Opinion
CASE NO. 19-81532-CIV-SINGHAL/MATTHEWMAN
04-13-2020
James DRUMMOND, et al., Plaintiffs, v. Eric ZIMMERMAN, et al., Defendants.
Daniel Wayne Perry, Law Office of Daniel Perry, Orlando, FL, for Plaintiffs. Ali Vakili Mirghahari, Sivyer Barlow & Watson P.A., Mahlon Herbert Barlow, III, Tampa, FL, J. Allen Bobo, Jody Blouch Gabel, Lutz, Bobo & Telfair, P.A., Sarasota, FL, for Defendants.
Daniel Wayne Perry, Law Office of Daniel Perry, Orlando, FL, for Plaintiffs.
Ali Vakili Mirghahari, Sivyer Barlow & Watson P.A., Mahlon Herbert Barlow, III, Tampa, FL, J. Allen Bobo, Jody Blouch Gabel, Lutz, Bobo & Telfair, P.A., Sarasota, FL, for Defendants.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE THIS CAUSE is before the Court on Defendants' Petition for Mandatory Remedies for Plaintiff's Violation of the Mediation Act (DE [7] ). Plaintiffs filed suit against Defendants, Eric Zimmerman, Stanley Martin, Sydney Morris, Rene Scott, Beverly Sagehorn, Bertha Rodriguez, Milagros Rivera, MHS Maralago Cay, L.L.C., Equity Lifestyle Properties, Inc., MHC Operating Limited Partnership, Joseph Allen Bobo and Lutz, Bobo & Telfair, P.A., alleging violations of the Florida Mobile Home Act, Fla. Stat. § 723.022 et seq. , as well as federal and Florida civil RICO statutes, the ADA, the Fair Housing Act, and the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA").
Plaintiffs' Complaint (DE [1] ) references a 2017 mediation of a proposed lot rental increase wherein the Defendants presented a proposed Long Term Agreement (LTA) in an effort to resolve the dispute. (Complaint, ¶ 50). That agreement was not signed and the mediation failed to resolve the dispute, but Plaintiffs reference the proposed LTA in detail and attach a copy to the Complaint as an exhibit. (Complaint, ¶¶ 50-59). Shortly after the Complaint was filed, Defendants filed the present motion seeking sanctions against Plaintiffs for violating the confidentiality of mediation. Specifically, Defendants argue that the Florida Mobile Home Act, Fla. Stat. § 723.038(8), creates a privilege to protect and maintain the confidentiality of the pre-suit mediation. Additionally, Defendants argue that Florida's Mediation Confidentiality and Privilege Act, Fla. Stat. §§ 44.401 -06, governs the 2017 mediation because the mediation was conducted by a Florida Supreme Court-certified mediator.
Defendants also filed Motions to Dismiss Plaintiffs' Complaint. Those motions are addressed in a separate Order dismissing Plaintiffs' Complaint with leave to amend.
The Florida Mediation Act (the "Act") states, in part, that "[a] mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant's counsel." Fla. Stat. § 44.405(1). The Act further provides for mandatory civil remedies, including equitable relief, compensatory damages, and attorney's fees and costs, against any mediation participant who knowingly and willfully discloses a mediation communication. Fla. Stat. § 44.406(1). Inclusion of mediation statements in public court filings is a violation of the Act. Leigh v. Avossa , 2017 WL 3608244, at *2 (S.D. Fla. Aug. 21, 2017). However, the confidentiality provisions of the Act do not attach to "any mediation communication willfully used to plan a crime, commit or attempt a crime, conceal ongoing criminal activity, or threaten violence." Fla. Stat. § 44.405(4)(a)(2).
Plaintiffs argue the LTA proposed at the mediation is not subject to the confidentiality provisions of the Act because (1) the pre-suit mediation was voluntary and, therefore, the Act does not apply, and (2) the proposed LTA was used in the commission or attempt of a crime. The Court disagrees. The Act applies to all mediations conducted by a mediator certified by the Florida Supreme Court unless the parties specifically agree not to be bound by it. Fla. Stat. § 44.402. Plaintiffs do not allege any such agreement between the parties. Next, Plaintiffs have not established that the proposed LTA was used to commit, attempt, or conceal a crime. Although Plaintiffs' Complaint alleges RICO violations, nothing in Plaintiffs' Complaint establishes or tends to show that the proposed LTA involved a crime. Plaintiffs argue that the proposed LTA violated provisions of the Florida Mobile Home Act, but only make conclusory statements that the proposed LTA was criminal or fraudulent. The Florida Mobile Home Act permits civil remedies for violations; it is not a criminal statute. In addition, the proposed LTA was never signed and never took effect. The Court cannot conclude that alleged violations of a regulatory statute in a proposed LTA were in any way criminal.
In conclusion, the Court finds that the Complaint's references to the proposed LTA presented at the parties' pre-suit mediation violate the confidentiality protection afforded to mediation by the Florida Mediation Confidentiality and Privilege Act. The Court further finds that sanctions are warranted under Fla. Stat. § 44.406(1). Defendants argue for wide-ranging sanctions including dismissal of Plaintiffs' Complaint and/or disqualification of Plaintiffs' attorney and the named Plaintiffs, as well as monetary sanctions. The Court has considered the nature of the violation and the available remedies and concludes that dismissal and disqualification are not proportional to the violation and that lesser sanctions would suffice. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants' Petition for Mandatory Remedies for Plaintiffs' Violation of the Mediation Act (DE [7] ) be and the same is GRANTED. All references to the proposed 2017 Long Term Agreement will be stricken from Plaintiffs' Complaint and will be excluded from any subsequent pleadings. In addition, Defendants shall be awarded reasonable attorneys' fees and costs incurred in making the present motion. Defendants shall submit a statement of fees and costs within 30 days of the date of this Order. Plaintiff shall have 14 days thereafter to challenge the reasonableness of the requested fees and costs. No reply will be filed absent further Order of this Court.
The Court's Order on Motions to Dismiss entered this date dismisses Plaintiffs' Complaint but grants leave to amend. The Amended Complaint shall not include references to the 2017 LTA.
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DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 13th day of April 2019.