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F.O. Lee v. Foxpointe Condominium Association

United States District Court, Eastern District of Michigan, Southern Division

March 13, 2015

F.O. LEE, Plaintiff,
v.
FOXPOINTE CONDOMINIUM ASSOCIATION et al., Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS (ECF NO. 12) AS TO THE FEDERAL CLAIMS ONLY; DISMISSING THE STATE LAW CLAIMS WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1367(c)(3)

LINDA V. PARKER, U.S. DISTRICT JUDGE.

Plaintiff F.O. Lee (“Plaintiff”), who has filed his complaint in pro per, is a co-owner of the Defendant Foxpointe Condominium Association (the “Association”), located in Oakland County, Michigan. Defendants Makower Abbate PLLC and Kelly Belcher are a law firm and paralegal at the law firm, respectively, who represent the Association in various matters, including collection of unpaid condominium assessments. Plaintiff filed this lawsuit on March 24, 2014, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.; the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692 et seq.; and Michigan state law claims of breach of fiduciary duty, fraud, deceit, constructive fraud, negligent misrepresentation, and negligence. (ECF No. 1.) On June 12, 2014, Defendants Makower Abbate PLLC and Kelly Belcher filed their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12.) Thereafter, the Association, as well as Defendants Rita Folbe, Ralph Marcus, Marcus Management, Inc., Marv Perlin, Raymond Silverman, and Murray Slomovitz joined in the motion to dismiss and filed a motion for judgment on the pleadings, filed pursuant to Federal Rule of Civil Procedure 12(c). (ECF No. 18.) The motion for judgment on the pleadings asserts the identical arguments raised in the motion to dismiss, and the Court will therefore address the motion to dismiss solely. For reasons that follow, the motion to dismiss is GRANTED IN PART as to the federal claims, and the state claims are DISMISSED without prejudice pursuant to 28 U.S.C. § 1367(c)(3).

I.

Plaintiff alleges that the developer of the Association represented that the Association would be “managed professionally in the interests of each unit owner.” (Compl., ECF No. 1 at Pg. ID 4.) Plaintiff, in reliance of the developer’s representations, bought a condominium, and now believes that the purchase “was a product of fraud by Defendants, as part of the schemes to inflict improper, unnecessary or excessive fees, charges and levies to enrich management…” (Id.)

Plaintiff further states:

Defendants, acting in concert with other co-Defendants, have over the years employed various schemes and acts, e.g., (i) willfully and maliciously harassing and abusing Plaintiff with threats and frivolous actions to collect illegal debts from Plaintiff, (ii) inflating monthly condo fees to exact undue fees from Plaintiff through unnecessary and improper installation of meters, fraudulent billings and impermissible reselling of water at a substantial markup from the source billing, and (iii) undertaking a road repair project at [the] excessive price of $2.5 Million, and (iv) incurring unnecessary and excessive engineering fees of $260, 000 for the road repair project, among others, absent notice and hearing, violating RICO, FDCPA and Michigan law, causing injuries and damages to the property or business of Plaintiff and other unit owners.

(Id. at Pg. ID 4–5.)

In the complaint, Plaintiff explains that he was out of the country from September 1, 2011 to December 9, 2012; that while he was away, management for the association installed a new water meter at Plaintiff’s condominium, and charged Plaintiff for “reselling the water usage at a substantial mark-up from the cost of purchase from the public water company, ” in addition to charging Plaintiff for “normal and sewage usages that had otherwise been included in monthly condo fees.” (Id. at Pg. ID 5.) Plaintiff further asserts that “Defendant management further acted in concert with Defendant Water Watch creating fraudulent billings resulting in overly inflated usage of water” while he was out of the country. (Id. at Pg. ID 5–6.)

On March 24, 2014, Plaintiff filed his lawsuit. (ECF No. 1.) Shortly thereafter, Defendants filed their motion to dismiss. (ECF No. 12.)

II.

Only a complaint that states a plausible claim for relief survives a Rule 12 (b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Courts must construe the complaint in the light most favorable to the plaintiff and draw all reasonable inferences in the plaintiff's favor. Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). Further, the complaint must plead factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (2009). A complaint does not “suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action . . .” Twombly, 550 U.S. at 555. A pro se complaint is entitled to a liberal construction and “must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

III.

Defendants assert that Plaintiff has failed to adequately plead the RICO claim against them. (Defs.’ Mot., ECF No. 12 at Pg. ID 59.) The Court agrees. Section 1962(c) of Title 18 of the United States Code provides that:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through ...

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