Key West Golf Club Homeowners' Association, Inc. v. Singh

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:19-cv-23685-JLK

KEY WEST GOLF CLUB HOMEOWNERS

ASSOCIATION, INC.,

Plaintiff,

v.

THE SINGH COMPANY, a Florida profit

corporation, SINGH CABLE COMPANY

LLC, a Florida limited liability company,

PRITAM SINGH, an individual residing in

Florida, KEY WEST GOLF CLUB

DEVELOPMENT, INC., a Florida profit

corporation, and COMCAST CABLE

COMMUNICATIONS, LLC, a Delaware

limited liability company;

Defendants.

______________________________________/

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

THIS MATTER is before the Court on Defendant Comcast Cable Communications, LLC’s

Motion to Dismiss, filed May 22, 2020 (ECF No. 44) (the “Motion”), and the Motion to Dismiss

(ECF No. 45) filed by Singh Co., Single Cable Co. LLC, Pritam Singh, and Key West

Golf Club Development, Inc. (the “Singh Defendants”). The Court has also considered Plaintiff’s

combined Response in Opposition, filed June 12, 2020 (ECF No. 50), and Defendants’ Replies,

filed June 30, 2020 and July 3, 2020, respectively (ECF Nos. 57, 58).1

1 Additionally, the Court has considered Plaintiff’s Sur-Reply, filed July 13, 2020 (ECF No. 61) with leave

of Court.

I. BACKGROUND

Plaintiff Key West Golf Club Homeowners Association, Inc. (the “Association”) brings

this declaratory judgment action claiming that the Bulk Cable Television Agreement and Bulk

Service Agreement entered into in 2001 between the Association, Singh Company, and Comcast

are void under federal and state law. See Compl., ECF No. 1. As to the sole federal claim, the

Association alleges that the agreements give Singh Company and Comcast the exclusive right to

provide cable television services to the property in violation of the 2007 “Exclusivity Order”

promulgated by the Federal Communications Commission (“FCC”). Id. at 13. As to the remaining

state law claims, the Association alleges that the agreements are void under the Florida

Homeowners’ Association Act (the “HOA Act”), Fla. Stat. §§ 720.301 et seq. on grounds that the

board of directors failed to obtain the required vote to approve the agreements, id. at 16, and that

the agreements are void as an ultra vires act of the Association when it was under developer

control. Id. at 15.2

The Association’s initial Complaint was dismissed on March 26, 2020 for failure to allege

Article III standing. See Or. Granting Def.’s Mot. Dismiss, ECF No. 38. Specifically, the Court

found that “[w]hile the Association alleges in conclusory terms that the agreements are ‘exclusive’

and ‘illegal,’ the Complaint fails to identify any clause that bars the Association or homeowners

from engaging other service providers, or that bars other providers from ‘any access whatsoever

to the premises’ in violation of the FCC Exclusivity Order.” Id. at 5 (quoting Cates v. Crystal

Clear Tech., LLC, 874 F.3d 530, 537 (6th Cir. 2017)). Additionally, the Court declined to exercise

supplemental jurisdiction over the remaining state law claims. Id. at 6.

2 The factual background underlying the Association’s Complaint is more thoroughly discussed in the

Court’s Order Granting Defendant’s Motion to Dismiss, ECF No. 38. In the instant opinion, the Court will

only reiterate or expound upon the facts to the extent necessary to clarify the Court’s holding.

The Association filed an Amended Complaint with leave of Court on April 24, 2020 to

correct the deficiencies the Court observed. Am. Compl., ECF No. 39. In the Amended Complaint,

the Association now alleges the existence of a contractual provision that supposedly bars the

Association from engaging other service providers, as follows: “[the] Association represents that

it has not granted and will not grant any other easements of rights which will interfere with the

exclusive operation of cable television programming to the Residential Units.” Am. Compl. ¶ 26

(citing ECF No. 39-3 ¶ 12). Through two separate motions, Comcast and the Singh Defendants

have moved to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1), arguing that the Association still fails to allege Article

III standing. ECF Nos. 44, 45. This opinion addresses both of these motions, which are ripe for

adjudication.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) may challenge subject matter jurisdiction through

either a “facial” or “factual” attack. See Scarfo v. Ginsberg, 175 F.3d 957, 961 (11th Cir. 1999).

Where, as here, the defendant raises a facial attack, challenging the sufficiency of the allegations

supporting jurisdiction, the court reviews the allegations as it does when considering a Rule

12(b)(6) motion. Id. To survive a motion to dismiss, the complaint must allege sufficient facts to

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Although the court must accept all well-pled facts as true, it need not accept conclusory

allegations. Dalrymyple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003).

