Opinion
Case No: 6:19-cv-756-Orl-41GJK
2019-09-16
WYNDHAM VACATION OWNERSHIP, INC., Wyndham Vacation Resorts, Inc., Wyndham Resort Development Corporation, Shell Vacations, LLC, SVC-Hawaii, LLC, SVC-West, LLC and SVC-Americana, LLC, Plaintiffs, v. CLAPP BUSINESS LAW, LLC, Mary Clapp, Esq., The Transfer Group, LLC, Vacation Consulting Services, LLC, VCS Communications, LLC, Brian Scroggs, Transfer For You LLC, Allied Solution Group, LLC, JJ Midwest Marketing LLC, JJ & C Marketing, LLC, The Mid-West Transfer, LLC, Midwest Transfers LLC, Josh Ungaro, Real Travel, LLC and Bart Bowe, Defendants.
Alfred J. Bennington, Jr., Glennys Ortega Rubin, Shutts & Bowen, LLP, Orlando, FL, Christian Leger, GrayRobinson, PA, Miami, FL, Daniel Joseph Barsky, Jonathan Phillip Hart, Shutts & Bowen, LLP, West Palm Beach, FL, for Plaintiffs. J. Scott Slater, Slater | Grant PLLC, Wesley Chapel, FL, Mary M. Clapp, Clapp Business Law, LLC, Lakewood Ranch, FL, Tyson Jaymes Pulsifer, Zetrouer Pulsifer, PLLC, Seminole, FL, Shannon L. Zetrouer, Zetrouer Pulsifer, PLLC, St. Petersburg, FL, David Anthony Wilson, Law Office of David A. Wilson, Ocala, FL, for Defendants. The Transfer Group, LLC, pro se. Vacation Consulting Services, LLC, pro se. VCS Communications, LLC, pro se. Brian Scroggs, Springfield, MO, pro se. Real Travel, LLC, pro se. Bart Bowe, Springfield, MO, pro se.
Alfred J. Bennington, Jr., Glennys Ortega Rubin, Shutts & Bowen, LLP, Orlando, FL, Christian Leger, GrayRobinson, PA, Miami, FL, Daniel Joseph Barsky, Jonathan Phillip Hart, Shutts & Bowen, LLP, West Palm Beach, FL, for Plaintiffs.
J. Scott Slater, Slater | Grant PLLC, Wesley Chapel, FL, Mary M. Clapp, Clapp Business Law, LLC, Lakewood Ranch, FL, Tyson Jaymes Pulsifer, Zetrouer Pulsifer, PLLC, Seminole, FL, Shannon L. Zetrouer, Zetrouer Pulsifer, PLLC, St. Petersburg, FL, David Anthony Wilson, Law Office of David A. Wilson, Ocala, FL, for Defendants.
The Transfer Group, LLC, pro se.
Vacation Consulting Services, LLC, pro se.
VCS Communications, LLC, pro se.
Brian Scroggs, Springfield, MO, pro se.
Real Travel, LLC, pro se.
Bart Bowe, Springfield, MO, pro se.
ORDER
CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on two Motions to Dismiss the Amended Complaint (Doc. 70)––the first (Doc. 107) filed by Brian Scroggs and Bart Bowe, and the second (Doc. 110) by Clapp Business Law, LLC and Mary Clapp (collectively "Clapp Law Defendants"). Plaintiffs (henceforth, collectively, "Wyndham") filed Responses in Opposition. (Doc. Nos. 112, 113). For the reasons stated herein, the Motions to Dismiss will be denied.
There were originally four motions filed. However, two of the motions (Doc. Nos. 106, 108) were stricken per the Court's July 31, 2019 Order (Doc. 150).
