United States District Court, M.D. Florida, Orlando Division
MICHELLE IRIZARRY; VALERIE WILLIAMS; JOANNE NIXON; JOANN ROBINSON; and BRANDON LETT, Plaintiffs,
ORLANDO UTILITIES COMMISSION; LENNAR CORPORATION; U.S HOME CORPORATION; AVALON PARK GROUP MANAGEMENT, INC.; BEAT KAHLI; LENNAR HOMES LLC; BORAL RESOURCES LLC; and PREFERRED MATERIALS, INC., Defendants.
DALTON, UNITED STATES DISTRICT JUDGE
the Court are two motions to dismiss filed by Defendants
Lennar Corporation, Lennar Homes, LLC and U.S. Home
Corporation (Doc. 50), and Avalon Park Group Management, Inc.
and Beat Kahli (collectively,
"Movants") (Doc. 49). Plaintiffs
oppose. (Docs. 58, 59.) On review, the motions to dismiss are
due to be granted in part and denied in part.
case is a putative class action brought by residents who live
near a power plant and claim its coal operations contaminate
their property. (Doc. 43, ¶ 1.) Plaintiffs seek to
represent a "Class Area" where contaminants from
the "Stanton Power Plant" have been disseminated
and discharged through various ways, including in concrete
and other construction materials used to develop homes and
communities in the Class Area, transporting fly ash, and
batching concrete containing contaminated fly ash at a
concrete manufacturing plant. (Id. ¶ 2.)
Relevant here, Plaintiffs sue the developers and managers of
the residential communities within the Class Area for strict
liability under Florida Statute § 376.313: Defendants
Lennar Corporation, Lennar Homes, LLC, and U.S. Home
Avalon Park Group Management, Inc. ("Avalon") and
its principal, BeatKahli. (Id. ¶¶ 312-43.)
moves to dismiss the Amended Complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), and moves to compel
arbitration of Plaintiff Brandon Litt's claims against
it. (Doc. 50 ("Lennar MTD").) Avalon and Mr. Kahli
move for dismissal under Rule 12(b)(6). (Doc. 49
("Avalon MTD").) In response, Mr. Litt voluntarily
dismissed his claims against Lennar without prejudice (Docs.
57, 79), and Plaintiffs responded (Docs. 58, 59). Briefing
complete, the MTDs are ripe.
12(b)(1) attacks on subject matter jurisdiction may be facial
or factual Carmichaelv. Kellogg, Brown & Root Servs.,
Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). For facial
attacks, a court accepts the complaint's allegations as
true. Stalley ex rel. U.S. v. Orlando Reg'l
Healthcare Sys. Inc., 524 F.3d 1229, 1232 (11th Cir.
2008). Factual attacks, in contrast, allow a court "to
consider extrinsic evidence such as deposition testimony and
affidavits." Carmichael, 572 F.3d at 1279.
Factual attacks place the burden on the plaintiff to show
that jurisdiction exists. OSI, Inc. v. United
States, 285 F.3d 947, 951 (11th Cir. 2002).
III, Section 2 of the United States Constitution limits
federal courts' jurisdiction to actual cases and
controversies. Standing is a part of this limitation, as a
"threshold jurisdictional question" that must be
resolved before a court can turn to a claim's merits.
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974
(11th Cir. 2005). Courts determine standing at the time of
filing. Id. at 976 (citing Focus on the Family
v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275
the minimum pleading requirements of the Federal Rules of
Civil Procedure, plaintiffs must provide short and plain
statements of their claims with simple and direct allegations
set out in numbered paragraphs and distinct counts.
See Fed. R. Civ. P. 8(a), 8(d), & 10(b). If a
complaint does not comport with these minimum pleading
requirements, if it is plainly barred, or if it otherwise
fails to set forth a plausible claim, then it may be
dismissed under Rule 12(b)(6). See Ashcroft v.
Iqbal, 556 U.S. 662, 672, 678-79 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
claims must be founded on sufficient "factual
content" to allow "the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." See Iqbal, 556 U.S. at 679. In
assessing the sufficiency of factual content and the
plausibility of a claim, courts draw on their "judicial
experience and common sense" in considering: (1) the
exhibits attached to the complaint; (2) matters subject to
judicial notice; and (3) documents that are undisputed and
central to a plaintiff's claim. See id:, Reese v.
Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d
1211, 1215-16 (11th Cir. 2012); Parham v. Seattle Serv.
Bureau, Inc., 224 F.Supp.3d 1268, 1271 (M.D. Fla. 2016).
Courts do not consider other matters outside the four corners
of the complaint, and they must: (1) disregard conclusory
allegations, bald legal assertions, and formulaic recitation
of the elements of a claim; (2) accept the truth of well-pled
factual allegations; and (3) view well-pled facts in the
light most favorable to the plaintiff. See Hayes v. U.S.
Bank Nat'l Ass'n, 648 Fed.Appx. 883, 887 (11th
Cir. 2016); Horsley v. Veldt, 304 F.3d 1125,
1134 (11th Cir. 2002).
Court first discusses Lennar's 12(b)(1) argument that
Plaintiffs lack standing. (Doc. 50, pp. 3-5.) The Court then
turns to both 12(b)(6) ...