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Kevin Camm, Enneis Haney, Yuyuan Lucy Lu, Individually and On Behalf v. Rick Scott*Fn1

November 30, 2011

KEVIN CAMM, ENNEIS HANEY, YUYUAN LUCY LU, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
RICK SCOTT*FN1 , AS GOVERNOR OF THE STATE OF FLORIDA, MEMBER OF THE FLORIDA CABINET, AND DIRECTOR OF THE FLORIDA *FN2 DEPARTMENT OF REVENUE, PAM BONDI , AS ATTORNEY GENERAL OF THE STATE OF FLORIDA, MEMBER OF THE FLORIDA CABINET AND DIRECTOR OF THE FLORIDA DEPARTMENT OF REVENUE, JEFF ATWATER*FN3 , AS CHIEF FINANCIAL OFFICER, MEMBER OF THE FLORIDA CABINET AND DIRECTOR OF THE FLORIDA DEPARTMENT OF REVENUE, PUTNAM*FN4 ADAM H. , AS COMMISSIONER OF AGRICULTURE, MEMBER OF THE FLORIDA CABINET AND DIRECTOR OF THE FLORIDA DEPARTMENT OF REVENUE, THE FLORIDA CABINET AS HEAD OF THE DEPARTMENT OF REVENUE, FLORIDA DEPARTMENT OF REVENUE, DEFENDANTS.



OPINION AND ORDER

This matter comes before the Court on defendants' motions to dismiss (Docs. ##7-9, 10, 22), to which plaintiffs filed a consolidated response (Doc. #23). Defendants seek to dismiss plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

I.

Plaintiffs are representatives of a putative class of Florida homeowners who are defendants in foreclosure proceedings in various Florida state courts. Plaintiffs assert that as state-court defendants they have compulsory claims which must be filed or forfeited, but they are required by a relatively new Florida statute to pay a filing fee to assert such compulsory claims. Specifically, Fla. Stat. § 28.241(c) provides that:

A party [in a civil action in a circuit court relating to real property or mortgage foreclosure] who files a pleading in an original civil action in circuit court for affirmative relief by cross-claim, counterclaim, counterpetition, or third-party complaint shall pay the clerk of court a graduated fee of: a. Three hundred and ninety-five dollars in all cases in which the value of the pleading is $50,000 or less; b. Nine hundred dollars in all cases in which the value of the pleading is more than $50,000 but less than $250,000; or c. One thousand nine hundred dollars in all cases in which the value of the pleading is $250,000 or more. The clerk shall remit the fees collected under this subparagraph to the Department of Revenue for deposit into the General Revenue Fund, except that the clerk shall remit $100 of the fee collected under sub-subparagraph a., $605 of the fee collected under sub-subparagraph b., and $1,605 of the fee collected under sub-subparagraph c. to the Department of Revenue for deposit into the State Courts Revenue Trust Fund.

Fla. Stat. § 28.241(c). Plaintiffs assert that this statute violates their substantive and procedural Due Process rights under the Fifth and Fourteenth Amendments of the United States Constitution, as well as their right of access to court under Article I, section 22 of the Florida Constitution. Plaintiffs also contend the fees mandated by the statute are reprehensible because they are excessive, particularly in light of the financial position of defendants involved in foreclosure proceedings.

Plaintiffs sue the named individuals in their various official capacities, the Florida Cabinet, and the Florida Department of Revenue in a three-count Complaint (Doc. #1). The first two counts are brought under 42 U.S.C. § 1983, while Count III is brought under the Florida Constitution. Count I seeks injunctive relief enjoining the collection of filing fees under Fla. Stat. § 28.241(c) and the dismissal of compulsory claims for failing to pay such filing fees, and requiring the creation of a separate account for fees collected pursuant to the statute in order to facilitate any refund of fees which may be ordered. Count II seeks a declaratory judgment that the statute is unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution, an order requiring defendants to cease and desist imposing and collecting fees pursuant to the statute, and an order directing a refund of all fees paid. Count III seeks a declaratory judgment that the statute is unconstitutional under Article I, section 21, of the Florida Constitution, an order directing defendants to cease and desist imposing and collecting fees pursuant to the statute, and an order requiring defendants to refund all fees paid pursuant to the statute. Each count is asserted against all defendants.*fn5

II.

A. Standard of Review for Motions to Dismiss Pursuant to Rule 12(b)(1) Rule 12(b)(1) authorizes a motion to dismiss an action if the court lacks subject matter jurisdiction. Such challenges can be asserted on either facial or factual grounds. Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir. 2003).

Facial challenges to subject matter jurisdiction are based solely on the allegations in the complaint. When considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint's allegations as true. However, where a defendant raises a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and affidavits.

Carmichael v. Kellogg, Brown & Root Serv., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). See also Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169-70 (11th Cir. 2011).

B. Standard of Review for Motions to Dismiss Pursuant to Rule 12(b)(6)

In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007); Christopher v. Harbury, 536 U.S. 403 (2002); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). "To survive dismissal, the complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed." James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--56(2007)). See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). The former rule-that "[a] complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief," La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)-has been retired. Twombly. James River Ins. Co., 540 F.3d at 1274. Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662 (2009). Dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford Cnty., 960 F.2d 1002, 1009--10 (11th Cir. 1992).

III.

Defendants seek to dismiss the Complaint for lack of subject matter jurisdiction because of the Eleventh Amendment to the United States Constitution and the Tax Injunction Act, 28 U.S.C. § 1341. Defendants further aver that the Court lacks jurisdiction because plaintiffs' claims are not ripe for review. Alternatively, Defendants seek to dismiss the complaint for failure to state a claim upon which relief may be granted.

A. Eleventh Amendment and State Agencies

The Florida Cabinet*fn6 and the Florida Department of Revenue*fn7 contend that plaintiffs' claims against them should be dismissed because claims against state agencies in federal court are barred by the Eleventh Amendment to the United States Constitution. Plaintiffs respond that this case falls within the exception to Eleventh Amendment sovereign immunity set forth by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), and that Florida has specifically waived its Eleventh Amendment immunity in all cases involving the issue of illegally collected fees. The Court agrees with the defendants.

"Sovereign immunity is the privilege of the sovereign not to be sued without its consent." Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011). A component of this sovereign immunity is set forth in the Eleventh Amendment to the Constitution, which provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

U.S. Const. amend XI. Despite its language, it is well settled that the Eleventh Amendment bars suits brought in federal courts by a state's own citizens as well as by citizens of another state. Williams v. Bd. of Regents of Univ. Sys., 441 F.3d 1287, 1303 (11th Cir. 2006); Williams v. Dist. Bd. of Trs. of Edison Comm. Coll., 421 F.3d 1190, 1192 (11th Cir. 2005). The Eleventh Amendment applies not only to the State, but to a state agency which is an arm of the state. Williams, 421 F.3d ...


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