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Kennedy v. Deschenes

United States District Court, S.D. Florida

May 19, 2017

Linda Kennedy, Plaintiff,
v.
Marcel Deschenes, and others, Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          Robert N. Scola, Jr. United States District Judge

         The Plaintiff, proceeding pro se, brings this lawsuit against Defendants Marcel Deschenes, Michael Deschenes, and three “John Doe” Defendants for claims arising out of a contract that she entered into with Marcel Deschenes to purchase a mobile home. This matter is before the Court on the Defendants' Motion to Dismiss (ECF No. 8). For the reasons set forth in this Order, the Court grants the Motion to Dismiss (ECF No. 8).

         1. Background

         Plaintiff Linda Kennedy contracted to purchase a mobile home owned by Marcel Deschenes in Margate, Florida. (Compl. ¶ 4, ECF No. 1.) The land on which the mobile home sits is owned by Coral Cay Plantation and is rented by the owner of the mobile home. (Id. ¶ 6.) Kennedy alleges that before she contracted to purchase the mobile home, Marcel Deschenes completed several renovations on the mobile home. (Id. ¶¶ 52-55.)

         Kennedy alleges that the contract to purchase the mobile home was “executed orally over the telephone on or about June 22, 2016 in Palm Beach County, and then in writing and in person in Margate, Florida, on or about June 30, 2016. . . .” (Id. ¶ 4.) Kennedy alleges that during the June 22, 2016 phone conversation she asked Marcel Deschenes and his brother, Michael Deschenes, if they had procured permits for the work that they had performed on the mobile home, if they had used licensed contractors for the work, and if they were flipping the house. (Id. ¶¶ 53-54, 57.) The Defendants allegedly responded that they had procured the proper permits for the work, that they had used licensed contractors, and that they were not flipping the house. (Id. ¶¶ 53, 55, 57.) Kennedy alleges that she asked the Defendants whether they knew of anything wrong with the house. (Id. ¶ 61.) The Defendants allegedly told her that one of the sinks was not properly connected to the pipes, but said that they would send a contractor out to fix it. (Id. ¶ 62.) Kennedy alleges that they never sent anyone out to fix the sink. (Id. ¶ 63.)

         Kennedy alleges that she and the Defendants agreed to the following terms for the sale of the mobile home during their phone conversation: (1) Kennedy would pay $47, 000 for the mobile home, with a down payment of $8, 000; (2) Kennedy would move into the mobile home on or after July 1, 2016, and would pay the rent for the land through January 2017; (3) all personal items on the premises were included in the sale price, with the exception of Marcel Deschenes's motorcycle; and (4) the Defendants would mail a copy of the title to the mobile home to the Plaintiff for her records, and would mail the original title at the time that the sale closed. (Id. ¶ 64.)

         Kennedy alleges that on or about June 30, 2016, one of the Defendants and a woman appeared at the mobile home with a written agreement that contained terms that differed from the terms she had agreed to during the June 22, 2016 phone conversation. (Id. ¶ 67.) Kennedy alleges that she “had to agree to the new contract even though it was more restrictive against her” because she had already made plans to move into the mobile home. (Id. ¶¶ 69-70.) Kennedy attached the written contract to the Complaint as an exhibit. (Id. at 37.) The contract stated that Kennedy would give Marcel Deschenes $8, 000 on June 28, 2016, and would pay the remaining balance of $39, 000 within 6 months. (Id.) The contract stated that Kennedy would pay the rent for the land from July 1, 2016 through January 2017, and that all personal items on the premises were included in the price, except for Marcel Deschenes's personal clothes and motorcycle. (Id.) The contract stated, “There is [sic] no guarantees on the house, the equipment, all items no guarantee.” (Id.) Finally, the contract stated that Kennedy had to “give a proof of the insurance of the house to Marcel until the purchased [sic] by Lea in six month [sic].” (Id.)

         Kennedy alleges that the contract required her to keep the furniture in the mobile home that was already there, and that as a result she had to get rid of her own furniture. (Id. ¶¶ 73, 75.) Kennedy paid the down payment in the amount of $8, 000 and moved into the mobile home in July 2017. (Id. ¶¶ 81, 87.) Kennedy alleges that she paid the rent for the land and the utilities through January 2017. (Id. ¶¶ 91-93.)

         At some point after moving into the mobile home, Kennedy discovered that Marcel Deschenes had not obtained any permits for the renovations on the mobile home, and that Marcel and his brother Michael, along with two “Canadian associates, ” performed the work, not licensed contractors. (Id. ¶¶ 104, 107-108.) Kennedy alleges that she could not get insurance for the property because there were no permits for the renovations that had been completed. (Id. ¶ 115.) Kennedy also alleges that she will not be able to get permits for the additional remodeling that she planned to do because she will be responsible for “$40, 000-$50, 000 in remediation, penalties, fines and so forth.” (Id. ¶ 118-119.) Finally, Kennedy alleges that the Defendants have told her that they are trying to sell the house to another buyer, that they would like her to move out, and that they plan to keep her down payment. (Id. ¶¶ 131, 135, 140-142.)

         The Complaint asserts causes of action for fraud in the inducement, fraud, negligent fraud, conspiracy to commit fraud, violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), breach of contract, breach of implied warranty, tortious interference with contract and with a business relationship, specific performance, civil theft, and unjust enrichment. The Defendants have moved to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

         2. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         A district court must have at least one of three types of subject-matter jurisdiction: (1) jurisdiction pursuant to a specific statutory grant; (2) federal question jurisdiction; or (3) diversity jurisdiction. Butler v. Morgan, 562 Fed. App'x. 832, 834 (11th Cir. 2014) (citations omitted). “The burden for establishing federal subject matter jurisdiction rests with the party bringing the claim.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). “[F]ederal courts always have an obligation to examine sua sponte their jurisdiction before reaching the merits of any claim.” Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 2003) (citing Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 807 n. 9 (11th Cir. 1993)).

         B. Federal Rule of Civil Procedure 12(b)(6)

         Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quotations and citations omitted). “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.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. When considering a motion to dismiss, the Court must accept all of the ...


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