In a Report and Recommendation dated August 15, 2012, the Honorable Janie S. Mayeron, United States Magistrate Judge, recommended that several defendants’ motions to dismiss be granted. The Court construed a motion filed by John Westley as objections to the Report and Recommendation. Michael Tilson Thomas, the City of Miami Beach, and Max Sklar responded. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b). Based on that review, the Court adopts the Report and Recommendation [Docket No. 107]. Therefore, IT IS ORDERED THAT:
1. Defendant Michael Tilson Thomas’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 6] is GRANTED. The Complaint as to Thomas is dismissed WITHOUT PREJUDICE.
2. Defendant Victoria Sigler’s Motion to Dismiss [Docket No. 11] is GRANTED. The Complaint as to Sigler is dismissed WITHOUT PREJUDICE.
3. Defendants City of Miami Beach and Max Sklar’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.CivJP. 12(b)(2) [Docket No. 21] is GRANTED. The Complaint as to City of Miami Beach and Max Sklar is dismissed WITHOUT PREJUDICE.
4. Defendants Steven P. Kalka and Silver Hill Financial, LLC’s Motion to Dismiss Plaintiffs Complaint and/or for Summary Judgment [Docket No. 60] is GRANTED. All claims in the Complaint against Steven P. Kalka are dismissed WITHOUT PREJUDICE. All claims against Silver Hill Financial pertaining to fraud in the inducement (and associated claims of breach of contract, breach of a fiduciary duty and unjust enrichment) related to Westley’s guaranty of the purchase and financing of the Property are barred under the doctrine of res judicata and are dismissed WITH PREJUDICE. Any purported claims against Silver Hill Financial under OSHA, TILA, FERA, the “Federal UCC,” the “Federal UBC,” wire and mail fraud statutes (18 U.S.C. § 1341 and 18 U.S.C. § 1343), and USERRA are dismissed WITH PREJUDICE. The remaining claims against Silver Hill Financial pertaining to “Federal Civil Rights,” RICO, the ADA, and the FCRA are dismissed WITHOUT PREJUDICE.
REPORT AND RECOMMENDATION
The above matter came on before the undersigned upon Defendant Michael Til-son Thomas’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 6]; Defendant Victoria Sigler’s Motion to Dismiss [Docket No, 11]; Defendant City of Miami Beach and Max Sklar’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 21]; and Defendants Steven P. Kalka and Silver Hill Financial, LLC’s Motion to Dismiss Plaintiffs Complaint and/or for Summary Judgment [Docket No. 60].
Plaintiff John D. Westley appeared pro se. Lowell J. Noteboom, Esq. and Andrew W. Davis, Esq. appeared for defendants City of Miami Beach, Max Sklar and Michael Tilson Thomas; John S. Garry, Esq. and Mark S. Dunn, Esq. appeared on behalf of defendant Victoria Sigler; and Kel
These motions have been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).
I. BACKGROUND
Plaintiff John D. Westley has brought an action against James Robert Mann, Mitchell P. Korus, Steven P. Kalka, Max Sklar, Wayne M. Pathman, Dylan Pukel, Judge Victoria Sigler, Jennifer Viciedo Ruiz, Michael Thomas Tilson,
The gravamen of Westley’s complaint is that he guaranteed a loan by Silver Hill Financial to AFTEF for the purchase of property located in Miami Beach, Florida that had been bought by AFTEF
From November 2007 through January 2008, defendants Mann, Korus,
Further, defendants Mann, Korus, Kalka and Silver Hill Financial and their representative agents required Westley and AFTEF to obtain acceptable long term tenants for the Property, and incorporated the long term rental agreement into the mortgage terms and loan closing documents provided to Westley for the Property. Id. ¶ 8. Prior to entering into the lease, defendants Mann, Korus, Kalka and Silver Hill Financial and their representative agents made negligent, false and misleading representations to Westley and the tenants regarding the Property and use of the Property to induce Westley and other tenants into signing the long term rental agreement with AFTEF, including representations that the premises had the required Certificate of Occupancy, property access or a Certificate of Use, and was rented and occupied by Sony Music Disco, Inc., pursuant to a recorded lease and the Declarations of Condominium. Id. In fact, Mann, Korus, Kalka and Silver Hill Financial and their representative agents never obtained the required Certificate of Occupancy, property access or a Certificate of Use in violation of “Federal Uniform Building Codes, OSHA commercial property regulation standards, ADA, TILA and FERA federal laws.” Id.
From November 2007 through January 2008, defendants Mann, Korus, Kalka and Silver Hill Financial unjustly enriched themselves in violation of “TILA, FERA, RICO and UCC” and harmed Westley through fraudulent and misleading emails and mailings to Westley in Minnesota that
At the closing of the purchase of the Property, Westley was fraudulently induced by defendants Mann, Korus, Kalka and Silver Hill Financial to personally wire $10,000 from his Wells Fargo account in St. Paul, Minnesota to defendant Silver Hill Financial for property tax escrows, title insurance coverage, legal costs, condominium assessments, closing expenses and real estate agent fees. Id., ¶ 10. These actions violated “TILA, FERA, RICO and Federal UCC wire and mail fraud regulations.” Id.
In February and March 2008, defendants City of Miami Beach, Sklar, and representative agents realized that Westley and the tenants of the Property were doing business with African Americans, Haitians and Muslims on the premises and informed Westley that the Property could not be accessed and used because the $117,000 payment, described above, had not been paid to the City of Miami Beach. Id., ¶ 11. Defendants Mann, Korus, Kalka, Sklar and the City of Miami Beach conspired for racially and religiously motivated reasons to deny Westley his First Amendment freedom of association rights to employ and conduct business on the Property with African Americans, Haitians and Muslims and thereby, violated “RICO, FILA, FERA, Federal Civil Right protections and UCC regulations.” Id.
The Property, for which the loan was personally guaranteed by Westley, included access and use of the eighth floor and rooftop of the building and sidewalk frontage on the Property. Id., ¶ 12. However, these sites were unjustly taken away and leased by defendants Sklar and the City of Miami Beach and their representative agents to third parties in violation of the Fifth Amendment. Id. Defendants Mann, Korus, Kalka, Sklar and the City of Miami Beach retaliated against Westley for providing information and ongoing cooperation to Federal Department of Justice officials and FBI agents regarding Miami Beach public corruption and illegal acts by local banks, real estate interests and law firms. Id.
