Balis v. Martin

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GAY SANTARSIERO, LORI

MADDOX, LINDA SQUADRITO,

FRANCES FRANCIONE, ARDIS

BALIS, AND ANNE MARIE

PETRILLI,

Plaintiffs,

v. Case No: 2:20-cv-00435-FtM-29NPM

JOHN MARTIN, LOU FRANCO,

ALEX CHEPURNEY, SHERYL

FRANCO, and SUSAN PERRIER,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendants’

Motion to Dismiss the Second Amended Complaint and Jury Demand

(Doc. #45) filed on February 1, 2021, to which plaintiffs filed an

Opposition to defendant’s Motion (Doc. #49) on March 15, 2021.

For the reasons set forth below, the Motion to Dismiss is granted

in part and denied in part.

I.

This case involves an ongoing dispute over access to and

maintenance of common areas and amenities in the Edgewater Village

(Edgewater) condominium complex in Punta Gorda, Florida, that has

arisen between six pro se Florida plaintiffs and five Canadian

defendants, all of whom are either part-time or full-time residents

at Edgewater. (Doc. #44, ¶¶ 2-3, 8-18.) On January 19, 2021,

Plaintiffs filed a Second Amended Complaint (SAC) alleging

fourteen causes of action against only five of the initial twelve

defendants — John Martin, Lou Franco, Alex Chepurney, Susan

Perrier, and Sheryl Franco (collectively Defendants). (Doc. #44.)

The Complaint alleges the following claims: (1) breach of

contract/failure by defendant John Martin to maintain common

elements (areas); (2) breach of contract/failure by defendant L.

Franco to maintain common elements (areas); (3) breach of

contract/failure by defendant Alex Chepurney to maintain common

elements (areas); (4) intentional infliction of emotional distress

caused by defendant Franco against pro se plaintiff Ardis Balis;

(5) intentional infliction of emotional distress caused by

defendant Franco against pro se plaintiff Lori Maddox; (6)

intentional infliction of emotional distress caused by defendant

John Martin against pro se plaintiff Lori Maddox; (7) intentional

infliction of emotional distress caused by defendant Franco

against pro se plaintiff Frances Francione; (8) intentional

infliction of emotional distress caused by defendant Franco

against pro se plaintiff Anne Marie Petrilli; (9) intentional

infliction of emotional distress caused by defendant Franco

against pro se plaintiff Gay Santarsiero; (10) defamation of pro

se plaintiff Ardis Balis’ character by defendant Franco; (11)

wrongful conversion of property by defendant Sheryl Franco; (12)

“Franco acting beyond board authority”; (13) voter fraud by

defendants Franco, Martin and Perrier; (14) defendant Martin’s

failure to provide requested documents/destruction of material

documents. (Id., pp. 4-48.)

II.

Defendants urge the Court to dismiss the SAC in its entirety

and raise numerous arguments as to why each claim in the SAC should

be dismissed. (Doc. #45.) The Court addresses Defendants’

arguments in turn below.

A. Shotgun Pleading

Defendants move to dismiss each count because the SAC remains

a shotgun pleading and otherwise does not comply with the pleading

standard of Federal Rule of Civil Procedure 8(a). (Doc. #45.)

Specifically, Defendants argue all fourteen counts of the SAC

should be dismissed because Plaintiffs have improperly brought

claims against multiple Defendants and brought multiple causes of

action in each count. (Id., pp. 3, 5, 8, 10, 12, 15, 17, 20, 22,

25, 27-28, 30, 33, 36.) Upon review of the SAC, the Court agrees.

On July 8, 2020, Plaintiffs filed an Amended Complaint which

asserted ten claims against some or all of the initial twelve named

defendants for breach of contract, intentional infliction of

emotional distress, harassment, defamation of character, wrongful

conversion of property, board action beyond its authority, voter

fraud, sexual harassment, failure to provide requested documents,

and negligence. (Doc. #5.) The Court dismissed Plaintiffs’

Amended Complaint for various reasons, one of which was because it

was a shotgun pleading. See Santarsiero v. Martin, No. 2:20-cv-

00435-FtM-29NPM, 2020 U.S. Dist. LEXIS 237961 (M.D. Fla. Dec. 18,

2020). In its Order, the Court explained that the Amended

Complaint was a shotgun pleading in two respects. First, it

adopted all the preceding paragraphs causing each successive count

to carry all that came before and the last count to be a combination

of the entire Amended Complaint in violation of Federal Rule 8(a).

Id., at *12, 14, 16, 18-19 n.8, 21, 23. Second, each count failed

to identify the specific facts and the particular nature of the

violations that each defendant allegedly committed, generally

lumping defendants together under each count. Id., at *8-9, 11-

12, 17.

In compliance with Eleventh Circuit case law, the Court gave

Plaintiffs the opportunity to file a second (and final) amended

complaint and to remedy such deficiencies, stating:

The Court has serious questions concerning whether many

of the counts in the Amended Complaint are capable of

being adequately pled, whether the federal amount in

controversy can be satisfied, and whether plaintiffs can

assert their claims in a single complaint. The Court

will allow plaintiffs one more opportunity to plead

proper causes of action against proper defendants in

accordance with the Federal Rules of Civil Procedure.

For additional resources and assistance, plaintiffs may

wish to consult the “Proceeding Without a Lawyer”

resources on filing a pro se complaint that are provided

on the Court’s website, at http://www.flmd.uscourts.

gov/pro_se/default.htm. The website provides guidelines

for filing (in light of the Coronavirus), answers to

frequently-asked questions, a glossary of legal terms,

and sample forms. There is also a link that, through a

series of questions, may help plaintiffs generate an

amended complaint. See https://www.flmd.uscourts. gov/

forms/all/litigantswithoutlawyers-forms.

Finally, some general instructions for filing a

complaint include: the amended complaint must (1) assert

each claim in a separate numbered count, (2) clearly

identify the specific defendant(s) against whom each

claim is asserted, (3) clearly explain the factual

allegations supporting each claim and their application

to each defendant against whom the claim is asserted,

(4) avoid vague, generalized, conclusory, contradictory

or irrelevant assertions, and (5) avoid incorporating

prior counts into those which follow.

