# Balis v. Martin

> District Court, M.D. Florida · July 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10107932

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107932

## How later opinions describe it (automated extraction)

- 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."

## Opinion text

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

Copies:
Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107932. Public record. Not legal advice.