From January 2008 through September 2010, defendants Thomas and Korus complained to defendants Sklar and the City of Miami Beach about Muslims, Haitians and African Americans accessing and using the Property. Id., ¶ 13. Defendants Sklar, City of Miami Beach, Thomas and their representative agents had joint business and financial arrangements in the adjoining City Center New World Symphony property. Id. Due to racial prejudice and religious bigotry, defendants Sklar, Korus, City of Miami Beach, Thomas and their representative agents wanted to remove the Muslims, Haitians and the African Americans from the Property as they were involved in Westley’s special events and the tenants’ broadcasting shows, and routinely worked on the premises, which directly competed with defendants Thomas, the City of Miami Beach and their representative agents for local events and venue bookings. Id. Due to racial bigotry and religious prejudice, defendants Sklar, the
Beginning in February 2008, Westley corresponded with defendants Mann, Korus, Kalka, Silver Hill Financial, Sklar and the City of Miami Beach requesting that the ADA access, life, safety and fire protection deficiencies for the Property be immediately brought into compliance with all federal OSHA standards, ADA access laws, Uniform Building Codes, and fire, life and safety regulations. Id., ¶ 14. These defendants were non-responsive to this correspondence “in violation of TILA, FERA, OSHA, ADA and UCC regulations and contractual, fiduciary and administrative professional obligations.” Id. Mann informed Westley that he and defendant Korus were protected from local liability of the enforcement of federal laws and regulations because they were having sexual relations with Miami Dade County judges, court officers and government officials. Id. Korus further claimed to have special class protections against the enforcement of federal laws and regulations based on the protection provided by a local banking real estate syndicate and the co-campaign manager of the City of Miami Beach May- or, Matti Bower. Id. In addition, defendants Mann, Korus, Kalka, Silver Hill Financial, Sklar and the City of Miami Beach refused to comply with the regulations to further prevent property access and association with Westley’s African American, Haitian and Muslim business associates, thereby tortuously interfering with Westley’s business interests and unjustly enriching themselves in violation of “Federal Civil Rights protections, TILA, FERA, OSHA, RICO, UCC and Federal Mail Wire fraud regulations.” Id.
From May 2008 through September 2010, Westley and his related business interests made several workplace safety inquiries and life, safety and public health complaints. Id., ¶ 15. From July through September 2008, AFTEF and Westley paid defendants Pukel
In October 2008, Westley and AFTEF, through defendant Pukel, commenced a legal action in Miami Dade Circuit Court before defendant Sigler to obtain compliance with federal OSHA workplace laws, ADA access requirements, fire, life and safety codes and public health regulations. Id., ¶ 16. Defendants Sigler, Sklar, Path-man and the City of Miami Beach caused Westley monetary harm by conspiring to: (1) intimidate and harass Westley’s legal representation; (2) deny him access to
On November 4, 2008, defendants Sklar and the City of Miami Beach ordered local police, acting as “organized muscle” on their behalf and on the behalf of defendants Korus, Mann, Kalka and Silver Hill Financial, to forcibly break up an assembly at the Property in which Westley was participating and shut down the live broadcasts from the Property exposing governmental corruption, real estate banking fraud and local racism. Id., ¶ 17. Westley was physically removed from the property. Id. Based on these facts, defendants Sklar, City of Miami Beach, Mann, Korus, Path-man, and Sigler conspired to violate Westley’s rights to freedom of speech, freedom of association and freedom of assembly, and their actions caused monetary damage to Westley. Id.
From March 2008 through September 2010, to mitigate damages and in the interests of the public welfare and life safety, Westley, AFTEF, and tenants and were forced to contribute over $400,000, including the money and time required to comply with the Uniform Building Code, ADA access requirements, OSHA standards and Certificates of Occupancy and Certificates of Use. Id., ¶ 18. Once Westley complied with these standards, defendants Sklar, City of Miami Beach, Korus, Ruiz, and Thomas issued building permits to third parties that authorized and resulted in the destruction of the improvements, which resulted in the illegal seizure of private property without just compensation in violation of his Fifth Amendment protections and in violation of “RICO statutes, ADA law and OSHA whistleblower protections.” Id.
Defendants Korus, Ruiz
From January 2011 to the present, defendants Pukel, Ruiz, Sklar, Sigler, and the City of Miami Beach conspired to deny access to Westley, AFTEF and minority associates legal claims in local civil courts in order to obstruct justice and to cover up public corruption and their personal RICO liability exposure. Id., ¶ 20. Additionally, defendants Pukel, Ruiz, Sklar, Sigler, and the City of Miami Beach, and their representative agents, have repeatedly refused to return documents, records, plans and files requested from Westley by federal law enforcement authorities. Id. Further, defendants Ruiz, Sklar, Sigler, and the City of Miami Beach, and their representative agents, tortuously interfered in Westley’s representation by attorney, George M. Tavares, by sabotaging Tavares’s employment while in medical treatment. Id.
Due to defendants’ illegal acts, Westley was displaced from his place of employment and denied access to the Property. This conduct violated “Civil Rights, OSHA, TILA, RICO, USERRA, and OSHA Federal law and regulation[s].” Id. Without
As the result of Defendants Mann, Korus, Kalka, Silver Hill Financial, Sklar and the City of Miami Beach’s misrepresentations regarding the existence of certificates of occupancy and use for the premises; their negligence and endangerment preventing safe access and use of the Property; and all defendants’ racial bias and religiously discriminatory acts, Westley and his related business interests suffered financial loss and damage to reputation. Id. ¶22. In addition, “[defendants’ conspiracy and violations of Federal Civil Rights protections, OSHA, UBC fire[,] life [and] safety protections, ADA law, RICO statutes caused Plaintiff and related business interests financial loss and damage to reputations.” Id.
Finally, Westley claimed that his personal wire information, financial and banking records provided to defendants Mann, Korus, Kalka, and Silver Hill Financial, were used for identity theft, false reporting, and credit fraud in violation of Federal Credit Reporting Act (“FCRA”) and Federal Wire Fraud statutes. Id. ¶ 23.
Westley seeks monetary damages from all defendants. Id., Request for Relief.
This case comes before the Court on motions to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure by defendants Thomas, Sigler, the City of Miami Beach, Sklar and Kalka for lack of personal jurisdiction; and by defendant Silver Hill Financial on its Rule 12(b)(6) motion to dismiss and its Rule 56 motion for summary judgment for failure to state a claim against it as a matter of law.
II. STANDARD OF REVIEW
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to dismiss claims for lack of jurisdiction over the person. See Fed.R.Civ.P. 12(b)(2). To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of jurisdiction. See K-V Pharm. Co. v. J. Uriach & CIA, S.A.,
To withstand a motion to dismiss under Rule 12(b)(6), litigants must properly plead their claims under Rule 8 of the Federal Rules of Civil Procedure and meet the principles articulated in Bell Atlantic Corp. v. Twombly,
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading requirement does not require detailed factual allegations. Martin v. ReliaStar Life Ins. Co.,
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555,127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556,127 S.Ct. 1955 . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty ] 490 F.3d [143] at 157-158 [ (2d Cir.2007) ]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
Iqbal,
Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner,
When we say that a pro se complaint should be given liberal construction, we mean that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson’s claim to be considered within the properlegal framework. That is quite different, however, from requiring the district court to assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.
Stone,
Summary judgment under Rule 56 is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
Summary judgment is appropriate where the material facts are not in dispute, and the court need only apply the law to the facts in the record. See Eisenrich v. Minneapolis Retail Meat Cutters,
III. ANALYSIS
A. Personal Jurisdiction under Minnesota’s Long-Arm Statute
In deciding whether personal jurisdiction exists in this suit, this Court must determine if the exercise of jurisdiction is appropriate under Minnesota’s long-arm statute and whether the exercise of personal jurisdiction complies with the requirements of due process. See Stanton v. St. Jude Med., Inc.,
a court of this state with jurisdiction of the subject matter may exercise personal jurisdiction over any foreign corporation or any nonresident individual, or the individual’s personal representative, in the same manner as if it were a domestic corporation or the individual were a resident of this state. This section applies if, in person or through an agent, the foreign corporation or nonresident individual:
(1) owns, uses, or possesses any real or personal property situated in this state; or
(2) transacts any business within the state; or
(3) commits any act in Minnesota causing injury or property damage; or
(4) commits any act outside Minnesota causing injury or property damage in Minnesota, subject to the following exceptions when no jurisdiction shall be found:
(i) Minnesota has no substantial interest in providing a forum; or
(ii) the burden placed on the defendant by being brought under the state’s jurisdiction would violate fairness and substantial justice.
