Petition for Writ of Certiorari — Robert A. Heghmann, et ux., Petitioners v. Djamel Hafiani, et al.

1

APPENDIX TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Eleventh Circuit, October 26, 2022.... App. 1

Order of the United States District Court for the

Middle District of Florida, Jacksonville Divi­

sion, July 14, 2021

App. 18

Opinion and Order of the United States Court of

Appeals for the Eleventh Circuit denying a

Petition for Rehearing, January 12, 2023.... App. 43

App. 1

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

No. 21-12650

Non-Argument Calendar

ROBERT A. HEGHMANN,

BEATRICE M. HEGHMANN,

Plaintiffs-Appellants,

versus

DJAMEL HAFIANI,

MARY HAFIANI,

MIRIAM HAFIANI,

JAMEL JOSEPH HAFIANI,

JULIA SARAH HAFIANI,

THE TOWN OF RYE, N.H., et al.,

Defendants-Appellees,

THE HAFIANI FAMILY TRUST, et al.,

Defendants.

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:20-cv-00670-BJD-JBT

(Filed Oct. 26, 2022)

Before Rosenbaum, Branch, and Grant, Circuit Judges.

App. 2

PER CURIAM:

In 2020, Robert and Beatrice Heghmann (“the

Heghmanns”) filed a civil action against the Hafiani

family, the Town of Rye, New Hampshire, and John

Does and Mary Roes 1 through 6,000, who were un­

known residents of the Town of Rye (“the Residents”).

The Heghmanns alleged that in 2003, these defend­

ants violated automatic stays from Robert and Be­

atrice’s individual bankruptcy proceedings. The

Heghmanns sought a declaratory judgment that the

defendants violated the automatic stays, an award of

compensatory and punitive damages, and attorney’s

fees and costs. The district court granted the Hafiani

defendants’ motions to dismiss on the grounds that the

Heghmanns failed to state a claim against Miriam

Hafiani, and that the Heghmanns’ claim against the

other Hafianis was barred by res judicata. The district

court also granted the Town of Rye’s motion to dismiss

for lack of personal jurisdiction. On appeal, the Hegh­

manns argue that the district court erred in dismissing

their action for various reasons. After review, we af­

firm.

I.

Background

According to the Heghmanns’ complaint, in late

2002, they rented a house in the Town of Rye, New

Hampshire, from Djamel Hafiani. In January 2003,

the Heghmanns fell behind on their rental payments.

Djamel initiated an action in landlord tenant court,

and a New Hampshire court ordered the Heghmanns

App. 3

to pay the past due rent, no later than March 3, 2003,

and, if they did not do so, then a writ of possession

would issue on March 17, 2003.

The Heghmanns did not pay the past due rent. In­

stead, on March 13, 2003, Robert Heghmann filed a

Chapter 13 bankruptcy petition, which triggered an

automatic stay.1 Robert Heghmann then informed

Djamel’s counsel of the bankruptcy filing. However, no

one notified the New Hampshire state court of the

bankruptcy filing, and it issued a writ of possession.

Nevertheless, the Town of Rye Sheriff’s Office delayed

enforcement of the writ after being informed of the

bankruptcy proceedings.

Robert Heghmann’s bankruptcy proceeding was

dismissed on May 21, 2003. Djamel Hafiani advised

the New Hampshire court that the bankruptcy pro­

ceeding had been dismissed, and the court reissued a

writ of possession based on its prior March 3, 2003 or­

der. Based on the writ of possession, the Sheriff’s Office

issued a notice of eviction, which gave the Heghmanns

24 hours to vacate the residence. Robert Heghmann

informed the Rye police executing the writ that the

eviction was in violation of the automatic stay and was

illegal, but he was ignored. The Heghmanns vacated

1 Upon the filing of a bankruptcy petition, “all legal or equi­

table interests of the debtor in property” as of the filing of the

petition become part of the bankruptcy estate, with certain excep­

tions not applicable here. See 11 U.S.C. § 541. And actions against

a debtor or property of the bankruptcy estate become subject to

an automatic stay when the bankruptcy petition is filed. Id. § 362.

App. 4

the residence and took what belongings they could, but

they had to leave a number of their possessions behind.

Robert Heghmann then filed a motion to set aside

the bankruptcy dismissal and a motion for contempt

against Djamel and his counsel for alleged violations

of the automatic stay in the bankruptcy court. Hegh­

mann v. Town of Rye, No. 04-100-SM, 2005 WL 637928,

*2 (D.N.H. March 18, 2005). The bankruptcy court de­

nied both motions, and Heghmann did not appeal. Id.

Meanwhile, Beatrice Heghmann filed a petition

for Chapter 13 bankruptcy, which triggered another

automatic stay. However, despite her pending bank­

ruptcy petition, after retaking possession of the resi­

dence, Djamel and his then minor children, Miriam,

Jamal, and Julia sold a great deal of the Heghmanns

belongings at yard sales to unknown residents of the

Town of Rye. As a result, Beatrice Heghmann filed mo­

tions for implementation of the automatic stay—allow­

ing her to return the residence and requiring Djamel

to return their possessions—and a motion for con­

tempt seeking compensatory and punitive damages for

Djamel’s violations of the automatic stay in Robert’s

case and in her case. See In re Heghmann, 316 B.R.

395, 399 (B.A.R 1st Cir. 2004).

The bankruptcy court refused to consider Be­

atrice’s arguments related to the alleged violations of

the automatic stay in her husband’s prior bankruptcy

proceeding, explaining that such violations “may not

be prosecuted in a subsequent bankruptcy case.” Id. at

399 n.4. However, it determined that Djamel violated

App. 5

the automatic stay in Beatrice’s bankruptcy proceed­

ings when he sold the Heghmanns’ belongings at the

yard sales. Id. at 399-400. It ordered Djamel to pay

$1,200 in actual damages for the sale of the Hegh­

manns’ property. Id. at 400, 405. It declined to award

punitive damages. Id. at 406. A Bankruptcy Appellate

Panel of the First Circuit affirmed on appeal.2 Id. at

401-406. Notably, the Bankruptcy Appellate Panel re­

jected on the merits Beatrice’s claims concerning the

violation of the automatic stay in Robert’s case, ex­

plaining that “the writ of possession and subsequent

eviction did not violate the automatic stay as no stay

was in place at that time—Robert Heghmann’s case

had been dismissed and Beatrice Heghmann’s case

had not yet been filed.” Id. at 401.

Thereafter, in March 2004, Robert Heghmann filed

a complaint in the United States District Court for

New Hampshire against Djamel Hafiani, the Town of

Rye, and various others, alleging that the defendants

violated the automatic stay in his bankruptcy proceed­

ings when they (i) sought to enforce the writ of posses­

sion issued in March 2003, (ii) obtained a new writ of

possession after his bankruptcy case was dismissed,

and then (iii) enforced said writ. Heghmann v. Town of

Rye, 326 F. Supp. 2d 227, 232 (D.N.H. 2004). He also

sought “an order requiring the defendants ‘to take

2 The judicial council of each circuit is authorized to establish

a bankruptcy appellate panel composed of “bankruptcy judges

of the districts in the circuit who are appointed by the judicial

council” to hear appeals from the bankruptcy court. 28 U.S.C.

§ 158(b)(1). The First Circuit has established such a panel.

App. 6

immediate steps to undue [sic] the damage they have

done by their past violations of the automatic stay.

Id. The district court concluded that it lacked subject

matter jurisdiction to hear claims involving alleged

violations of the automatic stay. Heghmann u. Town of

Rye, No. 04-100-SM, 2004 WL 2526417, at *4,6 (D.N.H.

Nov. 8,2004). Rather, “the proper forum in which to ad­

vance claims involving alleged violations of the auto­

matic stay [was in] the bankruptcy court.”3 Id. at *6.

