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holding legal services are not trade or commerce
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CASE NO. 19-81532-CIV-SINGHAL
2020-04-13
James DRUMMOND, Marcia Clemmit, Tim Fry, Alan Withers and Maralago Cay Homeowners Association, Inc., f/k/a Arrowhead Mobile Homeowners Association, Inc., on behalf of themselves, the class of current and former mobile homeowners in the Park and all others similarly situated, Plaintiffs, v. Eric ZIMMERMAN, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHC Maralago Cay, L.L.C., Equity Lifestyle Properties, Inc., MHC Operating Limited Partnership, Joseph Allen Bobo, Lutz, Bobo & Telfair, P.A., d/b/a Lutz, Bobo, Telfair, Eastman & Bobo, f/k/a Lutz, Webb & Bobo, P.A., Defendants.
Daniel Wayne Perry, Law Office of Daniel Perry, Orlando, FL, for Plaintiffs. Ali Vakili Mirghahari, Mahlon Herbert Barlow, III, Sivyer Barlow & Watson P.A., Tampa, FL, J. Allen Bobo, Pro Hac Vice, Jody Blouch Gabel, Lutz, Bobo & Telfair, P.A., Sarasota, FL, for Defendants.
Daniel Wayne Perry, Law Office of Daniel Perry, Orlando, FL, for Plaintiffs.
Ali Vakili Mirghahari, Mahlon Herbert Barlow, III, Sivyer Barlow & Watson P.A., Tampa, FL, J. Allen Bobo, Pro Hac Vice, Jody Blouch Gabel, Lutz, Bobo & Telfair, P.A., Sarasota, FL, for Defendants.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE has come before the Court upon several pending motions arising from the Complaint (DE [1] ) filed on behalf of Plaintiffs. Defendants Eric Zimmerman, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHC Maralago Cay, LLC, Equity Lifestyle Properties, Inc., and MHC Operating Limited Partnership (the "Park Defendants") filed a Motion to Dismiss (DE [10] ). Defendants Lutz, Bobo & Telfair, P.A., and Joseph Allen Bobo (the "Lawyer Defendants") filed a separate Motion to Dismiss (DE [15] ) and also specifically joined in the Motion to Dismiss (DE [10] ) filed by the Park Defendants. The Park Defendants have also specifically joined in the Motion to Dismiss filed by the Lawyer Defendants. Finally, all Defendants filed a Motion to Compel Plaintiffs to Post Bond Pursuant to the Florida Deceptive and Unfair Trade Practices Act (DE [25] ).
I. BACKGROUND
This case involves the Maralago Cay Mobile Home Park (the "Park") in Lantana, Florida. Plaintiffs are four individuals who rent or lease the lots underneath their mobile homes at the Park and the Maralago Cay Homeowners Association, Inc. (the "HOA"). Plaintiffs sue on behalf of themselves and a putative class "of over 1,000 elderly current and former mobile homeowners in the Park and all others similarly situated." (Complaint, ¶¶ 1, 2). The Complaint further defines the putative class as "all persons who are, were, or will become mobile homeowners in the Maralago Cay Mobile Home Park from 2009 to the present and have identical or similar underlying mobile home lot rental agreements." (Complaint, ¶ 22). Defendants are the Park owner, its holding company, various past and present employees of each, the Park's outside law firm, and one of the attorneys who drafted a settlement agreement and attended a mediation.
The Complaint alleges a host of wrongs attributed to Defendants. Counts I through IV allege violations of federal and Florida RICO statutes by various groups of Defendants. Count V alleges violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.204 and 501.211, by all the Defendants. Count VI, brought only by the HOA, alleges a denial of rights of access by several of the Park Defendants in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq . Count VII alleges breach of statutory duties under the Florida Mobile Home Act, Fla. Stat. § 723.022, et seq. , and breach of lot rental agreements by all Defendants. Count VIII alleges the exploitation of individuals over the age of 65 by all Defendants in violation of Fla. Stat. §§ 812.014 and 812.0145. Finally, Count IX alleges racial and national origin discrimination by several of the Park Defendants in violation of the federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq.