Minn. Stat. § 543.19, Subd. 1.
However, “because the Minnesota long-arm statute extends jurisdiction to the maximum limit consistent with due process, a court in Minnesota need only evaluate whether the requirements of due process are satisfied.” MGR, Inc. v. Resolution Graphic Resources, Inc., No. Civ. 03-3247 (DWF/SRN),
The Eighth Circuit has developed the following test for analyzing whether sufficient minimum contacts exist for personal jurisdiction:
(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of [the forum state] in providing a forum for its residents; and (5) the convenience or inconvenience to the parties.
K-V Pharm. Co.,
The third factor differentiates between specific and general jurisdiction. See Digi-Tel,
Specific jurisdiction is proper “only if the injury giving rise to the lawsuit occurred within or had some connection to the forum state, meaning that the defendant purposely directed its activities at the forum state and the claim arose out of or relates to those activities.” Johnson,
The Court now applies these principles to the motions to dismiss for lack of personal jurisdiction by defendants Thomas, Sigler, the City of Miami Beach, Sklar and Kalka.
B. Defendant Michael Tilson Thomas’s Motion to Dismiss
Defendant Thomas is the Music Director of the San Francisco Symphony, located in San Francisco, California, as well as the Founder and Artistic Director of the New World Symphony, America’s Orchestral Academy, in Miami Beach, Florida. See Thomas Deck, ¶¶ 1, 2. Thomas is a permanent resident of and domiciled in the State of Florida. Id., ¶ 3. Thomas attested that he had never heard of Westley until learning of the Complaint, had not visited Minnesota in approximately twenty years, and had no contact with Minnesota at the time of the alleged conduct described in this lawsuit, or at the time this lawsuit was filed in late December 2011. Id., ¶¶ 4, 5.
On these facts, Thomas argued that no general jurisdiction exists because he has had no contacts in Minnesota, and the only allegations against him in the Complaint relate to conduct that did not occur in Minnesota, thereby negating any finding of specific jurisdiction. See Thomas’s Memorandum in Support of Motion to Dismiss Plaintiffs Complaint Pursuant to Fed. R.Civ.P. 12(b)(2) [Docket No. 8], pp. 7-8.
Westley countered that since 2007, Thomas has had continuous ongoing business relationships in Minnesota sufficient for a finding a personal jurisdiction, via the sale of his products through Minnesota retailers. See Plaintiff Response Memorandum to Defendant Michael Thomas Til-son Motion to Dismiss [Docket No. 40], pp. 5-6; see also Unsworn Declaration of Plaintiff Pursuant to 28 U.S.C. Section 1746 [Docket No. 41], ¶ 6 (“I have personally witnessed Defendant Tilson’s and Mia
In reply, Thomas submitted that he has not been involved in the marketing, distribution, or retail sale of New World Symphony products or any other music products in Minnesota. Defendants’
Thomas does not receive income directly from retail sales within Minnesota of New World Symphony products or other orchestral products with which he is associated. Tilson Thomas receives an advance fee as part of his contract with a given record label. Income including any royalties received by Tilson Thomas is provided by the record label pursuant to record label contracts, and is not attributable to retail sales in any given state. Such income is attributable to the state in which the musical recording is made.
See Koenigsberg Decl. ¶ 5. In any event, Thomas asserted that Westley is attempting to assert general jurisdiction under a “stream of commerce” theory that has been rejected by the United States Supreme Court and the Eighth Circuit. See Thomas/CMB/Sklar Reply, pp. 5-7 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. -,
In analyzing the five factors discussed in K-V Pharm. Co., the Court finds that Westley has not met his burden of making a prima facie case for personal jurisdiction.
First, Thomas has had no direct contact with Minnesota. He is a music and artistic director in San Francisco and in Miami Beach. Further, he is a resident of Florida, has not been to Minnesota for many years, and had no direct contact with Minnesota during the period of the operative facts of the Complaint or as the date it was filed. The fact that a record label may distribute in many states, including Minnesota, New World Symphony products (for which Thomas is the conductor) or other orchestral products, is exactly the type of “random,” “fortuitous,” and “attenuated” contacts that are insufficient to establish personal jurisdiction over Thomas. See Burger King,
As to the third factor, the Court finds that there is no specific jurisdiction over Thomas given there are no allegations that Westley’s claims against him arise out of or are related to Minnesota. See Johnson,
[W]e have been willing to recognize a variant of “stream-of-commerce” jurisdiction over a foreign manufacturer that “ ‘pours its products’ into a regional distributor with the expectation that the distributor will penetrate a discrete, multi-State trade area,” Vandelune v. FB Elevator Components Unlimited,148 F.3d 943 , 948 (8th Cir.1998) (quoting Barone [v. Rich Bros. Interstate Display Fireworks Co.], 25 F.3d [610] at 615 [ (8th Cir.1994) ]). Because Viasystems’ causes of action do not arise out of the distribution of St. Georgen’s products in Missouri, there is no dispute that Viasystems must use this “stream of commerce” theory to support general, rather than specific, jurisdiction. However, when our circuit’s decision in Bar-one established the variant of “stream-of-commerce” jurisdiction on which Via-systems now seeks to rely, we were careful to note that “stream of commerce” jurisdiction is “a type of specific jurisdiction (as opposed to general jurisdiction).” Barone,25 F.3d at 612 . Indeed, the Supreme Court recently clarified that placing products in “the stream of commerce” is “[a] connection so limited between the forum and the foreign corporation [that it] is an inadequate basis for the exercise of general jurisdiction.” Goodyear, — U.S. at -,131 S.Ct. at 2851 ,180 L.Ed.2d at 803 . The Court rejected “the sprawling view of general jurisdiction” that would make “any substantial manufacturer or seller of goods ... amenable to suit, on any claim for relief, wherever its products are distributed.” Id. at -,131 S.Ct. at 2856 ,180 L.Ed.2d at 809 . Our precedent and the Supreme Court’s decision in Goodyear make clear that even if a foreign corporation “ ‘pours its products’ into a regional distributor with the expectation that the distributor will penetrate a discrete, multi-State trade area,” Vandelune,148 F.3d at 948 (quoting Barone,25 F.3d at 615 ), this connection alone is “so limited” that it “is an inadequate basis for the exercise of general jurisdiction.” See Goodyear, — U.S. at -,131 S.Ct. at 2851 ,180 L.Ed.2d at 803 .