III. DISCUSSION

A. Exclusivity Claim (Count I)

In Count I of the Amended Complaint, the Association requests a declaratory judgment

that the 2001 agreements between the Association, Singh Company, and Comcast violate the 2007

FCC “Exclusivity Order.” See Am. Compl. ¶¶ 96–123. In pertinent part, this order provides: “[N]o

cable operator . . . shall enforce or execute any provision in a contract that grants it the exclusive

right to provide any video programming service (alone or in combination with other services) to a

MDU [multiple dwelling unit]. Any such exclusivity clause shall be null and void.” See In the

Matter of Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units

and Other Real Estate Developments, 22 FCC Rcd. 20235, 20251 (2007) (codified at 47 C.F.R. §

76.2000(a)). Through the Exclusivity Order, the FCC sought to promote competition among cable

service providers, lower prices for consumers, and improve the quality of cable service given to

residents of multiple dwelling units. Id. at 20236.

Here, the Association contends that the 2001 agreements violate the Exclusivity Order

because they give the Singh Defendants (and Comcast) the exclusive right to provide cable

services to residents of the Association. Am. Compl. ¶¶ 22, 26. According to the Association,

“[t]his exclusive arrangement is anticompetitive and has adversely affected the market for cable

and video services by significantly impairing and restricting the ability of other communication

providers to deliver services to the Association and its members.” Id. ¶ 118. To that end, the

Association requests a declaratory judgment that the 2001 agreements are void as against public

policy in violation of the Exclusivity Order and are therefore unenforceable. Id. at 28 ¶ 1.

The Association’s initial Complaint was dismissed for failure to clearly allege or identify

any contractual provision between the parties that barred the Association from engaging other

cable service providers. See Or. Granting Def.’s Mot. Dismiss at 5. The Association has now

attempted to correct this deficiency by identifying several contractual provisions that (it argues)

purport to give Comcast and the Singh Defendants the exclusive right to provide cable services to

residents of the Association. See, e.g., Am. Compl. ¶ 26 (“Sec. 12, titled ‘Covenants of

Association,’ includes a [statement] that the Association ‘has not granted and will not grant any

other easements of rights which will interfere with the exclusive operation of cable television

programming to the Residential Units.’”).3 Defendants again seek dismissal, contending that the

Amended Complaint still fails to allege Article III standing because the Association has not—and

cannot—allege a specific instance since 2001 where the Association attempted to engage another

service provider, or where another service provider was prohibited from accessing the property.

See Mots. Dismiss.

It is well settled that federal courts may only decide “Cases” and “Controversies” under

Article III of the United States Constitution. U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992). “One element of the case-or-controversy requirement is that plaintiffs must

establish that they have standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).

According to the Supreme Court:

[T]he irreducible constitutional minimum of standing contains three elements.

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally

protected interest which is (a) concrete and particularized; and (b) “actual or

imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal

connection between the injury and the conduct complained of—the injury has to be

“fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result

[of] the independent action of some third party not before the court.” Third, it must

be “likely,” as opposed to merely “speculative,” that the injury will be “redressed

by a favorable decision.”

3 See also, e.g., Am. Compl. ¶¶ 22, 42, 44–47, 53, 54, 69, 71, 89, 100–102.

Lujan, 504 U.S. at 560–61 (citations omitted). While Congress may establish a cause of action by

way of statute, a party must still have suffered a concrete injury-in-fact to have standing to sue in

federal court. Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1549 (2016). Put another way, a party

alleging a bare procedural violation of a statute does not present a “case or controversy” within the

confines of Article III. See also Muransky v. Godiva Chocolatier, Inc., No. 16-16486, 2020 WL

6305084, at *10 (11th Cir. Oct. 28, 2020) (en banc) (applying Spokeo to hold that a plaintiff lacked

standing to bring a claim for a bare procedural violation of the Fair and Accurate Credit

Transactions Act, Pub. L. No. 108-159, 117 Stat. 1952 (2003)).

Here, the Court finds that the Association has failed to allege facts demonstrating each

element of the standing framework. Regarding the injury-in-fact element, the Association has

failed to identify a single instance since 2001 where it was prohibited from engaging another cable

service provider. Addressing this concern, the Association claims that Pritam Singh has threatened

litigation if the Association were to engage another service provider, see Am. Compl. ¶ 82, but the

Court finds that this purported harm that could arise by future acts Defendants might take is merely

“conjectural or hypothetical,” not “actual or imminent.” Lujan, 504 U.S. at 560. As alleged, the

Association has not suffered an injury-in-fact sufficient to confer Article III standing.

Turning to the second required element, the causation element, the Court finds that the

Association has failed to allege facts to plausibly suggest that its purported harm is “fairly

traceable” to the “exclusive arrangement” between the Association, Comcast, and the Singh

Defendants. For example, the Association complains that its residents do not receive high-

definition (“HD”) television services because the Singh Defendants utilize outdated

telecommunications equipment, Am. Compl. ¶ 80, but the Association has failed to demonstrate

how the lack of HD programming is causally connected to the “exclusive arrangement” between

the parties. The Association does not allege facts demonstrating that: (1) any other cable service

provider has attempted to offer television services to residents of the Association but was

prohibited from doing so by Defendants invoking this “exclusive arrangement”; or (2) another

cable service provider considered offering television services to residents of the Association but

was deterred from doing so because of this “exclusive arrangement.” Thus, the Association has

failed to allege that its injuries are “fairly traceable” to the challenged contractual provisions. Cf.

Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d

187, 197 (4th Cir. 2013) (holding that a homeowners association established the second element

of the standing inquiry where “[t]he record is replete with evidence that [the provider’s] exclusivity

arrangement caused competing cable providers not to offer [the homeowners association] their

services”).4

Turning now to the final element, the redressability element, the Court finds that a

favorable court ruling is not likely to redress the Association’s injuries. Even if the Court severed

the “exclusivity” provision from the parties’ agreement, the remainder of the contract would be

enforceable as a Bulk Billing Arrangement. The FCC has drawn a clear distinction between

“building exclusivity clauses” and “bulk billing arrangements.” Indeed, “[t]he ‘bulk billing

arrangement’ is a legally permissible arrangement ‘in which one [video service provider] provides

video service to every resident of a[ ] [multiple dwelling unit development], usually at a significant

discount from the retail rate that each resident would pay if he or she contracted with the [provider]

4 Unlike here, Lansdowne was decided at summary judgment with the benefit of a factual record, but that

decision is still instructive. In Lansdowne, the Fourth Circuit found that the homeowners association

(“HOA”) established the second prong of the standing inquiry, in part, because representatives of other

cable service providers testified that they were deterred from offering television services to residents of the

HOA by the building exclusivity provision. Although the instant case is at the pleading stage without a

factual record, the Association could have still alleged facts to plausibly suggest that other cable service

providers considered (and declined) to offer services to the Association. The Association has provided no

such allegations here, thus failing to meet the Twombly pleading standard.

individually.’” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,

713 F.3d 175, 182 (4th Cir. 2013) (citing In the Matter of Exclusive Service Contracts for Provision

of Video Services in Multiple Dwelling Units and Other Real Estate Developments, 25 FCC Rcd.

2460, 2461 (2010)). The bulk billing arrangement is permissible because it lowers costs for

residents of the MDU by eliminating the expenses the provider would incur by marketing and

selling services to each resident. Moreover, “[a] bulk billing [arrangement] does not prevent MDU

residents from obtaining services from another [provider], assuming that another has wired or will

wire the MDU, if necessary. . . . Any such residents, however, must pay for both the bulk billing

[provider] and the services of the other [provider]. As already noted, bulk billing does not

physically or legally prevent a second [provider] from providing service to an MDU resident and

does not prevent such [a provider] from wiring an MDU for its service, subject to the permission

of the MDU owner.” 25 FCC Rcd. at 2465. While “building exclusivity clauses” are

unenforceable, “bulk billing arrangements” are permissible and enforceable. Therefore, even if the

Court found that the “exclusivity clause” was unenforceable in the instant case, the remainder of

the agreement between the parties would stand as a bulk billing arrangement, and the Association

(and residents of the Association) would still be obligated to pay the monthly fee to the Singh

Defendants. Thus, a favorable court ruling would have no material impact on the economic

relationship between the parties. The Association has thus failed to allege the third element of the

standing framework.

As a final matter, the Court wishes to explain why leave to amend the complaint should

not be given for a second time. Although Federal Rule of Civil Procedure 15(a) provides that leave

to amend a complaint shall be “freely given when justice so requires,” futility of amendment is a

proper basis for denying leave to amend. Alexander v. AOL Time Warner, Inc., 132 F. App’x 267,

269 (11th Cir. 2005). Here, since the agreement between the parties would stand as a bulk billing

arrangement even if the Court were to rule in the Association’s favor, leave to amend should not

be given because amendment of the complaint would be futile; the Court does not foresee that any

additional allegations or jurisdictional discovery would alter that conclusion. In sum, the

Association lacks standing, and Count I should be dismissed accordingly.

B. State Law Claims (Counts II and III)

Counts II and III of the Amended Complaint bring claims for violations of Florida law,

primarily the HOA Act. See Am. Compl. at 25, 26. The Court, having dismissed the sole federal

claim raised in the Amended Complaint, declines to exercise supplemental jurisdiction over the

remaining state law claims. See Tropical Paradise Resorts, LLC v. JBSHBM, LLC, No. 18-cv-

60912, 2018 WL 4932282, at *4 (S.D. Fla. Oct. 28, 2018) (“Federal law permits [courts] to decline

to exercise supplemental jurisdiction over state law claims where it ‘has dismissed all claims over

which it has original jurisdiction.’”) (quoting 28 U.S.C. § 1367(c)(3)).

Accordingly, after careful consideration, it is ORDERED, ADJUDGED, AND

DECREED that:

1. Defendant Comcast Cable Communication’s Motion to Dismiss (DE 44) be, and the same

is, hereby GRANTED;

2. The Singh Defendants’ Motion to Dismiss (DE 45) is hereby GRANTED; and

3. Key West Golf Club Homeowners Association, Inc.’s Amended Complaint (DE 39) is

hereby DISMISSED WITH PREJUDICE.

DONE AND ORDERED in Chambers at the James Lawrence King Federal Justice

Building and United States Courthouse in Miami, Florida this 24th day of November, 2020.

_e” JAMES LAWRENCE KING " ff

Lovo f° UNITED STATES DISTRICT JUPGE

cc: All Counsel of Record

10