The wrongdoing alleged in the Complaint spans decades and nearly every aspect of the Park's existence: the "illegal" purchase of the Park in 1997 by MHC Operating without granting the HOA the right of first refusal (Complaint, ¶¶ 28-32); the "illegal" sale or transfer of the Park to MHC Maralago in 2003 (Complaint, ¶ 33-38); the execution of an allegedly "illegal" long term rental agreement ("LTA") by the HOA in 2008 (Complaint, ¶¶ 39-49); the proposal of an "illegal" LTA in 2017 (Complaint, ¶¶ 50-59); "fraudulent and illegal" rental amounts, fees, and conditions for sale (Complaint, ¶¶ 60-63); contaminated water supply and outages (Complaint, ¶¶ 64-69); lack of handicap access at the Park (Complaint, ¶ 70); failure to maintain electrical utility pole connections and system (Complaint, ¶¶ 71-74); inoperative security gates (Complaint, ¶¶ 75-77); discrimination against persons with criminal convictions (Complaint, ¶¶ 78-84); diversion of prospective sales from homeowners (Complaint, ¶ 85); evictions for "hyper-technical" rule violations (Complaint, ¶ 87); and use of insecure filing cabinets to store Plaintiffs' financial information (Complaint, ¶ 88). Plaintiffs allege that Defendants and unnamed co-conspirators/agents used the U.S. Postal Service and interstate wires to defraud Plaintiffs and to commit the above-mentioned wrongful acts (Complaint, ¶¶ 89-99).
Defendants move to dismiss the Complaint on the grounds that (1) the Complaint is a shotgun pleading that fails to comply with federal pleading standards ( Fed. R. Civ. P. 8 and 9(b) ), (2) Plaintiffs lack standing, (3) the Complaint fails to state a claim upon which relief can be granted under RICO, the ADA, and FDUPTA, and (4) the purchase and transfer of ownership of the Park is beyond the applicable statutes of limitations. Defendants request that the Complaint be dismissed with prejudice.
II. LEGAL STANDARDS
At the pleading stage, a complaint must contain "a short and plain statement of the claim showing the [plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a). Although Rule 8(a) does not require "detailed factual allegations," it does require "more than labels and conclusions"; a "formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, "factual allegations must be enough to raise a right to relief above the speculative level" and must be sufficient "to state a claim for relief that is plausible on its face." Id. at 555, 570, 127 S.Ct. 1955. "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." Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Authority , 566 U.S. 449, 132 S. Ct. 1702, 182 L.Ed.2d 720 (2012).
In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally "limited to the four corners of the complaint." Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas County , 285 F.3d 1334, 1337 (11th Cir. 2002) ). In reviewing the complaint, the court must do so in the light most favorable to the plaintiff, and it must generally accept the plaintiff's well-pleaded facts as true. See Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ; Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1057 (11th Cir. 2007). But "[c]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Jackson v. BellSouth Telecomms. , 372 F.3d 1250, 1262 (11th Cir. 2004) (citation omitted); see also Iqbal, 129 S. Ct. at 1949 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").
Further, Rule 9(b), Federal Rules of Civil Procedure, requires that allegations of fraud must be pled with particularity. "To comply with Rule 9(b), a plaintiff must allege: ‘(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.’ " Cardenas v. Toyota Motor Corp., 418 F.Supp.3d 1090, 1098 (S.D. Fla. 2019) (Moreno, J.) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1380-81 (11th Cir. 1997) (per curiam )). "At bottom, the purpose of particularity pleading is to alert defendants to their precise misconduct and protect them against baseless charges of fraudulent behavior." Id.
