angela dipilato

Case 7:07-cv-07636-CS Document 40 Filed 06/08/09 of 2

~ a.J-t~ ~ : ~/tJ-tJ ~ )/' tnJ ~ .. ff tf.A' 4h-J i 1o ~,/&._ /AM ~ Angela DiPilato

.... 1 , .. ~~~Vf - PI 'I <f. ~ Ut ""L ..L.JL 2310 E. Atlantic Boulevard (Suite 206) ~n tv\ (1.-1 a_ Cf'"-~ -- Pompano Beach, Florida 33062

it ~ Af/l-'lk Jo 72e ~ *' ~ ~J£~wi~ 1~. June 08, 2009

SO DR

VIA FACSIMILE C-ats.·-...,

' 810 Honorable Judge Cathy Siebel,tltllh..w.~o~......,.ioi..W~~...:a::.:.~t..ll.li=c Attn: Chambers United States Courthouse 300 Quarropas Street Whlte Plains, New York 1 0601-4150 MEMO ENDORSED Fax No.: (914) 390-4278

Re:

Your Honor:

DiPilato, ProSe, v. 7-Eleven, Inc., et al.

Civil Adion Number: 07- CV-7636

Pre-.ftrl.otion Confere1rce and Defendants Request for Adjournment and Telephone Conference

I am the Pro Se, plaintiff in the above-referenced action. I \\'rite in response to a letter that I received in the mail. only yesterday, however, postmarked by the Court on May 21, 2009. I expect the delay was due to the fact that I am now living in the State of Florida (part time ) and I have fonvarded my mail here.

Additionally, I just got out of the hospital two weeks ago, whereas, I was hospitalized for pneumonia. I am presently under a doctors care and cannot travel to New York.

The above-referenced letter calls for a pre-motion conference, tomorrow, June 09, 2009. Under these circumstances, I cannot attend. I respectfully request a short adjournment and that the matter be conferenced by telephone.

Case 7:07-cv-07636-CS Document 40 Filed 06/08/09 of 2

It seems that the Defendants recite the basis of their motion in a letter to the Court. In said letter the Defendants accuse me of unconscionable acts, includirig filing a false affidavit in this litigation.

Let me assure this Court that I did not file a false affidavit in this case. The defendants are substantiating their accusations based upon my testimony in the matter of DiPilato v. Drake .Manor. Inc. , a New York State Supreme Court case. During my testimony, I was asked if I signed the Affidavit in this case, and I answered" No", and stated that my fiance signed the affidavit .. Because it was the truth ...... I was not asked anything further.

Perhaps I can clarifY this matter without wasting the Court's valuable time on this motion. I have given my fiance my Power-of-Attorney in all legal matters. Therefore, with my authorization he signed the Affidavit. I was aware of the allegations contained therein.

Moreover, when the" Court" in that matter asked me if the documents were filed on my behalf I answered " Yes ".

Simply put, there is no basis for this motion. I am currently waiting to see if the Court confirms the Magistrate Judges's decision denying the Defendants Motion for Summary Judgment and v.ish to proceed to trial, as soon as possible, once discovery is completed.

Lastly, it appears that counsel in this matter is sharing information with counsel in the matter of; DiPilato v. Drake Nfanor, Inc. I am aware of common law that states that, it is improper for these two attorneys' to act in this fashion, i.e., "' share information " for the purpose to attempt to force settlement in these cases, among other things. I would appreciate it if the Court would take judicial notice of the acts and actions of these two attorneys.

Thank you for the Court's valuable time in consideration of my request. I await your decision. I can be reached by telephone at (914) 563-4510 or by Facsimile at (954) 782-5626.

cc: BARTON, BARTON & PLOTKIN Gray Bar Building 420 Lexington A venue New York, New York 10170

Case 7:07-cv-07636-CS Document 58 Filed 07/19/10 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -JC Angela DiPilato

07 CIVIL 7636 (CS)

Plaintiff, JUDGMENT

-against-

7-Eleven, Jeanne Lynch, Martina Hagler and Arthur Rubinett,

Defendants. - -X

Whereas the above entitled action having been assigned to the

Honorable Cathy Seibel, U.S.D.J., and the Court thereafter on

July 19, 2010, having handed down its Order granting defendants'

motion for attorneys' fees to the law firm of Barton Barton &

Plotkin LLP in the sum of $2,231.25 and denied motion seeking

sanctions and dismissed the complaint is its entirety, with

prejudice, it is,

ORDERED, ADJUDGED AND DECREED: That the complaint be and

it is hereby dismissed in its entirety with prejudice.

Dated: White Plains, New York July 19, 2010

i'/judgment/dipilato.7636

~-9---~ia __ _ Ruby J. Krajic~~-~{2~k

Case 0:10-cv-62492-JIC Document 1 Entered on FLSD Docket 12/22/2010 Page 1 of 38

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO.:

ANGELA DIPILATO, Individually,

Plaintiff,

V.

RUDD & DIAMOND, P .A., a Florida Corporation, PETER A. DIAMOND, Individually, and OCEAN 4660, LLC., a Florida limited liability company,

Defendants.

----------------------------------~/

COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

JURY DEMAND

1. Plaintiff alleges violation ofthe Fair Debt Collection Practices Act, 15 U.S.C. section 1692,

et. seq. ( hereinafter " FDCP A " ) and the Florida Consumer Collections Practices Act, Fla. Stat.

section 559.55, et. seq. (hereinafter" FCCPA" ).

- 1 -


JURISDICTION AND VENUE

2. This Court has jurisdiction under 28 U.S.C. section(s) 1331, 1337, 1367 and 15 U.S.C.

section 1692k. Venue in this District is proper under 28 U.S.C. section 1391, because Plaintiff

resides here and Defendant does business in the District.

PARTIES

3. Plaintiff, ANGELA DIPILATO is a natural person, and citizen of the State ofNew York,

residing in Broward County Florida.

4. Defendant, RUDD & DIAMOND, P.A., ( "RUDD & DIAMOND") is a Florida for profit

Corporation, engaged in the practice oflaw and debt collection, and maintains a principal place

ofbusiness located at 4000 Hollywood Boulevard, Suite 165-S, Hollywood, Florida 33021.

5. Defendant, PETER A. DIAMOND, is a natural person, and citizen of the State of Florida,

employed by RUDD & DIAMOND, P.A., and working from offices located at 4000 Hollywood

Boulevard, Suite 165-S, Hollywood, Florida 33021.

6. Defendant, OCEAN 4660, LLC., ( " OCEAN 4660 " ) is a Florida limited liability company,

engaged in the ownership of real property located and doing business at 4660 North Ocean Drive,

Lauderdale by the Sea, Florida 33308 ("Hotel and Restaurant") and maintains a principal

place ofbusiness located at 40800 Woodward Avenue, Bloomfield Hills, Michigan, 48304.

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7. All Defendants regularly use the mail and telephone in a business, the purpose of which is

the collection of debt.

8. All Defendants regularly collect or attempt to collect debts for other parties;" they are" debt

collectors" as defined in the FDCPA. Heintz v. Jenkins, 514 U.S. 291 ( 1995 ).

9. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ., are Attorneys.

An Attorney who issues a three day eviction notice is a " debt collector " for purposes of the

FDCPA and must comply with the FDCPA. Initiation of a lawsuit in State Court seeking

recovery of unpaid rent is an" initial communication" within the meaning of the FDCPA.

Heintz v. Jenkins, 514 U.S. 291, 293-296. Goldman v. Cohen. 445 F. 3d 152 (U.S. Court of

Appeals for the Second Circuit ) (2006).

10. OCEAN 4660 is vicariously liable for the actions ofRUDD & DIAMOND, P.A. and

PETER A. DIAMOND, Individually. Fox v. Citicorp Credit Services. Inc., 15 F. 3d 1507,

( 91h. Cir. 1994 ).

11. At all times material to the allegations of this complaint, Defendants was acting as a debt

collector with respect to the collection of Plaintiffs alleged debt.

12. With respect to the " Congressional findings and declaration of purpose " portion of the

FDCPA, The United States Congress has declared at 15 U.S.C. section 1692:

- 3 -


(a) Abusive Practices

There is an abundant evidence ofthe use of abusive, deceptive, and unfair debt collection practices by many debt collectors, Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual pnvacy.

(b) Inadequacy oflaws

Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

FACTUAL ALLEGATIONS

13. Defendant sought to collect an alleged debt from Plaintiff arising from personal, family, or

household purposes.

14. On or about October 26, 2010, RUDD & DIAMOND, P.A. and PETER A. DIAMOND

prepared a Three (3) Day Eviction Notice in regards to an alleged delinquency of Plaintiffs rent.

A true and correct copy of the aforementioned notice is attached hereto as Exhibit " A ".

15. The notice fails to provide information that it is being sent from a debt collector in violation

of 15 U.S.C. section 1692e(11).

16. The notice fails to provide information of Plaintiffs right to dispute the debt in violation of

15 U.S.C. section 1692g(a)(3-5).

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17. The notice failed to provide information that Plaintiff had thirty days to dispute the debt

and failed to attach the FDCPA thirty day notice in violation of 15 U.S.C. section 1692(g)(a)(3-

5).

18. Based upon information and belief, RUDD & DIAMOND, P.C., and PETER A.

DIAMOND, solicited business in the State of Florida, yet failed to properly register to collect

debts in the State of Florida as required by Florida Statutes section 559.553, 559.555.

19. Federal Courts have held that the collection of an alleged rent deficiency is debt collection

activity and thus governed by the FDCPA. Romea v. Heiberger & Assoc., 988 F. Supp. 715 (

S.D.N.Y. 1998 ).

20. Based upon information and belief, OCEAN 4660 retained the services of or forwarded the

alleged debt to RUDD & DIAMOND and PETER A. DIAMOND for collection.

21. In the State court suit, Defendants' actions, among other things, necessitated Plaintiff to

incur thousands of dollars in attorney's fees.

22. RUDD & DIAMOND, P .C., and PETER A. DIAMOND sent various written

correspondences to Plaintiff and/or Plaintiffs' Attorney in the State case, William Watson Trick,

Jr., Esq.

23. The correspondences failed to provide information that it is being sent from a debt collector

in violation of 15 U.S.C. section 1692e(11).

- 5 -


24. The correspondences failed to provide information of Plaintiffs right to dispute the debt in

violation of 15 U.S.C. section 1692g(a)(3-5).

25. Based upon information and belief, RUDD & DIAMOND, P.A., and PETER A.

DIAMOND solicited business in the State of Florida, yet failed to properly register to collect

debts in the State of Florida as required by Florida Statutes section 559.553, 559.555.

26. RUDD & DIAMOND, P .A., and PETER A. DIAMOND operate a business entity known

as " RUDD & DIAMOND, P .A. " which regularly practices debt collection through collection of

debt for landlords, eviction proceedings. Said entity sets this forth in its corporate documents

maintained within the Florida department of State Division of Corporations, among other things.

27. Upon information and belief, on or about November 05,2010, RUDD & DIAMOND, P.A.,

and PETER A. DIAMOND filed an eviction lawsuit against Plaintiff. A true copy of the State

Court lawsuit is annexed hereto as Exhibit " B ".

28. The state court lawsuit seeks, among other things, actual money damages, possession, as

well as attorney's fees.

29. The Supreme Court has held that the filing of legal proceedings on behalf of a creditor

constitutes debt collection activity. Heintz v. Jenkins, 514 U.S. 291,293-296. Initiation of a

lawsuit in State Court seeking recovery of unpaid rent is an " initial communication " within the

meaning ofthe FDCPA. Goldman v. Cohen, 445 F. 3d 152 (2006).

- 6 -


30. A three day notice, summons and complaint devoid of any warnings and notices required

by 15 U.S.C. section 1692g is an initial communication for the purposes of the FDCPA. Sanz v.

Fernandez, ( U.S.D.F.L. )(2009 ), 633 F. Supp. 2d 1356. ( U.S.D.J. COHN); Goldman v. Cohen.

445 F. 3d 152 (2006).

31. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ., sent Plaintiff

a three day notice, summons and complaint which was devoid of the warnings and notices

required by 15 U.S.C. section 1692g and in violation of the FDCPA.

32. Federal Law supercedes Stale Law.

COUNT I

FAILURE TO ACCURATELY DISCLOSE PLAINTIFF'S RIGHTS IN VIOLATION OF 15 U.S.C. section 1692g(a)(3-5)

33. Plaintiff incorporates Paragraphs 1 through 32 as if fully set forth again herein at length.

34. All Defendants failed to notify Plaintiff of the following: that she must dispute the alleged

debt in writing within 30 days of her receipt thereof or Defendant will assume the alleged debt is

valid in violation of 15 U.S.C. section 1692g(a)(3); a statement that ifthe consumer notifies the

debt collector in writing within the thirty-day period that the debt, or any portion thereof, is

disputed, the debt collector will obtain verification of the debt or a copy of a judgment against

- 7-


the consumer and a copy of such verification or judgment will be mailed to the consumer by the

debt collector valid in violation of 15 U.S.C. section 1692g(a)(4); and a statement that, upon the

consumer's written request within the thirty-day period, the debt collector will provide the

consumer with the name and address of the original creditor, if different from the current creditor

in violation of 15 U.S.C. section 1692g(a)(5).

35. WHEREFORE, Plaintiff requests that the Court enter judgment in favor ofPlaintiffand

against Defendants for:

a. Damages;

b. Attorney's fees (if any), litigation expenses and costs of suit, and

c. Such other and further relief as to this Court deems just and proper.

COUNT II

FAILURE TO DISCLOSE STATUS AS A DEBT COLLECTOR IN VIOLATION OF 15 U.S.C. section 1692e(ll)


3 7. All Defendants, in their various correspondences with Plaintiff, failed to disclose their

status as" debt collectors" in violation of 15 U.S.C. section 1692e(11 ).

- 8 -


38. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and


a. Damages;

b. Attorney's fees ( if any ), litigation expenses and costs of the instant

lawsuit, and

c. Such other and further relief as the Court deems just and proper.

COUNT III

FAILURE TO REGISTER DEBT COLLECTION LICENSE IN VIOLATION OF 15 U.S.C. section 1692e


40. All Defendants solicited business in the State of Florida yet failed to properly register to

collect debts in the State of Florida, as required by Florida Statutes section(s) 559.553, 559.555

and thus violated 15 U.S.C. section 1692e(5) and 15 U.S.C. section 1692e(10).



a. Damages;


lawsuit, and

- 9-



COUNT IV

ISSUING COMMUNICATIONS AND LAWSUITS IN VIOLATION OF 15 U.S.C. section 1692, et. seq.


43. Defendant(s) RUDD & DIAMOND, P.A., and PETER A. DIAMOND, ESQ. issued

notices to Plaintiff and initiated a lawsuit in state court against Plaintiff seeking recovery of

alleged unpaid rent in violation of 15 U.S.C. section 1692, et. seq.

44. WHEREFORE, Plaintiff requests that the Court enter judgment in favor ofPlaintiffand


a. Damages;


lawsuit, and


- 10-


COUNTV

HARASSMENT AND ABUSE IN VIOLATION OF 15 U.S.C. section 1692d


46. All Defendants have engaged in conduct the natural consequence of which is to harass,

oppress, or abuse Plaintiff in connection with the collection of a debt.

47. Without limiting the conduct ofDefendant(s) which was to harass, oppress or abuse

Plaintiff in violation of 15 U .S.C. section 1692d the Defendants committed the following:

A. Knowingly initiating an action in County Court to collect an alleged debt, which

debt is not subject to the jurisdiction of said court;

B. Knowingly initiating a lawsuit to collect an alleged debt when no debt is due;

C. Attempting to collect upon an illegal, unlawful, or otherwise improper debt;

D. Using and/or threatening of use of violence or other criminal means to harm the

physical person, reputation, or property of Plaintiff;

E. Using obscene and profane language or language the natural consequence of which

is to abuse the hearer or reader;

F. Knowingly using improper means to collect an alleged debt, and

- 11 -


G. Among other things.



a. Damages;


lawsuit, and


COUNT VI

FALSE AND MISLEADING REPRESENTATIONS IN VIOLATION OF 15 U.S.C. section 1692e


50. All Defendant(s) have engaged in specifically but not limited to the following conduct in

violation of 15 U.S.C. section 1692e: (i) falsely representing the character, amount, or legal

status of the alleged debt; (ii) representing or implicating that the nonpayment of the debt will

result in the seizure, garnishment, attachment or sale of any property or wages of the Plaintiff;

(iii) the false representation or implication that the consumer-plaintiff committed any crime or

other conduct in order to disgrace the consumer-plaintiff; (iv) the failure to disclose in the initial

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communication with Plaintiff and, in addition, if the initial communication was oral, that the debt

collector was attempting to collect an alleged debt, and that any information obtained will be

used for that purpose, and the failure to disclose in subsequent communications that the

communication was from a debt collector, and (vi) among other violations.



a. Damages;


lawsuit, and


COUNT VII

UNFAIR PRACTICES IN VIOLATION OF 15 U.S.C. section 1692f


53. All Defendant(s) have used unfair and unconscionable means to collect or attempt to collect

the alleged debt in violation of 15 U.S.C. section 1692f.

- 13-


54. Without limiting the conduct ofDefendant(s) which violates 15 U.S.C. section 1692fthe

Defendant(s) committed the following conduct: (i) the collection of an amount of the alleged

debt ( including any interest, fee, charge, or express incidental to the principal obligation ) unless

such amount is expressly authorized by the agreement creating the alleged debt or permitted by

law; (ii) there is no present right to possession of the property claimed as collateral through an

enforceable security agreement; (iii) the property is exempt by law from such dispossession or

disablement, and (iv) among other things.



a. Damages;

b. Attorney's fees (if any), litigation expenses and costs ofthe instant

lawsuit, and


- 14-


COUNT VIII

DEFENDANT HAS COMMENCED LEGAL ACTION IN VIOLATION OF 15 U.S.C. section 1692i


57. Defendant(s) commenced legal action in the County Court in violation of 15 U.S.C. section

1692i.



a. Damages;

b. Attorney's fees (if any), litigation expenses and costs ofthe instant

lawsuit, and


COUNT IX

MALPRACTICE AND ATTORNEY MISCONDUCT AGAINST RUDD & DIAMOND, P.A. AND PETER A. DIAMOND


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60. An attorney can be liable to a third party, absent an attorney-client relationship, for

intentional torts, fraud and illegal acts, among other things.

61. An attorney is liable to third parties in tort when there is fraud, collusion, malicious acts,

illegal acts or other special circumstances such as negligent misrepresentation, among other

things.

62. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND are attorneys

licensed to practice law in the State of Florida under Florida Bar number( s) 0180051, and others.

63. Upon information and belief, Defendant(s) RUDD & DIAMOND, P.A. were employed by

Defendant OCEAN 4660, LLC to provide legal advice; to provide legal advice in the collection

of an alleged debt and to collect a debt as a debt collector. Defendant PETER A. DIAMOND,

ESQ. was the partner or shareholder representative from Rudd & Diamond, P .A. who performed

some or all of the alleged illegal, unlawful and improper acts complained of herein.

64. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND owed, failed and/or

refused the following duties:

(i) the duty of care, which requires an attorney to have knowledge and skill necessary to confront the circumstances of each case;

(ii) the duty to represent the client and handle the client's affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity;

(iii) failure to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community;

(iv) among other things.

- 16-


65. Based upon including, but not limited to the following, Defendant(s) RUDD &

DIAMOND, P.A. and PETER A. DIAMOND, ESQ. Have committed malpractice and attorney

misconduct: (i) illegally and unlawfully operating an unregistered business for the collection of

debt in violation ofthe FDCPA and FCCPA; (ii) knowingly, willfully, wantonly, negligently,

fraudulently, illegally, unlawfully, and otherwise improperly violating the FDCPA and FCCPA;

(iii) violations ofthe FDCPA and FCCPA; (iv) knowingly, willfully, wantonly, negligently,

fraudulently, illegally, unlawfully and otherwise improperly collecting or attempting to collect a

debt; (v) knowingly, willfully, wantonly, recklessly, negligently, fraudulently, and otherwise

improperly attempting to or collecting an alleged debt that was not due; (vi) practicing" Rambo"

style litigation tactics, and (vii) among other things.

66. Based upon their acts and actions as complained of herein Defendant(s) RUDD &

DIAMOND, P.A. and PETER A. DIAMOND have committed malpractice and attorney

misconduct.

67. Defendant(s) knowingly, willfully, wantonly, fraudulently, negligently, illegally,

unlawfully, purposefully, recklessly, improperly; otherwise improperly and without due care,

among other things, committed the acts and actions complained of herein in violation of law.

68. Defendant(s) failed and/or refused to use due care.

69. Defendant( s) acts and actions were the cause of Plaintiffs damages.

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70. RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ. are vicariously liable for

each others acts.

71. As a direct and proximate result ofDefendant(s) RUDD & DIAMOND, P.A. and PETER

A. DIAMOND, ESQ.'s acts and actions as complained ofherein Plaintiffhas and will suffer

monetary losses and liability in the millions of dollars.

72. WHEREFORE, Plaintiff demands judgment be entered in its favor and against

Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ. as follows:

a. actual compensatory, consequential, incidental, special and exemplary damages

in an amount to be proven at trial;

b. punitive damages;

c. such civil penalties as allowed by law;

d. attorneys' fees (if any) and costs, expenses ofthis lawsuit as allowed by law;

e. pre-judgment and post-judgment interest as allowed by law, and

f. Such other and further relief as to this Court deems just and proper.

- 18-


COUNT X

DECLARATORY RELIEF AND PERMANENT INJUNCTION IN ACCORDANCE WITH THE FCCPA


74. Pursuant to 28 U.S.C. section(s) 2201 and 2202, Plaintiff seeks a declaration that

Defendants' practices are in violation of the FDCPA and FCCPA.

75. The FCCPA provides for equitable relief including injunctive relief. Berg v. Merchs. Ass'n

Collection Div .. 586 F. Supp. 2d 1336, 1345, (S.D. Fla. 2008 ).

76. Plaintiff seeks a permanent injunction prohibiting Defendants from collecting debts in the

State of Florida without first obtaining a license.

77. WHEREFORE, Plaintiff requests that the Court enter judgment:

a. Declaring that all Defendants violated the FCCP A and FDCP A for their failure to

obtain a license to collect debts in the State of Florida;

b. Permanently enjoining all Defendants from collecting upon the alleged debt;

c. Permanently enjoining the Defendants from pursuing the state court lawsuit for

the alleged collection of unpaid rent;

- 19-


d. Attorney's fees (if any ), litigation expenses and costs of suit, and

e. Such other and further relief as this Court deems just and proper.

RESERVATION OF RIGHTS

Plaintiff respectfully reserves the right to amend the Complaint.

JURY DEMAND

Plaintiff demands trial by jury.

~" Dated this 2.1- day of December, 2010.

-20-

ANGELA DIPILATO, Pro Se -Plaintiff, ProSe-

231 0 East Atlantic Boulevard, Suite 206 Pompano Beach, Florida 33062 Tel: (914) 5 -4510 Fax: (954 o 7- 05


EXHIBIT A


·-:.:;.·· · .. -NOTICE OF EVICTION~

Ociober 26, 2010

Sent Via Certified Mail & US Mail* ~.-u~ Angela Dipilato 4658 N. Ocean LLC

~"--.# r·:~

Ci'J · C/0 Beachside Grille 4658 North Ocean Drive Lauderdale by the Sea, Florida 33308

RE: NOTICE OF EVICTION; THREE (3) DAY NOTICE TO PAY RENT OR DELIVER POSSESSION

Dear Ms. Angela Dipilato:

Notice is hereby given, pursuant to the provisions of§ 83.20 of the Florida Statutes, that:

1. Rent for the period of March, 2010 through October 2010 in the sum of ($96,000) is due and unpaid for the premises located at 4658 N. Ocean Drive, Lauderdale by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale Beachside Hotel" and owned by landiord, Ocea"fi'4660, LLC., in your possession pursuant to a tenancy at sufferance, which provides for rental in the sum of $12,000 per month, payable on the first of each month.

_Florida Statute § 83.20(2) provides

Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which the premises are heJd, and 3 days' notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The service of the notice shaH be by delivery of a true copy thereof, or, if the tenant is absent from the rented premises, by leaving a copy thereof at such place.

2. Accordingly, you are required, within three days (excluding Saturday, Sunday, and legal holidays) after service of this notice on you, to pay all the delinquent rent or to deliver up possession of the premises to' the undersigned, or C/0 Peter Diamond, Esquire,


Rudd and Diamond, P.A. 4000 Hoiiywood Blvd, Suite 16go£~.Ji"Oflywood, FL 33021, (954) 961-5?59 who is authorize~ by the undersigned to r,_e.oe!v~)3·ossession of_!!25; pre.mises. if you fall to do so, the understgned will begin legaj.pfficeepmgs to reco_y__ef'-tt~~emtses.