I. BACKGROUND
Plaintiffs are a group of companies that conduct timeshare sales and development activities, as well as enter into timeshare contracts with consumers, throughout the United States. (Am. Compl., Doc. 70, ¶¶ 3, 58–59). Defendants The Transfer Group, LLC, Vacation Consulting Services, LLC, VCS Communications, LLC, and Real Travel, LLC are a group of companies controlled by Individual Defendants Bart Bowe and Brian Scroggs (collectively, "VCS Defendants") that work together as a timeshare exit company. (Id. ¶¶ 36–42, 94). Defendants Transfer For You, LLC, Allied Solution Group, LLC, JJ Midwest Marketing, LLC, JJ & C Marketing, LLC, The Mid-West Transfer, LLC, and Midwest Transfers LLC are also a group of companies that work together with Individual Defendant Josh Ungaro (collectively "the Midwest Defendants") as a timeshare exit company and marketing company serving the timeshare exit industry. (Id. ¶¶ 43–50). Ungaro controls the companies that comprise the Midwest Defendants. (Id. ¶ 68). Together, the VCS Defendants and the Midwest Defendants are the "third party exit" or "TPE" Defendants. The Clapp Law Defendants are the law firm and lawyer utilized by the TPE Defendants to carry out their timeshare exit schemes. (Id. ¶¶ 33–35). Together, these Defendants profit from soliciting owners of Wyndham timeshares ("Wyndham Owners") as clients, promising to help the Wyndham Owners "painlessly" and "legally" "release" or "exit" the obligations of their valid timeshare contracts. (Id. ¶ 8).
To do this, Wyndham alleges that the TPE Defendants run false and misleading advertising, purporting to guarantee "painless[ ]," "legal[,]" or "safe" "exit" or "transfer" of Wyndham Owners from their timeshare contracts. (Id. ¶¶ 8–9, 100–41). Through these advertisements, the TPE Defendants lure Wyndham owners into retaining Defendants––including the Clapp law Defendants––for a substantial cost. (Id. ¶ 11). Then, Defendants instruct Wyndham Owners to stop making payments on their timeshare contracts, which they do. (Id. ¶¶ 13, 102, 146). Defendants do not disclose to Wyndham Owners that the non-payment will result in a breach of those contracts, foreclosure of their timeshare interests, and other adverse consequences. (Id. ¶¶ 7, 13, 18).
The TPE Defendants then hire the Clapp Law Defendants to engage in fruitless negotiations with Wyndham for a fixed fee. (Id. ¶¶ 4, 74, 79-80, 83–87, 90). The Clapp Law Defendants send boilerplate demand letters to Wyndham on behalf of the Wyndham Owners which demand rescission of the timeshare contracts and for Wyndham to cease all contact with the Wyndham Owners. (Id. ¶¶ 85–89). The Clapp Law Defendants do no more negotiating with Wyndham on behalf of the Wyndham Owners after sending the demand letters. (Id. ¶ 87). Aside from the induced breach and baseless demand letters, Defendants may fraudulently transfer a Wyndham Owner's interest via quitclaim deed, without the approval of Wyndham, to a shell entity or strawman buyer who then breaches the timeshare contract by failing to make payments. (Id. ¶ 20). Because the transfer was not approved by Wyndham, the Wyndham Owner is still the legal owner of the timeshare interest and thus the party in breach. (Id. ). Regardless of the strategy employed, once the Wyndham Owner has gone into foreclosure, Defendants falsely and misleadingly claim that the exit was successful. (Id. ¶¶ 13, 15, 17).
Wyndham alleges that these practices have caused significant harm to Plaintiffs. (Id. ¶¶ 21–22, 145–46). Plaintiffs brought suit in September 2018, and subsequently filed an Amended Complaint seeking injunctive and monetary relief. Wyndham asserts claims for false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1) (Counts I and II); contributory false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1) (Counts III and IV); tortious interference with contractual relations (Count V); civil conspiracy (Count VI); and for violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") (Count VII).
The Amended Complaint mislabels this Count as Count V.
II. LEGAL STANDARD
"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer , 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Furthermore, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
III. ANALYSIS
Both Motions to Dismiss argue that Plaintiffs' Amended Complaint is a shotgun pleading, that Plaintiffs lack standing, and that the various portions of the Amended Complaint applicable to the moving parties fail to state causes of action under Federal Rule of Civil Procedure 12(b)(6).