The opposite of a short and plain statement of the claim is what is known as a "shotgun" pleading. " ‘Shotgun’ pleadings are cumbersome, confusing complaints that do not comply with these pleading requirements. We have repeatedly condemned shotgun pleadings." See Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1321–23 nn.11–15 (11th Cir. 2015). There are four basic types of shotgun pleadings: (1) those in which each count adopts the allegations of all preceding counts; (2) those that do not re-allege all preceding counts but are replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; (3) those that do not separate each cause of action or claim for relief into a different count; and (4) those that assert multiple claims against multiple defendants without specifying which applies to which. Id. at 1321–23 (quotations omitted). "The unifying characteristic of all types of shotgun pleadings is that they fail to ... give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Id. at 1323 ; Yeyille v. Miami Dade Cty. Pub. Sch. , 643 Fed. Appx. 882, 884 (11th Cir. 2016). "Courts in the Eleventh Circuit have little tolerance for shotgun pleadings." Vibe Micro, Inc. v. Shabanets , 878 F.3d 1291, 1295 (11th Cir. 2018).
III. ANALYSIS
A. Shotgun Pleading
Defendants argue the Complaint should be dismissed as a shotgun pleading. The Court agrees. The Complaint, as drafted, "is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action." Weiland , 792 F.3d at 1322. By way of example, paragraph 11 of the Complaint alleges jurisdictional facts about one Defendant, Equity LifeStyle Properties, Inc., but also includes a page and a half long quotation from its "Business Ethics and Conduct Policy." This matter is immaterial and makes it impossible for the Defendants to "fairly respond to the substance of the allegation" as required by Rule 8(b)(2). In addition, Count VI (the ADA claim) contains legal arguments and citations to other cases (Complaint, ¶¶ 152-156). These are not matters properly raised in a Complaint.
Furthermore, the Complaint "commits the sin of not separating into a different count each cause of action or claim for relief." Id . at 1323. For example, the RICO counts allege violations of both the federal and Florida RICO statutes. The failure to present each claim in a separate count in violation of Fed. R. Civ. P. 10(b) constitutes a shotgun pleading. Id. The Complaint also alleges at least 10 "alternative" enterprise scenarios and conspiracies between various Defendants under the four RICO counts (Complaint, ¶¶ 101-132). It is impossible to identify the basis for each RICO count when the Complaint posits multiple, and competing, factual scenarios.
Additionally, Counts V, VII, and VIII are brought against "all Defendants" without specifying what conduct each Defendant contributed to the cause. Especially as to the individual Park Defendants, the Complaint alleges nothing more than conclusory and vague allegations of wrongdoing. Likewise, all of the counts (except the ADA count) are brought by all of the Plaintiffs jointly. The individual Plaintiffs and the HOA are not similarly situated, have different rights and responsibilities, and their claims should not be raised together in the same counts.
In sum, the Complaint is a shotgun pleading and, for that reason alone, the Complaint is dismissed in its entirety. The Court will, to the extent it can, also address the merits of Defendants' motions as to the individual claims so as to narrow the issues that may be raised in an amended complaint.
B. Failure to State a Claim Upon Which Relief Can Be Granted
a. RICO
Counts I and II of the Complaint allege violations of federal and Florida RICO statutes, 18 U.S.C. § 1962(c) and Fla. Stat. § 772.103. The relevant portion of the RICO statute at issue provides:
"The Florida RICO statute requires the same elements as a federal RICO claim, but ‘violation of the Florid RICO statute requires allegations of predicate acts that violated Florida law, rather than Federal law.’ " Asbury v. Slider , 2020 WL 871097, at *3., n.1 (M.D. Fla. Feb. 21, 2020) (quoting Design Pallets, Inc. v. GrayRobinson, P.A. , 515 F. Supp. 2d 1246, 1257 (M.D. Fla. 2007) ).