Santarsiero, 2020 U.S. Dist. LEXIS 237961, at *23-24.

In the instant case, the SAC states in each and every count

that “Pro se plaintiffs incorporate and restate each of the

paragraphs 1 through 7 above as if fully set forth herein.” (Doc.

#44, ¶¶ 19, 37, 53, 69, 85, 99, 117, 135, 151, 163, 176, 183, 192,

200.) While most of the identified paragraphs set forth facts to

support subject matter jurisdiction and proper venue,

incorporation of Paragraph 5 is problematic because it brings

additional causes of action by plaintiff Petrilli against

additional Defendants, stating:

5. Pro se defendant [sic] Petrilli suffered damages

derived from (i) her being wrongfully forced to sell one

of her condo units by L. Franco, at a substantial loss,

(ii) the breach by defendant L. Franco and Martin, of

her implied contract with them and the failure by them

to maintain and keep open the Edgewater Condominium

Association, Inc. (EWV) common elements, including the

pool, club house, rest rooms, tennis courts, and other

common amenities as required by the rules of the EWV

Association, (iii) the failure by Martin to maintain

flood insurance as required thereby reducing the value

of her other Units by no less than 30% because all

subsequent potential buyers are required to purchase in

all cash transactions without the ability to obtain a

mortgage and her consequent inability to sell her other

units at fair market value as a result thereof, and (iv)

the pattern of extremely abusive, over the top

intentional harassing conduct and threats made by

defendant L. Franco towards her, causing her extreme

physical and emotional harm and distress.

(Id. at ¶ 5.)

The Eleventh Circuit has identified four types of categories

of shotgun pleadings, one of which includes not separating into a

different count each cause of action or claim for relief. See

Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321

(11th Cir. 2015). Here, Plaintiffs have at the very least alleged

that plaintiff Petrilli is bringing causes of action for breach of

an implied contract, harassment, and intentional infliction of

emotional distress against defendants Lou Franco and/or John

Martin, along with other causes of action stated in each count.

Since Plaintiffs have failed to separate Petrilli’s claims for

relief into different counts, incorporation of Paragraph 5 in each

cause of action of the SAC constitutes an impermissible shotgun

pleading.

A district court has the "inherent authority to control its

docket and ensure the prompt resolution of lawsuits," which

includes the ability to dismiss a complaint on shotgun pleading

grounds. Weiland, 792 F.3d at 1320. Nonetheless, the Court

concludes that the proper remedy is less drastic in this case.

The Court will strike paragraph 5, thereby eliminating

consideration of those matters from Count I through Count XIV of

the SAC.

B. Failure to State a Claim

Defendants further argue that each of the fourteen counts set

forth in the SAC should be dismissed for failing to state a claim

upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6).

Under Federal Rule of Civil Procedure 8(a)(2), an amended complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth.” Mamani

v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations

omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678. “Factual allegations that are merely

consistent with a defendant’s liability fall short of being

facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted). Thus, the Court

engages in a two-step approach: “When there are well-pleaded

factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679.

(1) Counts I, II, and III——Breach of Contract

Counts One through Three of the SAC assert, on behalf of each

Plaintiff, claims for breach of contract/failure to maintain the

common elements (areas) against defendants John Martin, Lou

Franco, and Alex Chepurney, respectively. (Doc. #44, pp. 4, 9,

14.) Inconsistently, the SAC alleges that “[i]t is the

responsibility of the Condominium Association, [sic] to make sure

that all the common areas (the common elements) . . . are all

functioning and well-maintained,” citing § 718.303, Fla. Stat,

while also alleging that defendants Martin, Lou Franco, and

Chepurney individually have failed to maintain the premises and

the common elements at Edgewater, and “deprived each of the pro se

plaintiffs of their right to the use of the common elements,

including the pool, laundry, club house, rest rooms, tennis courts

and the other common elements,” among other things. (Doc. #44,

¶¶ 21, 30-32, 38, 46-48, 54, 62-64.)

Defendants first argue that plaintiffs Ardis Balis and

Francine Francione lack standing to bring this cause of action

because neither Plaintiff owns or has owned a unit at Edgewater as

an individual, and therefore is not a member of the Edgewater

Village Condominium Association, Inc. (the Association).1 (Doc.

#45, pp. 2-3.) A litigant must have standing before he or she may

bring a lawsuit in federal court.2 See Young Apartments, Inc. v.

Town of Jupiter, 529 F.3d 1027, 1038 (11th Cir. 2008). To establish

standing, a plaintiff must show that: (1) plaintiff has suffered

an actual or threatened injury; (2) plaintiff's injury is fairly

1 In support of their argument that plaintiffs Balis and

Francione lack standing, Defendants have attached to their Motion

copies of the “Charlotte County Property Appraisers website and

Warranty Deed of Trustee.” (Docs. ##45-1, 45-2.) The Court,

however, upon considering Defendants’ motion, limits its review to

that of the Second Amended Complaint. See Christy v. Sheriff of

Palm Beach Cty., 288 F. App'x 658, 664 (11th Cir. 2008) (“The court

has discretion as to whether to accept material beyond the pleading

that is offered in conjunction with a 12(b)(6) motion.”).

2 Because this is a diversity action (Doc. #44, ¶¶ 1-4), 28

U.S.C. § 1332(a)(2), the Court applies Florida substantive law and

federal procedural law. Georgia Dep't of Admin. Servs. v. Zhang,

819 F. App’x 684, 687 (11th Cir. 2020).

traceable to the challenged conduct of the defendant; and (3)

plaintiff's injury is likely to be redressed by a favorable ruling.

Bank of Am. Corp. v. Kachkar (In re Kachkar), 769 F. App'x 673,

680 (11th Cir. 2019).

