstream lender on a nonpurchase loan to the eventual purchaser of the Pompano Property – fail to state a claim and
should be dismissed on that basis. Columbia is included in three Counts of the Amended
Complaint: Count IV, seeking foreclosure on the Subsequent Mortgages and imposition of a
constructive trust on the Pompano Property sale proceeds; Count V, seeking a declaratory
judgment regarding the validity of, and an imposition of a constructive trust over the proceeds of,
the Receiver’s sale of the Pompano Property; and Count XI, seeking a declaratory judgment that
Plaintiffs have a security interest in, or imposition of a lien or constructive trust over, the
Pompano Property sale proceeds.
Columbia construes Plaintiffs claims as effectively duplicative, all seeking imposition of
a constructive trust on the proceeds paid to Columbia from the liquidation of Hunter and sale of
the Pompano Property in order to restore and elevate the Subsequent Mortgages above
Columbia’s facially superior but later-acquired interest in the property. This is based on the
theory that the foreclosure of the Developer Mortgage was ineffective to clear title to the
Pompano Property.

Columbia argues for dismissal for several interlocking reasons:

(a)

Plaintiffs, as Columbia contends is alleged in the Amended Complaint, had actual and
constructive knowledge of the foreclosure of the Developer Mortgage and, thus, extinguishment
of their junior Subsequent Mortgages; (b) the lis pendens filed in that foreclosure was effective
regardless of notice to Plaintiffs; and (c) with regard to Columbia’s taking of a security interest
in the Pompano Property through its loan to Hunter, Columbia had no duty vis-à-vis Plaintiffs
with respect to Plaintiffs’ contention that Columbia should have discovered the existence (and

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superiority) of the Subsequent Mortgages.

Columbia’s second argument is correct and

dispositive.
1.

Standard on Motion to Dismiss Under Rule 12(b)(6)

A pleading in a civil action must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”).

Nor can a complaint rest on “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o 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.’” Id. (quoting Twombly, 550 U.S. at 570); see also
Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.
2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D.
Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the
non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal,

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556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir.
2005) (“[A] document outside the four corners of the complaint may still be considered if it is
central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all
allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal
pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Magluta v.
Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).
2.

The Broad Effect Of Lis Pendens Under Florida Law

Under Florida law, once a plaintiff has filed an accurate lis pendens identifying the
subject property and the original owner of the property, all future interest holders are warned of
the existing lawsuit affecting the property and no further amendments to the lis pendens are
required, even if additional foreclosure defendants are added to the lawsuit.

Nikooie v.

JPMorgan Chase Bank, N.A., --- So. 3d ---, 2014 WL 6911148, at *7-8 (Fla. 3rd DCA Dec. 10,
2014). Florida’s lis pendens statute expressly provides that a lis pendens constitutes a bar to
enforcement against the subject property of any subsequently acquired liens or interests in or
against that property that were not recorded as of the time the lis pendens was recorded. Fla.
Stat. § 48.23(1)(d). When a judicial sale is conducted pursuant to proceedings described in a lis
pendens, the property is forever discharged of all interests that were not recorded prior to the lis

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pendens. Fla. Stat. § 48.23(1)(d). When a lis pendens describes an action founded upon a duly
recorded instrument, such as a mortgage, the lis pendens does not expire. Fla. Stat. § 48.23(2).
“A lis pendens serves as constructive notice of the claims asserted against the property in the
pending litigation with respect to one acquiring an interest in the property after the lis pendens is
filed.” U.S. Bank Nat. Ass’n v. Bevans, 138 So. 3d 1185, 1189 (Fla. 3rd DCA 2014). That is, lis
pendens attaches to the property, not to the party or the action. “One who purchases property
subject to a lis pendens is bound by the judgment or decree rendered against the party from
whom he makes the purchases as much so as though he had been a party to the judgment or
decree himself.” U.S. Bank Nat. Ass’n v. Quadomain Condominum Ass’n, Inc., 103 So. 3d 977,
979 (Fla. 4th DCA 2012 (quotation omitted). And, one of the purposes of required recordation
of lis pendens is “to protect future purchasers or encumbrancers of the property from becoming
‘embroiled’ in the dispute.” Id. at 978-79; see also In re Martin, 278 B.R. 634, 641 (Bankr. S.D.
Fla. 2002) (“A notice of lis pendens or actual notice filed on the public records, protects both the
lis pendens proponent and third parties.” (citing Medical Facilities Dev. Inc. v. Little Arch Creek
Props. Inc., 675 So. 2d 915, 917 (Fla. 1996)).
3.