A. Shotgun Pleading
Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 10(b) requires a party to "state its claims ... in numbered paragraphs, each limited as far as practicable to a single set of circumstances." "The failure to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading constitutes a ‘shotgun pleading.’ " Beckwith v. Bellsouth Telecomms. Inc. , 146 F. App'x 368, 371 (11th Cir. 2005) (quoting Byrne v. Nezhat , 261 F.3d 1075, 1129–30 (11th Cir. 2001) ). The Eleventh Circuit has defined four types of shotgun pleadings. One common type "is a complaint that ... is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action." Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1322 (11th Cir. 2015). Another type is "the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against." Id. at 1323. Both Motions argue that the Amended Complaint fits into these two categories of shotgun pleadings.
"In general, a shotgun pleading fails to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Embree v. Wyndham Worldwide Corp. , 779 Fed.Appx. 658, 662 (11th Cir. 2019). This is not the case with the Amended Complaint, which, though not exemplary, sufficiently puts Defendants on notice of the claims against them. The Amended Complaint alleges a complicated scheme where various Defendants work together in different groups to perpetrate the wrongdoing. Each Defendant is placed into a group, and then the Amended Complaint breaks the majority of the facts into sections based on which groups of Defendants perpetrated the various parts of the alleged scheme. And, the majority of the Counts specifically allege which groups of Defendants are responsible and which specific factual paragraphs from the Amended Complaint support that Count.
Two of the Counts––Counts VI and VII for civil conspiracy and FDUTPA––incorporate all of the factual allegations preceding the causes of action and are against all the Defendants. However, those Counts are still not shotgun. Plaintiffs are alleging that all of the Defendants worked together in a civil conspiracy to interfere with Plaintiffs' contracts with the Wyndham Owners. Thus, it is proper for that Count to be against all Defendants and for it to incorporate all of the facts related to the scheme. The same reasoning is applicable to the FDUTPA Count––the Amended Complaint makes it clear that all the Defendants, acting in concert, perpetuated the unfair or deceptive act that makes up the basis of the FDUTPA claim. Therefore, the Amended Complaint will not be dismissed as a shotgun pleading.
B. Standing
Both Motions to Dismiss also argue that Plaintiffs lack Article III standing to bring their claims before the Court. To have standing under Article III of the Constitution, Plaintiffs must sufficiently allege that they: "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
Both Motions first argue that because Plaintiff Wyndham Vacation Ownership, Inc. ("WVO") is a parent company to other Plaintiffs, all claims brought by WVO must be dismissed as WVO is not the real party in interest to the timeshare contracts. (Doc. 107 at 10; Doc. 110 at 13). Plaintiffs, including WVO, collectively allege that they have been damaged financially, but also that Wyndham's relationships with its owners have been damaged. (Doc. 70 ¶ 22). Thus, even if, as Defendants allege, WVO has no financial stake in this litigation, they have adequately alleged they are injured by Defendants' alleged violations because these violations have caused harm to WVO's––and the other Plaintiffs'––relationships with Wyndham Owners.
The Clapp Law Defendants also appear to argue that because WVO is not a real party in interest there is no injury in fact. (See Doc. 110 at 12–13).
The Motions make a variety of other arguments regarding Plaintiffs' constitutional standing. However, Plaintiffs allege that they have suffered an injury "culminat[ing] in millions of dollars of lost revenue" as well as that there has been damage to their business and their relationships with Wyndham Owners, that they are losing business in their Ovation program, and that these injuries are traceable to Defendants' false and misleading advertisements and statements. (Id. ¶¶ 6–7, 11–13, 21–23, 99, 127, 145–147, 152–154). And, Plaintiffs' injuries are likely to be redressed by the relief they seek––monetary damages and an injunction––should there be a favorable decision from the Court. (Id. ¶¶ 22–24, 147–156, 167–168, 179–180, 190–191, 201–202, 216–218, 231, 233). Plaintiffs have thus sufficiently articulated Article III standing. See Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel , 861 F.3d 1278, 1290–91 (11th Cir. 2017). Accordingly, the Amended Complaint will not be dismissed for lack of standing. The Court will now turn to the sufficiency of Plaintiffs' claims under Rule 12(b)(6).
