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Marfut v. Gardens of Gulf Cove POA, Inc.

United States District Court, M.D. Florida, Fort Myers Division

April 17, 2018

CHRISTINE E. MARFUT, Plaintiff,
v.
THE GARDENS OF GULF COVE POA, INC., JOHN ANDERSON, BREEN LUCILLE, JACK ARLINGHAUS, HERMAN DAHL, FRED STREIF, NAJMY THOMPSON PL, STEPHEN W. THOMPSON, JOSEPH NAJMY, LOUIS NAJMY, RICHARD WELLER, RANDOLF L. SMITH and MICHAEL J. SMITH, Defendants.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Defendants Najmy Thompson, P.L., Stephen W. Thompson, Joseph Najmy, Louis Najmy, Richard Weller, Randolph L. Smith, and Michael J. Smith's (collectively “Najmy Defendants”) Motion to Dismiss the Amended Complaint (Doc. 65), and Defendants The Gardens of Gulf Cove Property Owner's Association, Inc., Lucille Breen, Herman Dahl, Jack Arlinghaus, Fred Streif, and John Anderson's (collectively “Association Defendants”) Motion to Dismiss the Amended Complaint (Doc. 66). Pro se Plaintiff Christine E. Marfut has filed Responses in Opposition. (Docs. 67; 69). Marfut has also filed a “Motion to Compel Defendants to Answer Plaintiff's Amended Complaint” (Doc. 70) that the Court construes as an additional response.[2] These matters are ripe for review.

         BACKGROUND

         This case stems from an alleged scheme to defraud Marfut of her home. (Doc. 64). Marfut was a member of a property owner's association, The Gardens of Gulf Cove Property Owner's Association, Inc. (Doc. 64 at 3). Marfut received mailings from The Gardens of Gulf Cove and its collection agent, Najmy Thompson P.L., about unpaid annual assessments and other fines. (Doc. 64 at 3-7). Marfut maintains that she not only paid her annual assessment but that the other fines were fabricated. (Doc. 64 at ¶¶ 6, 22). These events occurred over several years, finally coming to a head when Najmy Thompson P.L. mailed a letter to Marfut seeking $30, 000 in liens and attorney's fees and threatening to foreclose on Marfut's home if she did not pay. This string of events led to a state foreclosure action against Marfut. (Doc. 64 at ¶ 34).

         In response, Marfut sued. The Court dismissed Marfut's first complaint as a shotgun pleading but granted her leave to amend. (Doc. 56). Marfut then filed an Amended Complaint alleging mail fraud, honest services fraud, and violations of the Fair Debt Collection Practices Act (“FDCPA”). (Doc. 64). Defendants now move to dismiss the Amended Complaint.[3] (Docs. 65; 66).

         STANDARD OF REVIEW

         To survive a motion to dismiss, a pleading must contain sufficient factual material to raise a claim for relief above the speculative level. See Bell A. Corp. v. Twombly, 550 U.S. 544, 554 (2007). “[D]etailed factual allegations” are not required, but a plaintiff must allege more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted). Reviewing courts must accept all factual allegations as true but need not accept legal conclusions as true. See id. at 678. A court must identify the factual allegations, assume their veracity, and then determine whether the facts give rise to a plausible claim for relief. See id. at 679.

         Courts must also consider a plaintiff's pro se status. If a plaintiff is pro se, she is entitled to leniency, and courts will construe a pro se pleading liberally. See Miller v. Bank of New York Mellon, 228 F.Supp.3d 1287, 1290 (M.D. Fla. 2017). But “pro se complaints . . . must [still] comply with the procedural rules that govern pleadings.” Beckwith v. Bellsouth Telecomm. Inc., 146 F. App'x. 368, 371 (11th Cir. 2005). Against that backdrop, the Court turns to Defendants' arguments for dismissing the Amended Complaint.

         DISCUSSION

         Marfut alleges three separate causes of action: (1) mail fraud; (2) honest services fraud; and (3) violations of the FDCPA. Yet problems still exist with these claims.

         A. Mail Fraud and Honest Services Fraud

         As stated in the Court's prior order, there are no private causes of action for mail fraud under 18 U.S.C. § 1341 or honest services fraud under 18 U.S.C. § 1346 as pled by Marfut. (Doc. 56 at 6 n.5); see also Marfut v. City of N. Port, Fla., 8:08-CV-2006-T- 27EAJ, 2009 WL 790111, at *9 (M.D. Fla. Mar. 25, 2009).Thus, Marfut's mail fraud and honest services fraud claims are dismissed with prejudice.

         B. FDCPA

         Marfut's FDCPA claim contains one paragraph alleging that Defendant Stephen Thompson claimed a $250 fee for an April 3, 2012 collection letter.[4] And in the general fact section, Marfut alleges that she received a second collection letter on May 24, 2012, a “Photo Notice” on August 20, 2014, an invoice on August 25, 2014, and a “extortionist letter” on March 11, 2016.[5] (Doc. 64 ...


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