The Lis Pendens In The Foreclosure Action Bars Plaintiffs’ Claims
Against Columbia Asserted In The Amended Complaint

Plaintiffs argue that SLF Series G’s failure to record an amended lis pendens to include
PWD – to whom the Pompano Property was deeded and with whom Plaintiffs executed the
Subsequent Mortgages – renders the lis pendens ineffective against them. A search in 2008 for
PWD in Florida’s grantor-grantee index, they contend, would not have revealed the initial lis
pendens, despite the later addition of PWD to the Foreclosure Action.

See, e.g., Oz v.

Countrywide Home Loans, Inc., 953 So. 2d 619, 620 (Fla. 3d DCA 2007) (“[C]onstructive notice
in Florida is imputed only through the grantor-grantee index of the official public records.”)

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(citing Slachter v. Swanson, 826 So. 2d 1012, 1014 (Fla. 3d DCA 2001)). Thus, Plaintiffs claim
to have had no constructive notice that PWD had been made party to the Foreclosure Action and
that the property interest securing their Subsequent Mortgages was subject to that lawsuit.
As to the effectiveness of lis pendens, Florida law is contrary. As the Third DCA
explained,
The twenty-day bar in the lis pendens statute, increased by the Legislature in 2009
to thirty days, exists for the benefit of the plaintiff and to warn non-parties. It
does not preclude the plaintiff from amending its complaint, and thereby
effectively amending its lis pendens. As a notice to the lawsuit itself – not to a
particular and forever-limited universe of parties and claims – the lis pendens
provided notice after amendment to the claims and cross-claims [asserted]. The
plain words of the statute do not preclude a plaintiff’s decision to add an
otherwise-untimely lien claimant as a defendant in an amended pleading.
Nikooie, 2014 WL 6911148 at *7 (emphasis added).
Because a lis pendens was recorded identifying the Pompano Property prior to PWD
receiving its deed and Plaintiffs making the Subsequent Mortgages, and because PWD was
properly added to the Foreclosure Action, regardless of any fraud or lack of notice to Plaintiffs,
that lis pendens was effective with respect to the Pompano Property. Any rights that PWD had
in the Pompano Property, including the right to encumber the property with the Subsequent
Mortgages, arose after SLF Series G recorded the lis pendens in the foreclosure action.
Therefore, SLF Series G – and any later purchaser – acquired title to the Pompano Property free
and clear of the Subsequent Mortgages. Plaintiffs may seek redress against those parties which
they allege defrauded them in shielding the Foreclosure Action from them and by permitting the
foreclosure judgment and sale to go forward to the detriment of their interests in the Pompano
Property. But they do not allege that Columbia was a part of that fraud. Accordingly, Plaintiffs’
claims against Columbia in Counts IV, V and XI of the Amended Complaint must be dismissed.

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4.

Columbia’s Motion to Strike

Columbia’s Motion to Strike is directed against Plaintiffs’ request for attorneys’ fees
associated with Counts IV, V and XI of the Amended Complaint. The Motion is also directed
against reference, in Count IX of the Amended Complaint, to Columbia’s alleged full recourse
against Westcor based title insurance coverage that may potentially be available to Columbia.
The Court notes that Plaintiff’s PSAC does not include any allegations regarding insurance
coverage. For that reason and because, in any event, Plaintiffs’ claims against Columbia must be
dismissed, Columbia’s Motion to Strike is denied as moot.
D.