C. Rule 12(b)(6)
1. Scroggs and Bowe
Scroggs and Bowe summarily argue in their MTD that Counts I, IV, V, VI, and VII should be dismissed for failure to state a claim upon which relief can be granted. They devote the majority of the remainder of their MTD to dual preliminary arguments.
First, Scroggs and Bowe argue that Counts I, IV, V, VI, and VII should be dismissed because Plaintiffs fail to adequately allege that Scroggs and Bowe have caused any damages. Scroggs and Bowe argue that the alleged damage here results solely from Wyndham Owners breaching their contracts, and because some owners breach or default without their involvement, they cannot be the proximate cause of the damage. This argument is not well taken. Just because some Owners breach contracts without the assistance of the VCS Defendants does not mean that the VCS Defendants are not liable for the breaches caused by their allegedly false and misleading advertising.
Second, Scroggs and Bowe also claim that the entire Amended Complaint should be dismissed as to them because Plaintiffs failed to adequately allege veil piercing. Plaintiffs may inadequately plead a claim for piercing the corporate veil, but they are not seeking to hold Scroggs and Bowe liable on that theory. Instead, Plaintiffs seek to hold all individual Defendants personally liable as direct participants in the improper conduct. See Nationwide Mut. Co. v. Ft. Myers Total Rehab. Ctr., Inc. , 657 F. Supp. 2d 1279, 1287–88 (M.D. Fla. 2009) (discussing tort and FDUTPA claims and finding that "[i]t is not necessary to pierce the corporate veil, however, if an individual is a direct participant in the alleged improper conduct"); Wholesale Stone, LLC v. Stone-Mart Marble & Travertine Grp. LLC , 13-24342-CIV, 2014 WL 11906611, at *3 (S.D. Fla. Mar. 10, 2014) (discussing Lanham Act claims and holding that "where the ‘corporate officer directs, controls, ratifies, participates in, or is the moving force behind the infringing activity, [he or she] is personally liable for such infringement without regard to piercing of the corporate veil.’ ") (quoting Babbit Elecs., Inc. v. Dynascan Corp. , 38 F.3d 1161, 1184 (11th Cir. 1994) ). Accordingly, the Amended Complaint need only adequately plead that Scroggs and Bowe were involved in the allegedly infringing, tortious, and improper behavior.
Moving Defendants argue that the laws of Arkansas and Missouri apply to Plaintiffs' veil piercing allegations. As stated herein, Plaintiffs are not seeking to hold Scroggs and Bowe liable via the theory of piercing the corporate veil. Therefore, Arkansas and Missouri law does not apply.
The Amended Complaint exceeds the minimum pleading standards. It clearly alleges that Scroggs and Bowe control and participate in the actions of the VCS Defendants and that the VCS Defendants' false advertising has resulted in "hundreds" and "[t]housands" of Wyndham Owners breaching their contracts and defaulting on their mortgages, thereby causing Plaintiffs "direct harm." (Doc. 70 ¶¶ 8–9, 11, 21, 93–94, 145–46). And, the Amended Complaint has more than sixteen easily identifiable paragraphs devoted to specific examples of the false and misleading advertising. (Id. at ¶¶ 102–17). Plaintiffs have adequately alleged that the VCS Defendants have proximately caused damages, as well as that via their control of the VCS companies, Scroggs and Bowe personally partook in the false advertising and tortious conduct of their corporations. See Longleaf Mitigation Dev. Co. v. Florida Mitigation Providers, LLC , 519 F. Supp. 2d 1233, 1236 (M.D. Fla. 2007). Thus, neither of Scroggs and Bowe's preliminary arguments serve as a basis to dismiss the Amended Complaint.
Scroggs and Bowe devote two paragraphs to their argument that the Counts against them should be dismissed for failure to state a cause of action. In this section, they seek to incorporate arguments from a Motion to Dismiss that has since been stricken from the record. The Court will not consider those arguments. Then, the Motion devotes one, single sentence each to why Counts VI and VII are inadequate. This is insufficient to meet their burden. Therefore, Scroggs and Bowe's Motion to Dismiss will be denied.