Here, The SAC alleges that plaintiffs Balis and Francione are

both owners of an Edgewater condominium unit (Doc. #44, ¶¶ 9, 12),

and that as unit owners they have suffered physical, emotional,

and financial damages from being denied the use and enjoyment of

Edgewater’s common areas. (Id. at ¶¶ 33-34.) While Defendants may

dispute these allegations, the Court must accept them as true at

this stage of the proceedings and finds them sufficient to allege

that plaintiffs Balis and Francione have ownership in Edgewater

condominium units for standing purposes. See Erickson, 551 U.S.

at 89; see also Rogers & Ford Constr. Corp. v. Carlandia Corp.,

626 So. 2d 1350, 1353 (Fla. 1993) (individual unit owners have

standing to maintain actions arising over disputes about the common

elements). For the same reasons, the Court rejects Defendants’

argument that plaintiffs Balis and Francione lack standing to bring

causes of action set forth in Counts Two through Three, as well as

Counts Eleven through Thirteen of the SAC.

Next, Defendants argue that Plaintiffs have failed to state

a plausible breach of contract claim against defendants Martin,

Lou Franco, and Chepurney because there is no allegation of the

existence of a valid contract between these named Defendants and

Plaintiffs. (Doc. #45, ¶¶ 12, 26, 40.) The SAC alleges that

28. Upon purchase of each pro se plaintiffs’ Unit, there

is an implied contract with the board and Association

that the President of the board, in this case Martin

[and Directors Franco and Chepurney] would insure the

proper upkeep and maintenance of the facility. This

stems from the fact the Bylaws, Declaration and Articles

specify the duties of the board and hence its directors

and officers to carry out those duties. Each pro se

plaintiff was provided with the Association’s Bylaws and

Declarations prior to purchase of her respective unit

wherein these obligations of the Association acting

through its officers and directors are set forth. These

obligations include maintaining the complex.

(Doc. #44, ¶¶ 28, 43, 59.) Plaintiffs argue that because they have

made financial payments to the Association for maintenance of the

Edgewater premises, and that the Association through its officers

and directors is supposed to maintain the premises of the complex,

defendants Martin, Franco and Chepurney are being unjustly

enriched due to taking Association dues from the unit owners and

failing to care and maintain the premises. (Doc. #49, pp. 9-14,

16-18.)

“In Florida, a claim for unjust enrichment is an equitable

claim based on a legal fiction which implies a contract as a matter

of law even though the parties to such an implied contract never

indicated by deed or word that an agreement existed between them.”

14th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc.,

43 So. 3d 877, 880 (Fla. 1st DCA 2010) (citing Tooltrend, Inc. v.

CMT Utensili, SRL, 198 F.3d 802, 805 (11th. Cir. 1999)); see KENF,

L.L.C. v. Jabez Rests., Inc., 303 So. 3d 229, 231 (Fla. 2d DCA

2019)(“Essentially, the doctrine operates to imply a contract

where none otherwise exists so as to ensure equity between the

parties.”). Such a contract implied in law, also known as a quasi

contract, is established "where it is deemed unjust for one party

to have received a benefit without having to pay compensation for

it." Id.

Here, the SAC does not provide sufficient allegations to show

that defendants Martin, Lou Franco, or Chepurney have received a

benefit without paying any compensation. Rather, the allegations

contained within the four corners of the SAC state that Plaintiffs

have paid monthly fees to the Edgewater Association, and are

entitled to “unfettered access to healthy and well-maintained

common elements pursuant to the law, and the implied contract . .

..”3 (Doc. #44, ¶¶ 35, 51, 67.) Accordingly, the Court finds that

the SAC does not sufficiently allege a claim for breach of an

implied contract, or unjust enrichment against the named

Defendants. Defendants’ motion to dismiss Counts One through

Three of the SAC is therefore granted.

3 In addition, there are no allegations within the SAC that

identify the existence of a valid contract between the Plaintiffs

and the named Defendants to demonstrate that a breach of contract

occurred. See Nat'l Collegiate Student Loan Tr. 2006-4 v. Meyer,

265 So. 3d 715, 719 (Fla. 2d DCA 2019)("The elements of a breach

of contract cause of action are: (1) a valid contract, (2) a

material breach, and (3) damages.").

(2) Counts IV, V, VII, VIII, and IX——Intentional Infliction

of Emotional Distress

Counts Four and Five, as well as Counts Seven through Nine

allege that defendant Franco 4 has intentionally inflicted

emotional distress upon plaintiffs Balis, Maddox, Francione,

Petrilli, and Santarsiero, respectively. (Doc. #44, pp. 19, 22,

28, 32, 35.) In order to state a cause of action for intentional

infliction of emotional distress (IIED) in Florida, Plaintiffs

must allege and ultimately prove “(1) intentional or reckless

conduct (2) that is outrageous in that it is beyond all bounds of

decency and utterly intolerable in a civilized community (3) and

that causes the victim emotional distress (4) that is severe.”

Hammer v. Sorensen, 824 F. App'x 689, 694 (11th Cir. 2020) (quoting

Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA

2018)(citations and quotation marks omitted)). “[S]evere emotional

distress means emotional distress of such a substantial quality or

enduring quality[ ] that no reasonable person in a civilized

society should be expected to endure it.” Brown v. Bellinger, 843

4 Counts Four and Five, along with Counts Seven through Nine

of the SAC, do not reference whether defendant Lou Franco or Sheryl

Franco is the intended defendant. See (Doc. #44, ¶¶ 69-84.) See

Pierson v. Orlando Reg'l Healthcare Sys., 619 F. Supp. 2d 1260,

1273 (M.D. Fla. 2009)("Although [Rule 8] does not demand that a

complaint be a model of clarity or exhaustively present the facts

alleged, it requires, at a minimum, that a complaint give each

defendant 'fair notice of what the plaintiff's claim is and the

ground upon which it rests.'").

F. App'x 183, 188 (11th Cir. 2021) (quoting Kim, 249 So. 3d at

1305). “Whether conduct is outrageous enough to support a claim of

intentional infliction of emotional distress is a question of law,

not a question of fact.” Escadote I Corp. v. Ocean Three Condo.

Ass'n, Inc., 45 Fla. L. Weekly D2267 (Fla. 3d DCA Oct. 7, 2020),

(quoting Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 595

(Fla. 2d DCA 2007)).

The SAC alleges causes of action for IIED based on the

following:

70. Defendant Franco engaged in extreme and outrageous

conduct, which went beyond all possible bounds of

decency.