See Viasystems, Inc.,
As to the secondary factors relating to jurisdiction, while in some circumstances, “Minnesota has an obvious interest in providing a local forum in which its residents may litigate claims against nonresidents,” Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A.,
Based on this Court’s examination of the factors for jurisdiction and the totality of the circumstances, it finds that Thomas’s motion to dismiss for a lack of personal jurisdiction should be granted and the Complaint against Thomas should be dismissed without prejudice.
C. Defendant Victoria Sigler’s Motion to Dismiss
Defendant Judge Sigler is presently a seated judge for the Circuit Court of the Eleventh Circuit Court in and for MiamiDade County, Florida. See Sigler Decl., ¶ 1. Judge Sigler presided over All for Earth Foundation, Inc. v. City of Miami Beach, Local Case No.2008-66434-CA-01/ State Case No. 13-2008-CA-066434-0000-01, and 605 Lincoln Rd Office Condo Assn., Inc. v. All for Earth Foundation, Local Case No.2009-73005-CA-01/State Case No. 13-2009-CA-073005-0000-01. Id., ¶ 2. Judge Sigler has not visited Minnesota nor had any contact with Minnesota at the time of the alleged conduct described in this lawsuit, or at the time this lawsuit was filed in late December, 2011. Id., ¶ 3.
Judge Sigler argued that Westley’s claims against her are barred under the doctrine of judicial immunity given that he is suing her based on her actions as a judge. See Memorandum of Law In Support Of Defendant Victoria Sigler’s Motion to Dismiss [Docket No. 33], pp. 5-6. In addition, Judge Sigler contended that this Court lacks personal jurisdiction over her since she is a judge seated in Miami-Dade County, Florida; she had no contacts with Minnesota, either at the time of the conduct alleged in the Complaint or at the time the suit was filed in December of 2011; and the alleged actions by her occurred in Florida, with no nexus to Minnesota. Id. at pp. 7-8.
Westley asserted that under the Due Process Clause, jurisdiction is appropriate, as Judge Sigler has had continuous ongoing contacts with AFTEF and him throughout the litigation in the MiamiDade County court system. See Plaintiff Response Memorandum to Defendant Victoria Sigler Motion to Dismiss [Docket No. 44], p. 9. In addition, Westley argued that since 2008, the Miami-Dade County Court case fees for matters before Judge Sigler were billed to and paid from this forum by AFTEF and him and therefore, she had an ongoing quantifiable employment benefit from Westley’s court cases. Id. pp. 7-9. Further, Westley claimed that Judge Sigler and her representative agents conspired to obtain payments from him and AFTEF in this forum and then refused to provide purchased public services and records to protect her personal interests and relationships. Id., p. 9. Westley also asserted that jurisdiction in Minnesota is appropriate because Minnesota contains the majority of documents and records in this case. Id.
Westley argued that general jurisdiction exists because Judge Sigler conducted unspecified business and public affairs in Minnesota; and specific jurisdiction exists as Judge Sigler and representative agents had direct contacts with AFTEF and Westley in this forum relating to the cause of action in this case. Id., p. 10.
Judge Sigler replied that she has nothing to do with the payment of court fees and costs, which are handled by the Miami-Dade County Clerk of Court. See Re
As a starting point, “[m]inimum contacts are ‘defined by the defendant’s contacts with the forum state, not by the defendant’s contacts with residents of the forum.’” Telex Communications, Inc. v. Sanomed Medizintechnik, GmbH, No. Civ. 02-298 ADM/AJB,
While Westley argued that specific jurisdiction exists because Judge Sigler and her representative agents had direct contacts with AFTEF and Westley in this forum relating to the cause of action in this case, the Complaint says otherwise. The only allegations in the Complaint regarding Judge Sigler’s conduct are as a judge in Florida concerning the Florida Property. See Complaint, ¶¶ 16, 17, 19-20. As such, the Court finds that the requirements for specific jurisdiction are not met. Likewise, Westley cannot meet his burden to show that general jurisdiction exists as to Judge Sigler based on unsubstantiated and conclusory assertions that she conducted unspecified business and public affairs in the State of Minnesota. The only competent evidence before the Court is that Judge Sigler has had no contact with Minnesota, and therefore, a finding of general jurisdiction is not appropriate.
With regards to the secondary factors, for the same reasons articulated by this Court in connection with Thomas’s motion to dismiss, neither factor weighs in Westley’s favor.
In summary, based on this Court’s examination of the factors for personal jurisdiction and the totality of the circumstances, it finds that Judge Sigler’s motion to dismiss for a lack of personal jurisdiction should be granted and the Complaint against Judge Sigler should be dismissed without prejudice.
D. Defendant City of Miami Beach and Max Sklar’s Motion to Dismiss
The City of Miami Beach is a municipality located in Miami-Dade County, State of Florida. See Unsworn Declaration of
Both the City of Miami Beach and Sklar argued that this Court lacks personal jurisdiction over them on the basis that they have had no contacts with Minnesota. See Memorandum In Support of Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(B)(2) [Docket No. 23], pp. 7-8. They also asserted that Minnesota has little interest in providing a forum for the claims against them, where the acts at issue occurred in Florida and it would be burdensome for a municipality to have to defend this action in Minnesota. Id., p. 8.
Westley opposed the motion, contending that personal jurisdiction over the City of Miami Beach and Sklar was appropriate because while in ownership and possession of the Property from 2008-2010, Westley and AFTEF received Miami Beach and Dade County Property Tax notices and levies in Minnesota, which were paid from Minnesota, and that additional payments were billed to and made from Minnesota to the City of Miami Beach for building permits, inspections and fees. See Plaintiff Response Memorandum to Defendants Max Sklar & City Of Miami Beach Motion to Dismiss [Docket No. 45], pp. 6-7; Westley Deck, ¶ 2; Unsworn Declaration of Charles Ibanez
In addition, Westley asserted in his memorandum that from 2008 to present, Sklar, the City of Miami Beach and Thomas have maintained a public-private business partnership at the City Center New World Symphony property, which is used to promote and sell New World Symphony and Thomas’s products sold through Minnesota-based retailers and outlets. Id., p. 6. As a result, because Sklar and the City of Miami Beach are profiting from this business in Minnesota, and they have had continuous, ongoing, and substantial business relationships with Minnesota retailers, their contact with Minnesota is continuous and systematic. Id., pp. 8-10. Further, Westley argued that because of Sklar and the City of Miami Beach’s actions, he has been subjected to an adverse personal guarantor deficiency judgment that has negatively affected his credit reports within Minnesota. Id., pp. 6, 10. Westley also claimed that Sklar, as Tourism Development Director for the City of Miami Beach, markets and provides information directly to travel agents within Minnesota. Id., p. 8.
In their reply, Sklar and the City of Miami Beach asserted that the declarations submitted by Westley regarding unspecified “payments and correspondence” are deficient as an evidentiary matter, and Westley cannot meet his burden of proof
As to the assertions that Sklar and the City of Miami Beach are conducting business in Minnesota, they claimed that Westley’s bald assertions are false, have no evidentiary support, and they are devoid of any detail that would allow the Court to assess the nature, quality, or frequency of the contacts. Id., p. 11. They also claimed that any retail stream of commerce theory to establish general jurisdiction fails for the same reasons as argued in support of Thomas’s motion to dismiss, and that Sklar’s alleged provision of information to travel agents in Minnesota does not amount to the requisite continuous and systematic general business contacts necessary for a finding of general jurisdiction. Id., pp. 11-12. Sklar and the City of Miami Beach reiterated the burden of having to defend this case in Minnesota, located over 3000 miles away from their domicile. Id., p. 12.
