United States District Court, S.D. Florida

03-62145-CIV-DIMITROULEAS

2004.SFL.0000034

March 22, 2004

RAMSEY AGAN, GRACE AGAN, and SHERRY ANN SPIES, on behalf of themselves and all others similarly situated, Plaintiffs,
v. KATZMAN & KORR, P.A., LEIGH C. KATZMAN, and FERREN L. KORR, Defendants

Foster Blane Carneal, Fort Lauderdale, FL,
O. Randolph Bragg, Horwitz Horwitz & Associates, Chicago, IL,
        for Plaintiff.

James Miller Kaplan, Wilson Elser Moskowitz Edelman & Dicker, Miami, FL,
        for Defendant.;

ORDER DENYING MOTION TO DISMISS;

ORDER REFERRING MOTION TO STRIKE

DIMITROULEAS, J.

        THIS CAUSE is before the Court upon Defendants' January 20, 2004 Motion to Dismiss [DE-12], Plaintiffs' February 3, 2004 Opposition [DE-14], and Defendants' March 3, 2004 Reply [DE-24]. After carefully considering the Motion, and being otherwise fully advised in the premises, the Court finds as follows:

        1. On December 2, 2003, Plaintiffs filed a Class Action Complaint against two lawyers and their law firm alleging that they overcharged consumers for fees and costs and otherwise violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et seq. [DE-1].

        2. In their Motion to Dismiss, Defendants argue:

A.      The case against the lawyers should be dismissed as the corporate veil should not be pierced.

        B.      Condominium assessments are not debts.

C.      The Complaint is a shotgun pleading.
D.      If the FDCPA claim is dismissed:

1)      the Court should not retain supplemental jurisdiction over the other state law claim; and
2)      a lack of diversity exists for Plaintiff Sherry Ann Spies.

E.      The Court should abstain from hearing this case while a state case is pending.
F.      Defendants ask this Court to strike Exhibits C and D from the Complaint as privileged and confidential materials obtained during settlement negotiations.

G.      Defendants ask for a more definite statement.

        3. First, an attorney can be a debt collector under the FDCPA, if he regularly engages in consumer-debt-collection activity. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). Whether either or both attorneys are liable, and whether the "corporate veil" should be pierced, are factual issues best resolved on summary judgment or at trial. See West v. Costen, 558 F.Supp. 564, 584-85 (W.D.Va.1983).

        4. Second, condominium assessments are debts within the definition of the FDCPA. Ladick v. Van Gemert, 146 F.3d 1205, 1207 (10th Cir.), cert. denied, 525 U.S. 1002, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998); Newman v. Boehm, Pearlstein and Bright, Ltd., 119 F.3d 477, 482 (7th Cir.1997); Fuller v. Becker and Poliakoff, P.A., 192 F.Supp.2d 1361, 1368 (M.D.Fla.2002); Thies v. Law Offices of William A. Wyman, 969 F.Supp. 604, 608 (S.D.Cal.1997); But sec Azar v. Hayter, 874 F.Supp. 1314, 1319 (N.D.Fla.1995), aff'd without opinion, 66 F.3d 342 (11th Cir.1995), cert. denied, 516 U.S. 1048, 116 S.Ct. 712, 133 L.Ed.2d 666 (1996); Bryan v. Clayton, 698 So.2d 1236, 1237 (Fla. 5th DCA 1997), rev. denied, 707 So.2d 1123 (Fla.1998), cert. denied, 524 U.S. 933, 118 S.Ct. 2334, 141 L.Ed.2d 706 (1998). Because no offer or extension of credit is required, an obligation to pay association dues is covered by the FDCPA. Caron v. Charles E. Maxwell, P.C., 48 F.Supp.2d 932, 935 (D.Ariz.1999). As long as a transaction creates an obligation to pay, a debt is created for purposes of the FDCPA.; [FN1] Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 (11th Cir.1997).

FN1. Florida Statute § 559.552 provides that in the event of an inconsistency between the FDCPA and FCCPA, the provision which is more protective of the consumer or debtor shall prevail. That statute casts doubt on the continued viability of the decision in Bryan v. Clayton as it applies to FCCPA.

        5. Third, the typical shotgun pleading contains several counts, each incorporating by reference the allegations of its predecessors, leading to a situation where all of the counts (except the first) contain irrelevant factual and legal allegations. Strategic Income Fund, L.L.C. v. Spear, Leeds and Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.2002), Here, there are only two counts. Thus, although the Complaint comes close to being a shotgun pleading, it is marginally sufficient.

        6. Fourth, since the Court has not dismissed the FDCPA claim. Defendants' complaints about supplemental jurisdiction and lack of diversity are moot.

        7. Defendants argue that this Court should abstain from hearing this cause because Plaintiffs have filed an action in state court, Case Number 03- 11064(03) seeking declaratory relief, breach of contract and breach of fiduciary duty. The FDCPA claim in this case and the state claim on the underlying debt raise different legal and factual issues, governed by different bodies of law. Hart v. Clayton-Parker and Assoc., Inc., 869 F.Supp. 774, 777 (D.Ariz.1994). Abstention from the exercise of federal jurisdiction is the exception, not the rule. Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). This Court is not an inconvenient forum. It appears that piecemeal litigation is going to occur in this case because the two lawsuits are not related. The state court did obtain jurisdiction first; but has yet to obtain jurisdiction over the consumer complaint. Moreover, the Court has balanced these interests. Metro. Life v. Lockette, 155 F.3d 1339, 1341 (11th Cir.1998). Accordingly, abstention is not appropriate.

        8. Whether Exhibits C and D are confidential settlement documents may be a factual matter. The Court will refer this Motion to Strike to Magistrate Judge Torres.

        9. Lastly, due to liberal pleading requirements in federal court, motions for a more definite statement are disfavored and should only be granted sparingly. Eye Care Int'l Inc. v. Underhill, 92 F.Supp.2d 1310, 1316 (M.D.Fla.2000); Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D.Cal.1999). There is no indication that the information sought cannot be obtained through discovery. Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D.Or.2002). Here, Defendants have not satisfied their burden to identify the deficiencies in the pleadings or the details sought to be provided. Davenport v. Rodriguez, 147 F.Supp.2d 630, 639-40 (S.D.Tex.2001).

        Wherefore, it is ORDERED AND ADJUDGED
        that Defendants' Motion to Dismiss [DE-12] is DENIED,
        Defendants' Motion for a More Definite Statement is DENIED, and
        Defendants' Motion to Abstain is DENIED.

        IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, Defendants' Motion to Strike Exhibits C and D from the Complaint is hereby REFERRED to United States Magistrate Judge Edwin G. Torres for appropriate disposition or report and recommendation.