Almost two decades later, in June 2020, the Heghmanns filed the underlying pro se complaint in the

Middle District of Florida against Djamel Hafiani, his

ex-wife Mary, and their now-adult children Miriam,

3 The district court also noted that:

Mr. Heghmann is an attorney, admitted to practice be­

fore the federal district courts in New York and Con­

necticut, the Court of Appeals for the Second Circuit,

and the United States Supreme Court. Heghmann v.

Fermanian, 2000 WL 1742122 at * 1, n. 1 (D.Me.

Nov.27, 2000). He is no stranger to pro se litigation, at

least some of which has been meritless. See id. at *4

(awarding sanctions against Heghmann and conclud­

ing that his “claims in this action were without merit

from the beginning and would have been perceived as

such by any objectively reasonable attorney.”). Nor is

this the first time that litigation has flowed from Heghmann’s failure to honor rent and/or mortgage obliga­

tions. See Connecticut Sav. Bank v. Heghmann, 193

Conn. 157, 474 A.2d 790 (1984).

Heghmann v. Town of Rye, No. 04-100-SM, 2004 WL 2526417,

at *1 n.l (D.N.H. 2004). Because Robert Heghmann is a licensed

attorney, his pleadings are not entitled to the liberal construction

normally afforded pro se litigants. See Olivares v. Martin, 555

F.2d 1192, 1194 n.l (5th Cir. 1977).

App. 7

Jamal, and Julia,4 as well as the Town of Rye, New

Hampshire, and its residents for alleged violations of

the 2003 automatic stay in both of the Heghmanns’

bankruptcy proceedings.5 Specifically, the Heghmanns

alleged that Djamel Hafiani violated the automatic

stay in Robert Heghmann’s bankruptcy proceeding

when he (1) failed to advise the New Hampshire court

in March 2003 of the filing of Robert’s bankruptcy pe­

tition; (2) obtained a writ of possession; (3) attempted,

albeit unsuccessfully, to have the Sheriff’s Office exe­

cute the writ; and (4) improperly obtained a new writ

of possession following the dismissal of Robert’s bank­

ruptcy proceedings (Counts 1-4). They alleged that

Djamel, the Town of Rye, and its residents violated the

automatic stay in Robert Heghmann’s bankruptcy case

when the sheriff’s office executed the void writ of pos­

session and evicted the Heghmanns (Count 5). Further,

they alleged the Town of Rye and its residents violated

the automatic stay in Robert’s bankruptcy proceeding

when the town failed to have a procedure in place for

all municipal officers to follow when a claim is made

4 The Hafianis now live in Florida.

5 The Heghmanns explain in their brief before this Court

that for eighteen years, they

have been searching for a District Court where not only

does the Circuit Court permit the exercise of subject

matter jurisdiction in cases involving violations of the

Automatic Stay but more importantly where state law

procedures permit the exercise of gwasi in rem garnish­

ment of the New Hampshire defendants’ property with­

out an onerous cash bond.

App. 8

that the officers’ actions violate an automatic stay

(Count 6).

Next, the Heghmanns alleged that Djamel, his exwife Mary, and their children violated the automatic

stay in Beatrice Heghmann’s bankruptcy proceeding

when they improperly seized the Heghmanns’ property

left at the residence (Count 7). They also alleged that

the Hafiani family violated the automatic stay in Be­

atrice’s bankruptcy proceeding when they sold the

Heghmanns’ property at yard sales, and the residents

of the Town of Rye violated the stay when they bought

the property at the yard sales (Count 8). Finally, the

Heghmanns alleged that because the bankruptcy court

found that the yard sales violated the stay, it triggered

a duty on the defendants to undo the damage and re­

store the Heghmanns to “the status quo” prior to the

violation. Thus, they claimed that the Hafianis and the

Town of Rye and its residents violated the automatic

stay—and continue to do so—because they have taken

no action to fulfill this duty (Count 9).

Miriam Hafiani moved to dismiss the complaint

for failure to state a claim. She asserted that the Hegh­

manns failed to allege how she can be subject to a claim

when she was a minor of 14 years old at the time of the

actions at issue. Additionally, she alleged that the

Heghmanns had failed to include any allegations link­

ing her to the lease, the bankruptcy orders, or the au­

tomatic stays. In response, the Heghmanns argued

that they were not suing for a violation of the auto­

matic stay that happened when she was a minor in

2003, but rather, they were suing her for a continuing

App. 9

violation because she had a duty to undo the damages

caused by the violation and continued to take no action

to do so.

Djamel, Julia, Mary, and Jamal also moved to

dismiss.6 They argued, in relevant part, that the

claims should be dismissed for lack of subject matter

jurisdiction and for failure to state a claim because the

Heghmanns’ claims were barred by res judicata. In re­

sponse, the Heghmanns argued that, under Eleventh

Circuit precedent, the district court had subject matter

jurisdiction over the claims. They also argued that

res judicata did not apply because they were seeking

damages for the ongoing violation of the automatic

stay based on the bankruptcy court’s findings that

Djamel—and by extension his family members—vio­

lated the automatic stay when he sold the Heghmanns’

belongings, but the Hafianis continued to take no ac­

tion to undo the damage.7

Finally, the Town of Rye moved to dismiss, arguing

that the district court lacked personal jurisdiction over

it. It argued that all of the complained of actions took

6 The Hafianis attached numerous records from the bank­

ruptcy proceedings and prior district court proceedings to the

motion to dismiss.

7 The Heghmanns asserted that the bankruptcy court’s

award of $1,200 in actual damages and denial of punitive dam­

ages for the violation of the automatic stay did not have preclusive

effect because when Djamel and his family violated the stay they

effectively committed the common law torts of conversion and in­

tentional infliction of mental and emotional distress, entitling the

Heghmanns to damages—issues which a bankruptcy Article I

judge is without authority to decide.

App. 10

place in New Hampshire and the Heghmanns failed

to allege any facts connecting it with Florida. It also

argued that exercising jurisdiction would not comport

with “traditional notions of fair play and substantial

justice” because of the cost to Rye of litigating in Flor­

ida, the apparent forum-shopping of the Heghmanns,

the lack of any nexus between the actual events and

the State of Florida, and the fact that the Heghmanns

had access to effective relief in New Hampshire. In

response, the Heghmanns argued that they were not

seeking to exercise in personam jurisdiction over the

Town of Rye and its residents. Rather, they were seek­

ing quasi in rem jurisdiction over the Town of Rye and

its residents.

After concluding that it had subject matter juris­

diction,8 the district court granted all three motions to

dismiss. First, the district court concluded that the

Heghmanns failed to state a plausible claim against

Miriam Hafiani because they did not allege that she

knew of the stay and intentionally violated it—and

without such allegations, the district court could not

“even consider the additional layer of allegations that

8 The district court concluded that it had subject matter ju­

risdiction over claims for violation of an automatic stay. See Just.

Cometh, Ltd. v. Lambert, 426 F.3d 1342, 1343 (11th Cir. 2005)

(holding that “the explicit. . . grant of original jurisdiction” in 28

U.S.C. § 1334 over cases arising under Title 11 “clearly forecloses

a conclusion that the district court lacked subject matter jurisdic­

tion” over claims for damages caused by a violation of the auto­

matic stay in a bankruptcy proceeding). Accordingly, we have

subject matter jurisdiction to hear this appeal as well. Id.

App. 11

[she] continued to violate the automatic stay for failing

to ‘undo’ damage allegedly caused by the violation of

the automatic stay.” Second, the district court con­

cluded that the claims against Djamel were barred by

res judicata.

As to the remaining claims against Mary, Jamal,

and Julia Hafiani (Counts 7-9), the district court found

that these claims were due to be dismissed because

(1) the Heghmanns made no specific allegations that

Mary, Jamel, or Julia knew of the automatic stay and

intentionally violated it, (2) res judicata barred these

claims because they could have been brought in prior

litigation, and (3) the pleading was deficient because it

failed to afford those defendants notice of the specific

allegations against them.9

Finally, the district court dismissed the claims

against the Town of Rye and its residents because it

lacked in personam jurisdiction under Florida’s longarm statute and exercising jurisdiction would offend

the traditional notions of fair play and justice. The

Heghmanns timely appealed.

