United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT IL IA MOGILEVSKY'S
MOTION TO DISMISS
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant Ilia
Mogilevsky's Motion to Dismiss [DE 37]. The Motion has
been fully briefed. For the reasons set forth below, the
Motion is granted.
case arises out of a filing of a lis pendens on
January 5, 2018. DE 35. The lis pendens was filed in
connection with a divorce proceeding in the Circuit Court of
the Fifteenth Judicial Circuit, in and for Palm Beach County,
entitled Natalia Mogilevsky v. Ilia Mogilevsky, No.
50:2017-DR-01059-XXXXNB. Id. Plaintiff has brought
three counts against Defendant Ilia Mogilevsky, each of which
is premised upon the lis pendens: Slander of Title
(Count I), Fraudulent Misrepresentation (Count II), and
Request for Declaratory Judgment (Count III).
argues that Florida's litigation privilege bars Count I
and Count II. Plaintiff admits, in her Complaint, that
the lis pendens was filed in connection with the
state court divorce proceeding cited above. The
“Florida litigation privilege affords absolute immunity
for acts occurring during the course of judicial proceedings.
This privilege initially developed to protect litigants and
attorneys from liability for acts of defamation, but has
since been extended to cover all acts related to and
occurring within judicial proceedings.” Jackson v.
BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir.
2004). The rationale behind the litigation privilege is that
it should “free [participants in litigation] to use
their best judgment in prosecuting or defending a lawsuit
without fear of having to defend their actions in a
subsequent civil action for misconduct.” R.H.
Ciccone Props, Inc. v. JP Morgan Chase Bank, N.A., 141
So.3d 590, 591 (Fla. Dist. Ct. App. 2014). Further,
“Florida's litigation privilege applies to
state-law claims adjudicated in federal court.”
Jackson, 372 F.3d at 1274-75. Florida's
litigation privilege applies to slander of title cases.
E.g., Sailboat Key, Inc. v. Gardner, 378 So.2d 47
(Fla. Dist. Ct. App. 1980). Similarly, Florida's
litigation privilege provides absolute immunity for claims of
fraudulent misrepresentation occurring during the course of
judicial proceedings. E.g., Korman v. Gray, No.
13-80031, 2013 WL 6002211, at *3 (S.D. Fla. Nov. 12, 2013).
response to the law cited above, Plaintiff makes no argument
of merit and instead primarily argues about the propriety of
the lis pendens. Regardless of the propriety of the
lis pendens, Plaintiff's own allegations confirm
that it was filed in connection with a pending state court
case. For all of the foregoing reasons, the Florida
litigation privilege therefore applies. Plaintiff's Count
I and Count II are both DISMISSED WITH
to Plaintiff's request for a declaratory judgment, the
lis pendens-which is attached to Plaintiff's
First Amended Complaint-was clearly filed in connection with
Florida state court case 50:2017-DR-010599-XXXXNB. DE 35 at
23. The state court case number appears on the notice.
Id. The Federal Declaratory Judgment Act, 28 U.S.C.
§ 2201, provides that “any court of the United
States . . . may declare the rights and other legal relations
of any interested party seeking such declaration.”
“Since its inception, the Declaratory Judgment Act has
been understood to confer on federal courts unique and
substantial discretion in deciding whether to declare the
rights of litigants.” Wilton v. Seven Falls
Co., 515 U.S. 277, 286 (1995). The United States Supreme
Court has “repeatedly characterized the Declaratory
Judgment Act as an enabling Act, which confers discretion on
the courts rather than an absolute right upon the
litigant.” Id. at 286-87. A district court
always has discretion whether to entertain an action for a
declaratory judgment. Cas. Indem. Exch. v. High Croft
Enters, Inc., 714 F.Supp. 1190, 1193 (S.D. Fla. 1989).
This discretion extends to parallel state court proceedings,
Wilton v. Seven Falls Co., 515 U.S. 277 (1995), and
courts in this district have declined to consider requests
for declaratory relief in the context of pending divorce
proceedings. See Cormier v. Green, 141 Fed.Appx. 808
(11th Cir. 2005). Here, the Court exercises its discretion to
decline to consider a request for a declaratory judgment that
is entangled with state court divorce proceedings. The
divorce case number appears on the lis pendens. If
Plaintiff believes the lis pendens is improper,
Plaintiff may pursue her remedies in state court.
Accordingly, Plaintiffs Count III is DISMISSED
of the foregoing reasons, Defendant's Motion to Dismiss
[DE 37] is GRANTED, Plaintiffs Count I and
Count II are both DISMISSED WITH PREJUDICE,
Plaintiffs Count III is DISMISSED WITHOUT
PREJUDICE, Plaintiffs Motion to Dissolve Notice of
Lis Pendens [DE 46] is DENIED AS MOOT, and
Count IV shall proceed against Defendant Natalia Mogilevsky.
 Defendant may also argue that the
litigation privilege bars Count III but, for the reasons
discussed below, the Court need not address this argument. An
affirmative defense may be raised in a motion to dismiss when
the affirmative defense appears on the face of the complaint.
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