71. Defendant Franco’s intent was to cause severe

emotional distress and recklessly disregard the

probability of causing pro se plaintiff Balis [and

Maddox, Francione, Petrilli, and Santarsiero] extreme

and severe emotional distress.

72. The emotional distress suffered by the pro se

plaintiff Balis [and Maddox, Francione, Petrilli, and

Santarsiero] was as a direct result of abusive,

intimidating and outrageous conduct, actions, and verbal

assaults committed by defendant Franco against pro se

plaintiff Balis [and Maddox, Francione, Petrilli, and

Santarsiero].

(Doc. #44, ¶¶ 70-72, 86-88, 118-20, 136-38, 152-54.)

Based on the allegations above, Defendants argue all Counts

alleging a claim for IIED against defendant Franco should be

dismissed because the Plaintiffs merely plead labels and

conclusions. (Doc. #45, pp. 12, 14, 19, 22, 24-25.) The Court

agrees, and finds that such allegations cannot survive a motion to

dismiss because a formulaic recitation of the elements of an IIED

cause of action will not do. See Twombly, 550 U.S. at 555.

In addition, Defendants contend the SAC fails to plead any

“factual allegations which arises to the level of outrageous,

odious and utterly intolerable in a civilized society.” (Doc. #45,

pp. 12, 14, 19, 22, 24-25.) Plaintiff Balis alleges that defendant

Franco’s extreme and outrageous conduct consisted of yelling,

throwing papers, ordering flowers and bushes that Balis planted to

be cut down, and calling local authorities on plaintiff Balis,

which caused Balis to suffer from insomnia, severe nightmares, an

inability to concentrate, and be angry, anxious, and withdrawn.

(Doc. #44, ¶¶ 78, 80-81.) These allegations are not sufficient.

“The standard for 'outrageous conduct' is particularly high

in Florida." Clemente v. Horne, 707 So. 2d 865, 867 (Fla. 3d DCA

1998)(holding that being constructively evicted from one’s

residence with no suitable housing alternative was not “extreme or

outrageous” conduct); see also Lay v. Roux Laboratories, 379 So.

2d 451 (Fla. 1st DCA 1980) (threatening plaintiff with job, using

humiliating language, vicious verbal attacks and racial epithets

deemed insufficient to serve as predicate for claim of intentional

infliction of emotional distress). “Liability . . . does not extend

to mere insults, indignities, threats, or false accusations”

Williams v. Worldwide Flight Servs., 877 So. 2d 869, 870 (Fla. 3rd

DCA 2004), such as those alleged to have been made by defendant

Franco. Further, cutting down flowers and bushes do not rise to

the level of outrageous conduct, or exceed all bounds usually

tolerated by a decent society, but amount to no more than “rough

and tumble of everyday life.” Deleo v. Reed, CV 990172435, 2000

Conn. Super. LEXIS 58, at *6 (Super. Ct. Jan. 3, 2000) (finding

plaintiff failed to state a claim for intentional infliction of

emotional distress because defendant’s cutting down of trees is

not outrageous conduct.) The Court finds as a matter of law that

plaintiff Balis’ allegations do not state a plausible IIED claim

because she failed to allege defendant Franco engaged in outrageous

conduct.

With respect to plaintiff Maddox, the SAC alleges defendant

Franco was “bullying” plaintiff Maddox, harassing her when she

walked her dog, shouting verbal assaults like “fat, ugly, and

disgusting”, and inappropriately touching his genitals while at

the pool area. (Id. at ¶¶ 94-95.) While defendant Franco’s actions

may be offensive, it is well settled under Florida law that

allegations of bullying, harassment, or verbal assaults are

insufficient to state an IIED claim. See Saadi v. Maroun, No.

8:07—cv—1976—T—24—MAP, 2008 U.S. Dist. LEXIS 116658, 2008 WL

4194824, at *5 (M.D. Fla. Sept. 9, 2008) (allegations of "bullying,

intimidation, and menacing" and making "written and verbal threats

of physical violence" against plaintiff and his elderly father

were considered a "vague reference to verbal threats" and

insufficient to allow IIED claim to go forward). Accordingly, as

a matter of law plaintiff Maddox’s allegations do not rise to the

level of outrageous conduct sufficient to survive Defendants’

Motion to Dismiss.

Likewise, the Court finds plaintiffs Francione, Petrilli, and

Santarsiero’s allegations fail to state a plausible IIED cause of

action. The SAC alleges that defendant Franco was extremely

abusive towards plaintiff Francione, to the extent she had to

resign from the Association’s board, and Franco yelled and screamed

at her so violently that Francione’s blood pressure and anxiety

increased. (Id. at ¶ 125.) Plaintiff Petrilli alleges that Franco

verbally harassed and intimidated her to the extent she sold one

of her Edgewater condominium units. (Id. at ¶ 143.) Finally,

with regard to plaintiff Santarsiero, the SAC alleges that as a

result of defendant Franco’s email5 stating that Plaintiffs made a

terrible mistake filing a lawsuit against him, and stating that

pro se Plaintiffs have to “feel the pain,” Santarsiero fears for

5 The email from defendant Franco allegedly stated that

“ . . . you all made a terrible mistake filing a

lawsuit against me . . . First, I intend to expose

your true self to either your landlord, employer,

priest, Charlotte County, and all owners in our

complex, and the second will come at the

appropriate time. This lawsuit has awakened the

beast . . . in the Canadians.”

(Doc. #44, ¶ 155.)

her safety, is anxious, has insomnia, changed the locks to her

condominium unit and decided to move. (Id. at ¶¶ 155, 157-59.)

“To qualify as ‘extreme and outrageous,’ defendant's conduct

must have ‘been so outrageous in character, and so extreme in

degree, . . . to be regarded as atrocious, and utterly intolerable

in a civilized community.’" Pierre v. City of Miramar, 537 F. App'x

821, 827 (11th Cir. 2013) (quoting Metro. Life Ins. Co. v.

McCarson, 467 So. 2d 277, 278-79 (Fla. 1985)). As discussed above,

written and verbal threats, insults and even vague allegations of

harassment are not typically characterized as outrageous conduct.