The Utah Defendants’ Motion to Transfer

The Utah Defendants request transfer of this action to the District of Utah, pursuant to 28
U.S.C. § 1404(a). They explain that Plaintiffs have sued each of the Utah Defendants (among
others, including many of the Defendants named here) in the Utah Action. The Utah Action
involves identical or similar allegations arising out of the same operative set of facts alleged
here, but covers a considerably broader set of investments and investment properties (twentyseven, to be precise).
1.

Transfer Under 28 U.S.C. § 1404(a)

As the Supreme Court recently explained, 28 U.S.C. § 1404(a) “is merely a codification
of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is
within the federal court system.” Atlantic Marine Const. Co. v. U.S. Dist. Court for W. Dist. of
Tex., 134 S.Ct. 568, 580 (2013). The statute provides that [f]or the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought.” 28 U.S.C. § 1404(a).

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“To determine the propriety of transfer to a different district, courts engage in a two-step
analysis under section 1404(a).” Osgood v. Disc. Auto Parts, LLC, 981 F. Supp. 2d 1259, 126364 (S.D. Fla. 2013)
“First, courts determine whether the action could have been brought in the venue
in which transfer is sought. Second, courts assess whether convenience and the
interest of justice require transfer to the requested forum.” In deciding the second
step, “courts focus on a number of potential factors including: (1) the
convenience of the witnesses; (2) the location of documents and other sources of
proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the
ability of process to compel the attendance of unwilling witnesses; (6) the relative
means of the parties; (7) the forum’s familiarity with the governing law; (8) the
weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and the
interests of justice, based on the totality of the circumstances.”
Id. (quoting Abbate v. Wells Fargo Bank, Nat. Ass’n, 2010 WL 3446878, at *4-5 (S.D. Fla. Aug.
31, 2010) (citing Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n. 1 (11th Cir. 2005)).
“The federal courts traditionally have accorded a plaintiff’s choice of forum considerable
deference.” In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989). That choice “should not be
disturbed unless it is clearly outweighed by other considerations.” Robinson v. Giarmarco &
Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996). “The burden is on the movant to establish that the
suggested forum is more convenient” than the plaintiff’s chosen forum. Steifel Labs., Inc. v.
Galderma Labs., Inc., 588 F. Supp. 2d 1336, 1338 (S.D. Fla. 2008) (citing Ricoh, 870 F.2d at
573). “Ultimately, transfer can only be granted where the balance of convenience of the parties
strongly favors the defendant.” Trafalgar Capital Specialized Inv. Fund (In Liquidation) v.
Hartman, 878 F. Supp. 2d 1274, 1282 (S.D. Fla. 2012) (quoting Steifel, 588 F.Supp.2d at 1339).
2.

Transfer of Venue to The District of Utah Is Appropriate Here

Transfer of this action to the District of Utah is appropriate under the conditions present
here.

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Case No. 15-CIV-61235-BLOOM/Valle
First, as discussed above, stripped of its claims against Columbia 7 and Westcor and
properly construing Count III of the Amended Complaint, Plaintiffs claims could have been
brought in the District of Utah. The primary investment-side Defendants here (as in the Utah
Action) are Utah companies or individuals residing in Utah. Each of the other Defendants are
named by Plaintiff in the Utah Action. Moreover, each of the notes and other investment
documents at issue in this case were written under and are governed by the laws of the State of
Utah. Am. Compl. Exh. C (SLF Offering Memorandum) at 110 (“(h) The laws of the State of
Utah shall govern the validity, construction, performance and effect of this Note.”); Am. Compl.
Exh. D (Private Placement Memorandum for NA-SLF) at 165 (“(h) The laws of the State of Utah
shall govern the validity, construction, performance and effect of this Note.”); Am. Compl. Ex. E
at Exh. B p. 23, Exh. C at 24, Exh. D at 24 (“7.7 Governing Law. This Mortgage shall be
construed according to and governed by the laws of the State of Utah.”); Id. at Exh. D, Note at 6
(“16. Construction. This Note shall be governed by and construed in accordance with the laws of
the State of Utah.”).
Second, the interests of convenience to the parties and judicial economy would be illserved by forcing the parties to litigate this matter twice, both here and in Utah. Plaintiffs have
sued the same parties on allegations involving the same fraudulent scheme both in this action and
in Utah. While Plaintiffs did include certain investment advisors as Defendants in the Utah
Action, and named certain downstream purchasers of the Pompano Property here and not there,
this case is in every practical way a subset of the Utah Action. Plaintiffs’ initial investment and
the consequent bridge loans for development of the investment property are part of the same
series master investment plan – including as to SLF Series G. The sale of the investment
properties after their development failed was part of a single master purchase and sale agreement

7

As all parties concede, Columbia is not subject to suit on Plaintiffs’ claims in Utah.

