The Ford Plantation Club, Inc. et al v. Scott et al

Filing 33

ORDER granting 6 Motion to dismiss. As a result, Defendants' counterclaim for deceit is DISMISSED. Signed by Judge William T. Moore, Jr on 9/22/17. (jlm)

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGJAg DISTRICT COURT
SAVANNAH DIVISION

Southern District of Ga.
Flied in Office
M

THE FORD PLANTATION CLUB,

2(0.

INC. and THE FORD PLANTATION

ASSOCIATION, INC.,

Deputy Clerk
Plaintiffs and Counter-

Defendants,
CASE NO. CV416-309

V.

MICHAEL L. SCOTT and NANCY

J.

SCOTT,
Defendants and CounterClaimants.

ORDER

Before

the

Court

is

Plaintiffs

and

Counter-Defendants

The

Ford Plantation Club, Inc. and The Ford Plantation Association,
Inc.'s

Motion

to

Dismiss

Counterclaim.

(Doc.

6.)

For

the

following reasons. Plaintiffs' motion is GRANTED. As a result.
Defendants

and

Counter-Claimants

Michael L.

Scott

and

Nancy

J.

Scott's counterclaim for deceit is DISMISSED.
BACKGROUND

This case involves Defendants' purchase of real property in

the

Ford

Plantation

development.

Plaintiff

Ford

Plantation

Association ("Association") is responsible for the operation and
maintenance

It 2.)

of

Plaintiff

the

common

Ford

areas

Plantation

in

Club

the

development.

("Club")

is

the

(Doc.

4

entity

responsible
amenities

for

the

offered

management

to

of

various

individuals

that

social

own

and

leisure

property

in

the

development and have been accepted for membership in the Club.
(Doc.

1,

Compl.

SI 5.)

Both

Plaintiffs

Association

and

Club

charge monthly fees and periodic assessments for the maintenance
of these common areas and amenities. (Id. SISI 11, 19.)

In

2002,

Defendants

purchased

property

within

the

development, later becoming members of Plaintiff Club. (Doc. 4,
SISI 6,

9.)

As

a

result.

Defendants

were

obligated

to

pay

the

various required fees and assessments. (Doc. 1, Compl. ISI 8, 9.)
However,

Defendants

have

failed

to

pay

these

expenses.

(Id.

SISI 12, 20.)

Plaintiffs filed suit in the Superior Court of Bryan County

alleging

that

Defendants

breached

their

contracts

Plaintiffs. (Id.) The complaint seeks over $150,000 in

with
unpaid

fees, assessments, late fees, and interest. (Id. 1 25.) Pursuant
to 28 U.S.C. § 1332, Defendants invoked this Court's diversity

jurisdiction and removed the case to this Court. (Doc. 1.)
In

their

answer,

Defendants

included

a

counterclaim

for

deceit.^ (Doc. 4 at 7.) Defendants contend that at the time they

^
Defendants
also
included
two
counterclaims
requesting
declaratory judgments that the club membership obligation is
unenforceable and that any member may resign from the club at
any time. (Doc. 4 at 11-22.) Because Plaintiffs do not seek
dismissal of those

counterclaims

not discuss them in this order.

at this time, the

Court

will

entered

into

affirmative

these

contracts.

representations

Plaintiffs

to

the

"made

a

Defendants

number

regarding

of

the

manner in which the Club and The Association would be operated,
the manner in which amenities would be provided and the manner

in

which

the

Defendants

current

property

also

and

allege

future

would
that

value

be

maintained."

Plaintiffs

of

the

(Id.

provided

property,

at

them

8.)

with

including

a

its

marketability and resale value. (Id. at 9.) Defendants maintain
that

these

statements

misrepresentations

[]

were

made

for

"false

the

sole

and

fraudulent

purpose

Defendants to enter into the contract for the

of

inducing

purchase of the

property in The Ford Plantation with the resulting obligations
to The Club and The Association." (Id. at 10.)

In

their

Defendants'

the

Motion

to

counterclaim

applicable

Dismiss,

fails

four-year

because

statute

of

Plaintiffs
it

was

argue

not

filed

limitations

that
within

contained

in

O.C.G.A. § 9-3-31. (Doc. 6 at 2.) Also, Plaintiffs maintain that
even if Defendants' allegations are true, the alleged statements

are

only

result,

opinions
those

on

future

statements

are

performance.
merely

(Id.

sales

at

3.)

puffery

and

As

a

not

actionable as fraud. (Id.)