_,.... . ./. .-----t-

3. This Notice is given to y~m;:/:C ord nee with ~d;·s~te;;ncluding but ' .. not limiled to §83.05 and §83.20. / / // . ·- · ··

/ /:f'/ ..

/ / //~ .

· / /OCEA , C, Landlord// ~· / C/0 Pete· Diamond, Esqt.;Jre/ . . .. , ~-

<- Rudd an. Diamond, P y: ,<:;J.' · 4000. Hoflywood Blyd/ _;,_ Ql -~ Suite 165-S // /!'...;.~ ·· .r

Hollywood, 03021 ~ (954) 96 i ~59 tel. (954) 9EJ-{-8953 fax.

. / . .

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Notice was sent via certified mail, regular mail, on the above-named tenant on this 26tn day of October 2010 and by~ personally serving the Notice on the tenant and by leaving a r:;ovy at the tenant's fast or usual place of residence, in th$ tenant's absence. /~_./ ~~

' ;] //.--;~/'·:..-·- /' ) Dated (""'....r-tDl-e..c ,..~ ~.::. , 2010. /'l<.~;;:-7 / J

.// / .. // / . ///./,. / _/

//;.· //f y~· // ./ ......... /

/ !I j

... / ...

//0Cft4r.'N 60, LLC, Landi~---/ // CJO ~et D.iamond: §.S<1Uire

/ pudd_a d .· -.'P.A. ...->-- j4000 H ood.Bivd

L Suite 165-S Hollywood, FL 33021 (954) 961-5059 tel. (954) 961-8953 fax .

. ) ,


EXHIBITB


FORM 1.997. CIVIL COVER SHEET

The civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form shall be filed bv the plaintiff or petitioner for the use of the Clerk of the Court for the purpose of reporting judicial workload data pursuant to Florida Statues section 25.075.

I. CASE STYLE

IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD c~Q-S~RIDA OCEAN 4660. LLC,

·- · ···-·-·-- ---- --P Ja i r:l tiff,---·· .

VS.

ANGELA DIP/LA TO, individually, and OCEANSIDE LAUDERDALE, INC., d/bia BEACHSIDE GRILL, a Florida Corporation

Defendants.

II. TYPE OF CASE

i-1 0 .~ 01506 Case#:_··~------

judge: __________ _

(If the case fits more than one type of case, select the most definitive category.) If the most descriptive label is a subcategory (is indented under a broader category), place an "x" in both the main category and subcategory boxes.

C Condominium. ! .. • Contracts and indebtedness c: Eminent domain ,_ Auto negligence ~' Negligence- other

C1 Business governance 0 Business torts 0 I]

Environmental/Toxic tort Third party indemnification Construction defect

[i Mass tprt c; Negligent security ' Nursing home negligence CJ Premises liability- commercial C; Premises liability- residential

C; Products liability CJ Real Property/Mortgage foreclosure

C Commercial foreclosure $0- $50,000 '" Commercial foreclosure $50,001 - $249,999 [i Commercial foreclosure $250,000 or more ~J Homestead residential foreclosure $0-$50.000 CJ Homestead residential foreclosure


$50,001 - $249,999 _ Homestead residential foreclosure $250,000 or more _ Non-homestead residential foreclosure $0- $50,000 ["; Non-homestead residential foreclosure $50,001 - $249,999 : 1 Non-homestead residential foreclosure S250,00 or more L (Other real property actions $0 - $50,000 · • Other real property actions $50,001 -$249,999 ,.., · Other real property actions $250,000 or more-•··f<?·-:t·

Professional malpractice ~J Malpractice -business __ Malpractice - medical 0 Malpractice -other professional

·; Other ;;r;mrust/Trade Rtgulalfon Business Transaction

C Constitutional challenge-statute or ordinance ;__. Constitutional chailer.ge-proposed amendment C Corporate TnJsts :::.: Discrimination-employment or other

Insurance claims L: lnteliectual property

Libel/Slander C1 Shareholder derivative action ~ SecuriUes l~gation L Trade secrets L Trust litigation

Ill. REMEDIES SOUGHT (check ali that apply): C?--T\1oneta ry; !?.---Non-monetary declaratory or injunctive relief; n Punitive

IV. NUMBER OF CAUSES OF ACTION: ( Q_) (Specify} C:vJc.:·-i,v-.r-~ 6 "-,,..1 {7;~b/c e/7-1'-,: .t 7'-<·t~---~> .....

V. IS THIS CASE A CLASS ACTION LAWSUIT? .Li Yes ~0

_... VI. H~OTlCE OF ANY KNOWN RELATED CASE BEEN FILED?

l2' No ~-';,._I Yes - If "yes" list all related cases by name, case number and court:

VIL IS JURY TRIAL DEMANDED IN COMPLAINT? C Yes

j -


/ ;;;~"' No

. ·;, ....... -· ~,-c_c":: ;:-~::..· _,,.,__ .... ··,

i CERIIFY tha~ the information I hcl\~;¥i'O\Iided in-this.rove-F--s-heerlsaccurate to the best of my knowledge and belief. -·· . ~ .---- ----...... ...--- .,/""/ ~- ---!"---

Sig.pcrture: _. "~-::::,..~- -·

.:·Attorney or Party

:) ------- I . f- '_)-r_ -- I '\ . I f. - I ~t' . ,--" I t.J f'v? .~ft ,r-, Date: ;/- 5-----/ c:) Type or print name

)_

-- ...


OCEAN 4660, -LLC

Plaintiff V.

IN THE COUNTY COURT OF THE· 17TH JUDlClAL CJRCUJT IN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURJSDICTJON

CASE-NO.:

ANGELA DIPILA TO, individuallv. and OCEANSIDE LAUDERDALE, fNC .. d/b/a BEACHSIDE GRILL, a Florida Corp~ration

\10 01506 )'. 6 2 ~~-,~~

't'J!tt:rn-A...ttlN :MiiJ.RlS Defendant(s)

__________________________ !

CIVIL ACTION SUMMONS

THE STATE OF FLORIDA:

TO EACH SHERIFF OF THE STATE:

YOU ARE COMi\iANDED to serve this summons and a copy of the Eviction Complaint or petition, under Summary Procedure, in this action on Defendant:

ANGELA DIPILA TO 1035 S. Riverside Drive Pompano Beach, FL 33062

Each Defendant is required to serve written defenses to the complaint or petition on Plaintiff's A ttomey:

PETER A. DIAMOND, ESQUIRE RUDD & DIAMOND, P.A. 4000 HOLLYWOOD BLVD. SUITE 165-S HOLLYWOOD, FL 33021 (954) 961-5059

within 5 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses witb the Clerk of this Court either before service o~ Plaintiffs Attom~y or immediately tbereafte:. If a_J)~f~P~pt fails to do_ so, a default wi.ll be entered agamst that Defendant orc~s~~R 11 the complamt or

petition. . BY: f•'UERST I NOV 0 5 2010

DEPUTY \lfWfr~<fr,J,R~~E~L ·' I. _K '~ t:, .._,ut·' i ,

t ·. 'otullv Couri St;<ll ! . l DATE:

, .. ------~--1


OCEAN 4660, LLC ,.

Plaintiff v

lN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT fN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION

ANGELA DIPILATO, individuaJJy, and - ..OCEA."l\ISIDE LAUDERDALE, INC., d/b/a

BEACHSJDE GRILL, a Florida Corporation

--------------------------~/ CIVIL ACTION SU1\LMONS fJf.f.1f.'i+ 6 2 ~WJ

THE STATE OF FLORIDA: 'fY-."11,RI -...h.NJ\i _.l\.Q:UL~

TO EACH SHERIFF OF THE STATE:

YOU ARE CO.l\H>1ANDED to serve this summons and a copy of tbe Eviction Complaint or petition, under Summary Procedure, in this action on Defendant:

OCEANSIDE LAUDERDALE INC. D/B/A BEACHSIDE GRTLL KENNETH FR.i\J\TK REGISTERED AGENT 2310 E. A TLANTlC BLVD., (SUITE #206) POMPANO BEACH FL 33062 US

Each Defendant is required to serve written defenses to the complaint or petition on Plaintiffs Attorney:

PETER A. DIAMOND, ESQUIRE RUDD & DIAMOND, P.A. 4000 HOLLYWOOD BLVD. SUITE 165-S HOLLYWOOD, FL 33021 (954) 961-5059

within 5 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses with the Clerk of this Court either before service on Plaintiff's Attomey or immediately thereafter. lf a Defendant fails to do so, a default will be entered against that Defendant. . .fo.r_.reli.ef...fl~mftl'fde9 in the complaint or

petition. I CH.ZUSTOPHEH l NOV n5 ZG1fl l if'" ~~·"Q~'l!' 1 v ' .::."' l,....J".: ... ~~~:.J.."'S J.. i

BY: ::

DATE: If~PUT~ rf'k_f.~c§9tl1ff rEAL

.. ):.tun;,y (:\~:.~tt Sc.a.t \

r i \ ........ -~. ~ ~~--~ • ...,._...;r ......... ~ ............. ,~-.. -·J


IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION

QCEAN 4660, LLC CASE NO.: ··--~~~:-: -~-~ : ...... ; ...

Plaintiff

v.

_, __ 0 ·- ____ Al'jG_f:~A QJ?J~~_TO, individually, and OCEANSIDE LAUDE-RDALE,--fr-..JC.~ d/6/a- 0

- OOo

0

BEACHS!DE GRILL, a Florida COi·f:Joration

Defendant(s)

--~----------------------~'

COMPLAINT

COMES NOW Plaintiff, OCEAN 4660, LLC., by and through their undersigned

counsel and sues Defendant(s) ANGELA OJPILATO, individually and OCEANSIDE

LAUDERDALE, INC., dlbia BEACHSIDE GRJLL, and alleges alleges:

COUNT 1- EVICTION

1. 0

This is an action to evict a tenant from real property in Broward County,

Florida.

2. Plaintiff owns the following property described in said county:

4658 N. Ocean Drive, Lauderdale by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale Beachside Hotel", in Lauderdale-by-the Sea, FL.

3. Defendant ANGELA DIPILATO has possession of the property under an

oral agreement to pay rent of $12,000.00 payable the first day of each month.

i -0

1

r• :. .·


4. Defendant ANGELA DIP!LATO failed to pay rent due on fvlarch 1, 2010 for

the month of Ivlarch, 2010 and has failed to pay any rent whatsoever through October 1,

2010.

5. Plaintiff served Defendant ANGELA OIPILATO with a 3-notice on October . '---~~~: ~:-'; i ' ..

29, 2010, to pay the rent or deliver possession of the property. (See Exhibit A to the

Complaint). The Defendant ANGELA DIPILATO has refused to either pay rent or deliver

·-- .. --· ·-· p_g_ssess_ipf] _pfJhe_prop_erj:y ..

6. Upon receipt of the Notice to Evict, the Defendant ANGELA DIPILATO

has engaged in a series of calculated acts to destroy, vandalize and brutalize the

Plaintiffs real property and the Plaintiff has been harmed and otherwise prejudiced.

These actions were conducted in an effort to attempt to frustrate the imminent and

instant Eviction action and said actions are a ruse to attempt to frustrate and otherwise

attempt to relieve the Defendant from its obilgation(s) to pay rent, pay back rent and

andior deliver possession of the property to the Plaintiff.

7. In accordance with paragraph #6 hereinabove and for other justifiable

reasons, the Plaintiff elects to proceed on the equitable eviction portion of this

Complaint under Summary Procedure prescribed under Fla. Stat §51.011 and Summary

Proce9ure is requested and demanded.

WHEREFORE Plaintiffs OCEAN 4660, LLC., demands judgment for possession

of the property against the Defendant ANGELA DIPILATO, individually, and further

seeks money damages for breach of contract/failure to pay 8 months rent of $12,000.00

per month, totaling $96,000.00, attorney's fees and costs to the extent the same are

available and actionable and for any other relief deemed just and proper.

i -

2


COUNT II- FORCIBLE ENTRY AND DETENTION COMPLAINT AGAINST OCEANSIDE LAUDERDALE. INC.

8. This is an action to recover possession of real property unlawfully

detained in Brpward County, Florida. .·.,

9. Plaintiff is entitled to possession of the following real property in said

county:

10.

4658 N. Ocean Drive, Lauderdale by the Sea, . Florida 333os, lOcated within the Hotel Property known as "Lauderdale Beachside Hotel", in Lauderdale-by-the Sea, FL.

Dafer.dant OCEANSIDE LAUDERDALE, INC., d/b/a BEACHSIDE GRiLL

has unlawfully turned Plaintiff out of and withholds possession of the property from the

Plaintiff.

11. The Plaintiff eJects to proceed on the equitable unlawful detention portion

of this Complaint under Summary Procedure prescribed under Fia. Stat §51.011 and

Summary Procedure is requested and demanded.

WHEREFORE P!aintlffOCEAN 4660, LLC., demands judgment for possession of

the property and damages against the Defendants OCEANSIDE LA.UDERDALE, INC.,

d/b/a BEACHSIDE GRILL, attorney's fees and costs to the e~~~;:;fh"'~,...§a~~·::3r~/ ,r::·;~'?"·' ... .::::·.-"' .4'' ... :·:>·'.. -~,_.;'~~~-·

available ,and actionable and for any other relief deemed }S!--st:'8rip' pro~t=;~~<':~:':· .. · --"

Dated this 51h day of November, 2010. //"""-~·7 !_,,.,~(''' .

""' ,/ I _,,.- , .. (· /.' /7 ):'.>:/ . . _.,.. By· .!" . '".Y'·

~ / ~=~<l£;oss~ . .:

3

/_.:. . .:"/


CERTIFICATION OF PLEADINGS

Dated this 51h day of November, 2010.

,. ' ·.

4


EXHI·BIT ~A


state of FLORIDA

case Number NOT ASSIGNED

Plain!ifl OCEAN -4660, LLC

vs.

Defendant·

·,£TURN OF SERVICE

County of SROWARD

ANGELA DIPILA TO AND BEACHSIDE GRILLE

For· Peter Diamond RLJDD & DIAMOND, P.A 4000 Hollywood Blvd. Ste #165 S Hollywood, Fl. 33C2:

Court

Received by Gissen & Zav.yer Process Se:vioe, Inc. on the 28th day ofOdober, 2010 a110:25 am fu be se.'Ved on ANGELA DIPILATO CJO BEACHSIDE GRJLLE, 4058 NORTH OCEAN DR, LAUDERDALE BY THE SEA, fl moa

Posted Commercial Service by attaching a true ::;opy of this NOTICE OF EVICTION LETTER TO BE SERVED TO THE INDIVIDUAL AND ALSO POSTED TO PROPERTY with the date and hour of service endorsed thereon by me, togetherwi'.h a copy of the Complaint or Petition, to a conspicuous place on the property described within after ;-;;eking two attempts. ;-;ot less than stx houro apart. The fir5t attempt was on i0/29110 at 12:25 pm and on both attempts, !he tenant cO!lld not be found and !here was no employee present upon whom service could be made.

Addition:allnformo:tlon pertaining to this Service: THE PLACE AT THE PROV1DED ADDRESS IS CLOSED DOWN

I certify that I am over !he age of 1 B, have no interest ir.lhe above action, and am a Certified Proc,ss SeNer or an Appointed Process Server in goods tanding in !tie judicia' circuit in which the process was served. Under Penalty of Peryury I declare that r have read the fol<!going Retum of Service and !h<;t !he facls stated in it are true and correct. Nolar,· nol reqt:ired pursuant to F.S. 92.525.

FEL

Glssan & Z:awyer Process Service, Inc. 15SO Bmcayne Blvd Suit& 200 Miami, FL 33132 (305) 371-4664 Our Job Serial Number. ZPS-2010138<;03 Ref: 46.9473


-r • .•;···

-NOTICE OF EVICTION~

Angela Dipilato 4658 N. Ocean LLC C/0 Beachside Grille 4658 North Ocean Drive

October 26, 2010

Sent Via Certified Mail & US Mail*

Lauderdale by the Sea, Florida 33308

.- :~:.', ',_

RE: NOTICE OF EVICTION; THREE (3) DAY NOTICE TO PAY RENT OR DELIVER POSSESSION

Dear Ms. Angela Dipilato:

Notice is hereby given, pursuant to the provisions of§ 83.20 of the Florida Statutes, that

1. Rent for the period of March, 2010 through October 2010 in the sum of ($96,000) is due and unpaid for the premises located at 4658 N. Ocean Drive, Lauderdale by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale Beachside Hotel" and owned by landlord, Ocecin·'4660, LLC., in your possession pursuant to a tenancy at sufferance, which provides for rental in the sum of $12,000 per month, payable on the first of each month .

. Florida Statute § 83.20(2) provides

Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which the premises are held, and 3 days' notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The service of the notice shall be by delivery of a true copy thereof, or, if the tenant is absent from the rented premises, by leaving a copy thereof at such place.

2. Accordingly, you are required, within three days (excluding Saturday, Sunday, and legal holidays) after service of this notice on you, to pay all the delinquent rent or to deliver up possession of the premises to'- the undersigned, or C/0 Peter Diamond, Esquire,


Rudd and Diamond, P.A. 4000 Hoiiywood Blvd, SuiJe 16_g_:S~.ff0flywood, FL 33021, (954) 961-5?59 who is authorized by the undersigned to r_ecefve;_»nssession of-~e pre_mlses. if you fall to do so, the undersigned will begin legaJ.proceepmgs to recoy_.e.r-tr~9emtses.

_,.,' /.. ____..-;'---

... . .3. This Notice is given t/yo m/:./· ;~ ord nee w1.·th 5i61{J~-stafuyte;r eluding but · · ·not lrm1led to §83.05 and §83.20. / ./ . ' · '

~ .'

/ / / /~

/

/ OCEA , C, LandJord // ........ ( <- / CIO Pete. D.iamond, Es~;-!Jr:e/ . ~~

Rudd an. Otamond, P .:fo· ,l(}. 4000 Hofl'~wood Blvd' . ... - ~\. -~ ) / ~w ~~:J;~~;d~ ~;~21 v ... y

(954) 96'1:;ED59 tel. (954) 99{-8953 fax.

·. I . . .


I HEREBY CERTIFY that a true and correct copy of this Notice was sent via certified mail, regular mail, on the above-named tenant on this 26th day of October 2010 and by~ personally serving the N~tice on the tenant and by leaving a /r;oyV at the tenant's fast or usual place of residence, m the tenant's absence. //·<.'/~./::::.~

Dated r......t -tDt"E'-C' r~ f-..::. '2010. /~_;;;7 / /) .. "/ .·· / / .

/////:}// /,/ // .. /

,., ~./ .··

//OCftM\1 60, LLC, LandlcyV./ // C/0 (et Diamond, EsqUire

/ Jl{ud '_a d · ·. ;-f.A. "',__ /4000 H ood Blvd

L Suite 165-S Hollywood, FL 33021 (954) 961-5059 teL (954) 961-8953 fax.


cow;;,- :: }'.';! ii' ·:1 ::Jr. I'; :::f!!Jl H - : ./~.>: !1;:::_- ·i·i .. l· H~i: l.ii ; _il_!_

ru:J ~-~r~~-~-Li _r·, __ ..:~i~,~--:. ~ .. -~?-!f" ~'~-:r.-;;:_. ~ ~- .i:-,-> r~.: 1 r::.~::

~ i ~· :~::·"~ L-. ~1 ~: ~::~_~;: { (,, ~ ~~ (~_":(}Hi_~ j f.~;?!:. fr!~:l;~ ·-L.~·.,~;::~~,.... ~-, :-~ul L--~~:,;J

~~l;t·o~n~t :~'!.!r4lwr~ i_ ·:~r-dii: r.~ r·ti i ;'iff:

t.~~~g.~~~r;;~,H!.~: ir~.,-~~3:cti\·~1 Hr.l~t,c:-i·-~

B:')(~~ J -~ i.))'

2.g1 0~ ~T4H~~~;ii::[l'!

_,..-·-------:?- --;:=-··-·· /" ,./ /

r .-·· • ,. .;'"

filine F;;~s ·?r·£ horrc1;z-f;lr:ii,;hlP ./

-<.(.:~; ~",:z;;~;;.1::~!:~·~:>"''''''' _.-··

---~f-;;~~~~~~::.~~-~\iET-i:7 _____ _

f1;;~:n6 f: Ft>rm;c!l C(r:-;i~ af ·t:1~ (L~trrt

., , ~···!;;>ct i ,:;;; N~~g:;: 0 ~~1~~:},,Dr<ll':i2M ;_~r:1 ~~~ w:: ~ frt~~~~f 11.. lli£;:;/2~ -~-~ i. :J i~~.~5 ,t I.N:c!r:et lA~:. i!iU ui PJ.2d·nti"'ff~· fJcea-r1 4G{,fi LLC ?~t 'fs:n!f;nt: .. DipiJ.2.ter~ ,,.;n!!.el.a J!Jqee~ Mill<>r, T~:>n·i·--Hnn rJ.vle.ion; {..£ f'<?-yer-; F;wi<t; f'lit:lr<lF.( P

rmmn El!lUE!Ii F :f. I ::;SU!. SW111Ui!ii HHI~'if4!'10q5f!.i l::>~;iJ ~

Vi;?.,. Ciii,!lgt;: ,

S!:tH"!Xo.'. If~.\~~ fii: ?f-'!r::}

r:H~! ~. {1D

c!5S.Wl ltfl&

r i lin~ Fe~s HI.' !!oit-;'l;tl.lnd;~/::Je ihT ~rt?..i is e;()':-~.i .. lr:>J!:-0

. ., · • •• • .• •.· "."•"· •• • • ,. r~~ • •· .·~· t 0 / •

}

Case 0:10-cv-62492-JIC Document 1-1 Entered on FLSD Docket 12/22/2010 Page 1 of 1">lS 44 (Rev. 2/08) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 197 4, is requtred for the use of the Clerk of Court for the purpose of mitiating the civil docket sheet. (SEE INSTRUcTioNs oN THE REVERsE oF THE FORM.) NOTICE: Attorneys MUST Indicate AU Re-filed Cases Below.

I. (a) PLAINTIFFS

Angela DiPilato

DEFENDANTS

Rudd & Diamond, P.A., Peter A. Diamond and Ocean 4660, LLC

(b) County of Residence of First Listed Plaintiff ..;;;B;.;r;..;;o;...;w.;..;a;;.;r;..;;d;...... _____ _ County of Residence of First Listed Defendant B;;;.r;..o::;.w':-'-"'a::.rd=---------(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorney's (Finn Name, Address, and Telephone Number)

Plaintiff, Pro Se 2310 E. Atlantic Boulevard, Suite 206 Pompano Beach, Florida 33062

. 10

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT

LAND INVOLVED.

