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David Acosta v. James A. Gustino

December 6, 2011



This matter comes before the Court on the Motion to Dismiss (Doc. 38) filed by Defendants Paul Hinckley ("Hinckley"), Eric Whynot ("Whynot") and Taylor & Carls, P.A. (the "Taylor Firm") and the response in opposition (Doc. 42) filed by the Plaintiff, David Acosta ("Acosta").

I. Background

Except where indicated, the following facts are undisputed. According to the allegations of the First Amended Complaint, the instant case grows out of a dispute between the Plaintiff and the Alaqua Property Owners Association ("Alaqua"), which is not a party to this case. Alaqua contends that Acosta owes a number of years' worth of homeowner association maintenance assessments, plus interest charges, attorneys' fees and other charges. Beginning in October 2007, Defendants Hinckley, Whynot, and the Taylor Firm (henceforth, the "Taylor Firm Defendants') attempted to collect the purported obligation from Acosta, sending him a demand letter and, in April 2008, filing suit against him in Seminole County Circuit Court on behalf of Alaqua.

The Taylor Firm Defendants litigated that matter (henceforth, the "State Court Suit") on behalf of Alaqua until May 2009, when they were replaced by another law firm. About six months ago, Defendants James Gustino ("Gustino") and James A. Gustino, P.A. (the "Gustino Firm") (collectively, the "Gustino Firm Defendants") took over the State Court Suit from the firm that had replaced the Taylor Firm Defendants.

As set forth in the Amended Complaint (Doc. 37), in the State Court Suit Alaqua is attempting to foreclose a lien on Acosta's property and to recover a money judgment from him. Acosta argues that both claims are time-barred. He argues that Alaqua's lien was recorded in December 2002 and expired five years later -- several months before the State Court Suit was filed. (Amended Complaint at 7). He also argues that Alaqua's claim of entitlement to a money judgment is based on "the exact same set of facts" as the lien foreclosure claim, and that the claim is subject to a four-year statute of limitations, so that it expired a year before Alaqua's lien did. (Amended Complaint at 7).

Acosta also argues that the sum demanded on Alaqua's behalf by the Taylor Firm Defendants and the Gustino Firm Defendants (both in pre-litigation demand letters and in the State Court Suit itself) "included interest charges exceeding the statutory limit imposed under [Florida law] for unpaid assessments". (Amended Complaint at 8). He further argues that this sum included assessments that were not properly authorized under Alaqua's bylaws. Amended Complaint at 11). In addition, he alleges that the Defendants knew or should have known that the claims asserted in the State Court Suit "falsely stated the amount, character and legal status of the disputed consumer debt." (Amended Complaint at 13). He contends that the actions of the Defendants violate a number of federal and state laws, including the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. (the "FDCPA") (Counts I-VI), the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. (Count VII-VIII), the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. (Count IX, XI-XII), and constitute abuse of process (Count X).

II. Colorado River Abstention

The Defendants assert numerous substantive arguments in support of dismissal. However, they also seek dismissal or a stay pursuant to the abstention doctrine announced in Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The Court must resolve this issue before addressing substantive issues.

Generally speaking, the pendency of an action in state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction. Id. at 817, 96 S.Ct. at 1246. To the contrary, federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Id. Under limited circumstances, however, "reasons of wise judicial administration" permit the dismissal of a federal suit due to the presence of a concurrent state proceeding. Id. at 818, 96 S.Ct. at 1246. Among the factors the district court should consider in determining whether the state proceeding provides a more appropriate forum are

(1) the order in which the courts assumed jurisdiction over property; (2) the relative inconvenience of the fora; (3) the order in which jurisdiction was obtained and the relative progress of the two actions; (4) the desire to avoid piecemeal litigation; (5) whether federal law provides the rule of decision; and (6) whether the state court will adequately protect the rights of all parties.

TranSouth Financial Corp. v. Bell, 149 F.3d 1292, 1294-95 (11th Cir. 1998) (summarizing Moses H. Cone Memorial Hospital v. Mercury Constr. Co., 460 U.S. 1, 16-26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). The decision whether to dismiss "does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 937. The weight of each factor varies on a case-by-case basis, depending on the particularities of that case. Id. One factor alone can be the sole motivating reason for the abstention. Id.

III. Abstention Analysis

The first step in determining whether to apply the Colorado River abstention doctrine is to inquire whether the concurrent state and federal proceedings are "parallel." Exact parallelism is not required; it is enough if the two cases involve substantially the same parties and substantially the same issues. Ambrosia Coal and Const. Co. v. Pages Morales, 368 F.3d 1320, 1330 (11th Cir. 2004). Acosta argues that Colorado River is inapplicable because, in his words, "there are no federal and state proceedings involving the Defendants and the Plaintiff, therefore, the initial threshold issue enunciated in Ambrosia Coal is not met and the inquiry must end there." (Doc. 42 at 10). However, Ambrosia Coal requires that the parties be substantially similar, not identical.

Id. Obviously, Acosta appears in both of these actions, and the defendants here acted as agents for the plaintiff in the state case regarding all of the ...

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