Based on the record before this Court, it finds that neither Sklar nor the City of Miami Beach have any direct connection to Minnesota. As a general matter, to the extent that Sklar and the City of Miami Beach sent mail to Westley or communicated with him by telephone, “ ‘[cjontact by phone or mail is insufficient to justify exercise of personal jurisdiction under the due process clause.’ ” Woodcock,
Moreover, in this case, the correspondence, mailed payments and other communications all dealt with the Florida Property and had nothing to do with Minnesota, except that the owner of the property is a Minnesota non-profit organization and the guarantor of the loan for the purchase of the Property is a Minnesota resident. This Court finds that such contacts are not germane to whether this Court has personal jurisdiction over Sklar and the City of Miami Beach. Further, even if this Court accepted Westle/s assertions that because of Sklar and the City of Miami Beach’s actions in Florida, a judgment was obtained against him in a Florida Court that negatively affected his credit reports within Minnesota, such an effect does not amount to the type of contact with Minnesota required for personal jurisdiction. It is the intentional contact with the forum state and not the incidental effect of an action outside the state that is relevant to this determination. See Wells Fargo Bank Minnesota, N.A. v. Lowe’s Companies Inc., No. CIV. 01-1548 (PAM/JGL),
The balance of the Complaint alleged that Sklar and the City of Miami Beach conspired, for racially and religiously motivated reasons, to deny Westley’s First Amendment freedom of association right to employ and conduct business on the Property; took away his access and use of the eighth floor and rooftop of the building and sidewalk frontage on the Property; had communications with Westley regarding the need to bring the Property into compliance with state and federal regulations; attempted to prevent Westley from having access to the Property; attempted to obstruct a federal investigation; conspired to deny him access to Florida courts; used police to break up an assembly at the Property; issued building permits to third parties that authorized and resulted in the destruction of the improvements made to the Property; and precluded fundraisers from taking place on the Property. See Complaint, ¶¶ 11,12,14-21. All of these alleged activities bear on the Property located in Florida and actions taken in Florida that resulted in alleged harm to Westley related to this Florida Property. None of them relate to Minnesota. On these “facts,” the Court finds that specific jurisdiction over Sklar and the City of Miami Beach in Minnesota is lacking.
As to general jurisdiction, as this Court determined with regards to Thomas, Westley has provided no evidence that Sklar or the City of Miami Beach took affirmative actions to market or sell music in Minnesota, and jurisdiction cannot be premised on a “stream of commerce” theory. In addition, despite Westley’s unsubstantiated allegation that Sklar provides information to travel agencies in Minnesota, this fact, even if true, cannot establish general personal jurisdiction over Sklar because there is no factual basis to conclude that Sklar’s domicile was Minnesota or that Sklar or his employer, the City of Miami Beach, could be “fairly regarded as at home” in Minnesota. See Goodyear Dunlop Tires Operations, S.A.,
As to the secondary factors, for the reasons previously stated, neither weigh in favor of personal jurisdiction.
For all of these reasons, this Court reaches the inescapable conclusion that Sklar and the City of Miami Beach’s motion to dismiss for a lack of personal jurisdiction should be granted and the Complaint against these defendants should be dismissed without prejudice.
E. Defendants Steven P. Kalka and Silver Hill Financial, LLC’s Motion to Dismiss and/or for Summary Judgment
1. Personal Jurisdiction as to Kalka
Defendant Kalka is a permanent resident of Florida and has never visited Minnesota. See Kalka Aff., ¶¶ 1, 2. Kalka attested that he had no contact with Minnesota during the time of the alleged conduct described in the Complaint or at the time the action was initiated in December 2011. Id., ¶¶ 3, 4. Based on these facts, Kalka argued that personal jurisdiction over him is lacking. See Defendants Steven P. Kalka and Silver Hill Financial, LLC’s Memorandum of Law in Support of Motion to Dismiss Plaintiffs Complaint and/or for Summary Judgment (“Kalka/Silver Hill Mem.”) [Docket No. 62], p. 9. Kalka also asserted that the Complaint offers no factual basis that could support a finding of personal jurisdiction over him, either under a theory of general jurisdiction or specific jurisdiction. Id., p. 10. As to the remaining factors bearing on jurisdiction, Kalka contended that because Westley’s claims against him relate to conduct alleged to have occurred far from Minnesota, this Court has little interest in providing a forum for the claims alleged against Kalka, and the convenience of the parties similarly weighs against a finding of personal jurisdiction. Id., p. 10.
Westley responded that Kalka, as the “sellers agent and negotiating representative of Silver Hill Financial,” made phone calls and sent emails, property records, purchase and mortgage agreements, lien searches, closing correspondence, tax statements, UCC financing information, assignments, owner affidavits, and property insurance requests to AFTEF and Westley located in Minnesota, for the purpose of inducing Westley to personally guarantee the transaction pertaining to the Property. See Plaintiff Response Memorandum to Defendants Steven P. Kalka & Silver Hill Financial Motions to Dismiss Complaint and/or for Summary Judgment [Docket No. 76] (“PL’s Kalka/Silver Hill Mem.”), p. 11; Westley’s Kalka/Silver Hill Deck, ¶¶ 2, 4; Unsworn Declaration of Charles Ibanez Pursuant to 28 U.S.C. § 1746, ¶ 2 [Docket No. 29] (“Ibanez Kalka/Silver Hill Deck”); Unsworn Declaration of Duncan Ross Pursuant to 28 U.S.C. § 1746, ¶ 2 [Docket No. 80] (“Ross Kalka/Silver Hill Deck”). Westley further asserted that Kalka has had continuous, ongoing and substantial business-related contacts and property holdings throughout Minnesota, in the form of real estate holdings in Minnesota and ongoing substantial business relationships through many Minnesota-based real estate agents and mortgage brokers. See PL’s Kalka/Silver Hill Mem., pp. 12, 14; Westley’s Kalka/Silver Hill Deck, ¶8. Therefore, because Kalka has availed himself of the privilege of conducting activities in Minnesota, general jurisdiction exists. PL’s Kalka/Silver Hill Mem., pp. 12, 14.
The Eighth Circuit has found that “[a] contract between a plaintiff and an out-of-state defendant is not sufficient in and of itself to establish personal jurisdiction over the defendant in the plaintiffs forum state.” K-V Pharm. Co.,
In reaching this decision, the Eighth Circuit distinguished Digi-Tel Holdings, Inc., supra, in which the Eighth Circuit had determined that personal jurisdiction over the foreign defendant was lacking:
True enough, the Singapore company in Digi-Tel exchanged telephone calls, letters, and faxes with the Minnesota company, and the contract contained a Minnesota choice-of-law provision. Id. at 523. But all of the face-to-face meetings occurred in Singapore and “[n]o part of the contract was to be performed in Minnesota.” Id. at 525. The Singapore company “was to develop and produce the phones [that the Minnesota company purchased] overseas and [was to] transfer ownership to [the Minnesota company] in Singapore.” Id. Because the “delivery term was ‘F.O.B. Singapore’ ..., the seller was obligated to deliver to Singapore and nowhere else.” Id. ... In contrast, the parties here (1) had a long-term product-development contract that would require Uriach to have a continuing relationship with Missouri; (2) the parties engaged in a face-to-face meeting in Missouri to negotiate an amendment to their contract; (3) the contract terms governing the sale and delivery of Flutrimazole required Uriach to ship the drug to Missouri; and (4) Uriach made payments to KV, which is based in Missouri. These facts distinguish Digi-Tel from the case before us.