9 The district court also noted that although there was no

statute of limitations for bringing a claim for violation of an auto­

matic stay, the 17-year delay in bringing these claims was “con­

cern [ing].”

App. 12

II.

Discussion

A. Whether the district court erred in dismissing

the claims against the Hafianis

The Heghmanns argue that the district court

erred in dismissing the claims against the Hafianis for

various reasons, including that the claims were not

precluded by res judicata and that the defendants

waived any claim that the complaint failed to state a

claim because it did not allege that the defendants had

knowledge of the stay. The Heghmanns maintain that

the bankruptcy court’s finding of a violation of the au­

tomatic stay has preclusive res judicata effect and trig­

gered an ongoing duty upon Djamel and those in

privity with him10 to take actions “to restore the status

quo ante the violation,” and the defendants have taken

no remedial action for the past 17 years.

We review de novo a dismissal for failure to state

a claim upon which relief may be granted, “accepting

the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Leib

10 The Heghmanns argue that Djamel’s children were in

privity with him because they were present during the yard sales

and “had their pick” of the Heghmanns’ property. And they argue

that Djamel’s ex-wife, Mary, was in privity because she was the

legal guardian of the children and “responsible for their conver­

sion of the property.” Finally, the Heghmanns maintain that the

Town of Rye and its residents were in privity because but for the

Town of Rye’s actions (via the execution of the writ of possession),

the Hafianis would not have obtained possession of the Hegh­

manns’ property, and under New Hampshire law, the residents

of a municipality “are liable for the transgressions of the town

government.”

App. 13

v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d

1301,1305 (11th Cir. 2009).

i.

Claims against Djamel

The Heghmanns argue that the district court

erred in its res judicata analysis as to the claims

against Djamel. Additionally, they argue that the

bankruptcy court did not have before it the claim for a

continuing violation, as that claim did not arise until

the bankruptcy court issued its judgment, and, there­

fore, it was not barred by res judicata.

We review de novo the district court’s determina­

tion that a claim is barred by res judicata. See Jang v.

United Tech. Corp., 206 F.3d 1147, 1149 (11th Cir.

2000). Res judicata “bar[s] a subsequent action if: (1)

the prior decision was rendered by a court of competent

jurisdiction; (2) there was a final judgment on the mer­

its; (3) the parties were identical in both suits; and (4)

the prior and present causes of action are the same.”

Id. (quotation omitted). “ [I]f a case arises out of the

same nucleus of operative facts, or is based upon the

same factual predicate, as a former action,. . . the two

cases are really the same ‘claim’ or ‘cause of action’ for

purposes of res judicata.” Griswold v. Cnty. of Hills­

borough, 598 F.3d 1289, 1293 (11th Cir. 2010) (quota­

tion omitted) (alteration in original).

The district court did not err in determining that

res judicata barred the claims against Djamel. Counts

One through Five for Dj am el’s alleged violations of the

automatic stay in Robert’s case are precluded by the

App. 14

Bankruptcy Appellate Panel of the First Circuit’s 2004

decision, which determined that “the writ of possession

and subsequent eviction did not violate the automatic

stay as no stay was in place at that time—Robert

Heghmann’s case had been dismissed and Beatrice

Heghmann’s case had not yet been filed.” In re Heghmann, 316 B.R. at 401—02.

Similarly, Counts Seven and Eight for violations of

the automatic stay in Beatrice’s case when Djamel sold

the Heghmanns’ property at yard sales are also pre­

cluded by the same decision because the Bankruptcy

Appellate Panel affirmed the bankruptcy court’s order

for Djamel to pay $1,200 in actual damages for violat­

ing the automatic stay in Beatrice’s case.11 See id. at

404-06.

Finally, Count Nine is precluded because they

could have alleged a continuing violation in Beatrice’s

bankruptcy proceeding through the filing of a con­

tempt action in the past 17 years, but they did not.12

11 The Heghmanns’ argument that their claims in the under­

lying complaint were for the common law tort of conversion, and,

thus, were different from the claims in the prior bankruptcy pro­

ceeding is meritless. Each of the nine counts in the complaint

were for “violation of the automatic stay,” citing 11 U.S.C.

§ 362(a)—the same exact claims resolved in the prior bankruptcy

decision in the First Circuit.

12 Although Congress did not enact a statute of limitations

for claims involving willful violations of an automatic stay, we

agree with the district court that the Heghmanns’ 17-year delay

in filing the underlying complaint while they admittedly forum

shopped for a court that would hear their case is gravely concern­

ing. Under these circumstances, we conclude that, even if the

Heghmanns’ claims were not barred by res judicata, they would

App. 15

See Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1377

(11th Cir. 2011) (explaining that “frjes judicata acts as

a bar not only to the precise legal theory presented in

the previous litigation, but to all legal theories and

claims arising out of the same operative nucleus of

fact.” (quotation omitted)); see also In re Harrison, 599

B.R. 173, 183 (Bankr. N.D. Fla. 2019) (explaining that

contempt is the “appropriate remedy” for willful viola­

tions of an automatic stay). Accordingly, the district

court correctly determined that the Heghmanns’

claims against Djamel were barred by res judicata.

ii. Claims against the remaining Hafianis

With regard to the claims against Miriam, Mary,

Julia, and Jamal Hafiani, the Heghmanns argue that

the Hafianis did not assert in their motions to dismiss

that the complaint failed to allege that they knew of

the automatic stay; therefore, they waived this defense

and the district court erred in relying on it as a basis

for the dismissal. However, the Heghmanns fail to

challenge another ground on which the district court

be barred by the doctrine of laches. See Thornton v. First State

Bank of Joplin, 4 F.3d 650, 653 (8th Cir. 1993) (explaining that

“[w]hile delay alone does not automatically constitute laches, if a

plaintiffs delay (1) is unreasonable and unexplained and (2) has

disadvantaged the defendant, laches may apply,” and upholding

application of the doctrine where the debtor waited four years af­

ter discovering the violation and two years after bankruptcy pro­

ceedings concluded to file his complaint, without explanation for

the delay). In the Heghmanns’ case, the only reason for the delay

in filing the underlying complaint was their admitted forum shop­

ping, which further demonstrates why application of the doctrine

of laches is appropriate.

App. 16

based its dismissal—that the complaint was “deficient

in that the[] counts make assertions against these De­

fendants collectively and do not afford each Defendant

notice as to the specific allegations made as to each

Defendant.” “When an appellant fails to challenge

properly on appeal one of the grounds on which the dis­

trict court based its judgment, he is deemed to have

abandoned any challenge of that ground, and it follows

that the judgment is due to be affirmed.” Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014). Accordingly, we affirm the district court’s dis­

missal of the claims against the remaining Hafianis.

B.

Whether the district court erred in dismissing

the complaint against the Town ofRye for lack

of personal jurisdiction

The Heghmanns argue that the district court

erred in dismissing the claims against the Town of Rye

because the district court failed to recognize that “ju­

risdiction over the Town of Rye was never in personam,

it was always quasi in rem.” The problem for the Hegh­

manns is that, even if they were proceeding under

quasi in rem jurisdiction, the district court would lack

jurisdiction because the Heghmanns did not allege

that the Town of Rye has any property in Florida for

purposes of quasi in rem jurisdiction. See Shaffer v.

Heitner, 433 U.S. 186, 199 & n.17 (1977) (explaining

that in rem and quasi in rem jurisdiction are “based on

the court’s power over property within its territory”);

World Wide Supply OU v. Quail Cruises Ship Mgmt.,

802 F.3d 1255, 1259-60 (11th Cir. 2015) (explaining

App. 17

that quasi in rem jurisdiction involves an action

“against a party who is not personally present in the

district but whose property is present”).

