Flippo v. Stiles
Filing
20
OPINION AND ORDER granting 10 Motion to Dismiss; granting 10 Motion to Strike. This case is CLOSED. Signed by Judge Kenneth A. Marra on 7/21/2014. (ir) 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
NO. 13-80649-CIV-MARRA
WILLIAM WOOD FLIPPO, II,
Plaintiff,
v.
JACK STILES,
Defendant.
______________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion to Dismiss Complaint for Failure
to State a Cause of Action and Improper Jurisdiction, Strike Claim for Damages & Strike Service
of Process as Improper (DE 10). Plaintiff responded. (DE 12). For the reasons stated below,
Defendant’s Motion to Dismiss (DE 10) is GRANTED.
I. Background
This case arises out of a dispute between neighbors owning properties on the same street in
West Palm Beach, Florida. Both Plaintiff and Defendant are proceeding pro se. Plaintiff’s
allegations are not easy to discern. It appears that Plaintiff states that Defendant and some of the
other neighbors stole Plaintiff’s property and electrical power. On this basis, Plaintiff brings claims
for a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), theft, and
tempering with Plaintiff’s property. Plaintiff bases jurisdiction on diversity of citizenship, 28 U.S.C.
§ 1332, alleging that Defendant is a resident on North Carolina because Defendant’s vehicle is
registered there, and, in the alternative, on federal question, 28 U.S.C. § 1331.
Plaintiff seeks several types of relief. Plaintiff asks the Court to enjoin Florida Power and
Light from interrupting Plaintiff’s service due to Defendant’s tampering with the electrical breakers,
to appoint a guardian for Defendant, who is elderly, to order Defendant to only perform construction
work in a lawful manner, to request Palm Beach County Code Enforcement to be more vigilant, to
order Defendant and others mentioned in the Complaint to protect Plaintiff’s constitutional rights
and to order Defendant to pay Plaintiff $314.00 for his damaged air conditioning unit.
Defendant moved to dismiss the Complaint for failure to state a claim and for lack of subject
matter jurisdiction alleging that he is a resident of Florida and that damages do not exceed
$75,000.00.1
II. Legal standard
1. Motion to Dismiss for Failure to State a Claim
Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of the
claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon
which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[w]hile 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 ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Overall, a complaint must “give
the defendant fair notice of what the claim is and the grounds upon which it rests.” Id. (internal
quotation omitted); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
1
Defendant also asks to quash improper service. Plaintiff responds that he mailed the
Complaint to Defendant. Thus, Plaintiff did not properly serve Defendant. See Fed. R. Civ. P.
4(e).
as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quotations and citations omitted). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for relief survives
a motion to dismiss." Id. at 1950. Lastly, “[w]hen considering a motion to dismiss, all facts set forth
in the plaintiff's complaint are to be accepted as true and the court limits its consideration to the
pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th
Cir. 2000) (internal quotation omitted).
2. Motion to Dismiss for Lack of Jurisdiction
Defendant also moved for dismissal pursuant to the Rule 12(b)(1) due to lack of subject
matter jurisdiction. The Eleventh Circuit has said:
Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two
forms. ‘Facial attacks’ on the complaint ‘require[ ] the court merely to look and see
if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true for the purposes of the motion’ . . .
‘Factual attacks,’ on the other hand, challenge ‘the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered.’
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (citations omitted).
When the attack is facial, the standard is similar to the one employed under Rule 12(b)(6),
and all well-pleaded allegations in the complaint are taken as true. Id. When the attack is factual,
the court may go beyond the pleadings and can weigh the evidence. Id.
Here, the attack is factual. Thus, the Court may consider information not contained in the
Complaint.
III. Discussion
1. Motion to Dismiss for Failure to State a Claim
The Complaint does not give Defendant a fair notice of the claims because it is very hard to
discern what claims are actually asserted. To the extent Plaintiff brings a RICO claim, this claim
cannot survive the Motion to Dismiss because there are no allegations of any activity affecting
interstate or foreign commerce or of qualified predicate acts. See 18 U.S.C.A. §§ 1961, 1962 (West);
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 647 (2008). It appears that the rest of the
claims are based on state law. Thus, they should be dismissed as well. See United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
2. Motion to Dismiss for Lack of Jurisdiction
Plaintiff does not make any factual allegations supporting the proposition that damages in
this case will exceed 75,000. Also, the Complaint only alleges Defendant’s residency and does not
specify the citizenship of either party, which is insufficient to establish the parties’ diversity of
citizenship.2 See Audi Performance & Racing, LLC v. Kasberger, 273 F. Supp. 2d 1220, 1226 (M.D.
Ala. 2003). Thus, this Court cannot exercise jurisdiction over this case under 28 U.S.C. § 1332.
Accordingly, Defendant’s Motion to Dismiss (DE 10) is GRANTED. Because it does not
appear that Plaintiff can cure the jurisdictional defects present in this case, leave to amend will be
futile. Therefore, this case is DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall
CLOSE this case. All other pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 21st day of July, 2014.
_________________________________
KENNETH A. MARRA
United States District Judge
2
While Defendant did not file an affidavit, Defendant argues that he is a resident of
Florida. Thus, it appears that both Plaintiff and Defendant are citizens of Florida and that there is
no diversity of citizenship between the parties.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?