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). A civil RICO claim, therefore, requires a demonstration of the following elements: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) that caused injury to business or property." Ace Pro Sound and Recording, LLC v. Albertson , 512 F. Supp. 2d 1259, 1266 (S.D. Fla. 2007) (citing Langford v. Rite Aid of Ala., Inc. , 231 F.3d 1308, 1311 (11th Cir. 2000) ). "Racketeering activity" includes various enumerated criminal offenses, such as mail and wire fraud. See 18 U.S.C. § 1961(1). To allege a pattern of racketeering, a plaintiff must allege "at least two racketeering predicates that are related, and that they amount to or pose a threat of continued criminal activity." Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1290 (11th Cir. 2010). Counts III and IV allege conspiracy to commit RICO in violation of 18 U.S.C. § 1962(d) and Fla. Stat. § 772.103(4). A RICO conspiracy requires either showing: (1) an agreement with the overall objective of the conspiracy; or (2) an agreement to commit two predicate acts.
Plaintiff's RICO claims are based upon alleged predicate acts of mail and wire fraud. (Complaint, ¶¶ 89-99). "An alleged pattern of racketeering consisting of predicate acts of mail and wire fraud ‘must comply not only with the plausibility criteria articulated in Twombly and Iqbal but also with Fed. R. Civ. P. 9(b)'s heightened pleading standard.’ " Asbury , 2020 WL 871097, at *3 (quoting Am. Dental Ass'n , 605 F.3d at 1291 ). To comply,
a plaintiff must allege "(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.
Am. Dental Ass'n , 605 F.3d at 1291 (quoting Brooks, 116 F.3d at 1380-81 ).
The Complaint's RICO counts state that the mail and wire fraud acts are described in paragraphs 89 to 99 of the Complaint. (Complaint, ¶¶ 107, 117, 123, 127). However, the Complaint does not contain anything more than conclusory allegations of fraudulent misrepresentations. For example, paragraph 91 states as follows:
In particular, Defendants (and their co-conspirators/agents) knew or could foresee that the U.S. Postal Service and interstate wires would be used to receive and/or deliver, inter alia , the assumption of lease and prospectus receipt documents used by the Defendants which incorporated fraudulent representations regarding sale or transfer of the Park in violation of Plaintiffs' right of first refusal, defrauded the Plaintiffs into accepting an illegal long term agreement, circumvent statutory regulations including, but not limited to: rejection of the Maralago Cay HOA's park comparables, charge the Plaintiffs illegal fees, impose illegal and discriminatory conditions upon resale, divert resales and encourage hyper technical and illegal evictions to the benefit of the Defendants, fail to maintain the water supply (resulting in poor quality and outages) and conceal contamination of the water supply, fail to maintain electrical connections and systems, fail to maintain security gates, and store Plaintiffs' sensitive personal and financial information in an insecure Park maintenance shed.
(Complaint, ¶ 91, emphasis added). The Complaint contains a litany of alleged wrongdoing; it lacks, however, any specific descriptions of allegedly fraudulent statements, documents or misrepresentations or the specific defendant(s) responsible for them, as required by Fed. R. Civ. P. 9(b). "Plaintiffs may not abrogate their duty to allege specific facts for which each Defendant is accountable by generally alleging that each Defendant participated in the conspiracy to defraud; yet that is precisely what the [Complaint] attempts to do with conclusory and vague assertions of wrongdoing." Worldspan Marine Inc. v. Comerica Bank , 2020 WL 1238732 at *4 (S.D. Fla. Feb. 27, 2020), report and recommendation adopted 2020 WL 1238024 (S.D. Fla. Mar. 12, 2020),
Plaintiffs' allegations that they were charged improper or illegal fees does not establish a misrepresentation. See In re Checking Account Overdraft Litigation , 797 F. Supp. 2d 1323, 1331 (S.D. Fla. 2001) (King, D.J.) (mailed invoiced containing improper charges does not give rise to RICO liability). Likewise, Plaintiffs' allegations that the Park Defendants violated the Florida Mobile Home Act, Fla. Stat. § 723 et seq. does not, without more, establish mail or wire fraud, or the conspiracy to commit the same. Plaintiffs have alleged no facts to support a claim of mail or wire fraud, or a conspiracy.