Furthermore, the Heghmanns do not challenge

the district court’s determination that it lacked in per­

sonam personal jurisdiction. Accordingly, they aban­

doned any challenge of that ground, and we affirm the

dismissal of claims against the Town of Rye for lack of

personal jurisdiction. Sapuppo, 739 F.3d at 680.

AFFIRMED.

App. 18

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ROBERT A. HEGHMANN and

BEATRICE M. HEGHMANN,

Plaintiffs,

v.

DJAMEL HAFIANI, MARY

HAFIANI, MIRIAM HAFIANI,

JAMEL JOSEPH HAFIANI,

JULIA SARAH HAFIANI,

THE TOWN OF RYE, N.H.,

JOHN DOES 1 THRU 6000,

and MARY ROES 1 THRU

6000,

Case No.:

3:20-cv-670-BJD-JBT

Defendants.

ORDER

(Filed Jul. 14, 2021)

THIS CAUSE is before the Court on Defendant

Miriam Hafiani’s Motion to Dismiss Plaintiffs’ Com­

plaint (Doc. 11) and pro se Plaintiffs’ memorandum in

opposition (Doc. 19); Defendants Djamel Hafiani, Mary

Hafiani, Jamel Hafiani, and Julia Sarah Hafiani’s Mo­

tion to Dismiss Second Amended Complaint (Doc. 13)

and Plaintiffs’ Memorandum in Opposition (Doc. 29);

and Defendant The Town of Rye’s Motion to Dismiss

for Lack of Personal Jurisdiction (Doc. 14) and Plain­

tiffs’ Memorandum in Opposition (Doc. 18).

App. 19

On June 29, 2020, Plaintiffs Robert and Beatrice

Heghmann filed their initial complaint in this court

(Doc. 1). In the operative Second Amended Complaint,

Plaintiffs bring claims for violations of two automatic

stays from their respective bankruptcy cases under 11

U.S.C. § 362(a), (k), and 11 U.S.C. § 1301 against the

following Defendants for the sale of a portion of their

estate at yard sales at their former residence, 237

Grove Road, in Rye, New Hampshire: Djamel Hafiani

(Counts One through Five, Seven through Nine); the

Town of Rye, Residents of Rye 1 through 6000 (Counts

Five, Six, Eight and Nine); Mary Hafiani, Miriam

Hafiani, Julia Sarah Hafiani, and Jamel Hafiani

(Counts Seven, Eight, and Nine) (Doc. 8 at 1-16).

Plaintiffs also allege that “Bankruptcy Chief

Judge Mark Vaughn decided the sales of the estates of

Robert and Beatrice Heghmann violated the Auto­

matic Stay on August 19,2003” and that as of this date,

“[a] 11 of the Defendants who violated the Automatic

Stay have an affirmative duty to undo the offending

acts even if they had no actual notice of the bankruptcy

at the time the acts were performed.” (Doc. 8 at 15-16).

Plaintiffs seek a judgment that all Defendants have

violated the automatic stay under the Bankruptcy

Code and an award of compensatory and punitive dam­

ages (Doc. 8 at 16-17).1

1 In their Second Amended Complaint, Plaintiffs allege resi­

dency in New Hampshire and that Defendants Djamel Hafiani,

Miriam Hafiani and Julia Hafiani have residency in Florida (Doc.

8 at 3-4). The Court notes that Plaintiffs have failed to allege the

citizenship of the parties. Because this action is before the Court

App. 20

I.

Background

Plaintiffs leased the land and buildings in Rye,

New Hampshire from Defendant Djamel Hafiani from

2002 to 2003. On February 6, 2003, Djamel Hafiani

filed a Landlord and Tenant Writ against Plaintiffs in

Portsmouth District Court for possession. See Heghmann v. Town of Rye. 326 F. Supp. 2d 227, 232-33

(D.N.H. 2004). On March 3, 2003, the Portsmouth Dis­

trict Court determined Plaintiffs were in arrears for

three-months of rent and Plaintiffs were ordered to

pay $5,700 no later than March 15, 2003, and if they

did not, then a writ of possession would be issued

March 17, 2003. IcL at 228.

The Heghmanns neither paid the $5,700 nor

appealed the judgment. Instead, on March 13,

2003, Robert Heghmann filed a voluntary

Chapter 13 petition. Notwithstanding the fil­

ing of the bankruptcy petition, on March 17,

2003, the State Court issued a Notice of De­

fault Judgment and a Writ of Possession in ac­

cordance with its March 3rd order.

On May 19, 2003, Robert Heghmann filed a

motion in the State Court to quash the writ of

possession, alleging that the writ was void

because it issued in violation of the auto­

matic stay. However, on May 21, 2003, the

based on federal question jurisdiction, however, the Court deems

it unnecessary to discuss in detail Plaintiffs’ failure to allege the

citizenship of the parties. See Tavlor v. Appleton. 30 F.3d 1365,

1367 (11th Cir. 1994) (“Citizenship, not residence, is the key fact

that must be alleged in the complaint to establish diversity for a

natural person.”).

App. 21

bankruptcy court dismissed Robert Heghmann’s Chapter 13 case for failure to file the

required bankruptcy schedules and Chapter

13 plan. Accordingly, on May 23, 2003, the

State Court denied the Motion to Quash and

issued a new Writ of Possession in accordance

with its March 3rd order. The next day, the

Heghmanns were evicted from the premises.

The Heghmanns did not appeal.

On May 22,2003, the Heghmanns filed a com­

plaint in the United States District Court for

the District of New Hampshire alleging viola­

tions of the automatic stay by Mr. Hafiani and

seeking a temporary restraining order. On

May 28, 2003, the district court issued an or­

der sua sponte dismissing the complaint, find­

ing that it lacked subject matter jurisdiction.

The Heghmanns did not appeal.

Heghmann v. Town of Rve. N.H.. No. CIV. 04-100-SM,

2005 WL 637928, at *1 (D.N.H. Mar. 18,2005) (empha­

sis in original). The court further concluded that the

claim that Defendant Djamel Hafiani violated the au­

tomatic stay from Mr. Heghmann’s Chapter 13 bank­

ruptcy proceeding should have been raised in the

bankruptcy proceeding. Heghmann. 326 F. Supp. 2d at

230. On June 2,2003, Robert Heghmann, a licensed at­

torney at the time of the prior actions,2 filed a motion

2 Indeed, prior courts have noted that

Mr. Heghmann is an attorney, admitted to practice be­

fore the federal district courts in New York and Con­

necticut, the Court of Appeals for the Second Circuit,

and the United States Supreme Court. Heghmann v.

Fermanian. 2000 WL 1742122 at *1, n.l (D. Me. Nov.

App. 22

in the United States Bankruptcy Court, in part, for

contempt against Defendant Djamel Hafiani and his

attorney at that time, Ronald Indorf, for intentionally

violating the automatic stay, for seeking to enforce the

writ of possession, and for continuing to violate the au­

tomatic stay. Id. The bankruptcy court denied this mo­

tion finding that it was moot because it had been filed

after the bankruptcy case had been dismissed. Id. No

appeal was taken. hf

On June 19, 2003, Beatrice Heghmann filed a vol­

untary petition for Chapter 13 bankruptcy, and on

August 19, 2003 the bankruptcy court entered orders

on three motions: a motion for contempt, motion to

implement stay, and motion for partial relief. IcL; see

In re Heghmann. 316 B.R. 395, 400 (B.A.R 1st Cir.