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Case No. 15-CIV-61235-BLOOM/Valle
– active including the Pompano Property. Plaintiffs’ theory of the fraud and their right to relief –
fraud by the investment-side Defendants and collusion or complicity, resulting in a lack of bona
fide or good faith ownership, by the purchase-side Defendants – is identical. Plaintiffs’ claims
largely overlap as between the two cases.

True, the intra-foreclosure fraud involving the

Subsequent Mortgages financing the Pompano Property does not appear with respect to the other
investment properties in the Utah complaint. Then again, the Utah complaint does not describe
how SLF secured foreclosure of the other investment properties. In any event, that distinction
simply makes the Pompano fraud a wrinkle in the larger fraudulent scheme. In short, the fraud
alleged by Plaintiffs here is subsumed within the overarching fraud alleged in the Utah Action.
Accordingly, the locus of operative facts, the convenience of all parties, trial efficiency
and the interests of justice all weigh heavily in favor of transfer to Utah. This holds true despite
the fact that most Plaintiffs are not from Utah; given the nature of this suit, trial here is no more
convenient, but trial twice is decidedly more inconvenient.

The witnesses and documents

relevant to SLF and related Defendants are located in Utah. As is apparent from the issues of
personal jurisdiction raised by the Utah Defendants and Bo Brower, certain Defendants are only
available in Utah. The investment properties are located in Washington, Oregon and Florida –
not in Utah. But Plaintiffs’ Complaints here and in the Utah Action make clear that the locus of
evidence in this case will be with the SLF Defendants, and not where the properties are located.
Finally, Plaintiffs’ choice of forum is somewhat moot here – they have chosen to sue in both
fora. The totality of the circumstances here clearly favors transfer of this action to the District of
Utah.
3.

The Barton Doctrine Does Not Complicate Transfer of Venue

The Receiver argues that because leave of the Washington court to sue the Receiver in
Utah was not obtained, and because the Receiver is not otherwise a party to the Utah Action,

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under the Barton doctrine, the district court in Utah lacks subject matter jurisdiction over
Plaintiffs’ claims against the Receiver. The Receiver’s argument is misplaced.
“[I]t is a general rule that before suit is brought against a receiver, leave of the court by
which he was appointed must be obtained.” Carter v. Rodgers, 220 F.3d 1249, 1252 (11th Cir.
2000) (quoting Barton v. Barbour, 104 U.S. 126, 127 (1881)). As one purpose of the Barton
doctrine, the requirement to obtain leave enables the receivership court to maintain control over
the receivership estate. See Palaxar Grp., LLC v. Williams, 2014 WL 5059286, at *3 (M.D. Fla.
Oct. 2, 2014); In re VistaCare Grp., LLC, 678 F.3d 218, 228 (3d Cir. 2012) Allard v. Weitzman,
991 F.2d 1236, 1240 (6th Cir. 1993). “Where a plaintiff neglects to obtain leave from the
appointing court, a suit filed against the receiver in another court must be dismissed for lack of
subject matter jurisdiction.” Patco Energy Express, LLC v. Lambros, 353 F. App’x 379, 381
(11th Cir. 2009).
Here, the Washington court overseeing Hunter’s liquidation appointed the Receiver in
order to manage the Pompano Property. The Receiver, based on that authorization, participated
in this action before the Circuit Court and after removal to this Court. Transfer of this action to a
separate venue does nothing to upset or diminish the Washington court’s authorization or the
Receiver’s management of the Pompano Property sale proceeds. No new case is being initiated.
Rather, the current case in which the Receiver is participating is being transferred. Accordingly,
leave of the Washington court is unnecessary as it has already been given. Further, continued
participation of the Receiver in this action promotes control by the Washington court over the
assets of Hunter’s receivership estate. This action may be transferred with the Receiver as a
named Defendant consistent with the Barton doctrine.