Attorneys (If Known)

4000 Hollywood Boulevard., Suite 165-S Hollywood, Florida 33021

D MIAMI· DADE 0 MONROE BROWARD 0 PALM BEACH 0 MARTIN 0 ST. LUCIE 0 INDIAN RIVER :::J OKEECHOBEE

HIGHLANDS

II. BASIS OF JURISDICTION (Place an "X'" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Piace an "X'" in one Box for Plaintiff

.J 1 U.S. Government Plaintiff

CJ 2 U.S. Government Defendant

.{a 3 Federal Question (U.S. Government Not a Party}

0 4 Diversity

(Indicate Citizenship of Parties in Item Ill)

IV. NATURE 0 F SUIT (Place an '"X'" in One Box Only)

CONTRACT TORTS

:::J II 0 Insurance PERSONAL INJURY PERSONAL INJURY

0 120 Marine D 310 Airplane 0 362 Personal Injury·

0 130 Miller Act a 315 Airplane Product Med. Malpractice

CJ 140 Negotiable Instrument Liability 0 365 Personal Injury •

0 150 Recovery of Overpayment :::J 320 Assault, Libel & Product Liability

& Enforcement of Judgment Slander D 368 Asbestos Personal

0 151 Medicare Act 0 330 Federal Employers' fnjury Product

0 152 Recovery of Defaulted Liability Liability

Student Loans a 340 Marine PERSONAL PROPERTY

(Excl. Veterans) a 345 Marine Product 0 3 70 Other Fraud

0 153 Recovery of Overpayment Liability CJ 3 71 Truth in Lending

of Veteran's Benefits 0 350 Motor Vehicle 0 380 Other Personal

0 160 Stockholders' Suits 0 355 Motor Vehicle Property Damage

0 190 Other Contract Product Liability :::J 385 Property Damage

0 195 Contract Product Liability 0 360 Other Personal Product Liability

0 196 Franchise Injury

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS

0 210 Land Condemnation 0 441 Voting 0 510 Motions to Vacate

0 220 Foreclosure :::J 442 Employment Sentence R 230 Rent Lease & Ejectment 0 443 Housing/ Habeas Corpus: 0 240 Torts to Land Accommodations :::J 530 General :::J 245 Tort Product Liability 0 444 Welfare D 535 Death Penalty

:::J 290 All Other Real Property a 445 Amer. w/Disabilities 0 540 Mandamus & Other Employment

0 446 Amer. w/Disabilities 0 550 Civil Rights Other

0 440 Other Civil Rights 0 555 Prison Condition

(For Diversity Cases Only)

PTF Citizen of This State CJ

Citizen of Another State LJ

Citizen or Subject of a D

FORFEITURE/PENALTY

CJ 610 Agriculture 0 0 620 Other Food & Drug :::J 0 625 Drug Related Seizure

of Property 21 USC 881

0 630 Liquor Laws CJ 640 R.R. & Truck 0 0 650 Airline Regs. 0 0 660 Occupational 0

Safety/Health

0 690 Other

LABOR 0 710 Fair Labor Standards 0

Act CJ 0 720 Labor/Mgmt. Relations D D 730 Labor/Mgmt.Reporting 0

& Disclosure Act 0 0 740 Railway Labor Act

0 790 Other Labor Litigation CJ 0 791 Empl. Ret. Inc. Securit

Act 0

IMI lll":A >TION

0 462 Naturalization Application

0 463 Habeas Corpus-Alien Detainee

0 465 Other Immigration Actions

and One Box for Defendant) PTF DEF DEF

D I Incorporated or Principal Place

of Business In This State 0 :::J 4

Incorporated and Principal Place of Business In Another State

:::J D 5

0 3 Foreign Nation 0 :::J 6

BANKRUPTCY OTHER STATUTES

422 Appeal28 USC 158 CJ 400 State Reapportionment 423 Withdrawal 0 410 Antitrust

28 usc 157 0 430 Banks and Banking 0 450 Commerce

PR' IPERTY Rl H...I_S 0 460 Deportation 820 Copyrights :::J 4 70 Racketeer Influenced and 830 Patent Corrupt Organizations 840 Trademark 0 480 Consumer Credit

0 490 Cable/Sat TV

D 810 Selective Service SOCIAL SECURITY 0 850 Securities/Commodities/ 861 HIA (139511) Exchange

862 Black Lung (923) 0 875 Customer Challenge 863 DIWC/DIWW (405(g)) 12 usc 3410 864 SSID Title XVI 0 890 Other Statutory Actions 865 RSI (405(g)) CJ 891 Agricultural Acts

FEDERAL TAX SUITS D 892 Economic Stabilization Act 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters

or Defendant) CJ 894 Energy Allocation Act 871 IRS~ Third Party 0 895 Freedom of Information Act

26 usc 7609 0 900 Appeal of Fee Determination

Under Equal Access to Justice

0 950 Constitutionality of State Statutes

V. ORIGIN

.fJ I Original Proceeding

(Place an "X .. in One Box Only)

0 2 Removed from 0 3 State Court

Re-filed-(see VI below)

0 Transferred from

4 Reinstated or 0 5 another district Reopened (specify)

0 6 Multidistrict Litigation

0 7 Appeal to District Judge from Magistrate

VI. RELA TED/RE-FILED

CASE(S).

VII. CAUSE OF ACTIO

VIII. REQUESTED IN

COMPLAINT:

(See instructions second page):

a) Re-filed Case 0 YES 0 NO

JUDGE Cohn-Seltzer

Jud ent

b) Related Cases 0" YES 0 NO

DOCKET NUMBER 1 0-62386-Cv-COHN/SEL 0 Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):

Violation(s) of Fair Debt Collections Practices Act, 15 USC section 1692

LENGTH OF TRIAL via

0 CHECK IF THIS IS A CLAS UNDER F.R.C.P. 23

CHECK YES only if demanded in complaint:

JURY DEMAND: ~ Yes 0 No

ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE

DATE

December 22,2010

AMOUNT RECEIPT# IFP


IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE No.: 10-62492-CIV- Altonaga-Brown


Plaintiff, ...,., ('~- ~ ,-

,~-· : c-_::> 1_,., v.

RUD & DIAMOND, P.A., a Florida Corporation, PETER A. DIAMOND, Individually, MICHAEL RUDD, Individually, OCEAN 4660, LLC., A Florida limited liability company, and REMO POLSELLI, Individually,

Defendants.

--------------------------~/

.. . !"""

,c"*" '"

-·~·.o: . ~- :.

PLAINTIFF'S MOTION TO DISQUALIFY, COMPEL DISCOVERY, AMEND COMPLAINT AND STAY PROCEEDINGS AND SUPPORTING

MEMORANDUM OF LAW

Plaintiff, ANGELA DIPILATO, ProSe, hereby files this Motion to Disqualify Counsel for

OCEAN 4660, LLC.( hereinafter " OCEAN 4660 " ), REMO POLSELLI ( hereinafter "

POLSELLI " ), RUDD & DIAMOND, PC. ( hereinafter " R&D " ), PETER A. DIAMOND

c? t\)

ESQ. (hereinafter" DIAMOND " ), and MICHAEL RUDD, ESQ. (hereinafter" RUDD " ), to

Compel Discovery from Defendants of Insurance Policies which an insurer may be liable to

satisfy all or part of the judgment which may be entered in the action or to indemnify or

reimburse for payments made to satisfy the judgment, to amend the complaint in this action to

- 1 -


include applicable claims and Stay Proceedings. The grounds for this motion are more

particularly set forth as follows and in the accompanying memorandum of law. Plaintiff also

incorporates by reference the attached Affidavit of Plaintiff in support of this Motion identified

as Exhibit 1.

-BACKGROUND AND FACTS-

* Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond, Esq., and Michael Rudd, Esq.

represented** Defendant Ocean 4660, LLC., in a landlord-tenant proceeding in the County

Court of the 17th. Judicial Circuit in and for Broward County, Florida (Summons and Complaint

- County Court Action - Annexed Hereto as Exhibit " 2 " ). While representing Defendant Ocean

4660, LLC in said proceeding the Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond and

Michael Rudd committed various violation of the Fair Debt Collections Practices Act, 15 USC

section 1692, et. seq. ( hereinafter " FDCP A " ) and multiple other violations of both State and

Federal Laws, all which are the subject of, and related to this litigation. These actions are

now inextricably intertwined. Further, upon information and belief, Defendants Rudd &

Diamond, P.A., Peter Diamond and Michael Rudd have represented Defendant(s) Ocean 4660,

LLC, Remo Polselli, and related entities on numerous matters for a six year period preceding the

commencement of this action.

* The individual Attorney Defendant(s) Peter A. Diamond, Esq. and Michael Rudd, Esq. are the principles, and partnen in the Defendant corporate entity Rudd & Diamond, P.A.

** The individual Defendant Remo Polselli is the alleged corporate representative of Defendant Ocean, 4660, LLC, and bas a prior and ongoing Attorney-Client relationship with Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond, and Michael Rudd.

-2-


Since these Attorneys' Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond and Michael

Rudd are now co-defendants with each other and, Defendant(s) Ocean 4660, LLC and Remo

Polselli an insurmountable conflict of interest which violates the Rules of Professional Conduct

regulating the Florida Bar has arisen.

MEMORANDUM OF LAW

I. Standard for Disgualification

In determining whether or not to grant Plaintiff's Motion to Disqualify, the Court must look to

the standards imposed by the Florida Bar Rules of Professional Conduct. " An order involving

the disqualification of counsel must be tested against the standards imposed by the Florida Bar

Rules of professional Conduct." Estright v. Bay Point Improvement Ass'n. Inc .. 921 So. 2d 810 (

Fla. 1st. DCA 2006 ), citing Morse v. Clark. 890 So. 2d 496, 497 (Fla. 5th. DCA 2004 ).

" A trial court does have the authority to disqualify an attorney from representing a party if the

court determines that the continued representation would deprive the litigants of an ' impartial

forum in which their complaints and defenses may be presented, heard and decided with fairness.

"Arthur v. Gibson. 654 So. 2d 1357, 1359 ( Fla.5th DCA 1995 ), citing, Pantori. Inc. v.

Stephenson. 384 So. 2d 1357, 1359 (Fla. 5th DCA 1980 ).

- 3-


II. Current Client Rules

Rule 4-1.7 of the Florida Bar Rules of professional Conduct is the applicable rule which deals

with representing adverse interests of current. existing clients. It reads as follows:

(a) Representing Adverse Interest. Except as provided in subdivision (b), a lawyer shall not

represent a client if:

(1) the representation of 1 client will directly adverse to another client; or

(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by personal interest of the lawyer.

(b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if:

( 1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law:

(3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.

In this case, as outlined in the attached Affidavit of Plaintiff Angela DiPilato, Defendant( s)

Ocean 4660, LLC and Remo Polselli are current clients ofDefendant(s) R&D, Diamond and

Rudd, and now co-defendants in the instant action. Defendant Diamond ( Attorney of Record for

-4-


All Defendants ) ( See, Court's Docket Report - Annexed Hereto as Exhibit " 3 " ) is a

Defendant within this action, with a personal interest ( of the lawyer ) that is or there is an

extremely substantial risk that the representation of I or more clients will be materially limited

by the lawyer's responsibilities to another client, a former client or a third person or by personal

interest of the lawyer, and (ii) the representation of I client will directly adverse to the other

clients. Subsection (b) clearly is not applicable to this situation in the case at bar. Defendant

Diamond, any member or employee of Rudd & Diamond, P .A. should not be permitted to

represent any adverse party in this matter.

" The existing client rule is based on the ethical-concept requirement that a lawyer should not

act with undivided loyalty for his client and not place himself or herself in a position where a

conflicting interest may affect the obligations of an ongoing professional relationship. It is

difficult to imagine how a lawyer could appear in court one day arguing vigorously for a client,

and then face the same client the next day and vigorously oppose him in another matter, without

seriously damaging their professional relationship. " Morse v. Clark. 890 So. 2d 496, 498 ( Fla.

5th. DCA 2004)( disqualification warranted in case where opposing party was current client of

law firm). Surely, there is the substantial risk that Defendant Diamonds personal interest places

him in adversity to the other defendants and a substantial likely to an adverse judgment imposing

liability on one or more of the defendants will prompt litigation between these defendant parties.

The attached Affidavit of Plaintiff Angela DiPilato clearly illustrates that; (i) the representation

of one client will be directly adverse to the others and, (ii) there is a substantial risk that the

representation of I or more clients will be materially limited by the lawyer's responsibilities to

another client, third persons because of Attorney Diamond's conflict and personal interest as a

- 5-


defendant in this action and hence immediate disqualification of Peter A. Diamond, Esq. is

required, likewise, representation by R&D its members or employees must be prohibited by this

Court, and furthermore, all pleadings filed subsequent to this motion by R&D and/or Peter A.

Diamond, Esq. Should be stricken from the record.

III. Former Client Rule

Rule 4-1.9 of the Florida Bar Rules of Professional Conduct is the former client rule and

provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 4-1.6 would permit with respect to a client or when the information has become generally known.

At this point, it is undeniably clear that Defendant(s) R&D, Diamond and Rudd have formerly

represented Defendant(s) Ocean 4660 and Polselli prior to these proceedings and, specifically, in

the" substantially related" landlord-tenant action in County Court, where Defendant(s) R&D,

Diamond and Rudd's violations of the FDCPA, FCCPA and other State and Federal Laws

precipitated this action. The mere fact that; Defendant(s) Ocean 4660 and Polselli are vicariously

liable for Defendant(s) R&D, Diamond and Rudd's violations oflaw and ethical violations,

places them squarely at insurmountable adversity and in violation of Rule 4-1.9. Defendant(s)

R&D, Diamond and Rudd must be prohibited from further representation ofDefendant(s) Ocean

4660, LLC and Polselli, as well as, themselves. As will be set forth in greater detail, infra.

- 6-


In determining whether attorney-client privilege applies so as to disqualify attorney from

representing a former client the focus is on perspective of person seeking out lawyer, not on what

the lawyer does after the consultation. Lane v. Sarfari. 676 So. 2d 475 (Fla. 3d DCA 1996 ). The

attached Affidavit of Plaintiff clearly illustrates that the matters which are involved in this

lawsuit are substantially related to the landlord-tenant matter with which Defendant(s) R&D,

Diamond and Rudd gave advice in violation of law that precipitated this lawsuit.

Defendant(s) R&D, Diamond and Rudd have provided legal advice and counsel on an ongoing

basis to Defendant(s) Ocean 4660 and Polselli since approximately 2005, including ongoing

counsel and legal advice regarding real estate matters pending in State Court where Plaintiff

herein and Defendant(s) Ocean 4660 and Polselli are adversaries. (See, Oceanside Lauderdale

Inc .. Kenneth A. Frank and Angela DiPilato v. Ocean 4660. LLC .. Shutters on the Ocean, LLC ..

Boutique Hotels America. LLC .. Hanna Karcho and Remo Polselli. et. al .. Case No.: CACEI0-

22268(13) in the Circuit Court of the 17th. Judicial District in and for Broward County Florida,

being presided over by the Honorable Judge Tuter.) These issues and information are

substantially related and involved in the instant lawsuit. One of the claims in Oceanside

Lauderdale. Inc .. and DiPilato v. Polselli. supra is a claim for violation(s) of Florida's Civil"

RICO" statute. Surely, Polselli's conduct herein is reflective in that action and vice-versa.

The legal service and advice is substantially related to both the landlord-tenant action which

precipitated this action and the " RICO " case, supra. This clearly requires the disqualification of

Defendant(s) R&D, Diamond and Rudd.

Furthermore, Defendant(s) R&D, Diamond and Rudd have obtained extensive, confidential

information from Defendant(s) Ocean 4660 and Polselli which could be used to their

- 7-


disadvantage in this matter which requires their disqualification.

This Court should heed the words of Bankruptcy Judge A. Jay Cristol in In Re Servicio. Inc ..

149 B.R. 1009 (S.D. Fla. Bank 1993 ), and step in to reject this attempt to affront the basic

principles of fairness that surfaces when attorneys pit themselves against their own clients or

former clients:

" But when a shame that the need for law business is so dire that attorneys do not care if they give appearance of evil or impropriety. No wonder the prestige of the profession takes such a beating in public opinion polls. Does the public want a skilled attorney who will fight ferociously for its client while it is being paid and next week fight with equal ferocity on behalf of the client's enemy against the client? CLF & Y, it appears, has walked so close on the edge of the sewer that it appears to have been splashed with sewage. Perhaps it has escaped the splash but Clark, Ladner, Fortenbaugh & Young cannot escape the smell ........................................................... "

The Plaintiff in this matter has legal rights and this Court should afford her an impartial and

fair tribunal in order to air these rights in an arena free from stench. It would be a complete

affront to the system of justice for Rudd & Diamond, P.A. and/or Peter A. Diamond, Esq. to

continue its representation in this matter.

- 8-


IV. Law Firm Disqualification

If any of the firm of Rudd & Diamond, P .A.'s lawyers are disqualified, all must be disqualified.

Akrey v. Kindered Nursing Centers East. LLC. 837 So. 2d 1142, 1144 (Fla. 2d DCA 2003),

citing, Matluck v. Matluck 825 So. 2d 1071 (Fla. 4th. DCA 2002 ).

Rule 4-1.10 of the Florida Bar Rules of Professional Conduct is the Imputation of Conflicts of

Interest; General Rule which sets forth in pertinent part:

(a) Imputed Disqualification of All Lawyers in Firm. --While lawyers are associated in a firm, none of them shall knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by Rule 4-1.7 or 4-1.9 except as provided elsewhere in this rule, or unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Here, it is clear that the principles of Defendant R&D, i.e., Attorneys' Diamond and Rudd are

Defendants. Rule 4-1.7 and 4-1.9 prohibits their continued representation, therefore, the entire

firm must be disqualified. Most certainly, a clear significant risk limiting further representation

by the firm is present herein.

V. Conflicts in Liti&ation

Rule 4-1.7 paragraph( o ), subdivision (a) prohibits representation of opposing parties in

litigation. Simultaneous representation of parties whose interests in litigation may conflict, such

as co-plaintiffs and co-defendants is governed bu paragraph ( o) subdivisions(b) and ( c ). An

impermissible conflict exists by reason of substantial discrepancy in the parties' testimony,

incompatibility in positions in relation to the opposing party, or the fact that there are

-9-


substantially different possibilities of settlement of the claims or liabilities in question ..... See, In

Re: Amendment to Rules of Regulating Florida Bar. 605 So. 2d 252 (1992).

A conflict of interest arises when an Attorney is representing two or more clients. In general an

Attorney has an ethical obligation to avoid conflicts of interest and should advise the Court when

one arises. Cuyler v. Sullivan. 446 U.S. 335, 100 S. Ct. 1708 (1980 ). An actual conflict of

interest that adversely a lawyer's performance violates U.S. Cost. Amend. VI and cannot be

harmless error. Id Glasser v. United States. 315 U.S. 60, 62 S. Ct. 457 (1942 ); Foster v. State.

387 So. 2d 344 (Fla. 1980 ). Counsels allegiance to a client must remain unaffected by

competing obligations to other clients, and an actual conflict of interest renders judicial

proceedings unfair. United States v. Alvarez. 580 F. 2d 1251 (5th. Cir. 1978 ). A conflict occurs

whenever one defendant stands to gain significantly by counsel adducing protective evidence or

advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is

also representing Foxworth v. Wainright. 516 F. 2d 1072, 1076 (5th. Cir. 1975 ). See, also,

Barclay v. Wainright. 444 So. 2d 956 (1984)(Supreme Court of Florida).

Here, it is undeniable that no greater conflict can exist than herein. In this action, we have one

Attorney who is a defendant within the action attempting to represent the other defendants. Said

continued representation is impermissible because it stands in violation of Rule 4-1.7, inter alia.

For this reason alone, Defendant(s) R&D, Diamond and Rudd must be disqualified as counsel.

- 10-


VI. Evidentiary Hearin&

The Plaintiff requests that the Court conduct an evidentiary hearing on this matter as required

by law. The trial judge must conduct a hearing on a motion to disqualify counsel for an opposing

party. Arthur v. Gibson. 654 So. 2d 983 (Fla. 5th. DCA 1995 ); Simon DeBartolo Group v.

Bratley. 741 So. 2d 1254 (Fla. 1st DCA 1999)( holding that an evidentiary hearing was necessary

to determine whether a law firm had a conflict of interest); Akrey v. Kindered Nursing Centers

East. L.L.C .. 837 So. 2d 1142 (Fla. 2d DCA 2003 ).

VII. Stay of Proceedin&s

The Plaintiff also requests that all matters in this case be stayed, until an Order is rendered on

Plaintiff's Motion to Disqualify. To allow this matter to continue on its current course without

the matters raised in this Motion being addressed will cause significant prejudice to the Plaintiff.

The undersigned has attempted to confer with counsel for the Defendants regarding this Motion

without the benefit of a response, therefore, it is believed that they do not agree to this Motion.

COMPEL RESPONSE TO DISCOVERY

Plaintiff Angela DiPilato in the above styled matter and, pursuant to Federal Rule of Civil

procedure 3 7, files this Motion to Compel Responses to Discovery due to the complete willful

failure ofDefendant(s) R&D, Diamond, Rudd, Ocean 4660 and Polselli to respond. Additionally,

- 11 -


because Plaintiff has not received the discovery responses for the Defendants and needs the

requested information to prosecute this case. Finally, Plaintiff moves this Court for an award of

expenses, including attorneys' fees ( if any ) as permitted by federal Rule of Civil Procedure 3 7.

Accordingly, Plaintiff shows the Court as follows:

This is a case where Plaintiff has been substantially damaged by violation(s) of Law by

Defendant(s) R&D, Diamond and Rudd who are Attorneys. On numerous occasions, both

individual Defendant(s) Diamond and Rudd have blatantly and, in open public threatened the

Plaintiff to drop this case because their insurance rates will be effected. Simply put, the

Defendants have admitted to the existence of insurance policies, whereas, insurance agreements

exist under which any person carrying on an insurance business may be liable to satisfy part or all

of a judgment which may be entered in the action or to indemnify or reimburse for payments

made to satisfy a potential judgment. Both Rule26( d) and Rule 34 require disclosure of these

policies.

On or about January 18, 2011, the Plaintiff Angela DiPilato served the Defendant(s) with a"

Notice for Discovery and Inspection for Insurance Agreements". (See, Copy of Demand for

Insurance- Annexed Hereto as Exhibit" 4" ). By way of letter incorrectly dated January 18,

2010, the Defendant Diamond, Esq. (counsel for all defendants) refused to provide the

requested discovery, i.e., setting forth contradictory statements, to wit; (i) there is no insurance

coverage, and (ii) in the next sentence, stating that " carriers of insurance have not been informed

and will not be made aware of this lawsuit ". ( See, Letter from Defendant Diamond to Plaintiff

Annexed hereto as Exhibit " 5 " ). Defendant Diamond as counsel for all Defendants wilfully

refused to provide existing discovery.

- 12-


Additionally, both Defendant(s) Diamond and Rudd have stated" the existence of insurance

policies that will be effected by this litigation " to Plaintiffs' counsel in the State Court

proceedings William Trick, Esq.

Defendants letter is written in an abusive fashion with its sole intent to harass and hinder the

plaintiff in the prosecution matter. Likewise, the untruthful statements contained in this letter

constitute a violation of the Rules Regulating the Florida Bar, to wit;

Rule 4-4.1. Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 4-1.6.

Said letter also indicates Defendants intent to use " Rambo " - Style Litigation Tactics within

this action in contravention to Rule 1 mandate. Rule 1 fixes the objectives of the Federal Rules:

they are to be construed and administered so as to achieve the" just, speedy and inexpensive

determination of every action ". Federal trial judges have cited this mandate in regulating "

Rambo" style litigation tactics, In re Amezaga. 195 B.R. 221 ( Bkrtcy. D.P.R. 1996 )(noting

that " Rambo Litigation " is not tolerated by the Court because, although it may project zealous

advocacy, it does not promote Rule 1's goals of a just, speedy, and inexpensive determination of

every action); Applied Telematics. Inc. v. Sprint Corp .• No. 94-CV-4603, 1995 WL 79237 ( E.D.

Pa. 1995)( decrying counsel's " Rambo Litigation " deposition defense tactics as failing to

- 13-


promote goals of Rule 1 ), in decrying misbehavior by counsel. Nissan Motor Co .• v. Nissan

Computer Cor.p .. 180 F. Supp. 2d 1089, 1096 ( C.D. Cal. 2002 ).

Defendant Diamond's violations of the Ru1es Regu1ating the Florida Bar will be the subject of

a Complaint to the Bar Association.

At the time of this filing, no further communication regarding discovery has been received by

Plaintiff regarding responses to said discovery request. Both Rule(s) 26(d) and 34(a) require the

production of these insurance agreements by defendants.

Rule 34(a) allows a party to a request the opposing party to produce and permit the requesting

party or its representative to inspect, copy, test, or sample any designated documents or

electronically stored information, any designated tangible things, or to permit entry onto

designated land or other property possessed or controlled by the responding party. Ru1e

34(b)(2)(A) then states that "[t]he party to whom the request is directed must respond in writing

within 30 days after being served." If this deadline is not met, the Rules allow for the party

requesting responses to Request for the Production of Documents to move for an order

compelling an answer thereto. Federal Ru1e of Civil Procedure 37(a)(3)(B)(iv). Since all

Defendants have indicated their willful noncompliance in writing, Plaintiffs' motion for an Order

is justified. Plaintiff therefore requests that this Court order Defendants to respond to the Request

for the Production of Insurance Agreements and to pay Plaintiff's reasonable expenses in making

this motion, including attorney's fees (if any), as noted below.

- 14-


Award of Reasonable Expenses

When a motion to compel is granted, " the court must, after giving an opportunity to be heard,

require the party ... whose conduct necessitated the motion, the party or attorney advising that

conduct, or both to pay the movant's reasonable expenses incurred in making the motion,

including attorney's fees" Fed. R. Civ. P. 37(a)(5)(A). The result is the same whether the motion

is granted and the party is compelled to answer discovery, or if the requested discovery is

provided after the motion was filed. ld.

The award of reasonable expenses is not allowed when the movant did not act in good faith to

obtain discovery without court action, if the opposing part's failure to respond was substantially

justified, or some other circumstances make an award of expenses unjust. Id.

