United States District Court, M.D. Florida, Orlando Division
ORANGE LAKE COUNTRY CLUB, INC. and WILSON RESORT FINANCE, L.L.C., Plaintiffs,
CASTLE LAW GROUP, P.C., JUDSON PHILLIPS ESQ, CASTLE MARKETING GROUP, LLC, CASTLE VENTURE GROUP, LLC, RESORT RELIEF, LLC, WILLIAM MICHAEL KEEVER, KEVIN HANSON and SEAN AUSTIN, Defendants.
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court without a hearing on the
motions to dismiss filed by the following Defendants: Sean
Austin (Doc. 99); Castle Law Group, P.C. (“Castle
Law”) and Judson Phillips (“Phillips”)
(Doc. 103); and Resort Relief, LLC (“Resort
Relief”) and Kevin Hanson (“Hanson”) (Doc.
106). In resolving the motions, the Court has considered the
omnibus response in opposition (Doc. 112) filed by the
Plaintiffs, Orange Lake Country Club, Inc. (“Orange
Lake”) and Wilson Resort Finance, LLC (“Wilson
instant case involves a dispute between entities involved in
selling timeshares and a group that promises to help
timeshare owners get out of their contracts. According to the
allegations of the Third Amended Complaint (Doc. 91)
(henceforth, “TAC”), which are accepted in
pertinent part as true for the purpose of resolving the
instant motions, Orange Lake develops and sells timeshare
properties throughout the United States, including Florida.
(TAC at 5). Individuals who buy timeshares from Orange Lake
(henceforth, “Orange Lake Owners”) sometimes
obtain financing through Wilson Finance. (TAC at 6). The
Plaintiffs allege that Defendant Castle Venture Group, LLC
(“Castle Venture”) funds Defendant Castle
Marketing Group, LLC (“Castle Marketing”), which
(along with Resort Relief) solicits timeshare owners,
directing them to retain Castle Law. (TAC at 4). According to
the records of these various entities, Austin is the sole
member of Castle Marketing (TAC at 6-7); Defendant William
Keever (“Keever”) and Austin are the members of
Castle Venture (TAC at 7); Hanson is the sole member of
Resort Relief (TAC at 8); and Phillips, a lawyer, is
associated with Castle Law (TAC at 7).
they buy their timeshares, Orange Lake Owners enter into
contacts in which they agree to certain ongoing obligations.
Among other things, they agree to pay assessments,
maintenance fees, and a portion of the common expenses for
the entire development. (TAC at 5-6). According to the
Plaintiffs, the Defendants are engaged in a scheme to swindle
Orange Lake Owners by falsely promising to get them out of
these contracts. (TAC at 17). The Plaintiffs contend that the
Defendants use misleading advertising to solicit Orange Lake
Owners, claiming a high likelihood of success, when in
reality they are rarely successful. (TAC at 18). Further, the
Plaintiffs contend, after Orange Lake Owners retain Castle
Law, Castle Law advises them to breach their contracts with
Orange Lake as a way of increasing the chance that Orange
Lake will agree to let them out of their contracts. (TAC at
Plaintiffs filed the instant suit on June 8, 2017. (Doc. 1).
In response to a motion to dismiss for lack of jurisdiction
(Doc. 24), the Plaintiffs filed an amended complaint (Doc.
29) on August 7, 2017. After a second motion to dismiss on
jurisdictional grounds (Doc. 35), the Plaintiffs filed a second
amended complaint (Doc. 60) on September 21, 2017. On
December 15, 2017, the Court granted in part motions to
dismiss filed by Castle Law and Phillips (Doc. 61) and by
Austin (Doc. 62). The Court denied the motions insofar as
they sought dismissal of the Plaintiffs' tortious
interference with contract and civil conspiracy claims, but
granted the motions as to claims for tortious interference
with advantageous business relationships, violations of the
Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
§§ 501.201-501.23 (“FDUTPA”),
violations of Florida's Vacation Plan and Timesharing
Act, Fla. Stat. §§ 721.02-721.98
(“FVPTA”), and a standalone claim for injunctive
relief. (Doc. 84 at 4-7).
December 27, 2017, the Plaintiffs filed their Third Amended
Complaint (Doc. 91). In addition to the claims for tortious
interference with contract (Count I) and civil conspiracy
(Count II), which survived from the previous pleading, the
Plaintiffs again assert claims for violations of the FVPTA
(Count III) and FDUTPA (Count IV). In addition, they assert
claims under the Lanham Act, 15 U.S.C. 1125(a) (Counts V-VI)
and for misleading advertising in violation of Fla. Stat.
§ 817.41 (Counts VII-VIII).
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other
grounds, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule
12(b)(6) motion to dismiss for failure to state a claim
merely tests the sufficiency of the complaint; it does not
decide the merits of the case. Milburn v. United
States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on
a motion to dismiss, the Court must accept the factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. SEC v. ESM Group,
Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must
also limit its consideration to the pleadings and any
exhibits attached thereto. Fed.R.Civ.P. 10(c); see also
GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to
indicate the presence of the required elements, Watts v.
Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.
2007). Conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), the Supreme Court explained that a
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. at 1949
(internal citations and quotations omitted). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - ‘that
the plaintiff is entitled to relief.'” Id.
at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
addressing the merits of the claims asserted against them,
Castle Law and Phillips argue that the Third Amended
Complaint falls short of the requirements of Fed.R.Civ.P.
8(a), which requires that such a pleading provide “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” They point out that the
Third Amended Complaint is 68 pages long - twice as long as
the Second Amended Complaint - with 238 numbered paragraphs.
The first 100 paragraphs are incorporated into each of the
document's eight counts, despite the fact that many of
them appear to have no relevance to at least some (if not
all) of the claims asserted. For example, roughly four pages
are devoted to the formation of Castle Law Group by Keever,
Austin, and Philips, even though that information appears to
have no relevance to the question of whether any of the
Defendants tortiously interfered with the Plaintiffs'
contracts or violated the FVPTA. But while the latest
pleading is unnecessarily lengthy and filled with
redundancies, the Court finds it does not quite warrant
dismissal as a shotgun pleading or for violation of Rule
Law and Phillips also argue that dismissal is required
because some of the Plaintiffs' allegations in regard to
allegedly false advertising are contradicted by some of the
exhibits attached to the Third Amended Complaint. (Doc. 103
at 5-7). Without going through all of the examples, the Court
notes that among other things the Plaintiffs allege, as false
or misleading, communications from Castle Law in which it
“guaranteed timeshare owners it would relieve them of
their timeshare obligations within one year to eighteen
months”. (Doc. 103 at 6). In its motion, Castle Law
does not dispute having made this statement or the other
examples attributed to it. Instead, it cites to the standard
engagement contract between itself and its clients - attached
to the Third Amended Complaint as Exhibit S - which states
Client understands and agrees that there is no guaranteed
result of the Firm's services or that Client will recover
money or other property as a result of the Firm's
engagement. Client understands and agrees that there is no
way to determine the time frame in which the Client's
case will be resolved and that there is no guarantee
regarding the time required to resolve your Claims.
(Doc. 91-19 at 3). However, a truthful disclosure is not
necessarily sufficient to overcome the net impression caused
by a misleading communication. See, e.g., FTC v.
World Patent Marketing, 2017 WL 3508639, * 13 (S.D.Fla.
Aug. 16, 2017). Even if every Castle Law customer signed an
engagement letter with the quoted language - something that
cannot be determined at this stage of the proceedings - it
would not necessarily require dismissal.
Count I - Tortious Interference and Count II - Civil
contends that the surviving tortious interference claim
should be dismissed because the Plaintiffs fail to identify
any specific contracts with which the Defendants have
allegedly interfered and fail to allege facts supporting the
allegation that he, personally committed such interference.
(Doc. 99 at 2-6). However, this claim survived the previous
round of motions to dismiss, including one filed by Austin
himself. No. party has pointed to any material change in the
allegations of Count I or the law of tortious interference
that would warrant reexamination of this claim. The same
holds true for the civil conspiracy claim asserted in Count
II, which also survived the previous round of motions to
dismiss. The current motions will therefore be denied as to
these two counts.
Count III - Violation of Fla. Stat. § 721.121
Plaintiffs allege that Defendants Resort Relief, Hanson,
Castle Marketing and Austin violated a recordkeeping
obligation under Florida's Vacation Plan and Timesharing
Act (“FVPTA”), Fla. Stat. §§
721.02-721.98. The Plaintiffs allege that these four
Defendants were “lead dealers, ” which is defined
by the FVPTA in pertinent part as
any person who sells or otherwise provides a resale service
provider or any other person with personal contact
information for five or more owners of timeshare interests.
In the event a lead dealer is not a natural person, the term
shall also include the natural person providing personal
contact information to a resale service provider or other
person on behalf of the lead dealer entity.
Fla. Stat. § 721.05(42). The Act defines “personal
contact information” as
any information that can be used to contact the owner of a
specific timeshare interest, including, but not limited to,
the owner's name, address, telephone number, and e-mail
Fla. Stat. § 721.05(43). The Act requires that lead
dealers maintain certain records for five years after
obtaining personal contact information. Fla. Stat. §
FVPTA also provides that any party who establishes that a
lead dealer wrongfully obtained or used personal contact
information is entitled to recover from the lead dealer
“an amount equal to $1, 000 for each owner about whom
such personal contact information was wrongfully obtained or
used, ” plus attorney's fees and costs. Fla. Stat.
§ 721.121(3). In this case, the Plaintiffs contend that
Resort Relief and Hanson provided personal contact
information of Orange Lake Owners to Castle Marketing and
Austin, who then provided this personal contact information
to Castle Law. (TAC at 35). ...