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Irizarry v. Orlando Utilities Commission

United States District Court, M.D. Florida, Orlando Division

August 8, 2019

MICHELLE IRIZARRY; VALERIE WILLIAMS; JOANNE NIXON; JOANN ROBINSON; and BRANDON LETT, Plaintiffs,
v.
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.

          ORDER

          ROY B. DALTON, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         This 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 Corporation (collectively, "Lennar"); and Avalon Park Group Management, Inc. ("Avalon") and its principal, BeatKahli. (Id. ¶¶ 312-43.)

         Lennar 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.

         II. Legal Standards

         A. Rule 12(b)(1)

         Rule 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).

         Article 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 (11thCir. 2003)).

         B. Rule 12(b)(6)

         Under 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)).

         Plausible 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);[1] Horsley v. Veldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

         III. Discussion

         The 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) ...


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