However, none of these situations exist in the present situation. First, Plaintiff has made a good

faith effort to request the discovery responses through written communications requesting the

discovery responses. Second, Defendants have no substantial justifications for their willful and

unlawful failure to provide responses to the discovery; this Court has found that being busy with

other casework or trials is not substantial justification for not properly conducting discovery.

Drexal Burnham Lambert. Inc. v. Warner. 655 F. Supp. 1549, 1554 (S.D. Fla. 1987 ). This is

substantially beyond what this Court determined was not substantial justification. The

Defendants acts and actions" flies in the face of justice" and" is a waste of this court's valuable

time". Accordingly, this Court should award the Plaintiff the expenses incurred in bringing this

motion, including attorneys' fees.

- 15-


Defendant(S) R&D. Diamond and Rudd are Impeding the Insurers Right to Counsel of Choice

Defendant(s) R&D, Diamond and Rudd by failing to tum over insurance agreements between

them and insurers, who may be liable to satisfY part or all of a judgment which may be entered in

the action or to indemnify or reimburse for payments made to satisfY the judgment, are

intentionally impeding said parties " right to the counsel of their choice " in these proceedings.

Moreover, these insurers who may be found liable have the right to participate in these

proceedings. The acts and actions ofDefendant(s) R&D, Diamond and Rudd in withholding the

insurance information is further violative of the Rule Regulating the Florida Bar and an act of

fraud.

-MOTION TO AMEND COMPLAINT-

The Legal Standard for Amending Pleadings

Fed. R. Civ. P. 15(a) provides that when a time period for filing an amendment of a pleading as

of right has expired, an amendment may be sought " by leave of court or by written consent of

the adverse party. " /d. Moreover, leave to amend " shall be freely given when justice so requires.

" Id The Eleventh Circuit has held that motions for leave to amend complaints should be

liberally granted when necessary in the interest of justice. Garfield v. NDC Health Corp .. 466 F.

3d 1255, 1270 ( 11th. Cir. 2006 )(stating that leave to amend shall be freely given when justice so

requires under Fed. R. Civ. P. 15(a)); Florida Evergreen Foliage v. E.I. DuPont De Nemours and

- 16-


Co., 4 70 F. 3d 1036, 1041 ( 11th. Cir. 2006 )( " Unless a substantial reason exists to deny leave to

amend, the discretion of the District Court is not broad enough to permit denial. : ) citing,

Shipner v. E. Airlines, Inc., 868 F. 2d 401, 407 (11th. Cir. 1989); Bzyant v. Dupree. 252 F. 3d

1161, 1164 (11th. Cir. 2001 )(stating that the lengthy nature oflitigation, without any other

evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not justify

denying plaintiffs the opportunity to amend their complaint) citing, Floyd v. Eastern Airlines.

Inc .• 872 F. 2d 1462, 1490 (11th. Cir. 1989 ).

An Amended Complaint is Warranted In the Interest of Justice

Although a pleader not give reasons for requesting leave to amend, Halliburton & Assoc .. Inc.

v. Henderson. Few. & Co .. 774 F. 2d 441,443-444 (11th. Cir. 1985 ), Plaintiff has substantial

well-founded reasons for seeking amendment, including, but not limited to the following:

1. To add a necessary party, i.e., Comerica Bank who has been alleged as a" debt collector" by

Defendant Polselli. Said Defendant is a necessary party to this action;

2. To add additional and relevant Federal and State claims that Plaintiff now feels are

applicable in this matter;

3. No Delay: No undue delay or prejudice will inure to any Defendant from Plaintiffs' filing a

Second Amended Complaint. This is so for numerous reasons, including, that as of the filing of

this motion none of the Defendants have filed a responsive pleading.

- 17-


4. No Bad Faith or Dilatmy Pumoses: As stated by the United States Supreme Court in the

seminal case ofFoman v. Davis. 371 U.S. 178, 182 (1962), "[i]n the absence of any apparent or

declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of amendment, etc." - non of

which are applicable here-" the leave sought should, as the rules require, be" freely given".

When a party submits a motion to amend, the particularity requirement of Rule 7(b) ~

require the party to attach to the motion a copy of the proposed amended pleading, unless the

motion adequately describes the contemplated revision. See, Moore v. Indiana, 999 F. 2d 1125,

1131 ( 7th. Cir. 1993 )(motion alone is adequate if it places adversary on notice of amendments

content).

Plaintiff respectfully requests that this Court waive the requirement that Plaintiff attach a

proposed amended complaint due to the early stages of this litigation, (ii) the fact that none of the

defendants has filed a responsive pleading, and (iii) since none of the defendants will be

prejudiced by an amendment or (iv) alternatively, allow Plaintiff ten days to submit the amended

complaint if this Court so requires.

-CONCLUSION -

A lawyer's ethical obligations generally requires disqualification of the lawyer's entire firm

where any potential for conflict arises. Brotherhood Mutual insurance Company v. National

Presto Industries. 846 F. Supp. 57 (1994)(U.S. Dist. Court Middle Dist. of Florida).

- 18-


In State Farm Mutual Auto. Co. v. K.A.W .. etc .. et al .. 575 So. 2d 630, 633 (Fla. 1991 ), the

Florida Supreme Court ruled that attorneys must still avoid even the appearance of professional

impropriety. Accordingly, it has been held " even an appearance of impropriety may, under the

appropriate circumstances, require prompt remedial action from the court ... Consequently, any

doubt is to be resolved in favor of disqualification. /d. At 718.

Plaintiff respectfully asserts that there is more than just the appearance of impropriety in

Defendant Diamond, Esq., representing himself and co-defendants herein. Further the Florida

Bar Rules require disqualification of defense counsel and the entire firm of Rudd & Diamond.

WHEREFORE, Plaintiff Angela DiPilato respectfully requests that Rudd & Diamond, P.A.,

Peter A. Diamond, Esq., Michael Rudd, Esq., any member or employee ofRudd & Diamond,

P.A. be disqualified in this matter, any pleading filed subsequent to the filing of this motion, by

Rudd & Diamond, P.A. and/or Peter A. Diamond, Esq. be stricken, the Defendant(s) Rudd &

Diamond P.A., Peter A. Diamond, Esq., Michael Rudd, Esq., Ocean 4660, LLC and Remo

Polselli be compelled and ordered to produce any and all insurance policies or agreements under

which any person carrying on an insurance business may be liable to satisfy part or all of a

judgment which may be entered in the action or to indemnify or reimburse for payments made to

satisfy the judgment, an evidentiary hearing be set on this matter, plaintiff be granted leave to

amend the complaint and all proceedings, in this matter be stayed until an order is rendered on

these matters.

- 19-


Dated this I t1 day of February 2011.

231 0 East Atlantic Boulevard, Suite 206 Pompano Beach, Florida 33062 Tel: (914) 563-4510 Fax: (954) 657-8405


I HEREBY CERTIFY that a copy of the foregoing has been mailed first-class U.S. Mail: Rudd & Diamond, P.A., Peter A. Diamond, Esq., Michael Rudd, Esq., Ocean 4660, LLC and Remo Polselli (by service upon Defendant(s).fttomey) at 4000 Hollywood Boulevard, Suite 165-S, Hollywood, Florida 33021 on this l!f.._t-day of February, 2011.

-20-

ela DiPilato, Pro Se - Plaintiff-


EXHIBIT 1


IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE No.: 10-62492-CV- Altonaga-Brown


Plaintiff,

v.

RUDD & DIAMOND, P.A., a Florida Corporation, PETER A. DIAMOND, Individually, MICHAEL RUDD, Individually, OCEAN 4660, LLC., a Florida limited liability company, and REMO POLSELLI, Individually,

Defendants.

----------------------------~/

AFFIDAVIT OF PLAINTIFF ANGELA DIPILATO IN SUPPORT OF MOTION TO DISQUALIFY, COMPEL DISCOVERY, AMEND COMPLAINT AND

STAY PROCEEDINGS

STATE OF FLORIDA

COUNTY OF BROW ARD

BEFORE ME, the undersigned authority, personally appeared ANGELA DIPILATO,

who, after being first duly sworn, deposes and says:

1. Plaintiff-Affiant is a natural person, is over the age of eighteen years, competent, and has

authority to make this affidavit.


2. As the Plaintiff, Pro Se, in this action, I am fully familiar with the facts and circumstances

surrounding this motion.

3. The Defendant-Attorneys, Rudd & Diamond, P.A., Peter A. Diamond, Esq., and Michael

Rudd, Esq. represented the Defendant Ocean 4660, LLC (of which Defendant Polselli is

allegedly the corporate representative ) in a landlord-tenant proceeding in State Court. The

Defendants violation(s) of the Fair Debt Collections Practices Act (" FDCPA" ), 15 USC

section 1692, et seq., which are the subject of this litigation are substantially related to the former

landlord-tenant case and the Defendants representation of Defendant Ocean 4660, LLC therein.

4. Some of the Defendant(s) Ocean 4660, LLC and Remo Polselli's liability in this matter

was a result of the Defendant(s) Rudd & Diamond, P.A., Peter Diamond and Michael Rudd's

prior legal counsel.

5. Upon information and belief, Defendant(s) Rudd & Diamond, P.A., Peter Diamond, Esq.,

and Michael Rudd, Esq. have represented Defendant(s) Ocean 4660, LLC and Remo Polselli in

numerous other matters for a six year period.

6. Defendant Peter Diamond, Esq. has elected to be counsel for all the Defendants in a case

where he himself is a defendant.

7. As a Defendant, Peter Diamond, Esq. clearly has a significant personal interest here that

places him in adversity to the other defendants.

8. Upon information and belief, Defendant Diamond, Esq.'s representation of the co

defendants in this matter is not prohibited by law and violates the Florida Bar Rules of

Professional Conduct


9. I believe that I cannot get a fair tribunal in this matter and that my legal rights would be

violated by the Defendants' continued representation in this matter.

10. That there is a severe incompatibility in positions by Defendant Diamond's representation

of his co-defendants.

11. I believe that Peter Diamond, Esq. has an ethical obligation as a member of the Florida Bar

to avoid this conflict of interest and had a duty to advise this Court of such a conflict.

12. I have made a proper motion for discovery of the defendants insurance policies and the

defendants have refused to respond to my discovery demands. I was left no other choice but to

make a motion to compel the necessary discovery.

13. I respectfully request that the Court allow me to amend the complaint in this action because

Defendant Polselli has stated that " he is collecting debt " for another party " who he named to be

Comerica Bank. Additionally, other State and Federal claims that now seem appropriate must be

added to the complaint.

14. None of the Defendants have filed a responsive pleading to date. Therefore, there can be no

undue hardship in the Court allowing a further amendment at this early stage in the proceedings.

15. I believe that Defendant Rudd & Diamond, P.A., and Peter Diamond, Esq.'s continued

representation will deprive me of an " impartial forum " in this litigation.

16. I strenuously object to the continued representation ofRudd & Diamond, P.A., Peter A.

Diamond, Esq. or any member or employee thereof, in this matter. I believe it is unlawful and

completely improper for them to serve as opposing counsel in this matter.


17. I respectfully refer the Court to my Motion and Memorandum of Law annexed herewith

and incorporate them by reference.

18. I have read the foregoing Affidavit and know the matters contained herein to be true accept

to those matters stated upon information and belief and as to those matters I believe them to be

true.

FURTHER AFFIANT SAITH NAUGHT.

Affiant

SWORN TO AND SUBSCRIBED before me this ~day of February, 2011, by Angela DiPilato, who ( ) is personally known to me, and/or who has produced "Dt~. ... V(LJS L,'c.<l()St"' as identification bearing identification number ________ _

[NOTARIAL SEAL]

[ type/print name below signature ]