In response to the Motion to Dismiss, Plaintiffs argue that mail or wire fraud can be premised on non-disclosure when there is a fiduciary or statutory duty to disclose. However, Plaintiffs' Complaint does not allege the existence of a special duty to disclose, nor does it identify the information that should have been disclosed but was not. Plaintiffs' Complaint fails to allege sufficient facts which, if true, would plausibly support a claim for violation of RICO against Defendants. For this reason, Plaintiffs' RICO claims (Counts I, II, III, and IV) are dismissed.
Additionally, the Lawyer Defendants have moved to dismiss the RICO claims on the ground that the Complaint fails to allege a basis for RICO liability against the Lawyers (DE [15] ). In order to establish RICO liability, a plaintiff must also establish that the defendant participated in operating or managing the enterprise itself. Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993).
In Reves , the accounting firm for a farmer's cooperative performed an audit and prepared a financial statement in which it valued an asset, but noted that the investment was a loss. In the following year's audit, the accounting firm also indicated concern as to whether that investment was recoverable, but it omitted the note from the financial statement distributed at the annual shareholder's meeting, thus overvaluing the asset. Although the accounting firm knew the financial statement was inaccurate and fraudulent, it failed to withdraw its name from the statement. Based on this financial statement, shareholders believed the cooperative was solvent and, therefore, purchased demand notes in the cooperative. Shortly thereafter, the cooperative declared bankruptcy. The shareholders then brought a securities fraud and RICO action against the accounting firm. Ultimately, the Supreme Court was required to interpret § 1962(c)'s statutory phrase "to conduct or participate." The Court concluded "in order to ‘participate, directly or indirectly, in the conduct of such enterprise's affairs’ one must have some part in directing those affairs." Id. at 185, 113 S.Ct. 1163 (upholding lower court's grant of summary judgment in favor of accounting firm).
Applying the Reves standard, courts have held that merely providing standard legal services will not subject an attorney to RICO liability, even where the attorney's services furthered the enterprise's goal or where the attorney knew of the illicit nature of the enterprise's affairs. Design Pallets, Inc. v. Gray Robinson, P.A., 2008 WL 3200275, at *5 (M.D. Fla. Aug. 5, 2008) (providing run-of-the-mill professional services is not equivalent to directing or controlling an enterprise); State Farm Mut. Auto. Ins. Co. v. Abrams, 2000 WL 574466, at *11 (N.D. Ill. May 11, 2000) ("attorney ... cannot be liable under RICO even with knowledge of the illicit nature of the alleged enterprise, merely for providing legal services"); Biofeedtrac, Inc. v. Kolinor Optical Enterprises & Consultants, S.R.L, 832 F. Supp. 585, 591 (E.D.N.Y. 1993) (attorney had not participated in the operation or management of a RICO enterprise, even though he may have intentionally assisted a scheme to defraud).
Plaintiffs' Complaint contains no factual allegations to support the conclusion that the Lawyer Defendants directed or controlled an enterprise and Plaintiffs do not identify any such facts in their opposition memorandum. The actions alleged to have been taken by the Lawyer Defendants – drafting documents, participating in mediation – do not establish control or direction of an enterprise. For this additional reason, Plaintiffs' RICO claims against the Lawyer Defendants (Counts I, II, III, and IV) are dismissed with prejudice.
Plaintiffs argue that the Lawyer Defendants presented an "illegal" LTA at the pre-suit mediation and that act can support RICO liability. As discussed in the Court's Order on Defendants' Petition for Civil Remedies (DE [7] ), the Court is striking the allegations about the LTA presented at mediation as sanctions for violating the confidentiality of the mediation. And even if those allegations were allowed to stand, they do not support a conclusion that the Lawyer Defendants controlled or directed the alleged enterprise.
b. FDUTPA
Count V of the Complaint alleges violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA), Fla. Stat. §§ 501.204 and 501.211, by all Defendants. The Lawyer Defendants (joined by the Park Defendants) move to dismiss the FDUTPA claim on the grounds that (1) FDUTPA does not apply to mobile home parks and (2) FDUTPA does not apply to legal services. Both of these arguments are correct.
