United States District Court, M.D. Florida, Fort Myers Division
CONTINENTAL 332 FUND, LLC, CONTINENTAL 298 FUND LLC, CONTINENTAL 306 FUND LLC, CONTINENTAL 326 FUND LLC, CONTINENTAL 347 FUND LLC, CONTINENTAL 355 FUND LLC, CONTINENTAL 342 FUND LLC, and CONTINENTAL 245 FUND LLC, Plaintiffs,
DAVID ALBERTELLI, ALBERTELLI CONSTRUCTION INC., GEORGE ALBERTELLI, WESTCORE CONSTRUCTION, LLC, NATIONAL FRAMING, LLC, MFDC, LLC, TEAM CCR, LLC, BROOK KOZLOWSKI, JOHN SALAT, KEVIN BURKE, ANGELO EQUIZABAL, BRAVO21, LLC, KERRY HELTZEL, AMY BUTLER, U.S. CONSTRUCTION TRUST, FOUNDATION MANAGEMENT, LLC, KMM CONSTRUCTION, LLC, and WESTCORE CONSTRUCTION, L.L.C., Defendants.
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on nine motions to dismiss
filed by Defendants David Albertelli (Doc. 80); Albertelli
Construction, Inc. (“ACI”) (Doc. 81); George
Albertelli (Doc. 82); Amy Butler (Doc. 83); Brook Kozlowski
(Doc. 84); Kevin Burke (Doc. 85); John Salat (Doc. 86); Kerry
Heltzel (Doc. 87); and Foundation Management, LLC, KIMM
Construction, LLC, MFDC, LLC, National Framing, LLC, Team
CCR, LLC, U.S. Construction Trust, Westcore Construction, LLC
(Del.) (“Westcore I”) and Westcore Construction
L.L.C. (Nev.) (“Westcore II”) (Doc. 88).
Plaintiffs' have filed an Omnibus Response (Doc. 97).
This matter is ripe for review.
130-page Second Amended Complaint alleges that Defendants, a
group of interrelated individuals and companies, perpetrated
a pattern of fraud and other acts on apartment construction
projects around the country. (Docs. 49; 49-1). Plaintiffs are
single-purpose entities that fund apartment complex
construction projects. (Doc. 49 at ¶¶ 15-24, 3 n.
1). They allege Defendants George Albertelli and his son
David Albertelli (collectively, the
“Albertellis”) provided bribes to an official
from Plaintiffs' parent company to secure inside
information and $202, 696, 588.38 in construction contracts.
(Doc. 49 at ¶¶ 50, 78-79, 86, 116 - 123). Each
Plaintiff contracted with either ACI or Westcore to build
eight apartment complexes in five states:
• Continental 245 Fund LLC and ACI for a project in
Lexington, Kentucky (the “Lexington Project”);
• Continental 298 Fund LLC and ACI for a project in
Savage, Minnesota (the “Savage Project”);
• Continental 306 Fund LLC and ACI for a project in New
Braunfels, Texas (the “New Braunfels Project”);
• Continental 332 Fund, LLC and ACI for a project in
Fort Myers, Florida (the “Fort Myers Project”);
• Continental 326 Fund, LLC and ACI for a project in
Rochester, Minnesota (the “Rochester Project”);
• Continental 355 Fund LLC and Westcore I for a project
in Bryan, Texas (the “Bryan Project”);
• Continental 347 Fund LLC and Westcore I for a project
in Waco, Texas (the “Waco Project”); and
• Continental 342 Fund LLC and Westcore I for a project
in Longmont, Colorado (the “Longmont Project”).
(Doc. 49 at ¶¶ 116 - 123).
the contracts were executed, Defendants allegedly engaged in
coordinated schemes to enrich the Albertellis. (Doc. 49 at
¶¶ 128-229). On this basis, the Second Amended
Complaint lodges counts ranging from the Racketeer Influenced
and Corrupt Organizations Act (“RICO”) to
professional negligence. (Doc. 49). Defendants move to
dismiss arguing the Second Amended Complaint violates
Federal Rule of Civil Procedure 8(a) and 9(b).