NOTARY PUBLIC, State ofFlorida Commission No.: l::>b 153-3\ --q.-3: My Commission Expires: ~-TI<:le:)\ 3

~~~y ,.~

+"' .·····.'8(i> HEIDI WHEElER *•~ * MYCOMMISSIONtD0873177 .. ~... EXPIRES: March 27, 2013 ~OF f\.dt-~ Banded Tlvu lludJIII Healy S.WC.


EXHIBIT 2


FORM 1.997. CIVIL COVER SHEET

The civil cover sheet and the information contained ~-~ · ::.a:e nor supplement the filing and service of pleadings or other papers as required by law. This fl:lm' Sll!at :E "'~ ::.1 the plaintiff or petitioner for the use of the Clerk of the Court for the purpose of reporting judicial worldoad cra:a :t-~.:-:~ to Florida Statues section 25.075.

I. CASE STYLE

IN THE COUNTY COURT OF THE 17TH Jl..~ : ::;_-IN AND FOR BROWARD c6{)-S&RIDA

OCEAN 4660, LLC,

----~--~--·---Plaintiff..-~"·····--··--····--~--"~--~"-· _. ·-· -~'--'--

vs.

ANGELA DIPILA TO, Individually, and OCEANSIDE LAUDERDALE. INC., dlbia BEACHSIDE GRILL, a Florida Corporation

Defendants.

II. TYPE OF CASE

i10 01506 _ _ __ ---·- ~ Cas.e#:-·· · -_, ..... · · ··· · · ·

Judge: ____________ __

(If the case fits more~ one t}IPe ::1 :::iillllllf!;. sec::::=-~ .:--.ast definitive category.) If the most descriptive label is a subcategory (is :ooenmd ~ ; :r--e:.,-:,· ;:a:egory), place an ·x" in both the main category and subcategory boxes.

c Condominium. p -· Contracts and indebtedness [i Eminent domain 0 Auto negligence r• '·' Negligence - other ...... \

0 Business governance 0 Business torts 0 Environmental/Toxic tort 0 Third party indemnification 0 Construction defect 0 Mass tort rJ Negligent security

" Nursing home negligence u

[J Premises liability - commercial [! Premises liability - residential

r• _, Products liability 0 Real Property/Mortgage foreclosure

[j Commercial foreclosure $0-$50,000 r< Commercial foreclosure $50,001 - $249,999 ..... [i Commercial foreclosure $250,000 or more [J Homestead residential foreclosure $0- $50.00C 0 Homestead residential foreclosure

Case 0:10-cv-62492-JIC Document 30 Entered on FLSD Docket 02/15/2011 Page 28 of 45$50,001 - $249,999

_ Homestead residential foreclosure $250.00C, :r ~··= ~ Non-homestead residential foreclosure SD - ss: X(. r: Non-homestead residential foreclosure SSO ·)': • - s::~:.999 r 1 Non-homestead residential foreclosure S2.~ OC :r- -=:-a l. (Other real property actions $0 - $50.000 0 Other real property actions $50,001 - $249.9$ o · · Other real property actions $250,000 or rriore ·

J Professional malpractice o Malpractice - business 0 Malpractice - medical o Malpractice - other professional

il Other ·---·r:- ·AAmrust/TradEfRegatation ··

c Business Transaction u Constitutional challenge-s1atute or ocdinan::e c Constitutional challenge-proposed arnencre-: -. Corpo."ate Trusts _ Jisc.,mination-employment or other

;r.surance c;aims _ 'nteLI.ec!'.lal properr.)'

~Sa!""!.:ler

- ~ it"e;a:;o--- 7raoe sec.:'"etS

- T rustlmgator:.

Ill. REMEDIES SOUGHT (check all that apply): ~netary; ~Non-monetary declaratory or injunctive relief; 1J Punitive

IV. NUMBER OF.CAUSES OF ACTION:J_Q.) (Specify} &,c....ft-:;>0 A"-J f?CC4.bl< e.dr-7 .t :P<t"...,<""·

V. IS THIS CASE A CLASS ACTION LAWSUIT? o Yes ~0

VI. ~TICE OF ANY KNOWN RELATED CASE BEEN FILED?

J Yes - If •yes" list all related cases by name, case number and court:

VII. IS JURY TRIAL DEMANDED IN COMPLAINT? o Yes

......


~0 ... ;_..,../

// I CERTIFY that the infqrmaijon I hav ~~ in~tl--~.:-~ccurate to the best of my knowledge and belief.

Si~~ur;-.- .-- // ·· .. ---- Fla. Bar# 0/f" OC·S ( · · :.-Attorney or Party • - __ ;_,~~, (if attorney) . .,,,_,

/J ~ d. 11 5 /'• · u:.f--c.c· I ,) IC1 na an~ Date: 1r---, 0 Type or print name


OCEAN 4660, 'bLC

Plaintiff v.

IN THE COUNTY COURT OF THE · 17TH JUDICIAL CIRCUIT IN AND FOR BROW ARD COUNTY, FLORIDA

GE~ERAL JURISDICTION

CASE<NO.:

ANGELA DIPILA TO, individually. and OCEANSIDE LAUDERDALE, D\C., db c. BEACHSIDE GRILL, a Florida Corporano~

\10 otso6· Jr-·6·2 ~~ TOll-ANN MJLl.d

Defendant(s)

CIVIL ACTIO~ SL1\.1MO~S

THE STATE OF FLORIDA:

TO EACH SHERIFf OF THE STATE:

YOU ARE COr..L,'IA1'~IDED to serve this summons and a copy of the Eviction Complaint or petition, under Summary Procedure, in this action on Defendant:

ANGELA DIPILA TO l 035 S. Riverside Drive Pompano Beach, FL 33062

Each Defendant is required to serve written defenses to the complaint or petition on Plainti.ff's Attorney:

PETER A. DIAMOND, ESQUIRE RUDD & DIAMOND, P .A. 4000 HOLLYWOOD BLVD. SUITE 165-S HOLLYWOOD, FL 33021 (954) 961-5059

within 5 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses with the Clerk of this Court either before service on Plaintiffs Attorney or immediately thereafter. If a Defen t fails to do so, a default will be entered against that Defendant orcRt«~ it\ the complaint or petition. FUERST } NOV 0 5 2010

BY: I DEPUTY ~IfMJEOcl5r·¥ 1 L

'ounty Court Seal 1

1 DATE:

Case 0:10-cv-62492-JIC Document 30 Entered on FLSD Docket 02/15/2011 Page 31 of 45\. THE COUNTY COURT OF THE

"""::i JUDICIAL CIRCUIT IN AND FOR E.~O~'JARD COUNTY, FLORIDA

:;::NERAL JURISDICTION

.Q.CEAN 4660, LLC ~· :~ .. ;..~. .:ASE NO.:

Plaintiff

v .

. ~·--~ __ , __ .. 1.\~Q~~ .. QJf_I .. !::ATQ!_ii'!~M_g.~aiJy. ~no .. __ OCEANSIDE LAUDERDALE, INC., d:'b:a BEACHSIDE GRILL, a Florida Corporator

- -- -- -. ... -·-A 11\ut·eol»Y~-- .. ···- --····· .. -,.., 62 ~ Defendant(s) 'rDRI4 ANN MRLER .

COMPLAiNT

COtviES NOW Piaintfff. OCEA."i 4660, U...C .• by ar: through their undersigned

counsel and sues Defendant(s) ANGELA DIPILATO, individually and OCEANSIDE

LAUDERDALE, INC., d/b/a BEACHSIDE GRILL, and alleges alleges:

COUNT I • EVICTION

1. This is an action to evict a tenant from real property in Broward County,

Florida.

2. Plaintiff owns the following property described in said county:

4658 N. Ocean Drive, Lauderdale by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale Beachside Hotel", in Lauderdale-by-the Sea, FL.

3. Defendant ANGELA DIPILATO has possession of the property under an

oral agreement to pay rent of $12,000.00 payable the first day of each month.

1


4. Defendant ANGELA DtPI.ATO ia1-a-: ::. ;:ay rent due on March 1, 2010 for

the month of March, 2010 and has faiecl to ;:a'! a""' 1 -=m whatsoever through October 1,

2010 .

.. ,, , !?~. Plaintiff served Defendart ~~ _ .:_ :1?1LA TO with a 3-notice on October

29, 2010, to pay the rent or deliver pas;sa sst:> :: :ne property. (See Exhibit A to the

Complaint). The Defendant ANGELA ~LJ.-: -as ::efused to either pay rent or deliver

___ ,. ________ .. PQ~S.~~-SJ.9.fl .. QfJh~Pr9P~.r:!Y~----· ___ _ __ ....... --·· ----·-- ......... ·---· ··· ····· -----

6. Upon receipt of the Na1a lj, :..·.;:.. ::.e Defendant ANGELA DIPILATO

has engaged in a series of caiodata:t ~ ::. ~es"Joy, vandalize and brutalize the

Plaintiffs real property and the ?'ani~~ ""as :Et- :-"ra.:::"'.ed and otherwise .prejudiced.

These actions were condu:tec r, ;,: f!!Ft:r: ;:; ;.::~::{. ro frustrate the imminent and

instant Eviction action ana said aca::aus ar.: a -_:s= :: a::empt to frustrate and otherwise

attempt to relieve the Defendant from ts ::0~:-:.fl.S.; to pay rent, pay back rent and

and/or deliver possession of the prope:rt1 t :-.:: ::o a:..-::::f.

7. In accordance with paragrao'"l' ==. :-.areinabove and for other justifiable

reasons, the Plaintiff elects to proceed o- ::1e equitable eviction portion ·of this

Complaint under Summary Procedure presc'"'·T-~ under Fla. Stat §51.011 and Summary

Procedure is requested and demanded.

WHEREFORE Plaintiffs OCEAN 4ooC= ;_:...c .• demands judgment for possession

of the property against the Defendant ANGELA DIPILATO, individually, and further

seeks money damages for breach of contra:::t:faiiure to pay 8 months rent of $12,000.00

per month, totaling $96,000.00, attorney's fees and costs to the extent the same are

available and actionable and for any other relief deemed just and proper.

2


COUNT 11- FORCIBLE ENTRY AND DETENTION COMPLAINT AGAINST OCEANSIDE LAUDERDALE, INC.

8. This is an action to ~-e.. :::·~ssession of real property unlawfully

detained in Broward County, Florida. -·': ···'i·

9. Plaintiff is entitled to pos.sess,:,~ of the following real property in said

county:

10.

4658 N. Ocean Or-r.: :...a~:.erdale by_ the .. S.ea, · ··--- ··Florida-··. ·333oa. o::a-.e:: ,.,;thin the .. · Hotel

Property known as ·~-:ierdale Beachside Hotel", in Lauderdaie-t)'-:;""a Sea, FL.

Defendant OCEANSiDE Lt..._;JEq:;.ALE, INC., d/b/a BEACHSIDE GRILL

has unlawfully turned Plaintiff out of aoc ~<'1f~l'\:.,.:s possession of the property from the

Plaintiff.

11. The Plaintiff elects to proceec .:1'1 tte equitable unlawful detention portion

of this Complaint under Summary Procec_'e :::-escnbed under Fla. Stat §51.011 and

Summary Procedure is requested and dena 1:.ed.

WHEREFORE Plaintiff OCEAN 466C . ...L~ •• demands judgment for possession of ···-· . ~-

the property and damages against the Defencants OCEANSIDE LAUDERDALE, INC.,

d/b/a BEACHSIDE GRILL, attorney's fees and costs to the ext e ~e-.7 ~..«.- ..... ~ ..,..........-•"?..~::>~ A$

available and actionable and for any other :-e1ief deemed just-ah*'·prop~:~:;:.::>·- _,._fr-

Dated this 5th day of November, 2010. -"""'.r~ , /;.(.:;.ec, ·""',/"/ / J·"..,¢'.r-· ,_,..

/By: " ~ "')-,~!"· . _ _...:.

~ / P8mRWn_g(Esq. { F~No.:.0'180051

/ / ,.-:t

3

Case 0:10-cv-62492-JIC Document 30 Entered on FLSD Docket 02/15/2011 Page 34 of 45CERnFtCATION OF PLEADINGS

Dated this 5th day of November, 2C'l:

. ~ ·.

. ~- -. -. _.;- -.

4


EXHIBIT3

Case 0:10-cv-62492-JIC Document 30 Entered on FLSD Docket 02/15/2011 Page 36 of 45CMIECF - Live Database - flsd Page 1 of4

REF_PTRL, STB

U.S. District Court Southern District of Florida (Ft. Lauderdale)

CIVIL DOCKET FOR CASE#: 0:10-cv-62492-CMA

Dipilato v. Rudd & Diamond, P .A. et al Assigned to: Judge Cecilia M. Altonaga

Date Filed: 12/22/2010 Jury Demand: Plaintiff

Referred to: Ch. Magistrate Judge Stephen T. Brown Cause: 15:1692 Fair Debt Collection Act

Nature of Suit: 230 Rent Lease & Ejectment

Plaintiff

Angela Dipilato individually

v. Defend3nt

Rudd & Diamond, P.A. a Florida Corporation

Jlefendant

Peter A. Diamond individually

Defendant

Ocean 4660, LLC. a Florida limited liability company

Ddendant

Michael Rudd

Jurisdiction: Federal Question

represented by Angela Dipilato 2310 E. Atlantic Blvd Suite 206 Pompano Beach, Fl33062 PROSE

represented by Peter Alexander Diamond Rudd & Diamond PA 4000 Hollywood Boulevard Presidential Circle Suite 165S Hollywood, FL 33021 954-961-5059 Fax: 954-961-8953 Email: [email protected] ATTORNEY TO BE NOTICED

represented by Peter Alexander Diamond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Peter Alexander Diamond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Peter Alexander Diamond (See above for address) LEAD ATTORNEY

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?739112174864987-L 560 0-1 2/14/2011


D_dendant Remo Polselli individually

Date Filed

12/22/2010

12/22/2010

12/22/2010

12/22/2010

12/23/2010

12/23/2010

12/29/2010

01114/2011

01114/2011

01114/2011

01118/2011

01118/2011

01118/2011

01118/2011

#

2

ATTORNEY TO BE NOTICED

Docket Text

COMPLAINT against Peter A. Diamond, Ocean 4660, LLC., Rudd & Diamond, P.A .. Filing fee$ 350.00, filed by Angela Dipilato. (Attachments:#

Civil Cover Sheet)(mg) (Entered: 12/22/2010)

Judge Assignment RE: Electronic Complaint to Judge Cecilia M. Altonaga (mg) (Entered: 12/22/2010)

Clerks Notice of Receipt of Filing Fee received on 12/22/2010 in the amount of$ 350.00, receipt number FLS 00000804 (mg) (Entered: 12/22/2010)

Summons Issued as to Peter A. Diamond, Ocean 4660, LLC., Rudd & Diamond, P.A .. (mg) (Entered: 12/22/2010)

ORDER PROVIDING INSTRUCTIONS TO PRO SE LITIGANT. Signed by Judge Cecilia M. Altonaga on 12/22/2010. (ps1) (Entered: 12/23/2010)

ORDER REFERRING CASE to Ch. Magistrate Judge Stephen T. Brown for rulings on all pre-trial, non-dispositive matters and for issuance of a Report and Recommendation on any dispositive matters. Signed by Judge Cecilia M. Altonaga on 12/23/2010. (ps1) (Entered: 12/23/2010)

ORDER on Discovery- [see order for full details]. Signed by Ch. Magistrate Judge Stephen T. Brown on 12/28/2010. (dt) (Entered: 12/29/2010)

SUMMONS (Affidavit) Returned Executed Ocean 4660, LLC. served on 12/23/2010, answer due 1113/2011. (rgs) (Entered: 01114/2011)

SUMMONS (Affidavit) Returned Executed Peter A. Diamond served on 12/23/2010, answer due 1113/2011. (rgs) (Entered: 01114/2011)

SUMMONS (Affidavit) Returned Executed Rudd & Diamond, P.A. served on 12/22/2010, answer due 1112/2011. (rgs) (Entered: 01/14/2011)

First AMENDED COMPLAINT against Peter A. Diamond, Ocean 4660, LLC., Rudd & Diamond, P.A., Michael Rudd, Remo Polselli, filed by Angela Dipilato.(rgs) (Entered: 01118/2011)

ORDER on Default Procedure, re Summons Returned Executed, Summons Returned Executed, Summons Returned Executed. Signed by Judge Cecilia M. Altonaga on 1118/2011. (psi) (Entered: 01/18/2011)

NOTICE of Attorney Appearance by Peter Alexander Diamond on behalf of Rudd & Diamond, P.A. (Attachments:# Exhibit A)(Diamond, Peter) (Entered: 01118/2011)

NOTICE of Attorney Appearance by Peter Alexander Diamond on behalf of



01/18/2011

01118/2011

01118/2011

01119/2011

01119/2011

01127/2011

01128/2011

02/10/2011

02/10/2011

02/10/2011

02/10/2011

Peter A. Diamond (Attachments:# Exhibit A)(Diamond, Peter) (Entered: 01/18/2011)

NOTICE of Attorney Appearance by Peter Alexander Diamond on behalf of Ocean 4660, LLC. (Attachments:# Exhibit A)(Diamond, Peter) (Entered: 01118/2011)

Emergency MOTION for Extension of Time to File Response/Reply as to Amended Complaint, Order by Rudd & Diamond, P.A .. (Attachments:# Exhibit A, # Exhibit B, # Exhibit C, # Exhibit D, # Exhibit E, # Exhibit F)(Diamond, Peter) Modified Text/Links on 1118/2011 (Is). (Entered: 01118/2011)

17 Clerks Notice to Filer re Defendant's MOTION for Extension of Time to File Response/Reply as to Summons Returned Executed, Complaint, Summons Returned Executed, Summons Returned Executed, OrderDefendant's MOTION for Extension of Time to File Response/Reply as to Summons Returned Executed, Complaint, Summons Returned Executed, Summons Returned Executed, Order. Emergency Document Filed Electronically; ERROR - Emergency matters may not be filed electronically, they must be filed in the conventional paper format in the division where the judge is chambered. The Clerk contacted Chambers and corrected the docket text to indicate the document is an emergency matter. It is not necessary to refile this document but future filings must comply with the CMIECF Administrative Procedures and Local Rules. (Is) (Entered: 01118/2011)

ORDER setting aside Order on default procedure; denying Motion for Extension of Time to Respond; Defendants' response is due by 2/20111. Signed by Judge Cecilia M. Altonaga on 1119/2011. (ps1) (Entered: 01119/2011)

Set/Reset Answer Due Deadline: Peter A. Diamond and Rudd & Diamond, P.A.'s response due 2/20/2011. (ps1) (Entered: 01119/2011)

Order Requiring Joint Scheduling Report and Certificates of Interested Parties to be filed by 2/17/2011. Signed by Judge Cecilia M. Altonaga on 1/27/2011. (ps1) (Entered: 01127/2011)

Summons Issued as to Remo Polselli. (rgs) (Entered: 01/31/2011)

MOTION to Dismiss Amended Complaint by Michael Rudd. Responses due by 2/28/2011 (Attachments:# Exhibit A,# Errata B)(Diamond, Peter) (Entered: 0211 0/2011)

MOTION to Dismiss Amended Complaint by Rudd & Diamond, P.A .. Responses due by 2/28/2011 (Attachments:# Exhibit A,# Exhibit B) (Diamond, Peter) (Entered: 02/10/2011)

MOTION to Dismiss Amended Complaint by Ocean 4660, LLC .. Responses due by 2/28/2011 (Attachments:# Exhibit A,# Exhibit B) (Diamond, Peter) (Entered: 02/10/2011)

MOTION to Dismiss Amended Complaint by Peter A. Diamond. Responses due by 2/28/2011 (Attachments:# Exhibit A,# Exhibit B)



(Diamond, Peter) (Entered: 02/10/2011)

02/11/2011 ORDER denying without prejudice Motion to Dismiss; denying Motion to Dismiss; denying Motion to Dismiss; denying Motion to Dismiss. Signed by Judge Cecilia M. Altonaga on 2/10/2011. (ps1) (Entered: 02/11/2011)

Transartion Receipt

I 1)2 ll .. 'il II OSoiX:iill

IP\CFR Login:llknOXO I II< lient ( odl': ~======~~--------~! lnc,~.-ription: llnockct l{q'''rdlscardJ ( rilrria:llo: I O-n -h::'.lq:'-t_ \ l\.1

IIBillahle l'agt'': 11~ llcn-,t: llo . .::'4 I

https://ecf.flsd.uscourts.gov/cgi-bin!DktRpt.pl?739112174864987-L 560 0-1 2/14/2011


EXHIBIT4



Case No.: 10-62492-CV-Altonaga-Brown


Plaintiff,

v.

RUDD & DIAMOND, P.A., a Florida Corporation, PETER A. DIAMOND, Individually, MICHAEL RUDD, Individually, OCEAN 4660, LLC., a Florida limited liability company, and REMO POLSELLI, Individually.

Defendants.

_______________________________ /

SIRS:

NOTICE FOR DISCOVERY AND INSPECTION FOR INSURANCE AGREEMENTS

PLEASE TAKE NOTICE, that Pursuant to Rule 34 ofthe Federal Rules of Civil

Procedure you are hereby required to produce and permit discovery by ANGELA DIPILATO, or

her attorney, or someone acting on her behalf, of the following documents or things for

inspection at 2310 East Atlantic Boulevard, Suite 206, Pompano Beach, Florida 33062 on the 151•

Day ofFe&ruilry, 2011, at 9:30 o'clock in the fore-noon of that day:

Any insurance agreement under which any person carrying on an insurance business may be

liable to satisfy part or all of a judgment which may be entered in the above-entitled action

against the Defendant(s) or to indemnify or reimburse for payments made to satisfy the judgment.

The inspection is to be made by means of copying or photocopying the documents.

t


This demand shall be deemed relevant to All Defendants.

Dated: January 18,2011.

To:

RUDD & DIAMOND, P.A. MICHAEL RUDD, ESQ. PETER A. DIAMOND, ESQ.

4000 Hollywood Boulevard, Suite 165-S Hollywood, Florida 33062

OCEAN 4660, LLC. REMO POLSELLI c/o RUDD & DIAMOND, P.A. Attorneys for Defendants.

An~ 2310 East Atlantic Boulevard, Suite 206 Pompano Beach, Florida 33062

Tel: (914) 563-4510 Fax: (954) 657-8405

I


EXHIBIT 5

Case 0:10-cv-62492-JIC Document 30 Entered on FLSD Docket 02/15/2011 Page 44 of 45FIRM PARTNERS

MICHAEL P. RUDD MRUDD@RUDDDL\MOND.COM

PETER A. DIAMOND [email protected]

Angela Dipilato

H.UDD & DIAMOND, P.A.

PRESIDENTIAL CIRCLE SUITE 165-S

4000 HOLLYWOOD BLVD HOLLYWOOD, FLORIDA 33021

TELEPHONE (954) 961-5059 FACSIMILE (954) 961-8953 WWW.RUDDDIAMOND.COM

January 18,2010

2310 East Atlantic Boulevard, Suite 206 Pompano Beach, FL 33062

RE: ANGELA DIPILATO v. RUDD & DIAMOND et al. Case No.: 10-07506 COSO 62 Our File No.: 46.9473

Dear Ms. Dipilato:

--·--TINA H. Vo

BRE'ITYONO"i LAUREN SHAPIIto JASON L Com:."

MAlu.ENE COLLUO CHRISTOPHER SAUY.U

PATRICK}. GERACE JAIME NICOSIA LAUREN C. Tow

As with my previous letter, the purpose of this letter is two-fold. First, I would like to confirm receipt of your Amended Complaint for Damages. I'm not sure who your server was here to serve, as your server merely came into my office reception area and rudely and unprofessionally threw papers at my receptionist in a threatening manner. As we have already alerted you, serving my receptionist is useless and I would suggest not paying your server for that service as it is invalid. My receptionist is not authorized to accept service for my firm, my partner or me. However rather than make a whole big deal about this, I assume as with last time, you will agree to extend to me. Peter Diamond, my partner, Michael Rudd, and my firm, Rudd and Diamond. P _-\ . :...t:;: s.2...--:::;; courtesy you did before whereby you sent us waiYers of ser';i.:.:. K:.::.i.:_. .::.J.~~.:.:: :.~.:--~----& --... ,;; ~,._ agree to extend the response deadline for Peter Diamond, Michael Rudd and Rudd and Diamond through February 28, 2011.

As I have already indicated to you, I represent all of the above-referenced Defendants in this lawsuit, in addition to Ocean 4660 and now Remo Polselli. As such, I represent all Defendants in this lawsuit. Kindly let me know when you serve Ocean 4660 and Remo with the Amended Complaint and once you confirm service, I will file the appropriate responses thereto. In anticipation of your agreement/consent, I have enclosed a proposed Agreed Order for your review and approval.

Second and more importantly, in addition to the issues I previously raised in my January 14,

1

RUDD & DIAMOND. P.A. FLORIDA DEFENSE ATTORNEYS


2011 letter to support a Rule 11 motion for sanctions, I have additional support for the Rule 11 sanctions I intend to seek as it is clear that you will not go away quietly. Assuming arguendo, that your Amended Complaint states a non-frivolous cause( s) of action, you cannot prove compensable damages. I know this because you have not been "debt" harmed. In fact, any and all "debts" that you believe may have been existed, have been negated, dismissed and otherwise died on the vine, as the Plaintiff voluntarily dismissed its claims for any and all money damages. That said, your credit rating and the like is not and cannot have been said to harmed/damages as there is no debt!!!

Additionally I did receive your purported discovery request. The form of your request is not valid. As I have already informed you, there is no insurance coverage for your complaint and even to the extent that there is, carriers have NOT been informed of this lawsuit and will not be made aware ofthis lawsuit. My firm's relationship with whatever carriers you believe exists is a personal one that you will never be able to invade!!!! For that reason and that reason alone, please consider this my Local Rule attempt to confer with you to resolve the instant discovery matter. I object to producing any insurance agreements, and will not voluntarily agreed to do so. Additionally as drafted, no such insurance agreements, exist that are responsive to the same. Additionally in light of the fact that your request for inspection seeks insurance agreements that "satisfy the judgment," unless I missed something, our response to your request is none exist! Kindly let me know if this response is acceptable or whether I need to file a formal objection and motion for protective order. If so I will seek Rule 11 sanctions for your persistent frivolous attempt to obtain objectionable and non-existent materials.

Oddly, while I was drafting this letter, I came across a troubling order from the Court. The Court entered an Order on Default Procedure suggesting that you, as Plaintiff, never filed the waivers of service that we ha·- i_gned and agreed to. I confirmed this fact that the waivers were never filed. In response, I just filed the attached notices of appearance and waivers that we had previously agreed to. That said, I am also enclosing an Agreed order on Extension of time to Respond to the Amenderl Complaint, addressed above. Kindly, review the same and let me know if the same is acceptable to send the Court.

As an aside, in my frantic search of the Court record to determine why I received the Order on Default Procedure, I learned that your process server certified to the Federal Court that he serYed all Defendants at my office and that my receptionist accepted service. That simply is not true but I am not going to make a stink about it at this time assuming you agree to the te!•·,~ r<f~ Jll!!• order contained herein.

Upon your receipt and review of this, please contact me to disc~~ alert me whether or not you will be dismissing the lawsuit discussed herein. If you do not agree to the dismiss, d~u agree to the terms of the proposed Agreed Order Granting Extension ofTill!e for Defendant's to respond to the Complaint. Additionally, I need some direction about the, ,disco7ery request as well. I look forward to your anticipated response hereto. I re1pain, · ·

·, Sincerely' yours, J ,"

Peter A Diamond

/'-f.-.-1 ~ :::>

The judgment is amended to correct a mathematical error. The figure of1

$4,018.50 in the prior Final Judgment for Fees [DE 141] did not include the 0.4 hours ofEric Gruber and the 0.6 hours of Jordan Cohen, as explained at the top of page 8 of theOrder Granting Defendant’s Motion for Attorney’s Fees [DE 140].

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NO. 10-62492-CIV-COHNANGELA DIPILATO, individually,

Magistrate Judge SeltzerPlaintiff,

vs.

RUDD & DIAMOND, P.A., a Florida corporation, PETER A. DIAMOND, individually,MICHAEL RUDD, individually, OCEAN 4660, LLC,a Florida limited liability company, COMERICABANK, a Michigan corporation, and REMO POLSELLI, individually,

Defendants._______________________________________/

AMENDED FINAL JUDGMENT FOR FEES1

THIS CAUSE is before the Court upon the separately entered order granting

Defendants Ocean 4660, LLC’s Motion for Attorney’s Fees [DE 140]. Accordingly it is

ORDERED AND ADJUDGED that Judgment for fees is hereby entered on behalf of

Ocean 4660, LLC, and against the Plaintiff, Angela Dipilato, and Ocean 4660, LLC shall

recover $4,253.50 in attorney’s fees, plus interest thereon at the rate of 0.17% per

annum from the date of this Final Judgment, for which let execution issue. The prior

Final Judgment for Fees [DE 141] is vacated.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 24 day of February, 2012.th

Copies furnished to:Angela DiPilato, pro se (via CM/ECF regular mail)counsel of record on CM/ECF




CASE NO.: 10-62492-Civ- COHN-SELTZER


Plaintiff,

vs.

RUDD & DIAMOND, P.A., a Florida Corporation, PETER A. DIAMOND, Individually, MICHAEL RUDD, Individually, OCEAN 4660, LLC., A Florida limited liability company, COMERICA BANK, a Michigan Corporation and REMO POLSELLI, Individually,

Defendants.

____________________________ !

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PLAINTIFF ANGELA DIPILATO'S OPPOSITION TO DEFENDANT OCEAN 4660, LLC's MOTION FOR ATTORNEY FEES

:;;j -~ ..,., ,.., tD

(..)

::DI X

--.t:'" en

Pursuant to Rule 11 of the Federal Rules of Civil Procedure and Rule 7.3 of the District -Court

:::!! r-fT1 0 co -<

~ 0