In

their

short

response.

Defendants

appear

to

argue

that

the statute of limitations was tolled pursuant to O.C.G.A. § 93-96

because

Plaintiffs'

failure

to

sue

members

until

2014

"constitutes

so

as

to

a

fraud

render

that

the

[]

would

toll the

counterclaim

statute

of limitations

timely." (Doc.

7

at

2.)

Surprisingly, this is really the extent of Defendants' response,
which fails to include a single citation to any legal authority
at

all,

much

Moreover,

less

one

Defendants

contention

that

that

would

completely

the

facts

support

failed

alleged

in

to

their

address

support

of

position.

Plaintiffs'
Defendants'

counterclaim are only sales puffing and not an actionable fraud
claim.
ANALYSIS

I.

STANDARD OF REVIEW

Federal

Rule

of

Civil

Procedure

8(a)(2)

requires

a

complaint to contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." "[T]he pleading
standard

Rule

allegations,'

8

announces

but

it

does

demands

defendant-unlawfully-harmed-me

not

more

require

than

Metailed

an

accusation."

factual

unadorned,

Ashcroft

v.

the-

Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). "A pleading that offers '"labels and
conclusions'

or

a

"formulaic

recitation

of

the

elements

of

a

cause of action will not do.' " Id. (quoting Twombly, 550 U.S.
at

555). "Nor

assertion[s]'

does
devoid

a

complaint
of

"further

suffice
factual

if

it

tenders

"naked

enhancement.' " Id.

(quoting Twombly, 550 U.S. at 557) (alteration in original).

"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to

to

relief

Twombly,

that
550

at

the

the

plausible

U.S.

plausibility,
"allows

is

570).

plaintiff

court

to

on

draw

its

For

must
the

^state a claim

face.' " Id.

a

claim

plead

to

have

factual

reasonable

(quoting
facial

content

inference

that

that

the

defendant is liable for the misconduct alleged." Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quotations

omitted) (quoting Iqbal, 556 U.S. at 678). Plausibility does not
require

probability,

"but

it

asks

for

more

than

a

sheer

possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678. "Where a complaint pleads facts that are

^merely

consistent with' a defendant's liability, it ^stops short of the

line

between

possibility

and

plausibility

of

entitlement

to

relief. " Id. (quoting Twombly, 550 U.S. at 557). Additionally,
'

a complaint is sufficient only if it gives "fair notice of what
the

.

.

.

claim

Sinaltrainal,

578

is

and

F.3d

the

at

grounds

1268

upon

(quotations

which

it

rests."

omitted)

(quoting

Twombly, 550 U.S. at 555).
When

the

Court

considers

a

motion

to

dismiss, it

accepts

the well-pleaded facts in the complaint as true. Sinaltrainal,
578

F.3d

accept

1252

as

allegation."

at

true

1260.

a

Iqbal,

However,

legal
556

this

conclusion

U.S.

at

678.

Court

is "not

couched

as

Moreover,

a

bound

to

factual

"unwarranted

deductions of fact in a complaint are not admitted as true for

the

purpose

of

testing

the

sufficiency

of

[plaintiff's]

allegations." Sinaltrainal, 578 F.3d at 1268 (citing Aldana v.
Del Monte

Fresh

Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th

Cir. 2005)). That is, "[t]he rule

Moes not impose a probability

requirement at the pleading stage,' but instead simply calls for

enough

facts to

raise

will reveal evidence
Int'1 Univ., 495 F.3d

a

reasonable

of the

expectation that

discovery

necessary element." Watts v.

Fla.

1289, 1295-96 (11th Cir. 2007) (quoting

Twombly, 550 U.S. at 545).
II.

PLAINTIFFS' MOTION TO DISMISS

While

Defendants

style

their

counterclaim

as

one

for

deceit. Defendants actually allege that Plaintiffs fraudulently

induced them to purchase real property. This type of claim is
subject to the
O.C.G.A.

four-year

§ 9-3-31.