However, in the alternative, they also move for more definite statement pursuant to Federal Rule of Civil Procedure 12(e). They request this remedy because in one paragraph of the Amended Complaint Plaintiffs state that the VCS Defendants copy the advertisements of "the CLS Defendants," and the CLS Defendants are never identified or defined. (Doc. 107 at 23; Doc. 70 ¶ 113). However, the standard for granting a motion for more definite statement made pursuant to Rule 12(e) is unintelligibility, not lack of detail. Cont'l Cas. Co. v. Hardin, No. 8:16-cv-322-17TGW, 2016 WL 11234458, at *7 n.6, 2016 U.S. Dist. LEXIS 185063, at *21 n.6 (M.D. Fla. Dec. 5, 2016) (collecting cases). One paragraph potentially making a mistaken allegation does not rise to the level of unintelligibility. Therefore, the alternative request for more definitive statement will also be denied.
2. Clapp Law Defendants
a. Count III––Contributory False Advertising, 15 U.S.C. § 1125(a)(1)
The Clapp Law Defendants argue that Count III should be dismissed for failure to state a claim upon which relief can be granted. To plead a claim for contributory false advertising in violation of the Lanham Act, a Plaintiff must plead: (1) "a third party in fact directly engaged in false advertising that injured the plaintiff"; and (2) "the defendant contributed to that conduct either by knowingly inducing or causing the conduct, or by materially participating in it." Duty Free Americas, Inc. v. Estee Lauder Cos. , 797 F.3d 1248, 1277 (11th Cir. 2015). And, "a plaintiff must allege more than an ordinary business relationship between the defendant and the direct false advertiser in order to plausibly plead its claim." Id. at 1279.
The Clapp Law Defendants first argue that "as set forth above," Plaintiffs have not pleaded a cause of action for direct infringement by a third party. This type of argument is insufficient for the Clapp Law Defendants to meet their burden on a Motion to Dismiss, and the arguments "set forth above" appear to be the standing arguments already discussed by the Court. Therefore, the Clapp Law Defendants have not adequately challenged Plaintiffs' assertion of injurious false advertising by a third party. As to the second prong, the Amended Complaint alleges that the Clapp Law Defendants were involved in the false advertising. It states that the Clapp Law Defendants: were retained by the TPE Defendants to represent the Wyndham Owners; received a portion of the fees paid to TPE in payment for their services such that the Owners never pay them directly; allowed the TPE Defendants to distribute their information to Wyndham owners on their own letterhead; sent more than 200 demand letters filled with "little to no cogent legal theory" and then took no further action on behalf of the owners; and received a significant portion of their revenue through this scheme. (Doc. 70 ¶¶ 33, 74, 78–88, 90, 186–189). At the pleading stage, these allegations suffice and meet the "more than an ordinary business relationship" standard. Count III will not be dismissed.