for the Southern District of Florida, Plaintiff Angela DiPilato ( hereinafter " DiPilato " ) files this

Memorandum of Law opposing the Motion for Attorney Fees ("Motion") filed by Defendant

Ocean 4660, LCC (hereinafter " Ocean 4660 " ). Ocean 4660 is not entitled to recover any

attorney's fees from DiPilato in this matter because: (1) they do not cite any contract authorizing

an award of attorneys' fees; (2) Florida Law does not permit an award of attorneys' fees, and

1


(3) Defendants' Motion is fatally defective in violation of Rule 11 ofthe Federal Rule of Civil

Procedure and Local Rule 7.3. Even were Defendant Ocean 4660 entitled to recover attorney's

fees, which it is not, they are not entitled to recover the attorney's fees sought in this motion.

PROCEDURAL HISTORY

This action was brought against multiple parties pursuant to the Fair Debt Collections Practices

Act. Plaintiff filed a Notice of Pendency.

On or about, September 26, 2011, Defendant Ocean 4660 filed an Emergency Motion to

Discharge Lis Pendens or, Alternatively, to set Lis Pendens Bond. Said Motion is annexed hereto

as Exhibit "A", and incorporated herein by reference. (Exhibit "A"].

On or about, October 25, 2011, this Court granted Defendant Ocean 4660's Motion to the

extent the Court required Plaintiff to post a bond. (See, Court's October 25, 2011, Order

annexed hereto as Exhibit "B", and incorporated herein by reference).

Plaintiff was not financially cable to obtain a bond in the amount imposed by this Court.

Plaintiff should not be further penalized.

ARGUMENT

I. OCEAN 4660 is Not Entitled to Recover Anv Attorneys' Fees from DiPilato:

Under the American rule, litigants are ordinarily responsible for their own attorneys' fees.

See, Travelers Cas. & Sur. Co. o(Am. v. Pac. Gas and Elec. Co., 549 U.S. 443, 448 (2007).

2


Under the facts of this case, Defendant Ocean 4660 has no right to recover any attorneys' fees

from PlaintiffDiPilato.

This Court in Ameripatlz, Inc. v. Dr. Robert Wes!ev Wetherington, et. a!., Case No.: 10-60766

(2011) determined that Florida law governs an award of attorney's fees, citing, Nukote Int'l, Inc.

v. Office Depot, Inc., Case No.: 09-82363-CIV, 2010 WL 4942838, at** 2 (S.D. Fla. Nov. 30,

2010) (citing Champion Produce, Inc. v. Ruby Robinson Co .. Inc .. 342 F. 3d 1016, 1022 (9th.

Cir. 2003 ), and Alhambra Homeowners Ass'n. Inc. v. Asad. 943 So. 2d 316,318 (Fla. Dist. Ct.

App. 2006)). Florida follows the American Rule, providing that a" prevailing litigant is

ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline

Serv. Co. v. Wilderness Soc 'y, 421 U.S. 240, 247 (9175); Price v. Tyler, 890 So. 2d 246, 250 (

Fla. 2004) ("Under Florida law, each party generally bears its own attorneys' fees ... ")

Fla. Stat. Ann. 48.23 subdivision (3), does not statutorily provide for an award of attorneys'

fees for discharging a Lis Pendens. The statute provides the Court authority to discharge certain

types of Lis Pendens. In fact, there is no mention in the statute authorizing an award of attorneys'

fees.

Moreover, the sole case relied upon by Defendant Ocean 4660 in its quest to recover attorneys'

fees, S&T Builders v. Globe Properties. Inc., 944 So. 2d 302 (Fla. 2006) is distinguishable and

authorizes the Court to add an award of attorneys' fees to the amount of a Lis Pendens bond. It

does not mandate the award of attorneys' fees.

In Wagner v. Birham. 460 So. 2d 463 (Fla. 3d DCA 1984), the Court held that" there is no

statutory authority for the award of attorney's fees in discharging a lis pendens.

For this reason alone, the Defendant Ocean 4660 is not entitled to an award of attorney's fees.

3


A. Ocean 4660 is Not Entitled to Recover Attorneys' Fees from Plaintiff Because those Fees were Not Incurred in connection with Discharging the Lis Pendens and the Amount of Attorney's Fees sought in this motion.

Even were Defendant Ocean 4660 entitled to recover certain attorney's fees in this matter.. ...

( which as set forth above, they are not ), Ocean 4660 is not entitled to recover the amount of fees

sought in their Motion.

Defendant Ocean 4660's attorney's have submitted time sheets purported to substantiate the

requested reward of attorney's fees in the amount of$ 4,535.50. Attorney time sheets are

annexed hereto as Exhibit "C", and incorporated herein by reference. A cursory review of said

billing time sheets reveals that all of the time billed was not in connection with discharging the

Lis Pendens and, (ii) there exists a substantial disparity in the amount of legal fees sought to be

recovered and the actual billing for legal fees.

The Defendants assertion for legal fees alleged to be incurred in connection with the discharge

of the Lis Pendens, is simply incorrect.

II. Defendant 4660's Motion for Attorney's Fees is Not properly Verified, is Fatally Defective in Violation of Rule 7.3(a) of the Local Rules of the United States District Court for the Southern District of Florida:

Rule 7.3(a) subdivision (7) of the Local Rules for the United States District Court for the

Southern District of Florida governing Motions for Attorneys Fees states in pertinent part:

(7) be verified ....... .

A review of the Motion for Attorneys fees filed by Defendant Ocean 4660 reveals that the

Verification is fatally defective, to wit;

4


i. the verification was not sworn to in the presence of an authorized officer, such as a notary public.

Defendant Ocean 4660's Motion for Attorney's Fees is annexed hereto as Exhibit "D", and

incorporated herein by reference.

Black's Law Dictionary defines verification as:" A formal declaration made in the presence of

an authorized officer, such as a notary public. Traditionally, a verification is used as a conclusion

to all pleadings that are required to be sworn.

Alternatively, the unsworn verification is fatally defective under 28 USC section 1746 because

it does not contain a date that it was executed, among other defects.

Simply put, here the Defendants' unsworn verification makes the motion fatally defective.

III. Plaintifrs Motion for Attorney's Fees Was Not Mentioned In the Caption oflt's Motion to Discharge Lis Pendens, therefore, It Is fatally Defective:

Plaintiff failed to mention a request for attorney's fees in its Motion to Vacate the Lis Pendens.

A request for Attorney's fees was not mentioned in the caption of said Motion nor in its request

for relief.

As this Court ruled in Certex USA. inc. v. Vidal, Case No.: 09-61818, the failure to request

attorney's fees in the Motion to Discharge Lis pendens warrants the denial of the Motion for

Attorneys' fees.

IV. Plaintifrs request for Attorney's Fees does Not meet the Requirements of Local Rule 7.3(a):

Local Rule 7.3(a) provides a specific mechanism for Motions requesting Attorney's fees,

5


Defendant Ocean 4660's counsel failed to follow the governing rule; to wit;

1. Plaintiffs counsel never made a good faith effort to resolve by agreement prior to filing its motion, and

2. Plaintiffs counsel failed to serve a draft of the Motion in accordance with the rule;

V. Fed. R. Civ. P. 11 also governs a Motion for Attornev's Fees:

Fed. R. Civ. P. 11 is analogous to a Motion for Attorney's fees as herein. See, Hill v. Lazarous

Enterprises, Inc., Case No.: 10-61479 ( U.S.D.F.L. ).

Under Rule 11, courts generally require that motions for sanctions be filed as soon as

practicable after the alleged violation has occurred. Hunter v. Earthgrains Co. Bakerv. 281 F. 3d

144, 152 (4th Cir. 2002 ). Here, the Lis Pendens was filed in 2010. Defendant Ocean 4660 did

not make a Motion to Discharge the Lis pendens until September, 2011.

Now, some five (5) months later Defendants' bring this untimely motion in violation of Rule

11 and Rule 7.3 (A), Local Rules for the Southern District. Not only is the motion untimely, the

mere filing of this motion for exorbitant legal fees which were never incurred, subjects the

Defendants' and Mr. Patrick K. Dahl, Esq., to dismissal of the motion and sanctions under Rule

11 for their abuse of process. See, Budget Rent-A-Car Svstems. Inc. v. Consolidated Equity.

L.L.C.. 428 F. 3d 717, 718 (7th. Cir. 2005 ). Rule 11(c) provides that in appropriate

circumstances the court may sanction attorneys, law firms, or parties. See, Union Planters Bank

v. L & J Development Co .. 115 F. 3d 378, 384 (6th. Cir. 1997 ).

6


Improper Rule 11 Motions

The Courts' have routinely cautioned Attorneys about bringing improper Rule 11 Motions

because Rule 11 violations may be raised by motions, such motions themselves are subject to

review under Rule 11, and can be the subject of additional allegations of violations of Rule 11.

See, Blue v. United States Department ofthe Army, 914 F. 2d 525,548 (4th. Cir. 1990 )(holding

"Litigants should be able to defend themselves from the imposition of sanctions without

incurring further sanctions "). The mere failure to prevail on a particular pleading or motion does

not, of itself, establish a violation of Rule 11. See, Altran Corp. v. Ford Motor Co., 502 U.S. 939,

112 S.Ct. 373. Simply put, in the instant case that is all that transpired. Here, these Defendants'

seek to improperly punish the Plaintiff for seeking redress in Court through the bringing of this

wanton, malicious and otherwise improper Rule 11 motion.

Rule 11 requires that the Defendants make this motion as soon as practicable after the alleged

violation. Rule 11 does not allow an allegedly injured party to move for sanctions after a case has

ended. See, Hunter v. Earthgrains Co. Bakery, 281 F. 3d 144, 152 ( 41h. Cir. 2002 ).

The acts and actions in making this frivolous, wanton, malicious and otherwise improper

motions subjects the Defendants' and Patrick K. Dahl, Esq. to sanctions. See, DiPaolo

v. Moran, 407 F. 3d 140 (3d. Cir. 2005 ).

Plaintiff herein sought to redress it's grievances in Court. Plaintiff did not bring the Action for

improper purposes, or to harass Defendants. At all times relevant, Plaintiff believed that the

Complaint was reasonable. Plaintiffs' pro se status must be weighed in determining the

reasonableness of Plaintiffs acts and actions in bringing the lawsuit. See, Kennedy v. National

7


Juvenile Detention Association 187 F. 3d 690, 696 ( 71h. Cir. 1999). Plaintiff respectfully states

that it did not bring the Complaint for any improper purpose.

DEFENDANTS FAILED TO COMPLY WITH LOCAL RULE 7.1(A)(3).

a. DEFENDANTS' MOTION IS UNTIMELY

Defendants' Motion for Attorneys Fees is untimely pursuant to Rule 7.3(A), Local Rules of the

Southern District of Florida.

Rule 7.3(A) states in pertinent part:

" any motion for attorneys fees and/or to tax costs shall be filed and served within thirty (30) days of entry of a final judgment or other appealable orders which gives rise to a right to attorneys fees or costs ................................................................................... "

The Court entered a final Order discharging the Lis Pendens on October 25, 2011. (See,

Court's October 25, 2011 -Order- Annexed Hereto as Exhibit" B ").Defendants' counsel did

not file its Motion for Attorneys Fees until December 05, 2011 (some two months thereafter).

Defendants' counsel was required to file any such motion on or before November 25, 2011.

Defendants' failure to timely file its motion requires the motion to be denied.

The United States District Court has strictly followed Local Rule 7.3(A) denying such untimely

motions without regard to the issues raised within the motion. See, Miller v. Relationserve. Inc ..

et.al.. 2006 U.S. Dist. LEXIS 87139 ( Civ. Action No.: 05-61944- DIMITROULEAS/TORRES

) (holding" untimely motion must simply be denied on procedural basis alone); Robinson v.

Alutiiq- Mele. LLC .. 643 F. Supp. 2d 1342 ( U.S.D.F.L. )(2009) (procedural requirements of

8


Rules are strictly construed); Kave v. Pers. Injury Fundin2:. LP., (2009) 2009 U.S. Dist. LEXIS

12730 ( U.S.D.F.L. ).

b. DEFENDANTS FAILED TO COMPLY WITH LOCAL RULE 7.l(A)(3)

Local Rule 7.l(A)(3) requires:

"prior to filing any motion in a civil case, ... counsel for the moving party shall confer ( orally or in writing), or make reasonable effort to confer ( orally or in writing ), with counsel for the opposing party in a good faith effort to resolve by agreement the issues to be raised in the motion ..... At the time of filing the motion, counsel for the moving party shall file with the Clerk a statement certifying either: (a) that counsel have conferred in a good faith effort to resolve the issues raised in the motion and have been unable to do so; or (b) that counsel for the moving party has made reasonable effort ( which shall by identifies with specificity in the statement) to confer with the opposing party but has been able to do so. Failure to comply with the requirements of this rule may be cause for the court to grant or deny the motion and impose on counsel an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee."

Mr. Dahl, Esq. has made absolutely no attempt to confer with counsel-Plaintiff(s), ProSe nor

has he filed the requisite statement certifying that he has attempted to confer with Plaintiffs, Pro

Se regarding this particular matter. As such, Defendants' motion should be denied, with an award

of costs and reasonable expenses to Plaintiffs for having to respond to this motion.

Defendant(s) Rule 11 Motion must be Dismissed for Untimeliness

Under Rule 11, Courts generally require the motion to be filed as soon as practicable after the

alleged violation has occurred. See, Hunter v. Earthgrains Co. Bakery, 281 F. 3d 144, 152 ( 41h.

Cir. 2002 )(holding delay of 14 months in moving for sanctions is unacceptable, even where

opponent of sanctions has not alleged prejudice or lack of notice ). Here, the Lis Pendens was

9


filed on or about December, 2010. In it's own motion to discharge the Lis Pendens, Defendant(s)

set forth that the alleged Rule 11 violation occurred on or before December, 2010.

The Court entered judgment on the Pleadings on December 21,2011.

Now, after the case has ended, Defendants make the untimely Rule 11 motion. Under Rule 11

it is well settled that a movant's duty to offer the offending party a" safe harbor" means that an

injured party may not move under Rule 11 after a case has ended. See, Tompkins v. Cyr, 202 F.

3d 770, 787-88 (5th. Cir. 2000 ); Ridder v. Citv of Springfield, 109 F. 3d 288 (6th. Cir. 1997 ).

Under the " safe harbor "provision of Rule 11, the Defendant Ocean 4660 had a duty to file its

motion as soon as practicable after the alleged violation occurred. Here, that was in 2010 when

the Lis Pendens was filed. Likewise, the " safe harbor" provision required that Defendant Ocean

4660 file its Motion for Attorney's Fees prior to the Court's discharging the Lis Pendens. See,

Tomvkins v. Cvr. 202 F. 3d 770, 787-88 (5th Cir. 2000 )(holding injured party may not move for

sanctions after a case has ended or the court has rejected the offending contention).

For this reason alone, Defendants Rule 11 motion must be dismissed and Plaintiff be awarded

the costs and expenses of defending this motion.

Defendants' Motion is Violative ofRule 11

Rule 11 (b), sets forth the grounds upon which such a motion can be brought about. Nowhere

in Defendants Motion for Attorneys' fees do they set forth what subdivision of Rule 11(b) the

Plaintiff allegedly violated. Therefore, the Plaintiff cannot defend against such a motion.

For this reason alone, the Defendants motion should be dismissed and Plaintiff awarded the

costs and expenses of defending this motion.

10


ProSe Litigants

Rule 11 applies to pro se litigants. However, a party's pro se status is a factor that is weighed

in determining whether the party's behavior was reasonable under the standard of Rule 11. See,

Kennedv v. National Juvenile Detention Association, 187 F. 3d 690, 696 (7th. Cir. 1999 )(

affirming conclusion that clairri was not frivolous," especially considering the plaintiffs lack of

legal representation"); Moore v. Time. Inc .. 180 F. 3d 463, ( 2d Cir. 1999 )(affirming district

court's denial of Rule 11 sanctions on attorney who appeared pro se where district court had

reasoned that attorney was " not sophisticated " ).

Defendants' Request for Attorneys' Fees in an Exorbitant Amount constitutes an ' Abuse of Process '

Rule 11(c)(l)(a) provides the Court with discretion to award costs, including attorney's fees,

associated with presenting or opposing a sanctions motion. See, Margolis v. Ryan, 140 F. 3d 850

( 91h. Cir. 1988 ).

If a party arguably entitled to attorneys' fees pursuant to Rule 11 asks for an exorbitant amount,

such a request itself is an abuse of process and therefore, is grounds for the denial of an award.

See, Budget Rent-A-Car System. Inc .. v. Consolidated Equity. LLC .. 428 F. 3d 717, 718 (7th. Cit.

2005 ) ..

Here, Defendants' counsel has asked for fees umelated to discharging the Lis Pendens and has

drastic accounting errors.

11


Plaintiff respectfully requests an evidentiary hearing related to counsels exorbitant request for

legal fees and demands strict proof that counsel billed the fees requested and proof of payment

thereof. Additionally, Plaintiff requests to examine Hanna Karcho (the managing member of

Defendant Ocean 4660 LLC ) the party who allegedly verified the legal billings.

c. DEFENDANTS FAILED TO COMPLY \VITH PROCEDURAL REQUIREMENTS OF RULE 11.

Counsel for the Defendants' Patrick K. Dahl, Esq. never served the motion upon Plaintiffs' as

required by Rule 11 ( c )(1 )(A). Rule specifically requiring the motion seeking sanctions to be

served upon the parties it is directed to, and not filed for twenty (21) one days following service,

and to specifically describe the specific conduct alleged to have violated subdivision (b) of Rule

11.

Failure to comply with the notice requirement requires a denial of Defendants' motion.

d. DEFENDANTS HAVE FAILED TO ANY BASIS FOR THE IMPOSITION OF RULE 11 SANCTIONS- THE AWARD OF ATTORNEYS' FEES.

Defendants' motion for Attorneys' fees fails to set forth what the alleged violation of Rule

1l(b) is. Nowhere, in defendants' motion does it set forth what subdivision ofRule 11(b)

Plaintiff allegedly violated or the conduct which is the subject of such a violation.

Rule 11 (b) requires an attorney filing a motion or pleading to certify that the motion or

pleading is not being filed for an improper purpose or to harass, that the legal contentions are

warranted by existing law, that the allegations and factual contentions have evidentiary support,

12


and that any denials of factual contentions are warranted on the evidence. Defendants' motion

under Rule 11 is devoid of the requisite certification. (Exhibit "D" ). This too is troubling.

e. PATRICK K. DAHL, ESQ.'S MOTION IS INSUFFICIENT FOR FAILURE TO ANNEX A VERIFIED STATEMENT OF ATTORNEYS FEES.

The only issue raised in Defendants' motion is for Attorneys' fees. Rule 11 requires that a

request for Attorneys fees be verified by the Attorney's. These Attorneys have failed to do

so. As such, Attorney Dahl's motion for legal fees is fatally defective and must be denied.

CONCLUSION

Defendants have failed to demonstrate that: (i) Plaintiff has violated any provision of Rule 11;

(ii) Defendants' motion for Attorneys' fees is fatally defective and untimely, therefore, must be

dismissed, (iii) Defendants' request for exorbitant Attorneys' fees is an abuse of process, and (iv)

Defendants' purpose for bringing such a motion was to harass and otherwise harm Plaintiff in

violation of Rule 11 which subjects them to sanctions.

For the foregoing reasons, this Court should deny Defendant ocean 4660's Motion and enter an

Order ruling that Defendant Ocean 4660 is not entitled to recover attorney's fees. If the Court

does permit Defendant Ocean 4660 to recover certain attorney's fees, the Court should reduce

any award as set forth herein.

Plaintiff respectfully requests that this Honorable Court sanction the Defendants' and their

Attorney, Patrick K. Dahl, Esq. for bringing such a motion and award Plaintiff reasonable costs

13


and expenses for defending the motion.

WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny Defendants'

Motion for Attorneys' Fees, sanction the Defendant Ocean 4660 and their Attorney, Patrick K.

Dahl, and award Plaintiff reasonable costs and expenses for defending this motion, along with all

other relief this Court deems just and appropriate.

2310 East Atlantic Boulevard, Suite 206 Pompano Beach, Florida 33062 Tel: (914) 563-4510 Fax: (954) 657-8405


I HEREBY CERTIFY that on February f!> ~012, I filed the foregoing instrument with the

Clerk of the Court. I also certifY that the foregoing document is being served this day on

WICKER, SMITH, O'HARA, MCCOY & FORD, P.A., c/o Patrick K. Dahl, Esq., attorney for

Defendant Ocean 4660, LLC via regular mail, at his offices located at 515 East Las Olas

14


EXHIBIT A

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 16 of 50Case 0:10-cv-62492-JIC Document 100 Entered on FLSD Docket 09/26/2011 Page 1 of 7

69417-7

UJ'.HTED STATES DISCTRJCT COURT FOR THE SOUTHERN DISTRJCT OF FLORJDA

ANGELA DIPILATO, individually,

Plaintiff,

vs.

RUDD & DIAMOND, P.A., a Florida Corporation, PETER A. DIAl\101\TD, Individually, MICHAEL RUDD, Individually, OCEAN 4660, LLC., a Florida limited liability company, COMERlCA BANK, a Michigan Corporation and REMO POLSELLI, Individually,

Defendandnts. ________________________ !

CASE NO. 1 0-62492-Civ-Altonaga/Brown

EMERGENCY MOTION TO DISCHARGE LIS PENDENS OR, ALTERNATIVELY, TO SET LIS PENDENS BO:ND

Defendant, Ocean 4660, LLC ("Ocean 4660"), moves this Court pursuant to Rule

65 of the Federal Rules of Civil Procedure and Section 48.23 of the Florida Statutes

(Fla.Stat.Ann. §48.23), for the entry of an order dissolving the lis pendens filed by the

plaintiff, Angela DiPilato ("DiPilato") because this action does not concern the property

against which the lis pendens has been filed. Alternatively, Ocean 4660 requests that this

court enter an order requiring DiPilato to set a lis pendens bond sufficient to address the

·potential loss and/or damages caused in the event that the lis pendens is determined to be

unjustified. In support thereof, Ocean 4660 states as follows:

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 17 of 50Case 0:10-cv-62492-J!C Document 100 Entered on FLSD Docket 09/26/2011 Page 2 of 7


PRELIMINARY STATEMENT CONCER~ING EMERGENCY NATURE OF I\IOTION

1. Ocean 4660, LLC ("Ocean 4660") is a Florida limited liability company.

Ocean 4660 owns real property located at 4658-4660 North Ocean Drive, Lauderdale-by-

the-Sea, Bioward County, Florida (the "4660 Property").

2. This motion requests the court to address a lis pendens filed against the

4660 Property.

3. As noted by the Fifth Circuit, "[t]he affect of a lis pendens on the owner,

however, is constraining. For all practical purposes, it would be virtually impossible to

sell or mortgage the property because the interest of a purchaser or mortgagee would be

subject to the eventual outcome of the lawsuit." Beefy King Intemational, Inc. v. Veigle,

464 F.2d 1102 (5th Cir. 1972).1

4. On September 2, 2011, Ocean 4660 entered into an agreement to sell the

Ocean Property (the "Agreement"). 2

5. The Agreement provides for a sixty day period within which to resolve

title issues identified by the purchaser. To the extent that the title issues are not resolved

within that period, the purchaser may terminate the Agreement. One of the title issues

identified by the purchaser is the lis pendens that is the subject of the present motion.

6. As a result of the present time constraint, Ocean 4660 is seeking relief on

an emergency basis to address and resolve not only the lis pendens, but to address any

1 Pursuant to Bonner v. Prichard, 661 F.2d 1206, 1209 (ll1

h Cir. 1981) (en bane), all decisions of the former Fifth Circuit announced prior to October I, 1981, were adopted as binding precedent by the Eleventh Circuit.

2

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 18 of 50Case 0:1 0-cv-62492-JIC Document 100 Entered on FLSD Docket 09/26/2011 Page 3 of 7

CASE NO. 10-62492-Civ-Altonaga/BrO\:vn

concerns raised by the court within sufficient time to address and resolve those issues

prior to the expiration of the sixty day period.

MOTION TO DISCHARGE LIS PENDENS

7. Ocean 4660, LLC ("Ocean 4660") is a Florida limited liability company.

Ocean 4660 owns real property located at 4658-4660 Ocean Drive, Lauderdale-by-the

Sea, Broward County, Florida (the "4660 Property").

8. On March 21, 2011, DiPilato, proceeding pro se, filed her Second

Amended Complaint ("Complaint") in which she has asserted claims against various

defendants for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"),

15 U.S.C. §1692 et. seq. (DE 58.)

9. On the same day DiPilato filed the Complaint, she filed and caused to be

recorded a document entitled "Notice of Pendency" which was recorded by the Broward

County Records Office at Book 4 7663, page 1853 (the "lis pendens").

10. In the Notice of Pendency, DiPilato claims that this action has been

commenced in which DiPilato is seeking a judgment: (i) enjoining the use of the 4660

Property; (ii) invalidating and setting aside the deed and subsequent deeds; (iii) awarding

title to real property to the plaintiff; (iv) directing the restoration of the grades thereof to

the extent that the court deems it necessary; (v) impressing a lien on the 4660 Property to

ensure performance of any court orders.

11. Put simply, the Complaint neither involves nor concerns the 4660

Property. The Complaint contains 14 separate counts against various defendants in

2 Factual support for these statements are set forth in the exhibits and materials submitted with the

3


CASE NO. 10-62492-Civ-Altonaga/Brown

which DiPilato has asserted various FDCP A claims. Nowhere does DiPilato request or