K-V Pharm. Co.,
In support of specific jurisdiction, Westley asserted that Kalka’s connection
The Court finds that the facts in this case are more similar to those in Digi-Tel than K-V Pharm. Co.. There is no evidence that Kalka ever travelled to Minnesota to negotiate the purchase agreement on behalf of Bayview or loan on behalf of Silver Hill Financial. To the contrary, Kalka has attested that he has never been in Minnesota. Westley presented nothing to the contrary and in fact, at the hearing, he represented that he had several meetings with Kalka as to the Property in Florida. The purchase agreement and mortgage pertain to a piece of property in Florida and the requirements within the agreement pertain to activities occurring in Florida. See Docket No. 76-1 (Purchase Agreement for Property).
With regards to general jurisdiction, Westley only provided this Court with arguments in his opposition brief (and not evidence) that Kalka has had continuous, ongoing and substantial business-related to contacts and property holdings throughout Minnesota, in the form of real estate holdings in Minnesota and ongoing substantial business relationships through many Minnesota-based real estate agents and mortgage brokers. It is Westley’s burden to “prov[e] facts supporting” the exercise of personal jurisdiction here. Coen v. Coen,
Again, as to the remaining factors bearing on personal jurisdiction, this Court finds that they do not weigh in favor of jurisdiction.
For all of these reasons, Kalka’s motion to dismiss for a lack of personal jurisdiction should be granted and the Complaint against Kalka should be dismissed without prejudice.
On January 11, 2008, AFTEF executed a Mortgage and Security Agreement (“Mortgage”) in favor of Silver Hill Financial to secure a loan by Silver Hill Financial to AFTEF for the purchase of the Property, which was recorded with the Clerk of Court for Miami-Dade County on January 14, 2008. See Dempsey Aff., Ex. 1. Westley guaranteed full performance of AFTEF’s obligations to Silver Hill Financial under the loan by Silver Hill Financial to AFTEF. Id., Ex. 2 (Guaranty). On January 11, 2008, Silver Hill assigned the Mortgage to Bayview Loan Servicing, LLC (“Bayview”), including the note from AFTEF to Silver Hill Financial, and the assignment was recorded on July 23, 2008 with the Clerk of Court for Miami-Dade County. Id., Ex. 3.
Bayview subsequently obtained a Final Judgment of Foreclosure against AFTEF, a Certificate of Title was then issued in favor of Bayview on May 11, 2010, and Final Judgment on Deficiency was entered against Westley and AFTEF, jointly and severally, for $141,462.29 in the matter of Bayview Loan Servicing, LLC v. All for the Earth Found., Case No, 09-09110 CA25 (“Florida Action”). Id., Exs. 4 (Final Judgment on Deficiency), 6 (Order Granting Motion to Preclude Further Self-Representation by John Westley in this Court).
Bayview sought removal of the tenants of the Property in Bayview v. The Womb, Inc., et al., Case No. 10-1399 CC24. Id., Ex. 6, p. 4. The tenants were ordered by the court to deposit $38,000 into the court registry as a condition of defending the action, which they did not do, and the court subsequently ordered the removal of the tenants from the Property. Id., Exs. 5 (Final Judgment for Removal of Tenants), 6.
Bayview subsequently filed a reforeclosure action in Baview v. The Womb, Inc., et al., Case No. 10-25216 CA24, to extinguish liens that Westley placed on the Property before the foreclosure. Id. The court entered a final Judgment of Reforeclosure on August 26, 2010. Id., Ex. 6, p. 5. On November 16, 2010, Westley recorded a lien against the Property, claiming that he was owed $171,170 by Bayview for the improvements he made on the property. Id. On February 15, 2011, Westley filed a pro se third party complaint against Bayview and another for trespass, conversion, tortious interference, breach of contract, breach of covenant for quiet enjoyment, negligent hiring, negligent retention, endangerment, conversion, fraud, fraud in the inducement, misrepresentations, racial harassment, civil rights discrimination, extortion, collusion, abuse of process and identity theft. Id., pp. 5-6. Bayview filed a motion to dismiss, and while Westley filed a motion to amend his complaint, he refused to file the proposed amended complaint. Id., p. 6. Based on Westley’s alleged repeated violations of court orders, violations of court rules, his interference with court administration and repeated filing of immaterial and irrelevant pleadings, on October 25, 2011, the Miami-Dade County court barred Westley from proceeding pro se in the Eleventh Judicial Circuit in and for Miami-Dale County, Florida. Id., p. 7. The case was stayed 60 days to allow Westley the opportunity to secure counsel. Id. No evidence was presented that there was a final adjudication on the merits of this case.
Silver Hill Financial contended that Westley’s claims are barred under the doctrine of res judicata because it (through its assignment of the Mortgage to Bayview)
Silver Hill Financial also argued Westley’s Complaint fails to state a claim upon which relief may be granted under Rule 12(b)(6). In support, Silver Hill Financial explained:
Even granting Westley the deference afforded to pro se litigants, Westley’s complaint utterly fails to meet the pleadings requirements of Rule 8 and must be dismissed. Westley’s claims are unintelligible at best. The allegations of the Complaint are certainly not short, simple, concise or direct. Rather, the claims are rife with legal conclusions. Westley throws out labels such as fraud, misrepresentation and breach of fiduciary duties, but offers no factual basis for any of said claims. In fact, it is difficult to find even one fact in the nearly thirteen pages of Westley’s allegations which could support his cobbled-together allegations. Westley has failed to provide the Court with any factual content which, even taken as true, would allow the Court to draw the inference that Silver Hill is liable for the conduct charged. Instead, Westley’s allegations are bare, conclusory and impossible to comprehend. Under the pleading requirements established by the U.S. Supreme Court in Iqbal and Twombly, dismissal is plainly appropriate.
Id., p. 16.
Westley maintained that he could not have asserted his right to access the courts claim in the Florida Action; defendants failed to show that he was a party to the tenant eviction action; he has viable claims Silver Hill Financial regarding its failure to meet its obligation to provide ADA accessible property and condominium units certified for occupancy; and he has viable claims for Silver Hill Financial’s discriminatory acts based on his minority associations. See Pl.’s Kalka/Silver Hill Mem., p. 15. Westley also asserted that his Complaint provided clear factual assertions and causes of action. Id., pp. 15-16.
As best as this Court can discern from Westley’s convoluted “throw everything against the wall and hope that it sticks” Complaint, he has asserted five different categories of claims against Silver Hill Financial.