See Saadi, 2008 WL 4194824, at *5; see also Williams, 877 So. 2d

at 870. Even though the SAC alleges that plaintiffs have

experienced a wide range of responses such as crying, night sweats,

insomnia, or anxiousness due to defendant Franco’s alleged

behavior (Doc. #44, ¶¶ 92-93, 124-25, 142-44, 158-59), a

plaintiff's "subjective response" to the conduct "does not control

the question of whether the tort of intentional infliction of

emotional distress occurred." Deauville Hotel Mgmt., LLC v. Ward,

219 So. 3d 949, 955 (Fla. 3d DCA 2017). The emotional distress

alleged by each plaintiff is not such that “no reasonable person

in a civilized society should be expected to endure it.” See

Brown, 843 F. App'x at 188.

Accordingly, Defendants’ motion to dismiss Counts Four and

Five and Counts Seven through Nine is granted as Plaintiffs have

failed to state IIED claims upon which relief may be granted.

(3) Count VI——Intentional Infliction of Emotional Distress

Defendants continue to argue that Count Six should be

dismissed because it fails to plead any factual allegations which

arises to the level of “outrageous, odious and utterly intolerable

in a civilized society.” (Doc. #45, pp. 16-17.) Count Six of the

SAC asserts an IIED claim against defendant John Martin on behalf

of plaintiff Lori Maddox. (Doc. #44, p. 25.)

Plaintiffs allege that Martin engaged in extreme and

outrageous conduct, which went beyond all possible bounds of

decency with the intent to cause plaintiff Maddox severe distress.6

(Id. at ¶¶ 100-01.) Specifically, the SAC alleges that Martin

barged into Maddox’s apartment to tell her to “back off” and

screaming at her, and broke into her apartment while she was on

Zoom meetings. (Id. at ¶¶ 110-12.) The SAC further alleges that

plaintiff Maddox fears for her safety and cannot sleep through the

6 While Count Six appears to be a claim brought against

defendant Martin, it also alleges that the emotional distress

suffered by plaintiff Maddox was a direct result of abusive,

intimidating and outrageous conduct committed by defendant

“Franco.” (Doc. #44, ¶ 102.) It is not clear to the Court whether

this is a typographical error or if Plaintiffs intend to bring an

IIED claim against Mr. or Mrs. Franco on behalf of plaintiff

Maddox.

night, along with feeling anxious due to defendant Martin’s

actions. (Id. at ¶ 112.)

Although the anxiety and stress associated with someone

barging into your apartment and screaming is certainly

understandable, it does not give rise to an IIED claim. "[S]ome

degree of emotional disturbance, even significant disturbance, is

part of the price of living in a complex and interactive society."

Kim, 249 So. 3d at 1306. “Insults, indignities, threats,

annoyances, petty oppressions, or other trivialities" do not fall

into the category of outrageous conduct. Blumenthal v. Smith, No.

6:17-cv-975-Orl-40TBS, 2018 U.S. Dist. LEXIS 221164, at *6 (M.D.

Fla. Feb. 26, 2018) (quoting Scheller v. Am. Med. Int'l, Inc., 502

So. 2d 1268, 1271 (Fla. 4th DCA 1987)). Even intentional,

malicious, and criminal conduct are not sufficiently outrageous

under Florida law. See State Farm Mut. Auto. Ins. Co. v. Novotny,

657 So.2d 1210, 1213 (5th DCA 1995)(holding “it is not enough that

the intent is tortious or criminal; it is not enough that the

defendant intended to inflict emotional distress; and it is not

enough if the conduct was characterized by malice or aggravation

which would entitle the plaintiff to punitive damages for another

tort.”). For these reasons, Count Six is dismissed for failing to

state a claim for IIED.

(4) Count X——Defamation of Character

In Count Ten of the SAC, Plaintiffs assert an action for

defamation of character against defendant “Franco.”7 (Doc. #44,

p. 38.) Defendants argue on various grounds that Plaintiffs have

not alleged a plausible defamation claim, one of which is because

Plaintiffs merely plead conclusions and fail to plead with

specificity any factual allegation for which relief may be granted.

(Doc. #45, p. 26.)

Under Florida law, “[a] claim of defamation requires ‘the

following five elements: (1) publication [to a third party]; (2)

falsity; (3) actor must act with knowledge or reckless disregard

as to the falsity on a matter concerning a public official, or at

least negligently on a matter concerning a private person; (4)

actual damages; and (5) statement must be defamatory.’” Kieffer

v. Atheists of Fla., Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019)

(citations omitted.) Plaintiffs allege that defendant Franco

“knowingly and negligently . . . falsely stated [] in front of no

less than 90-unit owners at the Edgewater Village board of

director’s meeting in November, 2019, [] that pro se plaintiff

7 The SAC does not indicate whether the defamation claim

relates to defendant Lou or Sheryl Franco. (Doc. #44, ¶¶ 163-75);

see Pierson, 619 F. Supp. 2d at 1273 ("Although [Rule 8] does not

demand that a complaint be a model of clarity or exhaustively

present the facts alleged, it requires, at a minimum, that a

complaint give each defendant 'fair notice of what the plaintiff's

claim is and the ground upon which it rests.'").

Balis was a ‘liar.’” (Doc. #44, ¶ 164.) Plaintiffs further allege

that Franco was “aware that he was intentionally spreading a

falsehood to discredit” Balis in front of fellow unit owners, which

caused serious and permanent harm to Balis’ reputation. (Id. at ¶¶

165, 170.)

Although "[a] false statement of fact is the sine qua non for

recovery in a defamation action," Byrd v. Hustler Magazine, Inc.,

433 So. 2d 593, 595 (Fla. 4th DCA 1983), the Court finds the SAC

does not sufficiently plead facts giving rise to a defamation claim

because it alleges in a conclusory fashion that Franco knew or

negligently made a “falsehood.” Allegations such as these amount

to little more than “threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” which are

insufficient to support a cause of action. Iqbal, 556 U.S. at

678; see Corsi v. Newsmax Media, Inc., No. 20-CV-81396-RAR, 2021

U.S. Dist. LEXIS 28315, at *17 (S.D. Fla. Feb. 12, 2021)(finding

an allegation that Defendants "knew that the statements made . .