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E.

Bo Brower’s Motion to Dismiss

Bo Brower seeks dismissal for lack of personal jurisdiction and for failure to state a
claim. The Defendant construes Plaintiffs’ Amended Complaint as a shotgun pleading with
insufficient allegations of improper actions taken specifically by Bo Brower. Because this action
will be transferred to the District of Utah, and Bo Brower is resident in Utah and subject to
jurisdiction of the transferee court there, the issue of personal jurisdiction is moot. Further,
Plaintiffs’ PSAC does not name Bo Brower as a Defendant. This Court will leave whether and
to what extent Plaintiffs will be required to amend their pleading to the sound discretion of the
district court upon transfer.
F.

Ramifications of Plaintiffs’ Proposed Second Amended Complaint

Disposition of the Motion to Remand and Motion to Transfer involves interlocking
considerations of supplemental jurisdiction and proper venue. Consideration of those issues
together is most clearly stated in reference to Plaintiff’s Proposed Second Amended Complaint.
1.

Consideration of the Proposed Second Amended Complaint

For purposes of clarity, the Amended Complaint is Plaintiffs’ operative pleading in this
matter. Plaintiffs, at the Court’s request, submitted the PSAC to assist the Court in addressing
the motions currently before it. The Court has made reference to the PSAC in that analysis to
provide the parties the fullest treatment of the issues presented here, but continues properly to
treat the Amended Complaint as the operative pleading. Because the Court has determined not
to remand this case to the Circuit Court, and to transfer it to the District of Utah, the Court will,
as noted above, leave consideration of whether and how to permit Plaintiffs to amend their
pleading to the discretion of the court in Utah upon transfer.

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2.

Plaintiffs’ Proposed Second Amended Complaint Would Not Require
Remand

The prospective changes in Plaintiffs’ Proposed Second Amended Complaint do not
require remand of this action to the Circuit Court.

The PSAC eliminates Plaintiffs’ class

representation claims, Counts VI and IX (which signaled federal jurisdiction by reason of the
diversity of citizenship of the parties under the Class Action Fairness Act (“CAFA”), 28 U.S.C.
§§ 1332, 1446, 1453), and asserts a violation by PCG of Oregon securities laws, rather than
federal securities laws.
Regardless, courts look to claims in the operative complaint at the time of removal to
assess federal subject matter jurisdiction. See Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d
1283, 1287 (11th Cir. 2011) (“The existence of federal jurisdiction is tested as of the time of
removal.”); Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95 (11th Cir. 2008)
(same); Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 n.2 (11th Cir. 2007)
(“[T]he district court must look at the case at the time of removal to determine whether it has
subject-matter jurisdiction”). The Supreme Court has further held that a plaintiff’s post-removal
amendment of her pleading to eliminate a basis for federal jurisdiction solely to secure a state
forum in which to try the case is a factor a district court can consider when deciding whether to
remand a case. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988) (“If the plaintiff has
attempted to manipulate the forum, the court should take this behavior into account in
determining whether the balance of factors to be considered under the pendent jurisdiction
doctrine support a remand in the case.”) superseded by statute, 28 U.S.C. § 1367 (providing that
a district court may in its discretion decline to exercise supplemental jurisdiction where one of
four circumstances apply, including if it has “dismissed all claims over which it has original
jurisdiction”). In making a determination as to pendent jurisdiction under 28 U.S.C. § 1367(c) –

