Filippova v. Critton, Luttier & Coleman LLP et al

Filing 48

ORDER granting 37 Motion to Dismiss; denying as moot 46 Motion to Vacate. Signed by Judge Robin L. Rosenberg on 5/21/2018. (bkd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:18-CV-80126-ROSENBERG/REINHART
TAMARA FILIPPOVA,
Plaintiff,
v.
ILIA MOGILEVSKY & NATALIA
MOGILEVSKY,
Defendants.
/
ORDER GRANTING DEFENDANT ILIA MOGILEVSKY’S MOTION TO DISMISS
THIS CAUSE is before the Court on Defendant Ilia Mogilevsky’s Motion to Dismiss
[DE 37]. The Motion has been fully briefed. For the reasons set forth below, the Motion is
granted.
This case arises out of a filing of a lis pendens on January 5, 2018. DE 35. The lis
pendens was filed in connection with a divorce proceeding in the Circuit Court of the Fifteenth
Judicial Circuit, in and for Palm Beach County, entitled Natalia Mogilevsky v. Ilia Mogilevsky,
No. 50:2017-DR-01059-XXXXNB. Id. Plaintiff has brought three counts against Defendant Ilia
Mogilevsky, each of which is premised upon the lis pendens: Slander of Title (Count I),
Fraudulent Misrepresentation (Count II), and Request for Declaratory Judgment (Count III).
Defendant argues that Florida’s litigation privilege bars Count I and Count II.1 Plaintiff
admits, in her Complaint, that the lis pendens was filed in connection with the state court divorce
proceeding cited above. The “Florida litigation privilege affords absolute immunity for acts

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Defendant may also argue that the litigation privilege bars Count III but, for the reasons discussed below, the Court
need not address this argument. An affirmative defense may be raised in a motion to dismiss when the affirmative
defense appears on the face of the complaint. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225 n.8 (11th Cir. 2016).

occurring during the course of judicial proceedings. This privilege initially developed to protect
litigants and attorneys from liability for acts of defamation, but has since been extended to cover
all acts related to and occurring within judicial proceedings.” Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1274 (11th Cir. 2004). The rationale behind the litigation privilege is that it
should “free [participants in litigation] to use their best judgment in prosecuting or defending a
lawsuit without fear of having to defend their actions in a subsequent civil action for
misconduct.” R.H. Ciccone Props, Inc. v. JP Morgan Chase Bank, N.A., 141 So. 3d 590, 591
(Fla. Dist. Ct. App. 2014). Further, “Florida’s litigation privilege applies to state-law claims
adjudicated in federal court.” Jackson, 372 F.3d at 1274-75. Florida’s litigation privilege
applies to slander of title cases. E.g., Sailboat Key, Inc. v. Gardner, 378 So. 2d 47 (Fla. Dist. Ct.
App. 1980).

Similarly, Florida’s litigation privilege provides absolute immunity for claims of

fraudulent misrepresentation occurring during the course of judicial proceedings. E.g., Korman
v. Gray, No. 13-80031, 2013 WL 6002211, at *3 (S.D. Fla. Nov. 12, 2013).
In response to the law cited above, Plaintiff makes no argument of merit and instead
primarily argues about the propriety of the lis pendens. Regardless of the propriety of the lis
pendens, Plaintiff’s own allegations confirm that it was filed in connection with a pending state
court case. For all of the foregoing reasons, the Florida litigation privilege therefore applies.
Plaintiff’s Count I and Count II are both DISMISSED WITH PREJUDICE.
Turning to Plaintiff’s request for a declaratory judgment, the lis pendens—which is
attached to Plaintiff’s First Amended Complaint—was clearly filed in connection with Florida
state court case 50:2017-DR-010599-XXXXNB. DE 35 at 23. The state court case number
appears on the notice. Id. The Federal Declaratory Judgment Act, 28 U.S.C. § 2201, provides
that “any court of the United States . . . may declare the rights and other legal relations of any

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interested party seeking such declaration.” “Since its inception, the Declaratory Judgment Act
has been understood to confer on federal courts unique and substantial discretion in deciding
whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995).
The United States Supreme Court has “repeatedly characterized the Declaratory Judgment Act as
an enabling Act, which confers discretion on the courts rather than an absolute right upon the
litigant.” Id. at 286-87. A district court always has discretion whether to entertain an action for
a declaratory judgment. Cas. Indem. Exch. v. High Croft Enters, Inc., 714 F. Supp. 1190, 1193
(S.D. Fla. 1989). This discretion extends to parallel state court proceedings, Wilton v. Seven
Falls Co., 515 U.S. 277 (1995), and courts in this district have declined to consider requests for
declaratory relief in the context of pending divorce proceedings. See Cormier v. Green, 141 F.
App’x 808 (11th Cir. 2005). Here, the Court exercises its discretion to decline to consider a
request for a declaratory judgment that is entangled with state court divorce proceedings. The
divorce case number appears on the lis pendens. If Plaintiff believes the lis pendens is improper,
Plaintiff may pursue her remedies in state court.

Accordingly, Plaintiff’s Count III is

DISMISSED WITHOUT PREJUDICE.
For all of the foregoing reasons, Defendant’s Motion to Dismiss [DE 37] is GRANTED,
Plaintiff’s Count I and Count II are both DISMISSED WITH PREJUDICE, Plaintiff’s Count
III is DISMISSED WITHOUT PREJUDICE, Plaintiff’s Motion to Dissolve Notice of Lis
Pendens [DE 46] is DENIED AS MOOT, and Count IV shall proceed against Defendant Natalia
Mogilevsky.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 21st day of May, 2018.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record
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