. were false, or at a minimum, acted with recklessness as to their

truthfulness,” to be inadequate to survive a motion to dismiss).

Additionally, Defendants argue that Franco’s alleged

statement is protected from a defamation cause of action because

“true statements that are not readily capable of being proven

false, and statements of pure opinion are protected. (Doc. #45,

pp. 26-27.) Florida courts recognize a distinction between a pure

expression of opinion, which is not actionable, and a mixed

expression of opinion. Sullivan v. Barrett, 510 So. 2d 982, 983-

84 (Fla. 4th DCA 1987); see also From v. Tallahassee Democrat,

Inc., 400 So. 2d 52, 56 (Fla. 1st DCA 1981). Pure opinion occurs

when a defendant makes a comment or opinion based on facts which

are set forth in the article or which are otherwise known or

available to the reader or listener as a member of the public.

Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 459 (Fla. 5th

DCA 1999). "Mixed expression of opinion occurs when an opinion or

comment is made which is based upon facts regarding the plaintiff

or his conduct that have not been stated in the article or assumed

to exist by the parties to the communication." Id. at 459-60

(citing From, 400 So. 2d at 57).

Whether a statement is one of fact or opinion is a question

of law for the court and not a jury. Skupin v. Hemisphere Media

Grp., Inc., 45 Fla. L. Weekly D2393 (Fla. 3d DCA Oct. 21, 2020).

“When the court makes these determinations, it ‘must construe the

statement in its totality, examining not merely a particular phrase

or sentence, but all the words used in the publication.’” Id.

Based on the allegations in the SAC, the Court is unable to reach

a determination as to whether defendant Franco’s statement that

Balis was a “liar” is pure opinion. The SAC states that prior to

Franco calling Balis a liar, Balis had explained to Franco and the

Board that they were not following proper election procedures.

(Doc. #44, ¶ 166.) However, the SAC and attached exhibits do not

make it clear whether Franco’s statement was related to election

issues, and whether such issues were known to the unit owners who

attended the meeting.

Finally, Defendants contend that Count Ten should be

dismissed under Rule 12(b)(6) because Balis has not alleged she

suffered actual damages. (Doc. #45, p. 27.) In Florida, when a

plaintiff claims a published statement has injured his or her

reputation (i.e., brought a defamation per quod claim), Pope v.

Big Bend Cares, Inc., No. 4:13cv611-RH/CAS, 2014 U.S. Dist. LEXIS

186474, at *4-5 (N.D. Fla. Dec. 18, 2014), the plaintiff must

allege and prove actual damages to recover. Id. at *4.

Here, the SAC alleges that plaintiff Balis’ reputation was

“seriously and permanently harmed” by Franco’s statement and that

Balis was “emotionally depressed as her knees buckled and her hands

shook,” and she became physically ill.8 (Id. at ¶¶ 170, 172-73.)

Even though "it is often difficult for a plaintiff to prove actual

damages," Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240,

1253 (S.D. Fla. 2014), “evidence of some actual injury, such as

injury to reputation, personal humiliation, and mental anguish and

suffering, is required for a plaintiff to recover for defamation.”

Id. (quoting Miami Herald Publ'g Co. v. Ane, 458 So. 2d 239, 242,

8 Plaintiff Balis seeks compensatory damages “in the amount

of $25,000 and $125,000 for pain and suffering. (Doc. #44, p. 51.)

243 n.3 (Fla. 1984) (internal quotations omitted)); see Evollution

IP Holdings, Inc., 975 F. Supp. 2d 1247, 1259 (S.D. Fla. 2013)

(the tort of defamation, recognizes that "a man's reputation [is]

possibly his most valuable asset, [and] that vindicating that

reputation in the face of one who sought to defame it [is] of

paramount importance . . . ."). Liberally construing the SAC and

viewing the allegations in a light most favorable to Plaintiffs,

the Court finds the allegation that plaintiff Balis reputation was

seriously and permanently harmed is sufficient to support actual

damages. Nevertheless, for the reasons discussed above, the Court

grants Defendants’ motion to dismiss Count Ten pursuant to Rule

12(b)(6).

(5) Count XI——Wrongful Conversion of Property

Plaintiffs allege a wrongful conversion of property claim

against Sheryl Franco in Count Eleven of the SAC. (Doc. #44, p.

27.) Under Florida law, "conversion occurs when a person asserts

a right of dominion over chattel which is inconsistent with the

right of the owner and deprives the owner of the right of

possession." Harvey v. United States, No. 15-CV-24012-ALTONAGA,

2020 U.S. Dist. LEXIS 75356, at *45-46 (S.D. Fla. Apr. 28, 2020)

(quoting Spradley v. Spradley, 213 So.3d 1042, 1044 (Fla. 2d DCA

2017) (internal citations and quotations omitted)); see also

Warshall v. Price, 629 So. 2d 903, 904 (Fla. 4th DCA 1993)

("Conversion is an act of dominion wrongfully asserted over

another's property inconsistent with his ownership therein."

(internal quotation marks omitted)). "[T]o state a claim for

conversion, one must allege facts sufficient to show ownership of

the subject property and facts that the other party wrongfully

asserted dominion over that property." Edwards v. Landsman, 51 So.

3d 1208, 1213 (Fla. 4th DCA 2011).

Defendants argue that Plaintiffs conversion claim must be

dismissed because Plaintiffs merely plead conclusions and fail to

plead with specificity any facts upon which relief may be granted.

(Doc. #45, ¶ 148.) The Court does not agree.

The SAC alleges in Count Eleven that plaintiffs Maddox,

Squadrito, Francione, and Petrilli participated in a weekly event

held by defendant Sheryl Franco, during which they contributed

funds to a game and the proceeds were used to purchase furnishings

for Edgewater’s common areas. (Doc. #44, ¶ 177.) Plaintiffs

assert that Sheryl Franco, through defendant John Martin, claimed

that the furnishings were her property and would not be available

to Plaintiffs. (Id. at ¶ 178.) Plaintiffs allege that Sheryl

Franco, in collusion with defendants John Martin, Lou Franco, and

Alex Chepurney, ordered “handiman [sic] Jim Ardolino to lock it

all up.”9 (Id. at ¶ 179.)