Westley’s first set of claims relate to alleged fraudulent statements made by Silver Hill Financial to induce him to guarantee the loan for the purchase of the Property, including fraudulent misrepresentations with regards to the Property’s marketability, usability or accessibility; whether the Property had a Certificate of Use; the existing tenants of the Property; and representations regarding an alleged payment of $117,000 made to the City of Miami Beach for property fees. See Complaint, ¶¶ 7-10. Westley claimed that these false and misleading representations violated federal statutes including “TILA,” “FERA,” “RICO,” “UCC law,” “Federal UCC wire and mail fraud regulations,” and the “Federal UBC” (Federal Uniform Building Code). Id. Additionally, Westley alleged that the fraudulent inducements by Silver Hill Financial amounted negligence, breach of contract, breach of fiduciary duties and unjust enrichment. Id, ¶ 7.
These fraudulent inducement claims fail for several reasons. First, as urged by Silver Hill Financial, they are barred by the doctrine of res judicata.
“[R]es judicata may apply despite the fact that appellee was not a party to the Florida Bar proceedings if there was privity.” Corbin v. Bayles,
In the Florida Action, the court assessed a deficiency judgment against Westley in the amount of $141,462.29, arising from the foreclosure of the Property and the Guaranty executed by Westley on January 11, 2008. See Dempsey Aff., Ex. 1 (Mortgage), p. 31; Ex. 2 (Guaranty); Ex. 4 (Final Judgment on Deficiency). In the case before this Court, “the identity of the thing being sued for” relates to and arises out of this same guaranty. The evidence needed to resolve the Florida Action and the claims set forth in Paragraphs 7-10 of the Complaint are the same: the Mortgage; the Guaranty; evidence that AF-TEF did not meet the requirements of the loan and Mortgage; and any evidence of defenses by Westley asserted or that could have been asserted by Westley to avoid a finding that he was bound by the guaranty of the loan- agreement, including fraudulent inducement, breach of contract, breach of fiduciary duty, or unjust enrichment.
Furthermore, as Westley was a defendant in the Florida Action brought by Bay-view and Silver Hill Financial’s rights in the loan and Mortgage and Security Agreement were transferred to Bayview, the parties are in privity, and accordingly, the Court finds there was sufficient identity of the parties. See Rhyne v. MiamiDade Water and Sewer Auth.,
On this basis, this Court finds that the doctrine of res judicata applies to and bars any claims of fraudulent inducement, breach of contract or breach of fiduciary duty against Silver Hill Financial in the Complaint as it relates to Westley’s guaranty of the loan.
Second, even if these claims against Silver Hill Financial were not barred by the doctrine of res judicata, Westley’s assertions against Silver Hill Financial that its fraudulent inducements violated “TILA,” “FERA,” “RICO,” UCC law,” “Federal UCC wire and mail fraud regulations” and the “Federal UBC,” fail to state a claim as matter of law.
With respect to Westley’s second and third set of claims against Silver Hill Financial as set forth in paragraph 14 of the Complaint — (a) that Silver Hill Financial violated TILA, FERA, OSHA, Federal UCC regulations and contractual, fiduciary and administrative professional obligations by failing to respond to correspondence from him requesting compliance with all OSHA standards, the Federal UBC, and fire, life and safety regulations, and (b) that it violated Federal Civil Rights protections, TILA, FERA, OSHA, RICO, UCC and federal mail wire fraud regulations by tortuously interfering with his access to the Property and his business interests due to his association with minority business associates — this Court finds that they too fail to state a claim as a matter of law and must be dismissed with prejudice.
As just stated, Westley cannot state a viable claim under TILA, FERA, RICO, Federal UCC regulations and the “Federal UBC.” Further, there is no private cause of action under OSHA. See Nesbitt v. Hobart Co., No. EDCV101123CJC (DTB),
Additionally, Westley failed to identify the statute encompassed by his reference to “Federal Civil Rights,” the statutory provisions of the ADA he claims were violated, or the federal fraud statute he is relying upon for these claims.
Westley’s fourth and fifth set of claims against Silver Hill Financial, to the effect (a) that its “racial prejudices, bigoted acts, malfeasance, fraud, conspiracy, misrepresentations and violations of Civil Rights, OSHA, TILA, RICO, USERRA, and OSHA Federal law and regulations displaced him from his place of employment and denied him access” to the Property (Complaint, ¶ 21), and (b) that its alleged “negligence and endangerment prevented] safe access and use of the” Property and “its racial bias and religiously discriminatory acts” purportedly violated “Federal Civil Rights protections, OSHA, UBC fire, life and safety protections, ADA law, and RICO statutes,” (Complaints 22), fail for the very same reasons as his other claims under these provisions. Westley has not alleged the facts to make out necessary elements for a RICO claim; there are no causes of action under TILA or OHSA; and the Court cannot discern which “Federal Civil Rights,” fire, life or safety protections, or provision of the ADA are implicated by Westley’s suit against Silver Hill Financial.
As for his USERRA claim, assuming that Westley is referring to the Uniformed Services Employment and Reemployment Rights Act, which requires that a returning military service member be reemployed “in the position of employment in which the person would have been employed if the continuous employment ... had not been interrupted” by the military service (see 38 U.S.C. § 4313(a)(1)(A)), there is no allegation in the Complaint and no evidence was presented to establish that Westley was a member of the military service and was not allowed “reemployment” by Silver Hill Financial. In fact, Westley never alleged that he had been employed by Silver Hill Financial.
Finally, Westley’s contention that his personal wire information, financial and banking records provided to Silver Hill Financial and others, were used for identity theft, false reporting, and credit fraud in violation of FCRA and Federal Wire Fraud statutes, fails to state a claim for relief. Complaint, ¶23. To “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal,
Here, Westley pled no facts to from which it could determine that Silver Hill Financial did anything that resulted in identity theft or a violation of FCRA or
In summary, all claims against Silver Hill Financial should be dismissed. The only remaining question is whether they should be dismissed with or without prejudice. The Court concludes that all claims pertaining to fraud in the inducement (and associated claims of breach of contract, breach of a fiduciary duty and unjust enrichment) related to Westley’s guaranty of the purchase and financing of the Property are barred under the doctrine of res judicata and should be dismissed with prejudice. Further, any purported claims under OSHA, TILA, FERA, the “Federal UCC,” the “Federal UBC,” wire and mail fraud statutes (18 U.S.C. § 1341 and 18 U.S.C. § 1343), and USERRA should also be dismissed with prejudice. The remaining claims against Silver Hill Financial pertaining to “Federal Civil Rights,” RICO, the ADA, and the FCRA, which could theoretically could state of action if properly pled, should be dismissed without prejudice.
