This matter comes before the Court on U.S. Bank's Motion to Dismiss Amended Complaint (Doc. #25) filed on August 8, 2011. Plaintiff Cesare Gaspari (Gaspari or plaintiff) filed a response in opposition on August 22, 2011. (Doc. #26.)
Plaintiff contends that on or about December 22, 2005, he executed a purchase money mortgage in the amount of $1,221,250.00 payable to Chevy Chase, FSB (Chevy Chase)*fn1 , a bank doing business in Collier County, Florida. The money was used to purchase real estate known as "The Dunes" located at 285 Grande Way, Unit # 1401 in Naples, Florida. The purchase price of the property was $1,495,000.00. (Doc. #26, ¶¶2, 4-6.)
Plaintiff contends that prior to the execution of the mortgage and promissory note, employees of Chevy Chase made false representations concerning material facts. Specifically, he asserts that the Chevy Chase employees knowingly made the false representation "that the appraised market value of the property was $1,495.000.00" (Id. at ¶11) and communicated this information to induce plaintiff to rely and act on it by executing the mortgage. Plaintiff further contends that although the mortgage loan was originated by Chevy Chase, the mortgage was assigned to U.S. Bank and is presently being serviced by U.S. Bank. Therefore, U.S. Bank stands in the shoes of Chevy Chase and is vicariously liable. (Id., ¶¶ 11-21.)
Plaintiff filed a one (1) Count Amended Complaint (Doc. #26) alleging common law fraud against defendant. The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.*fn2
U.S. Bank seeks to dismiss the complaint with prejudice because it is time-barred, fails to meet Rule 9's heightened pleading standard, and fails to state a cognizable claim. Plaintiff disagrees and alternatively asserts that if his complaint is deficient, he should be granted leave to amend.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pleaded factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). "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 by 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). The Court need not accept as true legal conclusions or mere conclusory statements. Id.
A. Statute of Limitations
Under well-settled law, there are significant constraints on a defendant's ability to litigate a limitations defense at the pleadings stage. See, e.g., La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) ("A statute of limitations bar is an affirmative defense and . . . plaintiffs are not required to negate an affirmative defense in their complaint.") (citation and internal marks omitted); McMillian v. AMC Mortg. Servs., 560 F. Supp. 2d 1210, 1213 (S.D. Ala. 2008) ("A statute of limitations defense is generally not appropriate for evaluation on a Motion to Dismiss. . . ."). But a limitations defense may be properly raised and litigated by Rule 12(b) motion if a claim is time-barred on the face of the Complaint. See Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., 522 F.3d 1190, 1194 (11th Cir. 2008) ("A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred.") (citation and internal quotation marks omitted).
The parties agree that the applicable statute of limitations to common law fraud in Florida is four (4) years. Florida Statutes § 95.11(3)(j). The statute of limitations for an action based on fraud is strictly construed against the party bringing the action and begins to run when the alleged basis for the action was either discovered or should have been discovered by the exercise of due diligence. Matthews v. Matthews, 222 So. 2d 282, 284 (Fla. 2d DCA 1969).
The Complaint does not suffer from a facially apparent limitations defect. Accepting the allegations of the Complaint as true, it was not until "approximately late 2008," that the plaintiff discovered that the representations were false. (Doc. #24, ¶16.) Assuming that plaintiff discovered the fraud as early as June 1, 2008, plaintiff would have had until June 1, 2012, to file his claim. Plaintiff's first Complaint was filed on October 26, 2010, well within the applicable period. ...