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Case No. 15-CIV-61235-BLOOM/Valle
including where federal claims have been “dismissed” – the district court should consider the
factors articulated by the Supreme Court in United Mines Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966): judicial economy, convenience, fairness to the parties, and whether all the
claims would be expected to be tried together. Ameritox, Ltd. v. Millennium Labs., Inc., --- F.3d
---, 2015 WL 5155240, at *10 (11th Cir. Sept. 3, 2015) (“[D]etermining whether to dismiss the
claims calls for the court to weigh the ‘host of factors’ outlined in Gibbs and Cohill: ‘judicial
economy, convenience, fairness, and comity.’”).
This is not a case of improper removal. At the time Bo Brower removed this case to
federal court, Plaintiffs’ Amended Complaint pleaded minimal diversity and the required amount
in controversy and contained claims for violation of federal securities laws, properly creating
federal subject matter jurisdiction. Plaintiffs have on their own admission designed the PSAC so
as to remove any claims invoking federal question or CAFA jurisdiction. See ECF No. [67] at 56. There is nothing wrong with attempting to avoid federal court or preferring a state forum. But
the Court must consider the issue of forum manipulation in conjunction with the other Gibbs
factors under the circumstances here – critically, the pending case in the District of Utah
involving the same parties and allegations but covering twenty seven other investments and
investment properties, all but the Pompano Property, implicated in the alleged fraud.
Again, this action involves a subset of the same larger fraud alleged in the Utah Action,
and Plaintiffs request, at bottom, the same relief – including legal or equitable relief from the
several state-level foreclosures involving the various investment properties. Declining to accept
jurisdiction over Plaintiffs’ state law claims and remanding the action to state court would force
the parties to try this case twice, in Utah and before the Circuit Court. Plaintiffs cast this case as
unique and separate from the overarching fraud alleged in the Utah Action largely on the basis of

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Case No. 15-CIV-61235-BLOOM/Valle
their request to vacate the judgment of foreclosure in the Foreclosure Action. On their argument,
their other claims would fail as a set of dominoes if they cannot vacate the foreclosure judgment,
a task they misconstrue as solely within the purview of the Circuit Court. The Court has
addressed and disposed of that argument above and below, see §§ III.B.2, III.E.3. That is, at the
very least, a federal district court can grant Plaintiffs money damages against the investment-side
Defendants regardless of whether it can vacate the foreclosure judgment. Moreover, Plaintiffs’
fraudulent transfer claims can be stated against the downstream interest holders even if the
foreclosure judgment stands.

(On the flipside, those downstream purchasers would be

immunized from Plaintiffs’ claims as bona fide purchasers or good faith transferees – effectively
functional equivalents here – even were the foreclosure judgment vacated.) Regardless, the
relief Plaintiffs seek with respect to the foreclosure judgment is not functionally or
fundamentally different from the relief they seek in the Utah Action with respect to the other
investment properties. Those properties, on Plaintiffs’ allegations in the Utah complaint, also
went through foreclosure proceedings and were sold free and clear to Workmen’s in the same
sale as was the Pompano Property. Plaintiffs’ claims in the Utah Action challenge state court
foreclosure proceedings in the same way in which Count III of their Amended Complaint does
here. If Plaintiffs believe that they need to turn to the state courts for recourse against the
ramifications of those foreclosure judgments, they will need to litigate this fraud in at least three
separate state fora (i.e., the investment properties are located in Washington, Oregon and
Florida) and possibly in dozens of separate actions. By contrast, the implied theory behind
Plaintiffs’ single action in Utah, and the upshot of this Court’s holding with respect to Count III
of the Amended Complaint and the Motion to Transfer, is that Plaintiffs can seek relief from all
Defendants involved in the alleged investment fraud efficiently and economically before one

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Case No. 15-CIV-61235-BLOOM/Valle
federal district court. This is because that court has the power to grant Plaintiffs the full panoply
of relief necessary to address their alleged losses.
These conditions of judicial economy, fairness to the Defendants, and convenience of all
implicated by these actions militate against declining pendent jurisdiction and remanding this
case. The Court in its discretion declines to remand this case to the Circuit Court.
3.

Relief With Respect to Count III of the Proposed Second Amended
Complaint

Plaintiffs have amended Count III of the PSAC to remove their request for money
damages as relief with respect to vacation of the foreclosure judgment in the Foreclosure Action.
Again, the Amended Complaint is the operative pleading. In any event, regardless of how
Plaintiffs define their cause of action, the relief they seek with respect to SLF Series G and the
Pompano Property (as with all the investment properties) is clear: return on their investment
allegedly lost through fraud by SLF and its related entities in conjunction with the initial and
subsequent purchasers of the investment properties. The District Court in Utah will manage
when and how Plaintiffs will be permitted to amend their complaint to align this case with the
Utah Action.
4.