RECOMMENDATION
For the reasons set forth above, it is recommended that:
1. Defendant Michael Tilson Thomas’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 6] be GRANTED and that the Complaint as to Thomas be dismissed WITHOUT PREJUDICE;
2. Defendants Victoria Sigler’s Motion to Dismiss [Docket No. 11] be GRANTED and that the Complaint as to Thomas be dismissed WITHOUT PREJUDICE;
3. Defendant City of Miami Beach and Max Sklar’s Motion to Dismiss Plaintiffs Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) [Docket No. 21] be GRANTED and that the Complaint as to City of Miami Beach and Max Sklar’s be dismissed WITHOUT PREJUDICE; and
4.Defendants Steven P. Kalka and Silver Hill Financial, LLC’s Motion to Dismiss Plaintiffs Complaint And/or for Summary Judgment [Docket No. 60] be GRANTED. All claims in the Complaint against Steven P. Kalka should be dismissed WITHOUT PREJUDICE. All claims against Silver Hill Financial pertaining to fraud in the inducement (and associated claims of breach of contract, breach of a fiduciary duty and unjust enrichment) related to Westley’s guaranty of the purchase and financing of the Property are barred under the doctrine of res judicata and should be dismissed WITH PREJUDICE. Any purported claims against Silver Hill Financial under OSHA, TILA, FERA, the “Federal UCC,” the “Federal UBC,” wire and mail fraud statutes (18 U.S.C. § 1341 and 18 U.S.C. § 1343), and USERRA should also be dismissed WITH PREJUDICE. The remaining claims against Silver Hill Financial pertaining to “Federal Civil Rights,” RICO, the ADA, and the FCRA should be dismissed WITHOUT PREJUDICE.
August 15, 2012
Notes
. While this is the name listed in the Complaint, this Court notes that the correct name for defendant is Michael Tilson Thomas. See Declaration of Defendant Michael Tilson Thomas ("Thomas Decl.’’) [Docket No. 9], ¶ 1.
. None of defendants’ roles in this dispute are described by plaintiff in his Complaint. Nevertheless, as to the parties involved in the motions described in this decision, this Court has learned that the City of Miami Beach is a municipality located in Miami-Dade County, State of Florida. See Unsworn Declaration of Richard Lorber Pursuant to 28 U.S.C. § 1746 [Docket No. 24] ("Lorber Decl."), ¶ 3. Defendant Sklar was at all times material to the Complaint, the Tourism & Cultural Development Director for the City of Miami Beach. See Unsworn Declaration of Max Sklar Pursuant to 28 U.S.C. § 1746 [Docket No. 25] ("Sklar Decl.”), ¶ 2. Defendant Thomas is the Music Director of the San Francisco Symphony, located in San Francisco, California, as well as the Founder and Artistic Director of the New World Symphony, America’s Orchestral Academy, in Miami Beach, Florida. See Thomas Decl., ¶ 1. Defendant Sigler is a judge for the Circuit Court of the Eleventh Circuit Court in and for Miami-Dade County, Florida. See Unsworn Declaration of Defendant Victoria Sigler Pursuant to 28 U.S.C. § 1746 ("Sigler Decl.”) [Docket No. 34], ¶ 1. Defendant Silver Hill Financial and Westley entered into an agreement in which Westley guaranteed a loan given by Silver Hill Financial to All for the Earth Foundation (“AFTEF”) to purchase the property at issue in this case. See Affidavit of Biyan Dempsey [Docket No. 63] ("Dempsey Aff.”), Exs. 1 (Mortgage), 2 (Guaranty). Kalka was the seller’s agent for the property at issue in this case, Bayview Lincoln Road, LLC, and the negotiating agent for Silver Hill Financial. See Unsworn Declaration of Plaintiff Pursuant to 28 U.S.C. § 1746 [Docket No. 78] ("Westley’s Kalka/Silver Hill Decl.”), ¶¶ 2, 4.
.AFTEF is an organization for which Westley serves as their executive director. Unsworn Declaration of Plaintiff Pursuant to 28 U.S.C. Section 1746 [Docket No. 41], ¶ 1. AFTEF is not a party to this suit.
. Bayview Lincoln Road LLC is not a party in this case.
. The role of Mann and Korus are not described in the Complaint. From the exhibits submitted by Brian Demsey in connection with the motion to dismiss or for summary judgment by Kalka and Silver Hill Financial, Mann witnessed the Mortgage documents signed by Westley on behalf of AFTEF and the guaranty executed by Westley. See Dempsey Aff., Exs. 1 (Mortgage), 2 (Guaranty). Westley is seeking a default judgment against both Mann and Korus. See Docket Nos. 92, 93.
.The Court assumes that "FILA” is a typographical error and that Westley meant to reference "TILA.” To the best of the Court’s knowledge there is no federal FILA statute.
. Westley has seeking the entry of a default judgment against Pukel. See Docket No. 100. Apparently, Pukel is a lawyer.
. Pathman is a lawyer and partner of the Miami law firm, Pathman Lewis, LLP, which was retained by AFTEF to represent it in certain matters relating to the Property. See Affidavit of Wayne M. Pathman [Docket No. 87],
. Ruiz has not entered an appearance in this case.
. Defendants Thomas, City of Miami Beach and Sklar are all represented by the same counsel and submitted a joint reply in connection with their respective motions to dismiss.
. Richard Koenigsberg is Thomas's business • advisor and accountant. See Koenigsberg Decl. ¶ 4.
. Given that this Court has found that personal jurisdiction over Judge Sigler is lacking, this Court cannot make any finding as to whether Judge Sigler is entitled to judicial immunity. See Fischer v. Mortg. Elec. Registration Sys., Inc., No. 09-3506 (PJS/JSM),
. Lorber is the Acting Planning and Zoning Director for the City of Miami Beach. See Lorber Deck, ¶ 2.
. Ibanez was a previous director of AFTEF. Ibanez Miami/Sklar Deck, ¶ 1.
.Ross is a business partner of Westley and owner of Fashion Studio LLC which conducted business at the Property. See Ross Deck, ¶1.
. This Agreement is between Bayview Lincoln Road LLC and AFTEF. See Docket No. 76-1, pp. 1, 4. It was signed by Kalka on behalf of Bayview Lincoln Road. Id., pp. 16, 19. As stated previously, Bayview Lincoln Road is not a defendant in this case.
. Silver Hill Financial did not argue that personal jurisdiction over it does not exist.
. " ‘The law of the forum that rendered the first judgment controls the res judicata.’ ” Ashanti v. City of Golden Valley,
. The Court questioned Silver Hill Financial's counsel at the hearing whether such claims could have been asserted as part of foreclosure action. The Court now understands that the Florida Action was a suit to recover the deficiency judgment on Westley’s guaranty of the loan from Silver Hill Financial to AFTEF.
. Westley asserted that his ability to obtain evidence from Miami-Dade County Court to contest the applicability of doctrine of res judicata to his claims has been hindered by Miami-Dade County Court. However, where the Court has been provided a copy of the underlying judgment from the deficiency judgment action, rank assertions and speculation that there may be additional evidence in the Miami-Dade County Court’s records germane to the issue of personal jurisdiction will not be permitted to delay this Courts’ recommendation that any claims of fraudulent inducement, breach of contract or breach of fiduciary duty against Silver Hill Financial in the Complaint should be dismissed.
. Silver Hill Financial did not make any specific argument regarding the violations of TILA, FERA, RICO, UCC law, Federal UCC wire and mail fraud regulations and the Federal UBC. Nonetheless, the Court "has the power to sua sponte dismiss a complaint for failure to state a claim.” Smith v. Boyd,
. This Court notes that Westley provided in his Complaint that federal question jurisdiction in this case was based upon, in part, on the federal mail fraud statute (18 U.S.C. § 1341) and the federal wire fraud statute (18 U.S.C. § 1343). See Complaint, pp. 3-4.