Plaintiffs do not dispute that Fla. Stat. § 501.212(7) (combined with the requirements of Chapter 723, Florida Statutes) excludes mobile home parks from the provisions FDUTPA. Thus, the Court agrees that Plaintiffs cannot state a FDUTPA claim against the Park Defendants.
Plaintiffs acknowledge that legal services are not subject to FDUTPA, but argue that FDUTPA should be broadly construed to protect consumers from improper behavior See Alhassid v. Bank of Am., N.A. , 60 F. Supp.3d 1302 (S.D. Fla. 2014) ; Schauer v. Gen. Motors Acceptance Corp. , 819 So.2d 809 (Fla. 4th DCA 2002). However, the only behavior by the Lawyer Defendants alleged in the Complaint involved rendering of legal services. As such, Plaintiffs may not maintain a FDUTPA claim against them. Kurlander v. Kaplan , 2019 WL 3944338 (M.D. Fla. Aug. 21, 2019) (legal services do not fall within the ambit of FDUTPA).
For these reasons, Plaintiffs' claims under FDUTPA are dismissed with prejudice.
c. ADA
Count VI of the Complaint, brought solely by the HOA, alleges violations of the ADA by the Park Defendants. The HOA alleges that the Park's office, clubhouse, and recreation areas contain barriers that deny homeowners access (Complaint, ¶¶ 159–161) and that the Park Defendants have failed to remove the barriers. Defendants move to dismiss the ADA claim for lack of standing and for failure to state a claim upon which relief can be granted.
In light of the Court's conclusion that the HOA lacks standing to assert the ADA claims on behalf of its members, the Court will not address Defendant's failure to state a claim upon which relief can be granted argument.
An association has standing "to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). "[T]he first two prongs of the Hunt test are Article III requirements which must always be satisfied to establish standing, but that the third prong is only a prudential requirement, which may be eliminated by Congress." Doe v. Stincer , 175 F.3d 879, 882 (11th Cir. 1999).
Courts in this District have concluded that "an ADA claim is one which an advocacy group may assert on behalf of its members" and, therefore, ADA claims asserted by advocacy groups on behalf of their members satisfies the third prong of the Hunt test. See Open Access for All, Inc. v. Town of Juno Beach, Fla., 2019 WL 3425090, at *5 (S.D. Fla. July 30, 2019) (citing Alumni Cruises, LLC v. Carnival Corp. , 987 F. Supp. 2d 1290, 1301-02 (S.D. Fla. 2013) (citing Stincer , 175 F.3d at 886 ); see also Wein v. Am. Huts, Inc. , 313 F. Supp. 2d 1356, 1360-61 (S.D. Fla. 2004) (concluding that an advocacy group had standing to pursue declaratory and injunctive relief on behalf of its members under the ADA)). However, Defendants argue that the HOA fails to meet the requisite first and second prongs of the Hunt test.