(Docs. 80, 81, 82, 83, 84, 85, 86, 87, 88).
Rule of Civil Procedure 8(a)(2) states that a pleading
must contain a short and plain statement of a claim showing
that the pleader may have relief. Rule 8(a)(2)'s purpose
is to “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
punctuation omitted). “Each allegation must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1).
allegations are subject to heightened pleading standards
under Federal Rule of Civil Procedure 9(b), which
requires a party to “state with particularity the
circumstances constituting fraud.” Generally, this
occurs where the pleading alleges
(1) precisely what statements were made in what documents or
oral representations or what omissions were made, and
(2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not
making) same, and
(3) the content of such statements and the manner in which
they misled the plaintiff, and
(4) what the defendants obtained as a consequence of the
Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1371 (11th Cir. 1997) (internal
quotations omitted). Allegations relating to “[m]alice,
intent, knowledge, and other conditions of a person's
mind may be alleged generally.” Id.
9(b) “serves an important purpose in fraud actions
by alerting defendants to the precise misconduct with which
they are charged and protecting defendants against spurious
charges of immoral and fraudulent behavior.”
Id. at 1370-71 (internal quotations omitted).
Although it imposes a heightened pleading standard, the
Eleventh Circuit has cautioned that “Rule 9(b) must not
be read to abrogate [R]ule 8 . . . and a court considering a
motion to dismiss for failure to plead fraud with
particularity should always be careful to harmonize the
directives of [R]ule 9(b) with the broader policy of notice
pleading.” Friedlander v. Nims, 755 F.2d 810,
813 (11th Cir. 1985). Courts have found requisite
particularity in a pleading that lacked specifics but
presented sufficient description to apprise defendants of the
allegations against them. See Seville Indus.
Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791
(3d Cir. 1984) (list containing fraud allegations and nature
of statements found to meet the Rule 9(b) threshold,
even though precise words were not alleged); see
also Brooks, 116 F.3d at 1371
(“alternative means are also available to satisfy the
rule.”). Though “[i]t is certainly true that
allegations of date, place or time [are traditional indicia
of particularity] . . . nothing in the rule requires
them.” Seville Indus. Mach. Corp., 742 F.2d at
Federal Rule of Civil Procedure 12(b)(6), a court
may dismiss a pleading for failure to state a claim upon
which relief can be granted. The Twombly-Iqbal
plausibility standard guides such dismissals. This standard
requires a plaintiff to allege sufficient facts “to
raise a reasonable expectation that discovery will reveal
evidence” to support a claim. Twombly, 550
U.S. at 556. The court must accept all factual allegations in
a plaintiff's complaint as true and take them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). This
acceptance is limited to well-pleaded factual allegations.
La Grasta v. First Union Sec., Inc., 358 F.3d 840,
845 (11th Cir. 2004). Alleging
“the-defendant-unlawfully harmed me” is
insufficient. Iqbal, 556 U.S. at 677. “Nor
does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id.
(internal modifications omitted).
argue that nearly all the forty-four counts in the Second
Amended Complaint should be dismissed. Some arguments apply
to more than one count. The Court will address each.
RICO - Counts 1-3
alleges that Defendants violated the RICO Act by perpetrating
several schemes to defraud Plaintiffs on construction
projects across the country. (Doc. 49 at ¶¶
62-236). Counts 2 and 3 incorporate the entire pleading with
Count 1 to allege Defendants conspired to violate
Florida's RICO Act and did so. (Doc. 49 at ¶¶
237-57). Defendants argue these counts should be dismissed
because they do not satisfy Rules 8(a) or 9(b). The Court
the 76 pages of allegations to support Count 1 do not
constitute short or plain statements under Rule
8(a)(2). Although Count 1's allegations are complex,
Plaintiff must still satisfy the pleading requirements.
“While a complaint containing RICO claims is often
required to be somewhat lengthier than other complaints, the
assertion of RICO claims does not in itself excuse a
plaintiff from satisfying the ...