9 It is not entirely clear whether Plaintiffs are asserting a

conversion claim against only defendant Sherly Franco, or against

defendants Martin, Lou Franco, Chepurney as well. The Court will

read this count as attempting to state a claim solely against

A condominium owner has a right to use common elements,

including Association-owned property placed in common areas. Fla.

Stat §§ 718.102(3), and 718.106(3). Thus, the Court finds Count

Eleven states a plausible claim of conversion against defendant

Sheryl Franco. Defendants’ motion to dismiss Count XI is denied.

(6) Count XII——Board Action Beyond Its Authority

Count Twelve of the SAC alleges that defendant Franco10 has

acted beyond board authority by “wrongfully terminat[ing]

[Edgewater’s] flood insurance and refus[ing] to have it

reinstated, causing substantial reduction in the value of pro se

plaintiffs’ units and exposing them to uncovered flood damage.”

(Doc. #44, ¶ 185.) The SAC also alleges that defendants “Franco

and Martin” have refused to reinstate the flood insurance (Id. at

¶ 187), and Plaintiffs request that the Court issue an order

directing both defendants to secure Edgewater’s flood insurance.

(Id. at ¶ 191.)

Sheryl Franco.

10 As with other counts in the SAC, Count Twelve does not

reference whether defendant Lou Franco or Sheryl Franco is the

intended defendant. See (Doc. #44, ¶¶ 183-91.) See Pierson v.

Orlando Reg'l Healthcare Sys., 619 F. Supp. 2d 1260, 1273 (M.D.

Fla. 2009)("Although [Rule 8] does not demand that a complaint be

a model of clarity or exhaustively present the facts alleged, it

requires, at a minimum, that a complaint give each defendant 'fair

notice of what the plaintiff's claim is and the ground upon which

it rests.'").

Defendants assert Count Twelve should be dismissed because

Plaintiffs were required to engage in mandatory non-binding

arbitration and mediation pursuant to Florida Statute §

718.1255(4)(a) as a condition precedent to commencing litigation.

(Doc. #45, ¶ 157.) However, the Court previously addressed this

very issue, stating that

Section 718.1255(1)(a)-(c) identifies only

certain “disputes” that are subject to non-

binding arbitration, none of which are

identified by defendants as a basis for

arbitrating this cause of action. The Court

finds that a dispute about whether defendants

wrongfully terminated flood insurance is not

a covered dispute under Section 718.1255.

Santarsiero, 2020 U.S. Dist. LEXIS 237961, at *18 n.7. Therefore,

the Court finds Defendants’ argument to be unpersuasive as the

dispute over flood insurance in this case is not subject to §

718.1255(4)(a).

Additionally, Defendants argue that dismissal is warranted

because Plaintiffs have failed to provide any foundation on which

defendant Franco has a duty to ensure Edgewater has the requisite

flood insurance. (Doc. #45, ¶ 162.) The SAC alleges the following:

184. EWV is in a designated Zone A Flood Area, whereby

EWV is required to have flood insurance in order to be

reimbursed for flood damages, and for potential buyers

of units to obtain mortgages.

185. Defendant Franco acting without the authority and

approval of the board and the Association, on his own,

and against the advice of the Association’s attorney,

wrongfully terminated flood insurance and refuses to

have it reinstated, causing substantial reduction in the

value of pro se plaintiffs’ units and exposing them to

uncovered flood damage.

186. In addition, terminating the flood insurance has

reduced the value of each pro se plaintiffs’ unit by at

least 30%.

187. The pro se plaintiffs have on numerous occasions

requested that defendant Franco and defendant Martin

cause the reinstatement of the flood insurance, which

they have refused to do.

(Doc. #44, ¶¶ 184-87.)

Taking the allegations as true and viewing them in a light

most favorable to Plaintiffs, the SAC fails to state a claim to

relief that is plausible on its face. Twombly, 550 U.S. at 570.

Absent from Count Twelve’s allegations are any facts demonstrating

that defendant Franco (or Martin) had an obligation or duty to

ensure flood insurance was maintained to demonstrate that the duty

was breached. Based on the foregoing, Count Twelve does not state

a viable cause of action and is therefore dismissed under Rule

12(b)(6).

(7) Count XIII——Voter Fraud

Count Thirteen of the SAC asserts a claim of voter fraud by

defendants Franco, Martin and Perrier. (Doc. #44, p. 44.) The SAC

states that “[u]pon information and belief, defendant Franco and

Martin failed to follow Florida law regarding counting ballots for

the election of directors[,]” in violation of Florida Condominium

Law Chapter 78, which requires envelopes “to be distinctive and

recognizable containing a sealed ballot so that it is not

inadvertently opened before the election.” (Id. at ¶ 194.)

Plaintiffs allege that defendants Perrier, Franco, Martin and

Chepurney “together engineered the ‘fixing’ of the election in

favor of Martin, Franco and [sic] Chepurney” by opening envelopes

prior to an election and substituting valid ballots with false

ones. (Id. at ¶¶ 195-96.)

Defendants raise multiple reasons as to why this claim should

be dismissed, one of which is that under § 718.1255 Plaintiffs are

required to engage in non-binding arbitration prior to bringing

this action before the Court. (Doc. #45, ¶ 170.) Indeed, the

Court previously addressed this very issue and dismissed

Plaintiffs’ claim for voter fraud in the Amended Complaint, stating

Disputes between two or more parties that

involve the failure of the governing body to

"properly conduct elections" require a

petition filed with the Division of Florida

Land Sales, Condominiums, and Mobile Homes of

the Department of Business and Professional

Regulation ("the Division") for mandatory non-

binding arbitration. Fla. Stat. §§

718.1255(1)(b)(1), (4)(a); Abraham v. Sandy

Cove 3 Ass'n, No. 8:09-cv-107-T-30EAJ, 2009

U.S. Dist. LEXIS 51498, *3-4, (M.D. Fla. June

4, 2009). Plaintiffs have not alleged that

they petitioned the Division prior to

commencing this litigation. The petition for

non-binding arbitration is a condition

precedent to filing a lawsuit for this claim,

and as such, dismissal of Count VII is proper.