The HOA attempts to assert ADA claims on behalf of its members, who are "elderly" – the Park is an age 55 and older mobile home park (Complaint, ¶ 152). Without specific examples, the Complaint alleges that the "mobile home owners have mobility, balance, gait, vision, and hearing difficulties." The Complaint concludes that "many Plaintiff mobile home owners are physically disabled" and/or "suffer from low vision and age-related cognitive decline." (Complaint, ¶¶ 157-58). Defendants argue that the HOA's ADA claim fails because it has failed to allege at least one of its members who have standing to sue in his or her own right. The Eleventh Circuit has stated that "an association may bring suit on behalf of its members or constituents despite the fact that individual members have not actually brought suit themselves. Nor must the association name the members on whose behalf suit is brought." Stincer, 175 F.3d at 882. However, to satisfy the first prong of the Hunt test, the HOA must show that at least one of its constituents has standing to sue for the violations alleged. Id . at 886. Even amongst a 55-and-older population, certainly many, or even most members, do not meet the disability requirements for ADA standing. The physical characteristics of the Park described in the Complaint are only barriers to persons who are comparably physically disabled. The HOA's broad list of alleged barriers and lack of specified individuals with corresponding disabilities do not satisfy the first prong of the Hunt test.
More importantly, the HOA cannot, as a matter of law, establish the second prong of the Hunt test: that the interests it seeks to protect are germane to the HOA's purpose. The duties and responsibilities of the HOA are defined by statute, Fla. Stat. §§ 723.075, 723.077, 723.078, and 723.079. The HOA exists for the benefit of the homeowners and the mobile home park; it is not a disability advocacy group. The HOA lacks standing to assert ADA claims on behalf of its members. Asbury , 2020 WL 871097, at *3. For this reason, the HOA's ADA claims are dismissed with prejudice.
d. Florida Mobile Home Act (Chapter 723)
Count VII of the Complaint raises a claim for violations of the Florida Mobile Home Act against all Defendants, including the Lawyer Defendants. The Lawyer Defendants move to dismiss this count because they are not a mobile home park, are not parties to the rental agreement, and are not involved in the landlord-tenant relationship. Plaintiffs offer no rebuttal to these arguments and, therefore, Count VII, violation of the Florida Mobile Home Act, is dismissed with prejudice as to the Lawyer Defendants. e. Exploitation of an Individual Over Age 65
The Lawyer Defendants move to dismiss Plaintiffs' claims for injunctive relief and damages arising from an alleged exploitation of an individual over age 65, pursuant to Fla. Stat. § 812.035. The Park Defendants have joined in the Lawyer Defendants' motion and also argue that Plaintiffs lack standing to bring this claim. Plaintiffs have not responded to the arguments in favor of dismissing this claim. Therefore, Count VIII of the Complaint, Exploitation of an Individual Over Age 65, is dismissed with prejudice as to all Defendants.
C. Standing and Statute of Limitations Issues
At its core, the Complaint addresses Plaintiff's rights as owners of property within a mobile home park. The Complaint casts a long shadow, going back to the sale or transfer of the Park in 1997. The Complaint also challenges the validity of an LTA entered into in 2008, certain fees charged by the Park, the level of maintenance and utility services in the Park, and other alleged violations of the Florida Mobile Home Act by the Park Defendants. Imposed over all of this are claims of fraud and RICO violations all brought within what the Court has found to be a shotgun pleading.
Defendants challenge standing on the part of the individual Plaintiffs and the HOA Plaintiff on various claims. Defendants also challenge the statute of limitations as to some of the claims. However, because of the shotgun nature of the Complaint, the Court cannot readily decipher who is seeking what relief. Because Plaintiffs are given leave to amend certain claims, the Court will address any standing and statute of limitations arguments that Defendants may raise in response to an amended complaint.
In light of the foregoing discussion, it is hereby
ORDERED AND ADJUDGED as follows:
1. The Park Defendants' Motion to Dismiss (DE [10] ) is GRANTED , with leave to amend. However, Counts V, VI, and VIII are DISMISSED WITH PREJUDICE. The amended complaint shall comply with Fed. R. Civ. P. 8 and 9 and shall not be a shotgun pleading. Failure to comply may result in dismissal with prejudice.
2. The Lawyer Defendants' Motion to Dismiss (DE [15] ) is GRANTED . The Complaint against these Defendants is DISMISSED WITH PREJUDICE; and
3. Defendants' Motion for Bond (DE [25] ) is DENIED AS MOOT.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 13th day of April 2020.