suggest that her action involves the Ocean Property sufficient to justify the continuation

of the lis pendens.

12. By statute, and as recognized by the Fifth Circuit, this Court may dissolve

or discharge the lis pendens. See Beefy King International, Inc. v. Veigle, 464 F.2d 1102

(5th Cir. 1972); see also Fla.Stat.Ann. §48.23(3).

13. In addition to the discharge of the lis pendens, Ocean 4660 requests that it

be awarded the costs incurred in connection with this motion as required by §48.23. See

S&T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006) (holding that an award

of attorney's fees incurred in discharging a lis pendens is statutorily authorized" under

section 48.23(3).)

"WHEREFORE, Defendant, Ocean 4660, LLC, respectfully requests that this

Court enter an order discharging the lis pendens recorded at Book 4 7663, page 1853, for

an award of attorneys fees and costs incurred in having the lis pendens discharged, and

for whatever other relief this Court deems just and proper.

ALTER'lATIVE MOTION FOR SETTING OF LIS PENDENS BOND

14. Alternatively, to the extent that the Court chooses not to dissolve the lis

pendens, Ocean 4660 requests that this court set a lis pendens bond sufficient to address

the potential damages caused by the lis pendens in case it is determined that it was

improperly filed.

contemporaneously filed memorandum.

4

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 20 of 50Case 0:10-cv-62492-JIC Document i 00 Entered on FLSD Docket 09/26/2011 Page 5 of 7


15. Pursuant to Florida law, the trial court has wide discretion concerning

whether to require the proponent of a lis pendens to post a lis pendens bond. Medical

Facilities Development, Inc. v. Little Arch Creek Properties, Inc., 675 So.2d 915 (Fla.

1996). Hovvever, the failure to require the bond proponent to post such a bond has been

held to constitute reversible error where the bond proponent can demonstrate that

damages or injury will likely be suffered from the lis pendens. Empire Ocean Residence

Realty, LLC v. CDR Creances, S.A.S., 44 So. 3d 179 (Fla. 3rct DCA 2010).

16. As set forth in the accompanying memorandum, Ocean 4660 can and will

suffer damages and injury in the event that a bond is not posted. As such, in the event

that the lis pendens is not discharged, a bond should be required in an amount equal to the

present sale price for the 4660 Property as reflected in the Agreement of$13,250,000.00

WHEREFORE, Ocean 4660, LLC respectfully requests that this Court enter an

order requiring the Angela DiPilato to post a lis pendens bond in the amount of

$13,250,00.00 or in some other amount as the court deems appropriate.

INCORPORATION OF MEMOR.Al~DU1\1 OF LA 'V

17. Ocean 4660 has filed, contemporaneously with this motion, a supporting

memorandum of law. Ocean 4660 adopts and incorporates by reference the arguments

and authorities cited therein as though fully set forth herein.

CERTIFICATE OF GOOD FAITH CONFERENCE; CONFERRED BUT UNABLE TO RESOLVE ISSUES PRESENTED IN THE MOTION

18. Pursuant to Local Rule 7.1(a)(3)(A), I hereby certifY that counsel for the

movant has conferred with all parties or non-parties who may be affected by the relief

5


CASE NO. 1 0-62492-Civ-Altonaga/BrO\vn

sought in this motion in a good faith effort to resolve the issues but has been unable to

resolve the issues. A copy of the correspondence counsel received to his efforts to

resolve this matter is attached hereto as Exhibit A.

I HEREBY CERTIFY that on September 26, 2011, I electronically filed the

foregoing document with the Clerk of the Court using CM/ECF. I also certify that the

foregoing document is being served this day on all counsel of record identified on the

attached Service List in the manner specified, either via transmission of Notices of

Electronic Filing generated by CM/ECF or in some other authorized mam1er for those

counsel or parties who are not authorized to receive electronically Notices of Electronic

Filing.

6

W1CKER, SMITH, O'HARA, MCCOY & FORD, P.A. Attorney for 515 E. Las Olas Boulevard SunTrust Center, Suite 1400 P.O. Box 14460 Ft. Lauderdale, FL 33302 Phone: (954) 847-4800 Fax: (954) 760-9353

By: /s/ Patrick K. Dahl Robert E. Paradela Florida Bar No. 842095 Patrick K. Dahl Florida Bar No. 084109

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 22 of 50Case 0:1 0-C'/-62492-JIC Document 100 Entered on FLSD Docket 09/26/2011 Page 7 of 7

Peter Diamond, Esq. Rudd & Diamond, P.A. 4000 Hollywood Blvd., Suite 165-S Hollywood, Florida 33021

Angela DiPilato Angela DiPilato 2310 E. Atlantic Boulevard Suite 206 Pompano Beach, FL 33062

Alejandro Vilarello, Esq. 16400 NW 1591

b Ave. Miami Lakes, Florida 33014

CASE NO. 1 0-62492-Civ-AltonagaiBrown

Service List

7


EXHIBITB

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 24 of 50Case: 0:10-cv-62492-JIC Document#: 119 Entered on FLSD Docket: 10/25/2011 Page 1 of 4


ANGELA DIPILATO, individually,

Plaintiff, vs.

RUDD & DIAMOND, P.A., a Florida corporation, PETER A. DIAMOND, individually, MICHAEL RUDD, individually, OCEAN 4660, LLC, a Florida limited liability company, COMERICA BANK, a Michigan corporation, and REMO POLSELLI, individually,

Defendants. __________________________________ /

CASE NO. 1 0-62492-CIV-COHN

Magistrate Judge Seltzer

ORDER GRANTING EMERGENCY MOTION TO REQUIRE PLAINTIFF TO POST SUPERSEDEAS BOND OF $13,250.000.00

ORDER DIRECTING PLAINTIFF TO RELEASE LIS PENDENS ORDER DIRECTING PLAINTIFF TO PROVIDE EMAIL ADDRESS TO FACILITATE

NOTICE OF COURT ORDERS

THIS CAUSE is before the Court upon Defendant Ocean 4660, LLC's

Emergency Motion to Require Plaintiff to Post Supersedeas Bond, or Alternatively, to

Compel Release of Lis Pendens [DE 114]. The Court has carefully considered the

motion and accompanying memorandum [DE 115], and is otherwise fully advised in the

premises. The Court notes that Plaintiff Angela DiPilato ("Plaintiff'), acting pro se, has

failed to respond to the motion by the Court imposed deadline of Friday, October 21,

2011.

On September 26, 2011, Defendant Ocean 4660 filed an emergency motion to

discharge a lis pendens o.n the property, or to request the posting of a bond [DE 1 00].

According to the affidavit of Hanna Karcho, the sole member of Defendant Ocean 4660,

LLC, Plaintiff filed a Notice of Lis Pendens against the property at 4658-4660 North

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 25 of 50u

case: 0:10-cv-62492-JIC Document#: 119 Entered on FLSD Docket: 10/25/~ ~

J

Ocean Drive, Lauderdale-by-the-Sea, Florida, with the Broward County Clerk on

.._, 0 c

£ Q) Q 0 .._ Q

.._, u Q)

iS' January 21, 2011. Affidavit of Owner, ~1 0 [DE 101-1 ]. On September 2, 2011, "1 ..

Defendant Ocean 4660 entered into an agreement to sell the property at issue to a non-

party for $13,250,000. !.9.:. at~ 7. The agreement provides for a 60 day period to

resolve any title issues. The purchaser has identified the Lis Pendens filed by Plaintiff

as one of those issues. !.9.:. at~ 11.

The Court set a hearing on Defendant Ocean 4660's discharge motion for

October 7, 2011. Plaintiff opposed the motion and sought a continuance of the hearing

[DE 1 06]. Given the exigent nature of the requested relief, the Court denied the motion

to continue [DE 1 07]. Plaintiff did not appear at the hearing [DE 1 08]. After hearing the

argument of Defendant and asking several questions, the Court granted the motion to

discharge the lien [DE 1 09]. The next business day, Plaintiff filed a Notice of

Interlocutory Appeal [DE 111 ].

Defendant Ocean 4660 now seeks this Court to require Plaintiff to post a

supersedeas bond. Defendant contends that under Florida law the pendency of an

appeal effectively operates to stay the discharge of a lis pendens. Therefore,

Defendant asks the Court to require Plaintiff to post a bond, or to compel release of the

lis pendens.

This Court notes that it is not necessarily clear that Florida law governs this

issue, as although this is an interlocutory appeal, Rule 62(d) of the Federal Rules of

Civil Procedure provides that an appellant normally can only obtain a stay by posting a

supersedeas bond. Thus, assuming that Florida law applies, the Court does conclude

that it is appropriate in this case to require Plaintiff to post a bond to cover the potential

damages if her failure to discharge the lis pendens causes the contracted for sale of the

2

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Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 26 of 50Q. ...... 0

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/ ,.

L::-JIC- ·- Document#: 119 Entered on FLSD Docket: 10/25/2011 -~/

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,/

Page 3 of"'

_,..sU'~Jecf property not to close. This conclusion finds further support in this Court's recent /of~ '~

/

// order granting the Rudd & Diamond Defendants motion to dismiss in this action [DE

117], in that several of the Defendants have now been dismissed.1 The amount of the

bond is best determined in this case by the amount of the contracted price for the

property ($13,250,000).

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant Ocean 4660, LLC's Emergency Motion to Require Plaintiff to·Post

Supersedeas Bond, or Alternatively, to Compel Release of Lis Pendens [DE 114]

is hereby GRANTED;

2. By 12 noon on October 28, 2011, Plaintiff Angela DiPilato shall file a

supersedeas bond in the amount of $13,250,000 in the docket of this action;

3. Plaintiff shall immediately take the necessary action to release and/or discharge

the Notice of Pendency filed in the records of Broward County, Florida, with filing

location CFN # 109821421, OR BK 47663 Page 1853, Recorded 01/21/2011 at

11 :46am;

4. Failure to timely file the bond shall result in the release of the Notice of

Pendency;

5. Plaintiff is further directed to provide this Court, in a written filing in this action,

with an electronic mail address, so as to facilitate prompt notice of all filings,

including Court orders, to Plaintiff. Pursuant to Court policy, pro se litigants

cannot file documents in the CM/ECF system, but can with Court approval,

1 The Second Amended Complaint in this action brought Fair Debt Collection Practices Act claims against various defendants, though Defendant Ocean 4660 was not alleged to have taken action independent of the attorneys it hired to collect funds from Plaintiff.

3

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 27 of 50Case: 0:10-cv-62492-JIC Document#: 119

receive such filed documents. -- ' .,

Florida, this 251h day of October, 2011.

Copies furnished to:

Angela DiPilato, prose (via CM/ECF regular mail) and via facsimile to 954-657-8405

counsel of record on CM/ECF

4

-------------------------


EXHIBIT C

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 29 of 50·. ·-~ ,. :' '

. -r ::_ ~ . -·-=-... c:~t.~::;~ .._

....... ~"'' .. ·.;"~'+ .. · .. ·;~·;,~~jjf:~.( <iH ,....,--":'·~-..,.., entered on FLSD Docke~12/0,5/20:11~ Pag~.+.:Pfl4):.:'~(;_> ·'

..,...--.~.,..--.,..- Wicker; Smith, O'Hara · ' · · · · · ·. /"''· \

--------~---·· McCoy &·i=ord, P.A. !:"

Remo Polselll Ocean 4600, LLC 55 E. Long lake Road Unit 204 'Troy, Ml 48098

Attorneys at Law

2800 Ponce de Leon Boulevard Suite 800

Coral Gables, Florida 33134 (305) 448 -3939

TIN NO. 65-0089075

INIERIM BILL

October 25, 2011

Invoice 326971 Page 1

For Services Through September 30, 201 1

Our Matter# 69417-7 ._

09/19/1 i

09/19/11

09/19/11

09/19/11

09/13/~ 1

09/i 9/11

09/19/11

09/20/11

DIPilato; Angela vs. Rudd & Diamond, P.A.; Peter A. Diamond; Michael Rudd; Remo Polselli; Ocean 4660, LLC

INSURED:

0/LOSS:

CLAIM#:

Analysis of pending Second Amended Complaint to identify allegations concerning property ownership and allegations or requests for relief directed against the Ocean 4660 Property for use In motion to discharge lis pendens.

Drafted portion of memorandum in support oi motion do discharge lis pendens.

Initiated telephone call to "*W*49lo obtain purchaser's consent to disclose the purchase agreement as part of motion to discharge lis pendens to avoid potential breach of confidentiality provisions contained within purchase agreement.

Analysis of correspondence from1iWfl?#p4660 Property purchaser, authorizing disclosure of purchase agreement as part of motion to discharge iis pendens.

Analysis of reported decisions concerning entitlement to and usage of attorney's fees as basis for claiming damages and injury as a result of compensable harm in connection with lis pendens.

Drafted correspondence to purchaser !fitil¥lt4lik to formally request consent to disclose purchase agreement as part of lis pendens motion in light of confidentiality provisions contained within purchase agreement.

Analysis of property purchase agreement to identify specific provisions concerning obligation to provide clear title, impact of failure to provide clear title, and resulting damages associated from breach of same for use in establishing harm component necessary for lis pendens motion.

Revised Emergency Motion to Discharge Lis Pendens and Memorandum of Law

E. J. Gruber

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

J. S. Cohen

0.40

0.50

0.20

0.10

0.40

0.20

0.50

0.40

40.00

117.50

47.00

23.50

94.00

47.00

117.50

130.00


09/20/11

09/20/11

09/20/11

09/20.'11

09/21/11

09/21/11

09/21/11

09/22/11

09/22/11

09/22/11

09!22!11

09/22/11

~:::r~.~.~-~;..,~.-: .

- ·'1<2·'··9--1 Entered on FLSD Docket 12/05/2011 ~,,ent .·

····' · · Wicker, Smith, O'Hara

Page 2 of 14

McCoy & Ford, P.A. Attom~ys at Law

2800 Pon~-d~ Leon Boulevard Suite 800


TIN NO. 65-0089075

Completed draft of Memorandum is Support of Emergency Motion to Discharge Lis Pendens or Alternatively, To Set Lis Pendens Bond.

Drafted correspondence to clients for review and approval of Lis Pendens memorandum and H. Karcho affidavit.

*¥** 2 ¥ ¥ii#*+ #Rr * h*¥i¥¥SM'¥& 4¥~

Received telephone call from client's general counsel, IZ ; :AW, concerning issues associated with damages affidavit

and review of proposed motions.

Analysis of correspondence from Ei1MibC general counsel for Ocean 4660, concerning purchaser's revocation of authority to attach and disclose purchase agreement and resulting impact upon ability to provide quantifiable damages for use in bond setting portion of lis pendens ·motion.

initiated telephone call to ~concerning alternative methods of establishing potential damages in H. Karcho affidavit as part of iis pendens bond motion.

Received telephone call from W$1W\IP, punchaser, concerning issues with and alternatives to disclosure of sale agreement as part of !is pendens and related filings.

lniiiated telephone call lo"%'4¥C&d#t, general counsel for Ocean 4660, to discuss revisions to H. Karcho affidavit in light of purchaser's revocation of authorization to disclose agreement and to develop additional damages theories for use in setting lis pendens bond amount.

Revised and supplemented H. Karcho affidavit to address additional potential damages theories for review by client as part of lis pendens motion filing.

Analysis of correspondence, executed affidavit, and supporting deed information establishing ownership to ensure that supporting and related documents were appropriate and appropriate to disclose as part of proceedings to have lis pendens bond amount set.

~r:.;~,·~--~r~iirJ,,,~~

P. K. Dahl

P. K. Dahl

P. K. Dahl

P K. Dahl

P. K. Dahl

P K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl


2.70 634.50

0.10. 23.50

0.10 23.50

0.10 23.50

0.10 23.50

0.20 47.00

0.20 47.00

0.20 47.00

0.10 23.50

0.20 47.00

~ ~


09/22!1 1

09/22/1 1

09/22/11

09/22!11

09/22!11

09/22/11

09/23/11

09/23/11

09/23/11

09/23/11

09/23/11

09/23/11

.A-.<''~~:? I

._..-<:'.

~e-~;-;;;_1 Entered on FLSD Docket 12/05/2011

-~ S 'th O'H

Page 3 of

Wicker, m1 , ara

McCoy & Ford, P.A. Attorneys at Law

2800 Ponce'de Leon Boulevard Suite 800

Gural Gables, Florida 33134 (305) 448 -3939

TIN NO. 65-0089075

Analysis of proposed affidavit prepared by client regarding damages sustained as a result of fls pendens for use in lis pendens bond component of motion.

Drafted correspondence to *ii • M egarding revised affidavit for H. Karcho execution.

.... M -~ :::IIIII Ill· 11!111,; um~• reo MiJ.PDIWii -.. Analysis of reported decisions concerning lis pendens bond setting for use in identification of alternative damages quantification methods to support lis pendens bond amount in light of purchaser and clients position that purchase agreement should not be disclosed as part of motion.

Revised and supplemented Emergency Motion (lis pendens) to remove references to agreement in light of purchaser and clients withholding of permission tc attach same as exhibit to pleadings.

Revised and supplemented Emergency Moiion Memorandum (lis pendens) to remove reference and citations to agreement in light of client and purchasers instructions to the effect that agreement could not be attached as exhibit.

Revised and supplemented Karcho affidavit to address holes in factual section of motion and memorandum created by absence of agreement.

~$.-:it.:f')A§t£1¢;:¥-

Analysis of revised executed affidavit by H. Karcho to confirm acceptance of all new allegations, no additional revisions had been made, and to ensure affidavit complete prior to filing.

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl


0.20

0.10

~

0.30

0.10

0.20

0.20

~

0.10

-

47.00

23.50

70.50

23.50

47.00

47.00

~

23.50

~


09/23/11

09/23/11

B 0 6)

09/25/11

09/25/11

09/25/11

09/25/i 1

09/26/11

09/26/11

09/26/1 i

09/26/11

~....-;>·--'- ; ~,~· ..

_-::;.:

~ument 129-1 Entered on !=LSD Docket 12/05/2011 Page 4 of 14

Wicker, Smith, O'Hara

pending discovery.

McCoy & Ford, P .A. Attorr;e~s at Law


Coral Gables, Florida 33134 ' (305) 448 -3939

TIN NO. 65-0089075

lniiiated telephone call to~, purchaser's counsel, to obtain authorization to disclose certain information contained withing purchase agreement such as the existence of the agreement, purchase price, and ability to cancel If clear title is not provided in light of confidentiality provision contained within agieement.

Initiated telephone call to S iAII, purchaser, to obtain authorization to disclose certain information contained withing purchase agreement such as the existence of the agreement, purchase price, and ability to cancel if clear title is not provided in light of confidentiality provision contained within agreement.

Drafted correspondence to client and general counsel concerning

Initiated telephone call to A. DiPllato to discuss motion and satisfy conference requirements of local rule 7.1 in advance of tiling motion.

•ew &iM#I&#if#S#Si¥#¥1f.

. ::=§1? Riiiti¥'i&i'AP p tfflbt#¥S!¥f6D

~-llf!l&et'Gllla

Analysis of detailed correspondence from K. Franks and A.. DiPilato concerning rejection of attempt to resolve issues concerning lis pendens and threatening action should any attempts be made to file an appearance or represent defendants in present action.

Revised and supplemented lis pendens motion to incorporate rejection letter and threat correspondence.

Initiated telephone call tc clerk for US District Court for Southern District of Florida to obtain judge specific procedures for Judge Cohn for addressing emergency motions.

\

P. K. Dahl

P. K. Dahl

P. K. Dahl

P.'.K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

P K. Dahl

P. K. Dahl

P. K. Dahl

P. K. Dahl

t

Invoice 326971 Page4

0.10 23.50

0.10 23.50

0.20 8 O.iO ~~

(:_5~ /

.J:fJl!l- ~

~ ~

... ~

~ ~

020 47.00

0.20 47.00

0.10 23.50

~ ~


09/27/11

09/28/11

08/28/11

09/28/11

· ·'""~"~ 129-1 Entered on FLSD Docket 12/05/2011 . ..,ume Wicker, Smith, O'Hara

'·

McCoy & Ford, P .A. At!o;n~ys ~t Law



TIN NO. 65-0089075

Analysis of notifications from federal court acknowledging receipt of emergency motion documents.

P. K. Dahl

P. K. Dahl


0,10 .. -

23.50

P. K. Dahl sB ~

09/29/1.) Initiated lelephone call to Judge Cohn's judlcal assistant to discuss receipt of emergency motion, protoccls for obtaining emergency hearing date, and related matters associated with emergency motion and current pleadings.

P. K. Dahl

09/30/11

09/30/11

09/30/~ 1

09/26/11

Analysis of Amended Order from Federal Court changing hearing date on emergency motion from 1 0/14 to 1 0/7

Analysis of Federal Court order setting emergency motion for hearing on October 14, 2011.

P. K. Dahl

Total :=ees for Professional Services ..................................................... .

Summary of Fees

Name Title Hours Raie/Hr

E. J. Gruber Associate 0.40 100.00

J.S.Cohen Partner 0.40 325.00 c::s) Associate 11.60 235.00

12.40

Reimbursable Costs

255 Photocopies - p

0.10

23.50

Fees

$40.00

$130.00

$2,726.00

--._

25.50

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 34 of 50_;~~~~$~Jt"lt£~·: I

;:::~:/~-,· .. ;~:'"\': <··.-. ;c-~· 7"''- . ·-~··"'.':-..~ '

_tJment 129-1 Entered on FLSD Docket 12/0S/2011 Wicker, Smith, O'Hara

Page 6 of14

09/26/11

09/30/11

1 Photocopies - p

T elecopier Charges

McCoy & Ford, P A. A:torneys at Law

;


Coral Gables, Rorida 33134 (305) 448 -3939

TIN NO. 65-0089075

Reimbursable Costs

Total Expenses ....................................................................... ..

Totals for TF1is Marter

Fees for Professional Services ................................ ..

Reimbursable Costs ................................................ ..

NET CURRENT BILLING FOR THIS MADER

TOTAL DUE FOR THIS MATTER


-~

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_,noi~;e~ Name :"'~"'--:<~(::!i;nt Number

~ .. /4 .~ Matter Number

Date Worked Work Status

Page 7 of 14

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Description

Notes

Codes

Hours

Rate

Dollars

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Printed from RalnMakerPia1inum on: Monday, November07, 2011 11:09:16 AM Page 1 of 8 Wicker, Smith, O'Hara, McCoy&. Ford, PA


~ument ~29-~ Entered on FLSD Docket 12/05/2011

Timekeeper V\1orked Detail Report Worked between 0 l/0 l/1900 drru 11/07/2011

-r"oY~-Name Client Number Matter 1Yumber

Description

Notes

69417-.r:: 'DiPIIato. Angela vs. Rudd-& Diamond, P.A.;-Peter A Di""'"""' ~jjrhaet Budd; Re.mo.Polselli

Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P.A.; Peter A. Diamond; Michael Rudd; Remo Polselli

Total For 04662: Ocean 4600, LLC

Cohen .;io"doncsi·::Jsc· o4662~:-~;e~~ 4600;n:c·· · ·-'~ -··

Hours

Hours

Hours

694c17~7: BiPilatq,;Angela :vs .. Rudd~& Diamand,.P-.A.: .Peter-P. .. ·oiamcina:•MichaeLRudd~ 'Ramo P~ls_elli · 1011112011 W~rk-ln-P~ac;ss . 7776349 Revised Motion to Require Plalntiff to P~s,..t..,· -=::::-

12:00:00 AM

PHASE: L250

Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P.A.; Peter Diamond; Michael Rudd; Remo Polsalli


Tot~! For Cohen, Jordon S.: JSC

oa·nt, Patrlck.-K.: PKD

04662: Ocean 4600, LLC

Hours

Hours

Hours

69417-7: DIPIIato, .Angela vs. Rudd & Diamand,P.A.; Peter A Diamond; Michaei-Rudd; Rsmo Pcilseill

0.20

0.20

Dottars

Dollars

Dollars

Dollars

Dollars

Dollars

0.20

325.00

ss.oo

------B5.0o

Sl'!L~~~~--.::?..a~ ... ~~~~':E"'-~-,s:::t.._"""""'-""'!::!'".:!~~-~, .. :;;;~~~::t'<:(V';.~"'::7ee'"'"~~;n;;:~~~~...fr'.:~~;::;:;:;.t~..!Z!~-.:l-...:::::.n-... -=.}{S:~~.3~t=.:=:~...,-c-P~ Printed from RainMaker Platinum on: Monday, November 07, 2011 11 :C9:15 AM Page 2 of 8 Wicker, Smllh. O'Har-a, McCay & Ford, ·


,'/"_,uName _.;;;;,(Number

.. "'···Matter Number ./·

Work Status

,~-----

-~"'**"'. =---. ---·-

...-· ent 129-1 _..:::um Entered on FLSD Docket 12/05/2011

14

rnn.ekeep~r>vvork:ed. .Detail Jiep o·:rt ·· . Worked between 01/0111900 thru 11/07/2011

Description

Noter

Codes

Page 10 of

Hours

Rate·

Do//ars

~~0:1~~~I!:~~~~-5"'~~~~~~;f~1~~~~~ :~4;~~1f~~;i¥~~,g~l~~,v'~~Jiu~£1;b~~6£~;:~,g.;1~~i&~i:161~~6ici;f~icta~li~~a2~1~i~~j§§f~~~h'-f;,~·- .•... : r. c:.~- ' ,. .. --

1 On/2011 Work-In-Process 12:00:00 AM

10/7/2011 Work-In-Process 12:00:00 AM

1 0/7/2011 Work-In-Process 12:00:00 AM

1 On/2011 Work-In-Process 12:00:00 AM


10/7/2011 Work-in-Process 12:00:00 AM

PHASE: L210 L210 PLEADINGS

7773750 Completed preparation for hearing on Motion to Discharge Lis Pendens or, Alternatively, to Set Lis Pendens Bond before Judge Cohn.


7773751 Attended and participated in hearing on Emergency Motion to Discharge Lis Pendens or, Alternatively, to Set Lis Pendens Bond before Judge Cohn.

PHASE: L210 L210 PL::ADINGS

7773752 Drafted correspondence •##i&¥4&@44¥ilf41G~ developments at and ruling on Emergency Motion to Discharge Lis Pendens

&;l~Ji%iiri.¥ii~ .

7773755

PHASE: L210'·L210 PLEADINGS . ... ~'

Initiated telephone call to R. Polselli concerning developments and ruling at emergency motion hearing, further steps to discharge lis pendens, and plan for responding to likely future communicatlomQ~

PHASE: L21 0 L210 PLEADINGS

7773757 Received telephone call fro~ prior to emergency motion hearing to discuss argument ahd recent developments affecting arguments Including

•. · numerous text messages sent by K. Frank in preceding 24 hours.

PHASE: L120 L120ANALYSIS/STRATEGY

7773761 Analysis of preliminary minute order (DE 1 09) entered by Judge Cohn granting motion to discharge lis pendens.


--

0.50

235.00

117.50

1.20

235.00

282.00

0.30

235.00

70.50

6\ 235.00

47.00

235.00

47.00 --0.10

235.00

23.50

~~.!:".3a.~~·~=--~~=-·~~~,::::-~ - . -:!i<!.e:!IJYC"~""~"'~"l>.:!~.'t...,......~~.t?;_,r;sc_._....~~~~~~~-prin\ed from RalnMakerPia~num on: Monday, November07, 201111:D9:16'AM Page 4 oi8 Wicker, Smith, O'Hara, McCoy & Ford, P.A.

.ave.~


Date Worked Work Status

Description

Notes

Entry No. Codes

e~~(hl!_:r·~J~~-2?-K~;-~~,}j.:_: ~--.;_ ---~ -.::.~:~=-~-::·~~:;: .;~_-:·-~~:~:~:-:.~~;~:~~-5~~=-h<;?~itz=.:::~t::f-.:f:_:t::~-~~Ii~~,:~0l~1~t&{t2~-F~~~t~~~-:i.:;~~~5-:Ii~I-~:~:::/7ij):~-=~:::-:I:: ;_.'--~ :.- :: . .- -~:-. O!f.662_;.0cean,4600, LLC