2004). The bankruptcy court denied the motion for par­

tial relief and entered a single order on the other two

motions in which it refused to hear pre-petition stay

violations having concluded that

Mr. Hafiani had “pleaded” with the Heghmanns to pick up their personal property,

27, 2000). He is no stranger to pro se litigation, at least

some of which has been meritless. See id. at *4 (award­

ing sanctions against Heghmann and concluding that

his “claims in this action were without merit from the

beginning and would have been perceived as such by

any objectively reasonable attorney.”). Nor is this the

first time that litigation has flowed from Heghmann’s

failure to honor rent and/or mortgage obligations. See

Connecticut Sav. Bank v. Heghmann. 193 Conn. 157,

474 A.2d 790 (1984).

Heghmann. 2005 WL 637928, at *3.

App. 23

making numerous telephone calls to the

Heghmanns and even leaving the premises

open several times. Finding Mr. Hafiani’s tes­

timony to be credible, the bankruptcy court

concluded that there were no stay violations

until Mr. Hafiani sold some of the Debtor’s

property at yard sales on July 12 and 19,2003.

Accordingly, the bankruptcy court ordered

him to pay damages of $1,200. The bank­

ruptcy court also concluded that although Mr.

Hafiani’s actions were taken on the advice of

his counsel, Attorney Indorf did not violate

the automatic stay as he did not take any ac­

tions against the estate. This appeal ensued.

Subsequently, the Debtor’s bankruptcy case

was dismissed for failure to file the required

schedules and Chapter 13 plan.

Heghmann. 2005 WL 637928, at *2. The bankruptcy

court denied the punitive damages claim based on a

lack of good cause. Id.; see In re Heghmann. 316 B.R.

at 404. On appeal, the United States Bankruptcy Ap­

pellate Panel affirmed the decision of the bankruptcy

court, in part determining that res judicata barred Be­

atrice Heghmann from relitigating claims relating to

alleged pre-petition violations of the automatic stay in

her subsequent bankruptcy case or those that could

have been raised in previous actions. See In re Hegh­

mann. 316 B.R. at 402. Thereafter, Beatrice Heghmann

filed leave to proceed in forma pauperis with the appel­

late court, which the Bankruptcy Appellate Panel de­

nied as “not only plainly frivolous but patently without

good faith” based on the attempt to relitigate frivolous

App. 24

claim. See In re Heghmann. 324 B.R. 415, 420-21

(B.A.P. 1st Cir. 2005).

In March of 2004, Robert Heghmann filed a com­

plaint in the United States District Court for New

Hampshire against the Town of Rye, Djamel Hafiani,

and others based on alleged violations of the automatic

stay from his Chapter 13 bankruptcy petition, in addi­

tion to other claims. See Heghmann. 326 F. Supp. 2d at

232. On November 8, 2004, the New Hampshire Dis­

trict Court dismissed all of Robert Heghmann’s federal

claims, in part holding that the federal district court

“lacked subject matter jurisdiction over [Plaintiff’s]

claims involving alleged violations of the automatic

stay.” See Heghmann. 2005 WL 637928, at *5. That

court also granted defendants’ motion for costs and

fees after concluding that Robert Heghmann’s claims

were “objectively frivolous, unreasonable, and without

legal foundation.” See id. at *3-6.

II.

Standard

Pursuant to Rule 12(b)(6), Federal Rules of Civil

Procedure, a district court may dismiss a complaint for

“failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). A complaint’s allega­

tions “must be accepted as true and construed in the

light most favorable to the plaintiff.” Michel v. NYP

Holdings. Inc.. 816 F.3d 686,694 (11th Cir. 2016). How­

ever, the court is not required to accept a plaintiffs le­

gal conclusions. See Chandler v. Sec’v. Fla. Dep’t of

Transp.. 695 F.3d 1194,1199 (11th Cir. 2012). Instead,

App. 25

a plaintiff’s complaint must allege “more than labels

and conclusions, and a formulaic recitation of the ele­

ments of a cause of action.” See Bell Atl. Corp. v.

Twomblv. 550 U.S. 544, 555 (2007). Rather, a plaintiff

is required to plead “enough facts to state a claim to

relief that is plausible on its face.” Id. at 570 (“Because

the plaintiffs here have not nudged their claims across

the line from conceivable to plausible, their complaint

must be dismissed.”). “A claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the de­

fendant is liable for the misconduct alleged.” Ashcroft

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

“Generally, the existence of an affirmative defense

will not support a motion to dismiss.” Quiller v. Bar­

clays Am ./Credit. Inc.. 727 F.2d 1067, 1069 (11th Cir.

1984). However, “a complaint may be dismissed under

Rule 12(b)(6) when its own allegations indicate the ex­

istence of an affirmative defense, so long as the defense

clearly appears on the face of the complaint.” Id. In de­

termining a motion to dismiss, the court is limited to

the four corners of the complaint. See St. George v.

Pinellas Countv. 285 F.3d 1334,1337 (11th Cir. 2002).

The Court recognizes Plaintiffs’ pro se status and

that the Court generally construes pro se pleadings lib­

erally. See Estelle v. Gamble. 429 U.S. 97, 106 (1976).

Yet, such “leniency does not give a court license to

serve as de facto counsel for a party ... or to rewrite

an otherwise deficient pleading in order to sustain an

action.” CJR Invs.. Inc, v. Ctv. of Escambia. 132 F.3d

1359, 1369 (11th Cir. 1998) (citations omitted),

App. 26

overruled on other grounds bv Ashcroft v. Iqbal. 556

U.S. 662, 678-79 (2009).

In other words, the Court must refrain from be­

coming an unintentional advocate for the pro se liti­

gant, who if bringing an action in this Court, is

required to follow the federal rules of procedure. See

Powell v. Lennon. 914 F.2d 1459,1463 (11th Cir. 1990);

Moon v. Newsome. 863 F.2d 835, 837 (11th Cir. 1989).

1. Jurisdiction

A district court has original jurisdiction over “all

civil actions arising under the Constitution, laws, or

treaties of the United States.” See Justice Cometh.

LTD, v. Lambert. 426 F.3d 1342, 1343 (11th Cir. 2005)

(quoting 28 U.S.C. § 1331). This original jurisdiction

encompasses “all cases under Title 11, as explicitly

stated by 28 U.S.C. § 1334.” Id. While a district court

may refer a case or proceeding that arises under Title

11 to the bankruptcy court, the Eleventh Circuit has

held that § 1334 is explicit in granting original juris­

diction, which “clearly forecloses a conclusion that the

district court lack[s] subject matter jurisdiction over” a

proceeding to recover damages for an alleged willful

violation of an automatic stay from a bankruptcy pro­

ceeding. See id. (citing § 362(h)).3

3 Prior to 2005, § 362(k)(l) was § 362(h). See Section 441,

Bankruptcy Abuse Prevention and Consumer Protection Act of

2005, Pub. L. No. 109-8 (enacted Apr. 20, 2005).

App. 27

2. Res Judicata

“Res judicata, or more properly claim preclusion,

is a judicially made doctrine with the purpose of both

giving finality to parties who have already litigated a

claim and promoting judicial economy; it bars claims

that could have been litigated as well.” In re Atlanta

Retail. Inc.. 456 F.3d 1277, 1284 (11th Cir. 2006). If

there is a prior, final court order on the merits that in­

volves the same parties and cause of action, then a sub­

sequent case concerning the same issue is barred. Id.

at 1284-85.

In the Eleventh Circuit, this doctrine is shown if

the following are satisfied: “(1) the prior decision must

have been rendered by a court of competent jurisdic­

tion; (2) there must have been a final judgment on the

merits; (3) both cases must involve the same parties or

their privies; and (4) both cases must involve the same

causes of action.” In re Piper Aircraft Corp.. 244 F.3d

1289, 1296 (11th Cir. 2001) (citations omitted). “The

court next determines whether the claim in the new

suit was or could have been raised in the prior action;

if the answer is yes, res judicata applies.” Id. (citation

omitted).

