United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED-STATES DISTRICT JUDGE.
THE COURT are six motions to dismiss by the
Defendants. (Dkts. 35, 36, 47, 51, 58, 59). Plaintiff
filed an opposition to Bank of New York Mellon's
("BoNYM") and New Penn Financial's Motion to
Dismiss (Dkt. 41). The time for him to respond to the
remaining motions has passed. Those motions are deemed
unopposed (Dkts. 36, 47, 51, 58, 59). See M.D. Fla.
filed this lawsuit seeking emergency injunctive relief to
reverse his eviction from a property foreclosed by BoNYM in
Hillsborough County Circuit Court ("the first
foreclosure"). Plaintiff was not a party to the first
foreclosure. He acquired the property by quit claim deed
after BoNYM filed the first foreclosure, but before final
judgment was entered and the property was sold at a public
auction. After final judgment was entered in the
first foreclosure and the property was again sold at public
auction, Plaintiff was evicted. He sought emergency
injunctive relief to enjoin "all local officials"
from accessing the property and to return the property to
him. That request was denied and any independent claims he
attempted to bring were not reviewed . (Dkt. 3). He filed an
amended complaint seeking emergency injunctive relief to void
the state court proceedings and allow him to reside on the
property. (Dkt. 8). After his construed motion for injunctive
relief was denied (Dkt. 9), his amended complaint was
stricken as a shotgun pleading. (Dkt. 12). His second amended
complaint arises from the first foreclosure action and
eviction proceedings in Hillsborough County Circuit Court
Case No. 15-CA-000071, of which this Court takes judicial
notice. (Dkt. 19).
Count One, he sues BoNYM, Shellpoint, and Aldridge Pite, LLP
for violations of 42 U.S.C. § 1982 and § 1983. He
sues Frank, Henriquez, Holder, and Chronister in Counts Two,
Three, Four, and Five respectively, for violations of 42
U.S.C. §§ 1982, 1983, 1985, 1986, and breach of
fiduciary duty. He sues all Defendants in Count Six for
Rule of Civil Procedure 8(a)(2) requires a pleading contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." A plaintiff must
allege "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). In evaluating a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), the
relevant question is whether the allegations are sufficient
to allow the plaintiff to conduct discovery in an attempt to
prove the allegations, not whether the plaintiff will
ultimately prevail. See Jackam v. Hosp. Corp. of Am.
Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th Cir. 1986).
complaint must be dismissed pursuant to Rule 12(b)(6) if the
complaint does not plead "enough facts to state a claim
to relief that is plausible on its face."
Twombly, 550 U.S. at 547. "[W]hen the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " a claim is plausible. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). For the purposes of
a motion to dismiss, all of the factual allegations contained
in the complaint must be accepted as true. Id. But,
this tenet is "inapplicable to legal conclusions."
Id. "While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. at 679.
U.S.C. § 1983
Shellpoint, and Aldridge move to dismiss the § 1983
claim contending that the allegations are insufficient to
establish that these private companies engaged in state
action. Plaintiff conclusively alleges that BoNYM,
Shellpoint, and Aldridge are state actors. And, he alleges
that BoNYM and Shellpoint, by filing the foreclosure action
in Hillsborough County Circuit Court, and Aldridge, by filing
a writ of possession, "owed a duty to notify [him] of
the pending procedures as they might affect substantive due
process rights and operate to avoid noticing [him]..."
(Dkt. 19 156).
state a § 1983 claim, at plaintiff must allege that he
was '"deprived of a right secured by the
Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state law.
Like the state-action requirement of the Fourteenth
Amendment, the under-color-of-state-law element of §
1983 excludes from it sreach merely private conduct, no
matter how discriminatory or wrongful."' Focus
on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1276-77 (11th Cir. 2003) (quoting American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
primary tests to determine whether a state action exists are
the public function test, the state compulsion test, and the
nexus/joint action test. Focus on the Family v. Pinellas
Suncoast Transit Auth, 344 F.3d 1263, 1277 (11th Cir.
2003) (citation omitted). The public function test applies
where private actors are "performing functions
'traditionally the exclusive prerogative of the
state.'" Id. (citation omitted). The state
compulsion test applies where the "the government
'has coerced or at least significantly encouraged the
action alleged to violate the Constitution.'"
Id. (citation omitted). And, the nexus/joint action
test is where '"the state has so far insinuated
itself into a position of interdependence with the [private
party] that it was a joint participant in the
enterprise."' Id. (citation omitted,
alteration in original).
fails to allege any facts to support his allegaton that
BoNYM, Shellpoint, and Aldrige are state actors by virtue of
using the state court legal process. Indeed, "one who
has obtained a state court order or judgment is not engaged
in state action merely because it used the state court legal
process." Cobb v. Georgia Power Co., 757
F.2d 1248, 1251 (11th Cir.1985); see Shuler v.
Swatek, 465 Fed.Appx. 900, 903 (11th Cir. 2012)
(judgment creditor who caused sheriffs sale of judgment
debtor's house was not a state actor). Nor is Aldridge a
state actor by virtue of having filed a writ of
possession. Accordingly, Plaintiffs § 1983 claims
against BoNYM, Shellpoint, and Aldridge will be dismissed
with prejudice, since amending would be futile.
U.S.C. § 1982
alleges § 1982 violations against BoNYM, Shellpoint, and
Aldridge in Count One. To state a prima facie case under
§ 1982, he must allege membership in a protected class,
discriminatory intent, and interference with rights or
benefits connected with the ownership of property.
Daniels v. Dillard's, Inc.,373 F.3d 885, 887
(8th Cir. 2004). Plaintiff does not allege that he is a
member of a protected class or that any Defendant ...