6:~1j,yq::,oif?Jlat~,:Arig_~la~v_s::riJda:&;oJamoiiiJ,:p:i:;Pdiei.:A.:olarrionc:J;.:MIGhaei'~!Jda;:8emoiP.oi~E311i·. . .16i7/2o1 i W~rk-ln-Pra-;;ess . l7737'T3 A~alysis ;f ord~r gra~-ti~g m~ti~n to discharge lis pendens.

12:00:00 AM

Oi e

10110/2011 Work-in'Process 12:00:00 AM

1 0/10/2011 Work-In-Process 12:00:00 AM

101111201 1 Work-In-Process '12:00:00 AM

10/111201 i Work-In-Process 12:00:00 AM



10/11/2011 Work-In-Process 12:00.:00 AM

10/11/2011 Work-In-Process 12:00:00 .A.M



7788153 Analysis of reported decisions addressing effect of an appeal on a lis pendens to identify any further action that would be required to obtain discharge of lis pendens in the event that piaintiff follows through with threat reflected in her correspondence.


7788155 Analysis of reoorted decisions addressing authority of trial court to set appellate bond In light of purported threat of appeal of order d'1scharging lien.

PHASE: L 120 L 120 ANALYSIS/STRATEGY

7785833 Drafted Emergency Motion to Compel PlaintlffTa Post Supersedeas Bond Or To Discharge Us Pendens.

PHASE: L210 L210 PLEADING;;.,<(~·~··'".,,..,_ ·"""' .. , ... · y...,.,,,,~ .,.,,"'_ 7785834 Drafted Memorandum In Support of Motion to Set Supersedeas Bond Or to

C~I'Ni!l£harge Of Lis Fleridi!q?.·


7785835 Analysis of Notice of Appeal filed by A. DiPilato concerning the October 7, 2011 and October 5, 2011 orders.

PHASE: L210 L2i0 PLEADINGS

7785836 Analysis of reported decisions concerning authority to require plaintiff to past bond as pari of pendency of appeal for use In Motion to Compel posting of supersedeas bond.


7785837 Initiated telephone call~ccncernlng Motion and plan to address appeal in light of time constraints.


7785838 Drafted correspondence~ concernino Supersedeas Band Motion and Memorandu~1itjit.._""'N~~


Hours

Rate

Dollars

0.10

235.00

23.50

0.40

235.00

94.00

0.40

235.00

94.00

i .00

235.00

235.00

2.70

235.00

634.50

G· 0.60

235.00

141.00

0.10

235.00

23.50

0.10

235.00

23.50

· •.=:~,.., .. :·•~!.:,.~-:;;:·~ca;"':=..:.::'-='r:·::=~'-~·!:·':';;:_-=-·-=1--:-;-;::-~~:-!.::-:-::-::::::;;:"...=...:::.::~=i:...-::i'~=~.:::;:;r-..:...=:::·

Page 5 of 8 Wicker, Smith, O'Hara, ~~cCoy & Ford, P .A.


Description

Noles

6 94'1;7 -1~TJ iPllato, .Ail>jela :vs.iRucid. & Blaniond, 'P.A.; :Peter A :Oiamond;·Michaei.RudCJ; 'Ramo .Poise ill __________ ·:.o_- • .. -·. . •

10/1212011 Wori<:-in-Process 12:00:00 AM



7785780 Revised and supplemented Emergency Motion fer Supersedeas Bond to incorporate comments from Comerica's counsel.


7785805 Analysis of notice of ac::eotance of Emergency Motion concerning supersedeas bond.


7783363 Analysis of order from Judge Cohn pursuant to which he entered expedited hearing and briefing concerning mo~on for appellate bond.


Page 12 of

--o.20

235.00

47.00

0.10

235.00

23.50

--o.10

·===...," .... ~== .. =--~~-=-r-..-=··~- .. >'-~""'=""=-=-'="'===-=.r.=-=====-"""·=""-"'"'·""=""'"1 Printed iram RainMaksr Platinum an: Monday, November 07, 2011 11:09:16 AM Page 6 of 8 Wicker, Smith, O'Hara, McCoy & Ford, p.

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 40 of 50~~. •;'':· : ":·"'':'!""_ ~~ ... ------...... ~~""':~"-~ ---- .-.. -~

-'. :,,~<r;F' . E. ~~r.ed ~n FLSD Docket 12/05/2011 Page 13 of ,.AffTlent 129-1 n ___ _. ·-. _

-~~t~im-!~t.~et~q~~~1£~Y!:,11f§JI~titlt:¥£f=JE:~:-~:-:---~~,~ ~ --- · _, j'·~- _.,",. --.· -Worked between 01/01/1900 thru 11/07/2011

Descr(otion

Notes

Date Worked Work Status Entry No. Codes

Hours

Rate

Dollars


...r: .~

~an;ber

.• -t'".r

/· -~

Hours _,__.. . ...,:·" .Description / ~ ~

/' ~~ /-- ~7D~a~te:!_ffi~o~r~u::d~m:o~r~k~S~ta~tu~s~~~~-----,_:E~n~rr':!'y'!,N~o~ . .,.C':::o~d~e~ss---------,-,~~--c---c-'""'~=c:c:-c=C0:-::7"":--:-'c-:~--:-::-:-~:=-c:-:--~-:;;~o:;··;;:'· ·~ r < :;:~;;"~~;::~:~:"~' ~odd & Dl•mood. P ~ 1 Pem; A Dl,mood Mlomol Rodd Romo P~leelll . • .·. . .. ·• '

10/25/2011 Work-In-Process 7833645 Analysis oi order granting appeal bond motion and compelling posting of bond

.• -"'<-

0.20 I ; 12:00:00 AM or altematively, to discharge the lis pendens.

235.00

47.00

0.50

!'

,, i i ,, ..

10/25/2011 Work-In-Process 12:00:00AM

10/28/2011 Work-In-Process 12·00:00 AM


7833647 Drafted Appeal Bond Motion Reply pointing out failure to timely respond, content of prior order, and requesting that plaintiff immediately be required to post bond.

PHASE: l210 l210 PLEADINGS

7829596 Analysis of affidavit ffled and rec:Jrded by A DIPIIato in Ocean 4660 chain of title concerning the fact that she had appealed the order discharging the lis pendens.

PHASE: L 120 L 120 ANALYSIS/STKATcGY

Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P .A.; Peter A. Diamond; Michael Rudd; Remo Polselll

Hours Dollars-

Total For 04662: Ocean 4600, LLC Hours

Total For Dahl, Patrick K.; PKD Hours

PHASE: l110 L 110 FACT INVESTJGATION/DEVELO

Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P .A.; Peter A. Diamond; Michael Rudd; Remo Polselli


Total For Hainline, Eric T.: ETH

Report Totals

Hours

Hours

Hours

Hours

Dollars

Dollars

Dollars

Dollars

Dollars

Dollars

235.00

117.50

0.10

235.00

23.50

e;=r:-~~~~ . .._..,."'='3e'~~:~e~-_,..,~ .... ?'~·.,["'T'$Y"""!il;~~~~~~Y7!=?:;::::~:1:='~..::!::-"l!:3.'T~._....,._.~~ Pnntad rrom RainMaker Platinum on: Monday, November 07, 2011 11:09:16 AM Page 8 of 8 Wicker, Smith, 0 Hara, McCoy & Ford, P .A..


EXI-IIBIT D

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 43 of 50-------- -------- --·----- -- ----------· ·- ·------------------·· ----·· -------·- ---------- -------------- ··-

c:ase 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 1 of 8

mn:TED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

·CASE NO. 1 0-62492-Civ-Cobn/Selt:ier Magistrate Judge:

ANGELA DIPILATO~ individually,

. Plaintiff, .

vs ..

RUDD & DlAJvfO:NTI, P.A., a.Florida . Corporation, PETER A. DIAMOND, Individually,.· MICHAEL RUDD, IndividuaUy, OCEAN 4660, LLc.; a Florida limited liabilitY company,. CO MERICA BANK, a .Michigan Corporation and. REMO POLSELLI, Individuallly,

Defendants.

----------------~/

MOTION FOR ATTOR1'ffiYS' FEES

Defendant, Ocean 4660, LLC ·("Ocean 4660") moves this Court pursuant

· §48 .. 23(3) of the EioridaStatutes and Rule 7.3(a) of the Local Rilles of the United States

. Distri~t.·Court for the Souiliern District of Florida; for ili~ ep.tr)r of an. order awardlng

· attorneys fe.es in favor of Ocean 4660 and again~t the ·plaintiff, Angela DiPilato · ·

("DiPilato") forthe costs associated with obtaining the discharge of a lis pendens filed

)JiPilato as reflected .in the Courts. order dated October 7., 2011. (DE-1.09) and "Oct<;>ber 25, ., .,_ . . ' '

2011 (DE J 19).· In si.rpport-thereof, bcean4660 s~tes as foll~ws: · ····-· --·------·

LEGAL AUTHOlUTY .SUPPORTING A WARD OF ATTORNEYS' .FEES

·1. · · Florid~.-iaw .a~plies to· sifuatio.ns frrvolving d~te~tiori concerning. the ·.· .. .· . . '

propriety. of lis penden~ .filed ag~st Florida prope.rty .. S~e Beefy King lnternat{on~l, ln·c: ·

' "''·- ."',..,, '• --·r __ ._,, • . . . . . I . , ?-----· ·. ·---··-. ---~--.·- ---·----·--"·· ------ . &;h,'b/ .0

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 44 of 50Case 0:10~cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 2 of 8

CASE NO. 1 0-62492-Civ-Cohn/Seltzer

v. Veigle, 464 F.2d .1102, 1104 (5th Cir. 1972) (noting that in addressing a moti~n to

· disc~ge a lis pendens, F~deral courts rely on Florida law, citing Fla.Stat.Arm. §48.23.)

2. A party who su~cessfully obtains th~ discharge of a lls pendens l:>y . .

operation of §48.23 is entitled to· recover its· attorneys' ·fees incurred in obtaining· the

~ischarge. · ·see S&T Builders "V. <Globe Properties,· Inc;., 944 So.2d 302 (Fla·. 2006)

.(holding that. an award of attorney's fees incurred m ~ischarging a li~ pendens is

statutorily authorized under section 48.23(3).) . . .

3. . In ·the present action, Ocean 4660 obtained the discharge of an improperly

filed lis pendens through the means and manner.proscribed by §48.23(3). See DE 100

(Motion); DE 107 (Order Granting Motion).

· 4. According1y, by operation 'of existing precedent, Ocean .4660 ·is entitled to · .

a.TJ award of its atton;1eys' fees incurred in obtaining the discharge ofthe·Zis pendens.

RULE 7.3(a) ELEMENTS

'5. . . This ·motion has been served .. upon the plaintiffs within 30 days of the .· . . .

. ·entry of the order giving ri£to the clai::rt for atto~~ys' fees:_ In particular, it was. served ·

upon plaintiff· on November '7, 2011. By ~e, it ca."l ~d will be Jiled ~thin 6o· day~ of

. th~ under~ying.order. ·

6. . The. judgment or other· order giving rise io the present motion is the

Court's October 7, ~011 Ord~rin which it gral].tedthedisch~ge.ofth~LisYende]'2s:. {DE

.1 07) and tp.e subsequ~nt orde~ pursuant t~. which· the sup~rsedeas b~nd was. sent that . . . . .. ' . ' .

. ·:

effecti~ely fi~ally discharge~ ihe. LisP en~'ens. (DE 119) ... Attorneys' fee's ar~ ~thorized . . - . ' ·. . . ' . . . . . . . . ·, ..

'· • I ' ,. '

.. pursuant io . Florida st.atute and Jir'ecedent, speci:fic~11y,. Fla.Stat:Ann: §48:23(3). and

·- .. - ···----.:. ···-- ________ .....__ -·--···----·---------~-_..:.-- "--·.· -·

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 45 of 50-~/·'"-·---··----·· ---······------------~--------- ·-·--·--- --- ···-··--·-:··---·----··- ··--·---------...--·-----·------··---:--- ·-.----·-/ ·Case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 3 of 8

CASE NO. 1 0-62492-CFv-Cohn/Seltzer ' ..

subsequent decisions from the Florida Supreme Court. S&T Builders -v. Globe

Properiies, Inc., 944 So.2d 302lfla. 2006):

7.. The amount of attorneys' fees·. being· sougbt in the present motion is

-$4,535.50.

. , .... 8.·. Pursuant to ·the Fee Agreement between Ocean 4660 and its counsel, -

,Ocean 4660 is required to pay attorneys' feesJor the time· spent by attorney in conne~tion

with ihe litigation EJ.t counsel's regular hourly rates. Tne hourly rates associated With this'

action are $325/hr for partners and $235/hr for associates.

9. Partner Jordan Cohen, and Associates Patrick K. Dahl and Eric Gruber

were the exclusive time keepers associated with obtaining the ~ischarge of the Lis _)

Pendens in ·this action. Required information concerning Messrs. Cohen, ·J?ahl ·and

Gruber is setforth below:

A. ··Jordan S. Cohen

(1) identity, experience, and quali:fications for eacktimekeeper ·

for whom fees are sought: Mr. Cohen is·a 2001 graduate of the Duke .University Law

School. He 'is admitted to practice in Florida (2002) including the North~m, ~ddle, and

·Southern District~ of Florida. Upon graduating fromlawschool,.h~ ciericed·for .. two y'ears . . . . . . .

. f~r th~ F'o~hDistrid .Court ~f Appeal'ChiefJ~dg~ Mark E ... Polen .. Since enter~g ;ri;ate . \ .

. p~actice, He has spent.his· entire· care~r involved ·iri civil litigation,. practicing ,0 South

Florid.a with. Wicker, Srrii~~ OlHffi.~, JV.fc~oy .. & F~ra,· ~·.A., where· his· practi~e ·has

. . . . continued to focus soiely upon civil litigation in state and .federal courts .

. 3

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 46 of 50,.r'r

I ------------------------,------·-~---

///.---Case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 4 of 8

CASE NO. 10-62492.:.Civ-Cohn/Seltzer·

(2) the number of hours reasonably expended by each such·

timekeeper: Mr. Cohen's total hours in :connection With this action are 0.6 and are

reflected inthe invoices, copies of which are attached hereto as Exhibit A. Said invoices

have been redacted to omit infonnation that would reflect or disclosme the mental

· ·· thoughts and impression~ of ·counser. The total nuillber of hours w~ reasonable and ·

. . necessary in ·order to effecttiate the discharge of the Lis Pendens within the necessary

time parameters.

(3) a description of.the tasks done durin-g tho~e hours: the tasks~

· are identified on Exhibit A. .·

( 4) the. hourly ra{e(s) claimed for each time keeper: :Mr.

Cohen's hourly rate is $325/hr.

B. Patrick K. Dahl

(1) identity, experience,. and qualifications fcir each timekeeper

foJ whom fees ar~ sought: lvfr. Dahl is a 2002 graduate of the University ofNotr~ Dame-·

Law ·-School. He.·is ad.m,itted topractice in Illinoi~ (2092) and Fiorida (2010). He is.

'; adrilltted to pract~ce before· Federal· Courts iri the N orthem District ~f Illinois (2602). and .·• . . . . • • . • . . • . • . . ..• l

Florida (20 i 1). He has spent. his entire '9 year legal. car e'er involved in civil litigation, ·

practicing in Chicago With the .l~w ·firms of Bollillger, Ruberry ~ Garvey from. ~002 . . . . '

thiough 20.05 ~d Dahl & Bo:i:u1dies from 2005 throughiOlO .. ·upon movmg to F~~rida;

· ,he has.been employed as an associate at.the law fum of Wicker, Smith, O'Hara, McCoy · .. . . . . ' ·. .·.· ..

& Ford.' P.A., where his '.Prattic~:has c;ntinued to focus ~o'leiy. up~n. civ1i 1itig~tion in .. ' ' . . ' . . . . ' .

·stat~ and federal c_ourls. ·

4

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 47 of 50- ~-------------~-·-- -·- -- --· -~ -. -

case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page .S of 8

-- I ~

CASE NO. 1 0-62492-Civ-Cohn/Seltzer

(2) the number of hours reasonably expended by· each such

timekeeper: Mr. Dahl's total hours in connection with this action are 18.3. arid are

reflected in the invoices, copies of which are attached hereto as Exhibit A. Said invoices

have been redacted to o:nUt "information that would reflect or disclosure the mental

. . .

thoughts and impressions of counsel. The total number of hours was reasonable :rnd·. ·

necessary in order to ·effectuate the discharge of the .Lis .Pendens within the ·necessary

time ·paraineters.

(3) a description of the tasks done du.rlng those hams: the tasks ·

are identified on Exhibit A.

(4) the hourly rate(s) claimed for ~ach time keeper: Mr. Dahl's

hourly rate is $235/hr.

C. Eric Gruber

(1) identity, experience, arid qualifications for each iimekeeper .

for whom fees are sought: l\.1r. Gruber is a. 2011 graduate of the Uniyersity of Florida

. Law School. He is admitted to practice in Florida (2011); He is employed as an·

associate at tb.~ law. :finn of Wicker, Smith, O'Hara, McCoy & Ford, P.A.~· where ·his

practice fotuses upon Ci~illitigation. ' . . .. . '

.(2) th~ number. of hours .reaso~ably expe~ded by ·each such

timekeeper: Mr. Gruqers' ~ total hom~.~ connection with. this acti~n are ·o .4 and are

re'flected upon the 'invoices, c~pi~s of whlch are attached hereto as Exhibit X Said

invoices have been ·redacted to oinit. information that· would rer1ect or disclosUre· the ·.

mentaL thoughts .. and impressions of counsel. The total ·nmnber. of ho~s \~as. reasonabl~

5

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 48 of 50JP,., . ..-r ----- ------ ---- ---.·· - --------------------------

,/""'':!C ~~:e-~~0-cv-62492-JIC Document 129 Entered ~n FLSD Docket 12/05/2011 Page 6 of 8 /~~ .

. ,,-:: ·~ . /

/'

. .

CASE NO. 1 0-62492-Civ-Cobn/Seltzer

and necessfu-y in order to effectuate the discharge of the Lis Pendens within the necessary

time_parameters.

(3) a description of the tasks done during those hours: the tasks . .

are identified orr Exhibit A,

(4) ihe hourly rate(s) claimed_ for_ each. iime keeper: Mr ..

Gruber's hourly rate. is $100/hr. as he was not admitted to practice at the time he . .

completed his work (he was anxious awaiting his bar results - he successfully completed

the -bar exam and has subsequently been admitted to practice ill Florida.)

10.. It is not believed-that 28 U.S.C. § 1920 applies to the present motion.

11. The· present motion has been verified by Hanna Karcho, Ocean4660's

Manager.

12. At the time of the submission ofthls Motion, Ocean 4660 attempted to

comply resolve these issues. A copy of this proposed motion was submitted to DiPilato

on November 7, 2011. That same proposed motion was accompanied by conespondence . .

to DiPilato ill ~hich counsel fo;r Oce~ 4660 invited. Dp?ilato to ·c'ontact ~to discuss ·

\ . . .

· ~y~isputes associated with the motion. (Ex. -B, November 7., 2011 Correspondence.)

-.The twenty~<'me days pra.vided f~r under the applicable. rule has ·since passed_ a'nd ri~ effort.· .

has }?een made by: DiPilato i:o discuss or resolve these. issues.

WHEREFORE, Ocean 4660, LLC, requests th~t thls Court enter 'an order: (i)

granting. this mQtion;' ?TI-d (il) awarding it a total of $4,5~5 .so, :representing the attorneys'

fees incpi-red in connection ~ii:h obtaining the· d}scharge::o:f fue lis pendens re~~cted in i:he

6

Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 49 of 50case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 7 of 8

CASE NO. 10-62492~Civ-Colli'1/Se1tzer

I HEREBY CERTIFY that bn , I. electronically filed the foregoing -----

docume:nt 'With the· Clerk of the Court using CJ\1/ECF. I also certify that the foregoing

document is being served this day on all counsel of record identified on the attached

Service List in the manner specified;· ·either via transmission of Notices of Electronic

Filing generated ~y ·CM!ECF or in ·some other authorized manner for those counsel or

parties who are not authorized tci receive ~lectronically N~tices ~f Electronic Fili~g. · . .

:7

\VICKER, SMITH, O'F .. .ARA., MCCOY & FORD,P.A. Attorney for Ocean 4660, LLC . 515 E. Las Olas BoUlevard · SunTrust Center, SUite 1400 P;O. Bo_x 14460 Ft. Lauderdale,'FL 33302 Phone: (954) 847-4800 Fax: (954) 760-9353

. By: /sf-Patrick K. Dahl Patrick K. Dahl Florida Bar No. 084109 ·

•··. /

' i


/ //

_;./'~;':·-:-·-.. .:" case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/Ut:J/~Ull r-age o u1 o

,~/

Peter Diamond, Esq. Rudd & Diamond, P .A. 4000 Hollywood Blvd., Suite 165-S Hollywood, Florida 33021

· _Angela DiPilato _Angela DiPilato

· . 2310 E. Atlantic Boulevard · Suite 206 Pompano Beach,.FL 33062

CASE NO·. 1 0-62492-Civ-Cohn/Seltzer

Service List ·

··.·.

s·

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NO. 10-62492-CIV-COHNANGELA DIPILATO, individually,

Magistrate Judge SeltzerPlaintiff,

vs.

RUDD & DIAMOND, P.A., a Florida corporation, PETER A. DIAMOND, individually,MICHAEL RUDD, individually, OCEAN 4660, LLC,a Florida limited liability company, COMERICABANK, a Michigan corporation, and REMO POLSELLI, individually,

Defendants._______________________________________/

ORDER GRANTING MOTION TO DISMISSORDER GRANTING MOTION FOR EXTENSION OF TIME

THIS CAUSE is before the Court upon Defendants Peter Diamond, Michael Rudd

and Rudd & Diamond, P.A.’s (collectively, the “Rudd & Diamond Defendants”) Motion to

Dismiss Plaintiff’s Second Amended Complaint [DE 77], Plaintiff’s Response in

Opposition to the Motion [DE 92], and the Rudd & Diamond Defendants’ Reply [DE 93].

The Court has carefully considered the motion and is otherwise fully advised in the

premises.

I. BACKGROUND

Plaintiff Angela DiPilato (“Plaintiff”), acting pro se, filed this action for alleged

violations of the Fair Debt Collection Practices Act (“FDCPA”) against Defendants Rudd

& Diamond, Peter Diamond and Michael Rudd (collectively, the “Rudd & Diamond

Defendants”), two attorneys and their law firm, related to their attempts to collect a debt

owed by Plaintiff to Defendant Ocean 4660, LLC. All fourteen of the claims in the


2

Second Amended Complaint allege violations of either the FDCPA or the Florida

Consumer Collection Practices Act (“FCCPA”) [DE 58]. No specific actions of

Defendants Ocean 4660, Remo Polselli, or lender Comerica Bank are alleged in the

Second Amended Complaint, though they are listed as defendants because of their

relationship with the Rudd & Diamond Defendants.

The Rudd & Diamond Defendants move to dismiss the Second Amended

Complaint for failure to state a claim because Plaintiff cannot establish that the alleged

“debt” the Defendants tried to collect is a “debt” under the FDCPA, and that the

Defendants are not “debt collectors” under the Act. Plaintiff opposes the motion.

II. DISCUSSION

A. Legal Standard

Until the Supreme Court decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), courts routinely followed the rule that, “a complaint should not be dismissed for

failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no

set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson,

355 U.S. 41, 45-46 (1957); Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir.

2001). However, pursuant to Twombly, to survive a motion to dismiss, a complaint must

now contain factual allegations which are “enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” 550 U.S. at 555. “While a complaint attacked by a Rule

12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels


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and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Id. Taking the facts as true, a court may grant a motion to dismiss when, “on the

basis of a dispositive issue of law, no construction of the factual allegations will support

the cause of action.” Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d

1171, 1174 (11th Cir. 1993). In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009), the

Supreme Court further stated that a court need not accept legal conclusions as true, but

only well-pleaded factual allegations are entitled to an assumption of truth.

B. Plaintiff has Failed to Establish a Consumer Debt Under the FDCPA.

Section 1692e makes it a violation of the FDCPA for a debt collector “[to] use any

false, deceptive, or misleading representation or means in connection with the collection

of a debt.” 15 U.S.C. § 1692e. To recover under the FDCPA, a plaintiff must make a

threshold showing that the money being collected qualifies as a “debt.” Oppenheim v.

I.C. Sys., Inc., 627 F.3d 833, 838-39 (11th Cir. 2010). In their Motion to Dismiss, the

Rudd & Diamond Defendants argue they are entitled to judgment as a matter of law on

Plaintiff’s FDCPA claim because Plaintiff cannot establish that the alleged debt is a

“debt” as that term is defined under 15 U.S.C. § 1692a. The FDCPA defines “debt” as

“any obligation or alleged obligation of a consumer to pay money arising out of a

transaction in which the money, property, insurance, or services which are the subject of

the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. §

1692a(5).

According to the state court documents Plaintiff attached to the Second Amended

Complaint, Plaintiff operated a “restaurant and lounge” on the premises owned by


The Court may consider documents referred to by a plaintiff in a complaint1

which are central to the plaintiff’s claim and undisputed as to authenticity for purposesof a motion to dismiss without conversion of the motion to dismiss into a motion forsummary judgment. SFM Holdings, Ltd. v. Banc of America Securities, LLC, 600 F.3d1334, 1337 (11 Cir. 2010); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337,th

1340, n.3 (11 Cir. 2005).th

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Ocean 4660. See ¶ 3.A, Answer and Affirmative Defenses of Defendant Angela

DiPilato, Exhibit C to Second Amended Complaint [DE 58 at p. 57-58] (hereinafter,

“State Court Answer”). On November 5, 2010, the Rudd & Diamond Defendants filed a1

state court eviction action against Plaintiff, alleging a back rent balance of $96,000,

based upon 12 months of $8,000 per month. Exhibit B to Second Amended Complaint.

In opposition to the present motion, Plaintiff contends that she operated the restaurant

under some kind of oral management agreement, rather than pursuant to a commercial

lease, and therefore the management fees she owed were for Plaintiff’s personal

purposes. See Response in Opposition at p. 5 [DE 92]. However, the documents

Plaintiff filed in state court that she attached to her Second Amended Complaint in this

action clearly indicate that the premises at issue was being used by Plaintiff for the

business purpose of operating a restaurant and lounge business, and that Plaintiff

actually conducted business on the subject premises. See ¶¶ 3.A, 3.C, and 3.F of State

Court Answer.

The legal question here is not whether a commercial lease or management

agreement existed – rather, it is clear that Plaintiff was operating a business when

incurring the debt. Therefore, no construction of these factual allegations will support an

FDCPA claim, because the “debt” involved in this action does not arise out of a

transaction in which the property that is the subject of the transaction was primarily for


In Oppenheim, the United States Court of Appeals for the Eleventh Circuit2

concluded that because the plaintiff in that action was selling his personal computer forfunds transferred to his personal bank account, he was not running a business. 627F.3d at 839.

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personal, family, or household purposes. Transactions which enable the “consumer” to

earn money through a job or business do not qualify as a “debt” under the FDCPA.2

III. CONCLUSION

The Court therefore concludes that the Rudd & Diamond Defendants’ Motion to

Dismiss should be granted. The Court need not reach the issue of whether these

Defendants were acting as debt collectors under the FDCPA.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants Peter Diamond, Michael Rudd and Rudd & Diamond, P.A.’s Motion

to Dismiss Plaintiff’s Second Amended Complaint [DE 77] is hereby GRANTED;

2. Defendants Peter Diamond, Michael Rudd and Rudd & Diamond, P.A. are hereby

DISMISSED from this action;

3. Plaintiff’s Motion to Extend Time to File a Response to Coamerica Bank’s Motion

for Judgment on the Pleadings [DE 112] is hereby GRANTED. Plaintiff’s

response to Defendant Comerica Bank’s Motion for Judgment on the Pleadings is

now due on November 10, 2011.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 18 day of October, 2011.th

Copies furnished to:Angela DiPilato, pro se (via CM/ECF regular mail)counsel of record on CM/ECF