3. Laches

An action based on a violation of the automatic

stay from a bankruptcy proceeding does not have a pre­

scribed time in which an action must be brought. See

11 U.S.C. § 362. In other words, the Bankruptcy Code

does not have a statute of limitations for an action

App. 28

based on violations of the automatic stay or a claim for

damages. See In re Stanwyck. 450 B.R. 181 (Bankr.

C.D. Cal. 2011).

Courts, however, have considered the equitable

doctrine of laches to determine whether such claims

are time barred. See, e.g.. Meadows v. Comm’r. 405 F.3d

949,954 (11th Cir. 2005) (“Finally, there is the question

of laches and how that should play into an action to

enforce a violation of the bankruptcy stay. . . . The al­

leged violation here took place in 1995 but Meadows

did not raise that issue until 2001; a bankruptcy court

might determine that this was untimely.”)4; see In re

Bostanian, 41 F. App’x 66, 66-67 (9th Cir. 2002) (up­

holding bankruptcy court’s decision that claim for

damages under § 362(h) (now § 362(k)) was barred by

doctrine of laches): Thornton v. First State Bank of Jop­

lin. 4 F.3d 650 (8th Cir. 1993) (holding that it was

within court’s discretion to apply doctrine of laches to

claim for violation of the automatic stay where plaintiff

waited four years after discovering misconduct and

two years after bankruptcy proceedings had concluded

to bring claim); cf In re Reed. 2007 WL 274322, at *3

(Bankr. S.D. Ala. Jan. 26, 2007) (holding that, on mo­

tion to dismiss, defendant could not produce evidence

of prejudice for delay in filing motion to reopen case for

violation of automatic stay, and laches was therefore

inapplicable).

4 Meadows was decided prior to the Eleventh Circuit’s Jus­

tice Cometh decision, which held that district courts have subject

matter jurisdiction to adjudicate § 362(h) (now § 362(k)) claims.

See Justice Cometh. 426 F.3d at 1343.

App. 29

A laches defense consists of the following ele­

ments: “(1) conduct on the part of the defendant; (2)

plaintiff’s knowledge of the defendant’s conduct and

failure to file suit based on that conduct; (3) the defend­

ant’s lack of knowledge that the plaintiff would assert

his rights by filing suit; and (4) injury or prejudice to

the defendant if the plaintiff is allowed to file suit.” In

re King. 463 B.R. 555,570 (Bankr. S.D. Fla. 2011) (quot­

ing Encore Enters.. Inc, v. Roberts Hotels Fort Myers.

LLC. 2011WL 5357533, at *5 (M.D. Fla. Oct. 31,2011)).

Laches is “an omission to assert a right for an unrea­

sonable and unexplained length of time under circum­

stances prejudicial to the adverse party.” Id. (quoting

Ticktin v. Kearin. 807 So. 2d 659, 663 (Fla. Dist. Ct.

App. 2001)).

III. Analysis

A. Defendant Miriam Hafiani’s Motion to

Dismiss Plaintiffs’ Complaint (Doc. 11)

Defendant Miriam Hafiani moves to dismiss

Plaintiffs’ Complaint with prejudice pursuant to Fed.

R. Civ. P. 8(a) and 12(b)(6) for failing to state a cause of

action (Doc. 11). Counts Seven through Nine of Plain­

tiffs’ Second Amended Complaint allege violations of

the automatic stay against Defendant Miriam Hafiani

(Doc. 8 at 13-16). Plaintiffs state that Miriam Hafiana

is the daughter of Defendants Mary and Djamel Hafi­

ani and that she resides in Florida. Id. at 4 % 8. In

Count Seven, Plaintiffs allege that

App. 30

Immediately upon obtaining possession of the

building at 237 Grove Road containing the es­

tates of Robert Heghman[n] and, Beatrice

Heghmann, Djamel Hafiani and his former

wife and children began to confiscate, convert

or sell anything left at the residence. Among

the items converted were clothing, sporting

goods, books, furniture and utensils.

The conversion of items constituting the es­

tate of Robert and Beatrice Heghmnann vio­

lated the Automatic Stay.

Id. at 13 (][(][ 31-32. Similarly, Count Eight alleges that

despite an automatic stay upon Beatrice Heghmann’s

voluntary bankruptcy petition, “Djamel Hafiani[,] his

former wife and children continued to either convert or

sell the estates of Robert and Beatrice Heghmann.” Id.

at 14 'll 33. In addition, Plaintiffs allege that a “[signif­

icant portion of the Estate was sold at a series of yard

sales which took place at 237 Grove Road”; that “Dja­

mel Hafiani was assisted at these yard sales by his

children Mirriam [sic], Julia and Jamal”; and that

“[t]hese yard sale[s] by the Hafiani Family . . . violated

the Automatic Stay.” Id. at 14-15 M 34-35.

The filing of the bankruptcy triggered an auto­

matic stay of any litigation against the Heghmanns

pursuant to 11 U.S.C. § 362(a)(1). See In re Horne. 876

F.3d 1076,1079 (11th Cir. 2017). “Section 362(k)(l) pro­

vides that: (1) Except as provided in paragraph (2), an

individual injured by any willful violation of a stay pro­

vided by this section shall recover actual damages, in­

cluding costs and attorneys’ fees, and, in appropriate

App. 31

circumstances, may recover punitive damages.” Id. at

1080 (citing § 362(k)(l)) (emphasis added). As applied

in the Eleventh Circuit, “a violation of the automatic

stay is willful if the offending party “(1) knew the au­

tomatic stay was invoked and (2) intended the actions

which violated the stay.” In re Harrison. 599 B.R. 173,

183 (Bankr. N.D. Fla. 2019) (citing Jove Eng’g, Inc, v.

I.R.S.. 92 F.3d 1539,1555 (11th Cir. 1996)).

Count Nine makes a general allegation that “[a] 11

of the Defendants knew their obligation to undo the

damage done to the Plaintiffs and their obligation to

restore their estate” and that the “failure of the De­

fendants to undo the violation of the Automatic Stay is

itself a violation of the Automatic Stay.” Id. at 15-16

•M 37-38. In this Circuit, the plain language of 11

U.S.C. § 362(a)(1) has been applied to enjoin “the con­

tinuation of the commencement or continuation of an

action to collect a pre-petition debt.” See In re Tavlor.

190 B.R. 459, 461 (Bankr. S.D. Fla. 1995). “If one is en­

joined from continuing an action then a person is re­

quired to take steps to discontinue such action.” IdL

Plaintiffs fail to make any allegations that De­

fendant Miriam Hafiani knew of the automatic stay

and intentionally committed a violation of the stay for

the Court to even consider the additional layer of alle­

gations that Defendant Miriam Hafiani continued to

violate the automatic stay for failing to “undo” damage

allegedly caused by the violation of the automatic stay.

See Jove Eng’g. Inc.. 92 F.3d at 1555. Because Plaintiffs

have not sufficiently alleged facts to state a claim to

relief that is plausible on its face against Defendant

App. 32

Miriam Hafiani, the allegations against Miriam Hafiani in Counts Seven through Nine are due to be dis­

missed.