Neate v. Cypress Club Condo., 718 So.2d 390,

393 (Fla. 4th DCA 1998)(holding that "[t]he

violation of a condition precedent to filing

an action in court should properly be a

dismissal, not a stay[,]" pending

arbitration."). Accordingly, Count VII is

dismissed without prejudice

Santarsiero, 2020 U.S. Dist. LEXIS 237961, at *19.

Here, Plaintiffs allege that they have filed a petition with

the Division for resolution of their voting fraud claims, and that

the Division has “assumed” the matter.11 (Doc. #44, ¶ 193.)

Plaintiffs nevertheless seek an order from the Court for defendants

Shery and Lou Franco, Chepurney and Martin’s immediate removal

from the Association’s Board of Directors, as well as $250,000 in

punitive damages.12 The purpose of Section 718.1255 is to offer

“a more efficient, cost-effective option to court litigation"

between condominium associations and unit owners. Aquarius Condo.

Ass'n v. Goldberg, 312 So. 3d 86, 87 (Fla. 4th DCA 2021)(quoting

§ 718.1255(3)(b), Fla. Stat.). While not all requests for relief

are subject to administrative review, Cornerstone 417, Ltd. Liab.

Co. v. Cornerstone Condo. Ass'n, 300 So. 3d 1262, 1266 (Fla. 5th

11 Attached to Plaintiffs’ SAC is an exhibit containing three

letters from the Division pertaining to the Edgewater Village

Condominium Association for Case Nos. 2020056046, 2020056035, and

2020056031. (Doc. #44-3, pp. 2-4.) The individual letters indicate

that the Division is investigating each case, that a letter was

sent to the Edgewater Association, a response from the Association

was received, and that updates will be provided every 30 days until

the matter is resolved. The Division letters, however, do not

indicate the specific matters being investigated.

12 Plaintiffs provide no legal theory or statutory basis to

support their demand for the named defendants to be removed from

the Board of Directors or for punitive damages allegedly resulting

from voter fraud. See (Doc. #44, pp. 44-46.)

DCA 2020)(acknowledging there are claims that fall outside the

scope of section 718.1255), to allow Plaintiffs to bring its voter

fraud claim and avoid mandatory nonbinding arbitration would

render section 718.1255 meaningless. See § 718.1255(4)(k). As it

stands, this matter is not ripe for adjudication since the

investigation by the Division has yet to be resolved.

Defendants also assert that Plaintiffs have failed to

challenge the election process within the proscribed time set forth

in § 718.112(2)(d)(4)(c), thus Plaintiffs have waived any right to

claim voter fraud. (Doc. #45, p. 34.) Section 718.112(2)(d)(4)(c)

states that “[a]ny challenge to the election process must be

commenced within 60 days after the election results are announced.”

Plaintiff Balis avers that the contested election took place on

November 15, 2019. (Doc. #44-2.) According to the controlling

statute, however, Plaintiffs would have to assert their challenge

on or before January 14, 2020. The initial complaint in this

matter was not filed until June 19, 2020. (Doc. #1.) The Court

therefore finds that Plaintiffs challenge to the November 2019

election process is untimely and warrants dismissal on this ground

as well. For the reasons set forth above, Defendants Motion is

granted and Count Thirteen of the SAC is dismissed.

(8) Count XIV——Failure To Provide Requested

Documents/Destruction of Material Documents

Count Fourteen of the SAC alleges that each pro se Plaintiff

has requested in writing that defendant Martin make available

“certain financial and other association documents required to be

made available to unit owners pursuant to Florida Condominium Law,”

but defendant Martin refused to do so and claimed that many of the

documents were destroyed. (Doc. #44, ¶¶ 204-05.)

Just as with Plaintiffs’ claim for voter fraud, the Court

previously dismissed this cause of action because Plaintiffs had

not complied with section 718.1255, which states that parties to

disputes regarding the failure of a governing body of a condominium

association to allow inspection of its books and records are

required to petition the Division of Florida Land Sales,

Condominiums, and Mobile Homes of the Department of Business and

Professional Regulation for mandatory non-binding arbitration.

Fla. Stat. §§ 718.1255(b)(4), (4)(a); see Santarsiero, 2020 U.S.

Dist. LEXIS 237961, at *21.

Here, the SAC alleges that Plaintiffs have filed a petition

with the Division seeking resolution of inspecting certain records

and documents relating to the Association, and that the Division

has “assumed” the matter. (Doc. #44, ¶¶ 201-02; Doc. #44-3, pp.

2-4.) Plaintiffs, however, request that the Court require

defendant Martin to produce the at-issue documents. (Id. at ¶ 210.)

For similar reasons discussed above, for the Court to comply with

Plaintiffs’ request would defeat the purpose of § 718.1255, and

thus dismissal of Count Fourteen is proper.

Alternatively, the Court finds dismissal of Count Fourteen is

warranted because it incorrectly incorporates an additional cause

of action for wrongful conversion of property. The SAC appears

to allege that defendant Martin and Franco have wrongfully

converted a portion of Association funds in the amount of $250,000

and $1,800,000, which remain unaccounted for. By so alleging,

Plaintiffs have failed to separate each cause of action into a

separate count, which makes this a shotgun pleading. See McDowell

v. Gonzalez, 820 F. App'x 989, 990 (11th Cir. 2020)(acknowledging

that a complaint is a shotgun pleading when it fails to separate

each cause of action or claim for relief into separate counts).

Defendants’ motion is granted and Count Fourteen is dismissed.

Accordingly, it is hereby

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. #45) is GRANTED IN

PART AND DENIED IN PART.

2. Count I through Count X and Count XII through Count XIV

of the Second Amended Complaint (Doc. #44) are DISMISSED

with prejudice.

3. The sole remaining claim is Count XI. Plaintiffs shall

show cause within fourteen (14) days why the $75,000

jurisdictional amount is satisfied as to this count.

DONE and ORDERED at Fort Myers, Florida, this gth day of

July, 2021.

= ft 2

My □ AKLoe

JOHN E. STEELE

SHHIOR UNITED STATES DISTRICT JUDGE

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