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Calmes v. BW-PC, LLC

United States District Court, S.D. Florida

January 12, 2018

FRANK CALMES, Plaintiff,
v.
BW-PC, LLC, a Florida limited liability Company, et al., Defendants.

          ORDER DISMISSING CASE

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendants' motions to dismiss at docket entries 64 and 65. Both motions have been fully briefed. For the reasons set forth below, Plaintiff's Second Amended Complaint is dismissed as the Court concludes that it lacks subject matter jurisdiction over Plaintiff's claims.

         I. FACTUAL ALLEGATIONS

         The Defendants in this case are alleged to have exercised control over a country club: Boca West Country Club, Inc. (“Boca West”). DE 62 at 1-3. Plaintiff, a Boca West property owner, brought this case alleging, inter alia, that Defendants mismanaged Boca West. Id. Defendants are alleged to have mismanaged the Boca West community by raising fees and dues in contravention of the community by-laws, by improperly selling certain vacant land, and by improperly collecting locker rental fees. Plaintiff has brought this case on behalf of a proposed class of Boca West property owners.

         II. PROCEDURAL HISTORY

         Plaintiff filed this case on May 5, 2017. After the Court entered an order setting trial, Plaintiff soon thereafter amended his complaint as a matter of right on May 25, 2017. Defendants filed a motion to dismiss on June 22, 2017. On October 16, 2017, the Court granted Defendants' motion to dismiss, placed Plaintiff on notice of the Court's concerns about whether the Court had subject matter jurisdiction over Plaintiff's claims, and permitted Plaintiff to file another amended complaint. Plaintiff then filed his third complaint, a second amended complaint, on November 2, 2017. In response, Defendants filed two motions to dismiss. Both motions are now before the Court.

         III. THE COURT'S SUBJECT MATTER JURISDICTION OVER THE CLASS

         When a plaintiff files suit in federal court, he must allege facts that, if true, show federal subject matter jurisdiction over his case exists. Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (citing Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         Because the parties are not diverse, Plaintiff asserts that this Court has subject matter jurisdiction over his case under the Class Action Fairness Act (“CAFA”). CAFA provides that federal district courts have original jurisdiction over class actions where (1) the amount in controversy exceeds $5, 000, 000 and (2) “any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2). CAFA did not alter the traditional rule that the party seeking access to the federal court bears the burden of persuasion regarding jurisdictional issues. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006). Further, in assessing if the party seeking access to the federal court has met its burden, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case[.] . . . [N]o presumptive truthfulness attaches to plaintiff's allegations.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

         In the Court's prior order dismissing Plaintiff's First Amended Complaint, the Court put Plaintiff on notice of its concerns about its subject matter jurisdiction over this case. Specifically, the Court focused Plaintiff's attention on the $5, 000, 000 amount-in-controversy requirement under CAFA:

Plaintiff does not allege sufficient facts for this Court to conclude that the amount in controversy exceeds $5, 000, 000. Plaintiff makes two allegations regarding the amount in controversy. First, he alleges that “Defendants' mismanaging the sale of club property led to a loss of over $17, 000, 000. . . . Because the Akoya units [at Boca West] were not timely built, the Club lost $9, 000, 000 in yearly dues- 120 units x $15, 000 annual dues x 5 years = $9, 000, 000. Further, the Club lost $8, 400, 000.00 in initiation fees - 120 units x $70, 000 initiation fee = $8, 4000, 000.” DE 9 ¶ 3. Notably, Plaintiff does not explain how he and the Class Members suffered any injury as a result of Defendants' alleged actions. Rather, he states that Boca West-one of the Defendants-lost $17, 000, 000. It is unclear how this loss shows that the amount in controversy exceeds $5, 000, 000.
Plaintiff also alleges that Class Members' properties have decreased over $120, 000 per unit, for a total loss of $500, 000, 000, as a result of Defendants' mismanagement. DE 9 ¶¶ 4. Plaintiff, however, does not explain how he calculated the loss of over $120, 000 per unit. Plaintiff does not allege sufficient facts for the Court to plausibly infer that the amount in controversy exceeds the jurisdictional requirement of $5, 000, 000.

DE 57. Thus, the Court placed Plaintiff on notice of two specific issues. First, that Plaintiff had not plausibly alleged damages in excess of $5, 000, 000 as CAFA requires. Id. at 4. Second, that Plaintiff had to present evidence such that the Court was satisfied that it had subject matter jurisdiction over this case. Id. at 3.

         Plaintiff has had three opportunities to file a complaint in this case that properly alleges the Court has subject matter jurisdiction. Plaintiff has also had eight months to marshal evidence in support of his contention that this Court possesses subject matter jurisdiction over his case under CAFA. Upon review of Plaintiff's Second Amended Complaint and the evidence Plaintiff has placed into the court file, the Court ...


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