Treatment of Plaintiffs’ Fraudulent Conveyance Claim Against
Columbia Referenced In The Proposed Second Amended Complaint

Plaintiffs’ Proposed Second Amended Complaint contains a set of factual allegations
regarding Columbia’s knowledge of the allegedly fraudulent nature of the transfers of the
Pompano Property preceding Columbia’s loan to Hunter, by which Hunter ultimately took title to
the property, including: that Columbia had constructive notice of the Subsequent Mortgages;
that the Subsequent Mortgages had not been joined in the Foreclosure Action; that Columbia did
not perform adequate due diligence when closing the loan to Hunter; and that, ultimately,
Columbia was “not a good faith transferee who took for adequate value.” PSAC ¶¶ 107, 122

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Case No. 15-CIV-61235-BLOOM/Valle
124, 192. Plaintiffs further allege that Columbia’s loan to Hunter “was not for comparable
value.” Id. ¶ 107. None of this implicates Columbia in any way in the alleged initial fraud. But
it does appear to state a claim for avoidance of both Columbia’s security interest in the Pompano
Property, taken as part of the loan to Hunter, and the transfer of the Pompano Property sale
proceeds to Columbia, in satisfaction of its loan to Hunter. Compare Am. Compl. ¶ 259 with
PSAC ¶ 192. Specifically, the PSAC alleges that Columbia, as a subsequent transferee of the
value of the Pompano Property – which was initially transferred from PWD to SLF Series G
through the foreclosure sale in order to defraud Plaintiffs, as holders of the Subsequent
Mortgages – did not acquire its lien or take the sale proceeds for reasonably fair value and in
good faith. See Fla. Stat. §§ 726.05(1)(a), 726.09(1).
That said, Plaintiffs’ fraudulent conveyance claim in Count VII of the PSAC is asserted
against only what that complaint defines as the “Fraudulent Conveyance Defendants,” which
does not include Columbia. Plaintiffs have themselves explicated that Columbia is not named in
their proposed fraudulent transfer claim. See ECF No. [67] at 3.
Finally, Columbia has acceded that Plaintiffs’ claims against it, to the extent not
dismissed, may be severed and retained, and adjudicated as between Plaintiffs and Columbia
without involvement of the remaining Defendants. See ECF No. [66] at 4-5.
As discussed above, Plaintiffs’ claims against Columbia asserted in the Amended
Complaint must be dismissed. And Plaintiffs, while providing factual allegations in their Second
Amended Complaint to support a claim of fraudulent transfer against Columbia, do not in fact
propose to assert that claim. That said, to the extent Plaintiffs intend to assert fraudulent
conveyance claims against Columbia, those claims would be severed from the remainder of this
action and would be separately adjudicated by this Court.

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IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
1. Westcor’s Motion to Strike, ECF No. [16], is DENIED AS MOOT.
2. Plaintiffs’ Motion to Remand, ECF No. [38], is DENIED.
3. Columbia’s Motion to Dismiss, ECF No. [23], is GRANTED, and Plaintiffs
claims against Columbia in Counts IV, V and XI of the Amended Complaint are
DISMISSED with prejudice.
4. Columbia’s Motion to Strike, ECF No. [24], is DENIED AS MOOT.
5. The Utah Defendants’ Motion to Transfer, ECF No. [25], is GRANTED as to the
request to transfer venue, and otherwise DENIED without prejudice. The Clerk
is directed to TRANSFER this action to the District of Utah pursuant to 28
U.S.C. § 1404(a). The Clerk is further directed to transmit notice of this order to
the court in the Utah Action.
6. Bo Brower’s Motion to Dismiss, ECF No. [12], is DENIED AS MOOT with
respect to the issue of personal jurisdiction, and otherwise DENIED without
prejudice.

DONE AND ORDERED in Miami, Florida, this 21st day of September, 2015.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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