B. Defendants’ Dj amel Hafiani, Mary Hafiani,

Jamel Hafiani, Julia Sarah Hafiani’s

Motion to Dismiss Second Amended

Complaint (Doc. 13)

Plaintiffs’ Complaint states that on “March 13,

2003 at 1:35 p.m. Robert Heghmann filed a Voluntary

Petition in Bankruptcy seeking protection under

Chapter 13” and that “[protection was immediately

granted.” (Doc. 8 at 6). Plaintiffs assert that at approx­

imately 2 p.m., “Robert Heghmann called the law office

of Ronald Indorf, counsel for Djamel Hafiani, and ad­

vised the firm that Bankruptcy had been filed and that

Protection had been issued.” Id. In Count One, Plain­

tiffs allege that the phone call from Robert Heghmann

to Djamel Hafiani’s counsel was sufficient notice to put

Djamel Hafiani on notice of the filing of the Bank­

ruptcy and that the failure to notify the New Hamp­

shire state court judge of this violated the automatic

stay. Id. at 7. Plaintiffs have repeatedly raised this

claim against Defendant Djamel Hafiani who has been

ordered to pay the $1200 he made from the yard sales

July 12 and 19, 2003, “as actual damages to the Chap­

ter 13 trustee” by the New Hampshire bankruptcy

court, which also denied Plaintiffs’ punitive damages

claim based on a lack of good cause. See In re Hegh­

mann. 316 B.R. at 404. Because Plaintiffs’ claims

against Defendant Djamel Hafiani have already been

App. 33

raised and relief ordered by another court, they are due

to be dismissed. See In re Atlanta Retail. Inc.. 456 F.3d

at 128485. In addition, Plaintiffs did not appeal the

bankruptcy court’s dismissal of Robert Heghmann’s

case in which claims for violation of the automatic stay

were raised against Defendant Djamel Hafiani prior to

Beatrice Heghmann’s bankruptcy petition, so that res

judicata precludes such claims as that judgment is fi­

nal. See In re Piper Aircraft Corp.. 244 F.3d at 1296.

Regarding Plaintiffs’ claims against Defendants

Mary Hafiani, Jamel Hafiani, and Julia Sarah Hafiani,

Count Seven alleges in part that

Immediately upon obtaining possession of the

building at 237 Grove Road containing the es­

tates of Robert Heghman[n] and[] Beatrice

Heghmann, Djamel Hafiani and his former

wife and children began to confiscate, convert

or sell anything left at the residence. Among

the items converted were clothing, sporting

goods, books, furniture and utensils.

(Doc. 8 at 13). In Count Eight, Plaintiffs’ allegations

include the following:

Despite the Automatic Stay which attached

with the Bankruptcy of Beatrice Heghmann,

Djamel Hafiani his former wife and children

continued to either convert or sell the estates

of Robert and Beatrice Heghmann. In the

days, weeks, months and years subsequent to

May 24,2003, Djamel Hafiani, his former wife

and their children converted or sold almost

App. 34

the entire estates of Robert and Beatrice

Heghmann.

Id. at 14. Similarly, Count Nine alleges that “[a]ll of the

Defendants who violated the Automatic Stay have an

affirmative duty to undo the offending acts even if they

had no actual notice of the bankruptcy at the time the

acts were performed.” Id. at 15. In addition, Plaintiffs

claim that “[a] 11 of the Defendants knew their obliga­

tion to undo the damage done to the Plaintiffs and

their obligation to restore their estate. ... In the sev­

enteen (17) years since the violations, not one item of

the Heghmann estate has been restored.” Id. at 16.

Plaintiffs make no assertions as to why they

waited seventeen years since the alleged violations to

bring these claims against Defendants. While there is

no statute of limitations for making a claim regarding

a violation of an automatic stay, the Plaintiffs’ delay in

bringing this action is of concern. See 11 U.S.C. § 362.

While Plaintiffs make oblique references to the De­

fendants’ knowledge of their obligations, Plaintiffs fail

to make any specific allegations that Defendants Mary

Hafiani, Jamel Hafiani, and Julia Sarah Hafiani knew

of the automatic stay and intentionally committed a

violation of the stay. See In re Harrison. 599 B.R. at

183. Further, res judicata bars these claims as they

could have been raised in the prior litigation. See In re

Piper Aircraft Corp.. 244 F.3d at 1296. In addition, the

pleading is deficient in that these counts make asser­

tions against these Defendants collectively and do not

afford each Defendant notice as to the specific allega­

tions made as to each Defendant. See Weiland v. Palm

App. 35

Beach Ctv. Sheriff’s Office. 792 F.3d 1313, 1323 (11th

Cir. 2015) (“The unifying characteristic of all types of

shotgun pleadings is that they fail to . . . give the de­

fendants adequate notice of the claims against them

and the grounds upon which each claim rests.”). For all

of the above reasons and because Plaintiffs have not

alleged enough facts to state a claim to relief that is

plausible on its face against Defendants Mary Hafiani,

Jamel Hafiani, and Julia Sarah Hafiani, the allega­

tions against them in Counts Seven through Nine are

due to be dismissed.

C. Defendant The Town of Rye’s Motion to

Dismiss for Lack of Personal Jurisdic­

tion (Doc. 14)

“A plaintiff seeking the exercise of personal juris­

diction over a nonresident defendant bears the initial

burden of alleging in the complaint sufficient facts to

make out a prima facie case of jurisdiction.” United

Techs. Corp. v. Mazer. 556 F.3d 1260, 1274 (11th Cir.

2009). For personal jurisdiction over a nonresident

defendant, the exercise of jurisdiction must “(1) be

appropriate under the state long-arm statute, and

(2) not violate the Due Process Clause of the Four­

teenth Amendment to the United States Constitution.”

Id. (citations omitted). A defendant can be subject to

personal jurisdiction under Florida’s long-arm statute

by specific and general personal jurisdiction. Louis

Vuitton Malletier. S.A. v. Mosseri, 736 F.3d 1339, 1352

(11th Cir. 2013) (citing Fla. Stat. § 48.193(l)-(2)).

App. 36

A defendant is subject to general personal juris­

diction when that defendant has “engaged in substan­

tial and not isolated activity within this state . . .

whether or not the claim arises from that activity.” Id.

at 1352 (quoting Fla. Stat. § 48.193(2)). In contrast,

“specific personal jurisdiction authorizes jurisdiction

over causes of action arising from or related to the de­

fendant’s actions within Florida and concerns a non­

resident defendant’s contacts with Florida only as

those contacts related to the plaintiff’s cause of ac­

tion.” Id. “The reach of [section 48.193(2)] extends to

the limits on personal jurisdiction imposed by the Due

Process Clause of the Fourteenth Amendment.” Carmouche v. Tamborlee Mgmt.. Inc.. 789 F.3d 1201, 1204

(11th Cir. 2015) (citation omitted).

The Eleventh Circuit examines the following to

determine due process in specific jurisdiction actions:

(1) whether the plaintiff’s claims “arise out of

or relate to” at least one of the defendant’s

contacts with the forum; (2) whether the

nonresident defendant “purposefully availed”

himself of the privilege of conducting activi­

ties within the forum state, thus invoking the

benefit of the forum state’s laws; and (3)

whether the exercise of personal jurisdiction

comports with “traditional notions of fair play

and substantial justice.

Mosseri, 736 F.3d at 1355 (internal quotation marks

and citations omitted).

“A court may assert general jurisdiction over for­

eign (sister-state or foreign-country) corporations,

App. 37

without offending due process when their affiliations

with the State are so continuous and systematic as to

render them essentially at home in the forum State.”

Id. (quoting Goodyear Dunlop Tires Operations. S.A. v.

Brown. 564 U.S. 915, 919 (2011)). “[0]nly a limited set

of affiliations with a forum will render a defendant

amenable to all-purpose jurisdiction there.” Daimler

AG v. Bauman. 571 U.S. 117, 137 (2014). “The touch­

stone of this analysis is whether the defendant has

‘certain minimum contacts with [the state] such that

the maintenance of the suit does not offend traditional

notions of fair play and substantial justice.’” Waite v.

All Acquisition Corp.. 901 F.3d 1307, 1312 (11th Cir.

2018) (quoting Int’l Shoe Co. v. Washington. 326 U.S.

310, 316 (1945)). The focus of the minimum contacts

inquiry is “the relationship among the defendant, the

forum, and the litigation.” See id. (quoting Walden v.

Fiore. 571 U.S. 277, 284 (2014)). This ensures that a

defendant is brought into court in a forum based on

defendant’s affiliation with that state instead of the

“random, fortuitous, or attenuated” contacts made

with others affiliated with the state. See id. (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985)).