b. Count V––Tortious Interference with Contractual Relations
"The elements of a Florida law tortious interference with contractual relations claim are: (i) the existence of a contract; (ii) the defendant's knowledge thereof; (iii) the defendant's intentional and unjustified procurement of a breach thereof; and (iv) damages." Sun Life Assurance Co. of Can. v. Imperial Premium Fin., LLC , 904 F.3d 1197, 1215 (11th Cir. 2018) (citing Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc. , 162 F.3d 1290, 1321 (11th Cir. 1998) ). The Clapp Law Defendants make three cursory arguments as to why Count V should be dismissed. First, they reiterate their argument that Plaintiffs have failed to plead damages. The Court has already addressed this argument above. Second, they argue that no facts have been pleaded sufficient to demonstrate that they intentionally and unjustifiably interfered with the relationship. Relying on Security Title Guarantee Corp. of Baltimore v. McDill Columbus Corp. , 543 So. 2d 852 (Fla. 2d DCA 1989), Defendants contend that this Count must be dismissed because as "long as improper means are not employed, activities taken to safeguard or promote one's own financial interests are entirely non-actionable." Id. at 855. However, this ignores Plaintiffs' multiple assertions that Defendants' actions were improper, fraudulent, illusory, and unlawful. (Doc. 70 ¶¶ 20, 82, 88–89, 148, 208, 210–211)
And lastly, they reason that rescission is a proper remedy when legal grounds exist for it, so they cannot be liable for asserting their clients' legal rights. Essentially, they are arguing that they were justified to interfere. "Justification or privilege to interfere with a contract is a defense to a tortious interference action." Abele v. Sawyer , 750 So. 2d 70, 75 (Fla. 4th DCA 1999). The Clapp Law Defendants also argue that the client forms contain a disclaimer, which is also a defense. A claim will not be dismissed under Rule 12(b)(6) based on an affirmative defense unless its existence "clearly appears on the face of the complaint." Quiller v. Barclays Am./Credit, Inc. , 727 F.2d 1067, 1069 (11th Cir. 1984) ; see also Lakeland Reg'l Med. Ctr., Inc. v. Astellas US LLC , 8:10-cv-2008-T-33TGW, 2011 WL 3035226, at *11 (M.D. Fla. July 25, 2011) ("The mere presence of a possible affirmative defense, which has not yet been proven, does not present a basis for the dismissal of this claim."). Plaintiffs allege that the Clapp Law Defendants were not privileged to interfere with the timeshare contracts and did little to no actual legal work on behalf of Wyndham Owners. (Doc. 70 ¶¶ 208–211, 213–214). Thus, the Clapp Law Defendants' argument fails. Count V will not be dismissed.
c. Count VI––Civil Conspiracy
Count VI asserts a claim for civil conspiracy. A civil conspiracy claim requires: (1) "an agreement between two or more parties," (2) "to do an unlawful act or to do a lawful act by unlawful means," (3) "the doing of some overt act in pursuance of the conspiracy," and (4) "damage to plaintiff as a result of the acts done under the conspiracy." Cordell Consultant, Inc. Money Purchase Plan & Tr. v. Abbott , 561 Fed. App'x. 882, 886 (11th Cir. 2014) (quoting Raimi v. Furlong , 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997) ). The Clapp Law Defendants assert that Plaintiffs failed to sufficiently allege facts establishing any of the elements. Defendants are mistaken. Plaintiffs claim that because the allegedly misleading and fraudulent advertisements promise a legal result, the TPE Defendants retain lawyers that agree to be a part of the scheme by sending––and have sent over 200––fraudulent demand letters to Plaintiffs on behalf of the Wyndham Owners. (Doc. 70 ¶¶ 74–92). And, as stated, Plaintiffs allege they suffer monetary and relational harm as a result of the demand letters and overall scheme. The Amended Complaint goes into detail about the various stages of the scheme and how each group of Defendants partakes in their respective integral parts of the scheme. At this stage in the proceedings, this is sufficient to state a claim for civil conspiracy. Count VI will not be dismissed.
d. Count VII––FDUTPA
The Clapp Law Defendants argue that Count VII fails to state a cause of action for FDUTPA, which prohibits "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." Fla. Stat. § 501.204(1). To state a claim for FDUTPA, a plaintiff must allege: "(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." Collier HMA Physician Mgmt., LLC v. NCH Healthcare Sys., Inc. , 2:18-cv-408-FTM-38MRM, 2019 WL 277733, at *10 (M.D. Fla. Jan. 22, 2019) (quoting Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cty., Inc. , 169 So. 3d 164, 167 (Fla. 4th DCA 2015) ). The Clapp Law Defendants recite the same argument that the Amended Complaint does not adequately allege facts establishing what conduct constitutes an unfair or deceptive practice. As discussed multiple times above, the Amended Complaint sufficiently alleges facts to sustain a FDUTPA claim at this stage in the proceedings.
IV. CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Defendants Brian Scroggs and Bart Bowe's Motion to Dismiss (Doc. 107) is DENIED .
2. Defendants Clapp Business Law, LLC and Mary Clapp's Motion to Dismiss (Doc. 110) is DENIED .
DONE and ORDERED in Orlando, Florida on September 16, 2019.