City

statute
of

of limitations

McCaysville

v.

contained in

Cardinal

Robotics,

LLC, 263 Ga. App. 847, 848, 589 S.E.2d 614, 615 (2003) (citing
Kerce v. Bent Tree Corp., 166 Ga. App. 728, 729, 305 S.E.2d 4 62
(1983)). This limitations period is tolled if the defendant is
"guilty of a fraud by which the plaintiff has been debarred or
deterred

from

bringing

an

action."

O.C.G.A.

§ 9-3-96.

Under

these circumstances, "[t]he period of limitation shall run only
from the time of the plaintiff's discovery of the fraud." Id.

The limitations period is only tolled by fraud that conceals the

cause of action, not the original fraud that gave rise to the
claim. Cardinal, 263 Ga. App. at 848, 589 S.E.2d at 615 (quoting
Kerce,

166

Ga.

App.

at

729,

305

S.E.2d

operates to conceal a cause

of action

artifice

to

into,

mislead

and

information

prevent
hinder
related

inquiry
the
to

462).

Fraud

that

utilizes some trick or

elude

potential

the

at

investigation

plaintiff

underlying

claim.

from
Id.

of,

or

obtaining

at

848,

589

S.E.2d at 615-16 (quoting Kerce, 166 Ga. App. at 729, 305 S.E.2d
at 463).

In

this

case.

Defendants

have

not

identified

or

even

alleged any trick or artifice Plaintiffs employed in an attempt
to

obfuscate

Defendants'

claim

for

fraudulent

inducement.

Defendants did not even bother to identify the five elements of

a

fraud

claim:

(1)

a

false

statement;

(2)

scienter;

(3)

the

intention to induce a party to act or refrain from acting; (4)
justifiable reliance by the defrauded party; and (5) damages.
See Serchion v. Capstone Partners, Inc., 298 Ga. App. 73, 76-77,

679 S.E.2d

40, 43 (2009) (quoting Stiefel v. Schick, 260 Ga.

638,

398

639,

exacerbated

by

S.E.2d

194,

Defendants'

195

(1990)).

failure

to

This

address

shortcoming
any

of

is

these

elements in their two-page brief.

As best the Court can decipher. Defendants' basic theory is
that

Plaintiffs'

failure

to

earlier

collect

the

fees

and

assessments prevented Defendants from bringing their claim for
7

fraudulent

belief

inducement

that

because

Plaintiffs

would

Defendants

never

were

seek

lulled

payment.

into

a

However,

Plaintiffs' decision to forego collection of those debts did not

prevent Defendants from investigating their claim for fraudulent
inducement,

which accrued when they contracted to purchase the

real property. See Kerce, 166 Ga. App. at 729, 305 S.E.2d at 462
("A

claim

of

fraudulent

inducement

in

the

execution

of

a

contract accrues on the date of the execution of the contract."

(citing Sears, Roebuck & Co. v. Green, 142 Ga. App. 770, 237
S.E.2d 10 (1977)). Absent some type of fraud that concealed or

prevented

Defendants

from

investigating

their

counterclaim.

Defendants have long since missed the limitations deadline.
Defendants decry the horrible outcome of their real-estate
investment and advance the general notion that they never would

have purchased the property had they known that Plaintiffs would

actually collect the fees and assessments Defendants agreed to
pay.

While

the

Court

is

empathetic

to

the

poor

state

of

Defendants' investment. Defendants have not advanced any legal

argument

sufficient

to

avoid

the

statute

applicable to their fraudulent inducement

of

limitations

counterclaim. As a

result,

Plaintiffs'

request

for

this

counterclaim

to

be

dismissed must be granted.^
CONCLUSION

For
(Doc.

6)

the

foregoing

is

GRANTED. As

reasons.
a

Plaintiffs'

result.

Motion

Defendants'

to

Dismiss

counterclaim for

deceit is DISMISSED.

SO ORDERED this

day of September 2017.

WILLIAM T. MOORE, JRT
UNITED STATES
SOUTHERN

DISTRICT COURT

DISTRICT OF GEORGIA

^ Because the Court has determined Defendants' counterclaim to be

untimely, the Court will not address whether Plaintiffs' alleged
statements qualify as fraudulent inducement.
9