Plaintiffs’ Complaint focuses on conduct occurring

in New Hampshire, stating that “ [a] t all times rele­

vant” Plaintiffs “resided at 237 Grove Road, Rye, N.H.”5

(Doc. 8 at 3). Regarding the Town of Rye, Plaintiffs al­

lege that “The Town of Rye is a municipality in the

The listed address on the docket for Plaintiffs is in Virginia.

App. 38

State of New Hampshire. Among its municipal services

the Town of Rye maintains a full time Police Depart­

ment.” Id. at 4. As for the taxpayers, Plaintiffs allege

that “John Does and Mary Roes 1 through 6000 are the

resident taxpayers of the Town of Rye. . . . Most of the

property in the estates of Robert and Beatrice Heghmann was sold in a series of yard sales on the front

lawn of 237 Grove Road mainly to resident taxpayers

of Rye.” Id. at 8. Moreover, Counts Five, Six, Eight, and

Nine—in which Plaintiffs make claims against either

the Town of Rye or the Residents of the Town of Rye 1

through 6000 or both—fail to include allegations that

they have engaged in any activity within this state. See

id. at 10-16. Rather, all of the allegations against these

Defendants center around events that occurred in New

Hampshire with “resident taxpayers” of New Hamp­

shire.

For example, Count Five includes allegations

against their eviction of the 237 Grove Road residence

by the Town of Rye’s Police Department Id. at 10-11.

Count Six, similarly, alleges that the Town of Rye failed

to have a procedure in place to advise its officers as to

how to respond to automatic stays and has not to date

implemented policies to prevent future violations of

automatic stays. Id. at 12. In Count Eight, Plaintiffs

allege that Defendant Djamel Hafiani

was assisted at these yard sales by his chil­

dren Mirriam [sic], Julia and Jamal [sic]. These

sales were made to Residents of the Town of

Rye who responded to signs announcing the

yard sales. These Residents were not good

App. 39

faith purchasers for value under either state

law or the Uniform Commercial Code. They

all are guilty of receiving stolen goods in vio­

lation of the Automatic Stay.

Id. at 14-15. For the Court to exercise jurisdiction over

these Defendants, there must be more than “random,

fortuitous, or attenuated” contacts with this forum.

Waite. 901 F.3d at 1312. Instead, the only alleged rela­

tionship among these Defendants, this forum, and the

Plaintiffs’ action in this Court is that the Defendants

Hafiani reside within this forum (Doc. 8). Further,

Plaintiffs have failed to assert that the Town of Rye or

its residents have purposefully availed themselves in

Florida in any way or that this Court has an interest

in resolving this action. Mosseri. 736 F.3d at 1355. Nor

have Plaintiffs alleged what their interest is in bring­

ing the action in this Court beyond that the New

Hampshire courts have not provided the requested re­

lief and that the laws of that state have prevented

them from receiving their requested relief. For in­

stance, Plaintiffs assert in their Complaint that

“[ajlthough New Hampshire statutes limit liability of

municipalities in state court for violations of state law,

those limitations do not apply to alleged violations of

federal law.” (Doc. 8 at 4-5). In another count, Plaintiffs

include that they filed a complaint in the District Court

for New Hampshire and sought “compensatory and pu­

nitive damages for Djamel Hafiani’s violations of the

Automatic Stay on March 15th and 19th. On May 28,

2003 [,] Judge Joseph A. DiClerico, Jr.[,] acting sua

sponte[,] dismissed the Heghmann’s Complaint based

upon lack of subject matter jurisdiction.” Id. at 9. That

App. 40

Plaintiffs did not receive the relief they sought in the

New Hampshire courts or that they were limited by

the claims they were able to bring because of the laws

of New Hampshire does not equate to an interest in

convenient and effective relief in this Court. In addi­

tion, it has been approximately seventeen years since

Plaintiffs’ automatic stay and the filing of their initial

complaint in this action. No explanation in Plaintiffs’

Complaint has been provided to assert an interest in

the judicial system resolving this decrepit dispute, es­

pecially considering that Plaintiffs have sought relief

and were awarded payment for damages by the bank­

ruptcy court in New Hampshire against Defendant

Djamel Hafiani for the $1200 made from the yard sales

July 12 and 19, 2003, “as actual damages to the Chap­

ter 13 trustee” and were denied the punitive damages

claim based on a lack of good cause. See In re Heghmann. 316 at 404.

The absence of any allegation connecting Defen­

dants the Town of Rye and John Does and Mary Roes

1 through 6000 with this cause with action that com­

ports with “traditional notions of fair play and sub­

stantial justice” necessitates their dismissal. See

Waite. 901 F.3d at 1312; see also Walden v. Fiore. 571

U.S. 277, 285 (2014) (explaining that its “minimum

contacts analysis looks to the defendant’s contacts

with the forum State itself, not the defendant’s con­

tacts with persons who reside there” (internal quota­

tion marks omitted)). Nor do Plaintiffs’ claims against

the Town of Rye and its residents allege “substantial

and not isolated activity in Florida” nor any

App. 41

“affiliations with the State [that] are so continuous and

systematic as to render them essentially at home in

the forum State” for the Court to assert general juris­

diction over them. See Waite. 901 F.3d at 1312, 1317

(internal quotation marks omitted). Plaintiffs’ claims

against the Town of Rye and John Does and Mary Roes

1 through 6000 are due to be dismissed for lack of

personal jurisdiction. After due consideration, it is

ORDERED:

1. Defendant Miriam Hafiani’s Motion to Dis­

miss Plaintiffs’ Complaint (Doc. 11) is GRANTED.

Plaintiffs’ allegations against Defendant Miriam Hafiani in Count Seven, Count Eight, and Count Nine of

Plaintiffs’ Second Amended Complaint (Doc. 8) are

DISMISSED with prejudice.

2. Defendants’ Djamel Hafiani, Mary Hafiani,

Jam el Hafiani, Julia Sarah Hafiani’s Motion to Dis­

miss Second Amended Complaint (Doc. 13) is

GRANTED to the extent that Plaintiffs’ allegations

against Defendants Djamel Hafiani, Mary Hafiani,

Jamel Hafiani, Julia Sarah Hafiani in Counts One

through Five and Seven through Nine are DIS­

MISSED with prejudice.

3. Defendant The Town of Rye’s Motion to Dis­

miss for Lack of Personal Jurisdiction (Doc. 14) is

GRANTED. Plaintiffs’ allegations against Defendants

The Town of Rye, N.H. and John Does 1 thru 6000 and

Mary Roes 1 thru 6000 in Counts Five, Six, Eight, and

Nine are DISMISSED with prejudice.

App. 42

4. The Clerk of the Court shall terminate all re­

maining motions, and close this case.

DONE AND ORDERED in Jacksonville, Florida,

this 13th day of July, 2021.

/s/ Brian J. Davis

BRIAN J. DAVIS

United States District Judge

Copies to:

Counsel of Record

Unrepresented Parties

App. 43

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 21-12650-DD

ROBERTA. HEGHMANN,

BEATRICE M. HEGHMANN,

Plaintiffs - Appellants,

versus

DJAMEL HAFIANI,

MARY HAFIANI,

MIRIAM HAFIANI,

JAMEL JOSEPH HAFIANI,

JULIA SARAH HAFIANI,

THE TOWN OF RYE, N.H., et al.,

Defendants - Appellees,

THE HAFIANI FAMILY TRUST, et al.,

Defendants.

Appeal from the United States District Court

for the Middle District of Florida

(Filed Jan. 12, 2023)

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

BEFORE: ROSENBAUM, BRANCH, and GRANT, Cir­

cuit Judges.

App. 44

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having re­

quested that the Court be polled on rehearing en banc.

(FRAP 35) The Petition for Rehearing En Banc is also

treated as a Petition for Rehearing before the panel

and is DENIED. (FRAP 35, IOP2)