Filing # 109763088 E-Filed 07/02/2020 06:08:25 PM

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY

COMPLEX BUSINESS DIVISION

CASE NO. 20-006298-CA 43

ERNESTO CUESTA, individually and as President of the Brickell Homeowners Association, Inc.; BRICKELL HOMEOWNERS ASSOCIATION, INC.; RONALD M. FRIEDMAN, individually; 2020 BISCAYNE BOULEVARD, LLC; 2060 BISCAYNE BOULEVARD, LLC; 2060 NE 2ND AVE., LLC; 246 NE 20TH TERRACE, LLC; MORNINGSIDE CIVIC ASSOCIATION; and PARAISO BEACHCLUB OPERATOR, LLC,

Plaintiffs,

v.

CITY OF MIAMI, a Municipal Corporation; and WEST FLAGLER ASSOCIATES, LTD., a Florida Limited Partnership,

Defendants. ______/ DEFENDANT WEST FLAGLER’S MOTION TO DISMISS OR STAY AMENDED COMPLAINT

Defendant, West Flagler Associated, Ltd. (“West Flagler”) moves to dismiss or stay the

Amended Complaint filed by the Plaintiffs and states:

Introduction and Summary of Motion

On May 21, 2020, Plaintiffs filed, and first served, an Amended Complaint in an

improper attempt to set aside a comprehensive settlement reached in federal court between West

Flagler and the City of Miami (the “City”), which resulted in a Final Order of Dismissal, in

FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 which the Court expressly reserved jurisdiction over the settlement.1 See West Flagler

Associates, Ltd. v. City of Miami, Case No. 1:19-cv-21670-RNS, Southern District of Florida

(the “Federal Litigation”).2

The Amended Complaint sets forth four claims for relief. Each claim seeks, as its primary relief, to void the Settlement Agreement from the Federal Litigation. See Amend.

Comp. at ¶¶ 143, 159, 173, 186 & 187 (a). The Settlement Agreement expressly provides that if the Agreement is reversed or set aside, the releases between West Flagler and the City will become null and void. See Amend. Comp., Exhibit 23, docket entry p. 5 of 14. In that event,

West Flagler and the City would reset the case for trial before U.S. District Judge Robert Scola.

But, the Plaintiffs claim that after this Court sets aside the federal settlement, they should be permitted to litigate this lawsuit, as if they were the City of Miami. Further, the Plaintiffs seek to defend West Flagler’s claims, not in the federal court where the case has been litigated, but in this Court. See Amend. Comp. at ¶ 187 (b) – (h).

In seeking this extraordinary relief, Plaintiffs run smack into – and afoul of – a binding principle of Florida law. As the Third District held in Greenwich Ass'n, Inc. v. Greenwich

Apartments, Inc., 979 So. 2d 1116, 1118 (Fla. 3d DCA 2008)(discussed infra), Florida law does not permit a collateral attack on a settlement between two litigants by filing a separate action, especially where the court reserved jurisdiction to enforce the settlement. Rather, the third party

1 Plaintiff filed their initial Complaint in this action against the City only, and did not serve the City until after they filed their Amended Complaint, which added West Flagler as a Defendant.

2 The Settlement Agreement is attached to the Joint Motion for Dismissal without Prejudice, attached as Exhibit 23 to the Amended Complaint. The Final Order is attached as Exhibit 24 to the Amended Complaint. For the convenience of the Court, copies of the Joint Motion, including the Settlement Agreement, and the Final Order, is included in the accompanying Appendix as Exhibits “A” and “B”.

2 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 is required to seek to intervene in the action where the settlement was reached, and then move to set aside the Final Order in that action. The Plaintiffs are in the wrong court—and they seek the wrong relief from the wrong court.

As Plaintiffs allege at ¶123, before filing the Amended Complaint, they moved to intervene in the Federal Litigation. But, they did not seek intervention to set aside the Settlement

Agreement, as they could have requested pursuant to Rule 60, Fed.R.Civ.P.3 Instead, they sought intervention to ask the District Court to decline to exercise the very jurisdiction that the

Court agreed to exercise in the Final Order.4 In support of the Motion to Intervene, Plaintiffs filed a proposed Cross-Claim in which they sought to challenge the City of Miami’s defense of

West Flagler’s claims in the Federal Litigation. But, they asked the federal court to abstain and allow them to litigate these issues in this Court. See Appendix, Exhibit C at pp. 16-17.5

Plaintiffs will undoubtedly respond that the City of Miami and West Flagler have opposed the Motion to Intervene in the Federal Litigation. Plaintiffs will suggest that

Defendants are improperly advocating that Plaintiffs have no remedy in either this Court, or the

Federal Litigation. The fact is that Plaintiffs are dominated in this action, and in the Motion to

3 See e.g. Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 940-41 (6th Cir. 2013)(Discussing circumstances when a third party can seek intervention in a federal action to protect its rights).

4 The Motion to Intervene, filed on April 1, 2020, can be obtained on PACER at docket entry 42. For the convenience of the Court, a copy of the Motion to Intervene, without exhibits, is included in the accompanying Appendix as Exhibit “C.” As the Motion to Intervene was expressly referred to in the Amended Complaint, it is proper for the Court to consider the motion, and related motion papers, in resolving this Motion to Dismiss. See One Call Property Servs., Inc. v. Security First Ins. Co., 165 So.3d 749, 752 (Fla. 4th DCA 2015); Veal v. Voyager Property and Cas. Ins. Co., 51 So.3d 1246, 1249-50 (Fla. 2d DCA 2011).

5 The Proposed Crossclaim was attached as Exhibit B to the Motion to Intervene. A copy is included in the accompanying Appendix as Exhibit “D.”

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Intervene, by two of the most sophisticated business leaders, and experienced litigators in

Miami: Norman Braman and Jorge Perez. They are represented by one of the most sophisticated litigation firms in Florida. It is simply not plausible that Plaintiffs, and their counsel, overlooked binding Florida case law that compelled them to file their challenge to the

Settlement Agreement in Federal Court – not this Court.

Moreover, Plaintiffs’ counsel clearly knows how to file a motion to intervene, in a timely manner, to seek permission to file a Fed.R.Civ.P. 60 motion to seek to set aside the Settlement

Agreement.6 Instead, they chose to wait and file an untimely Motion to Intervene and to seek an abstention, a form of relief that is unavailable to them. See SEC v. Mintrade Techs., LLC, Case

No. 19-20496, 2019 WL 342862, at *5 (S.D.Fl. May 28, 2019)(Recommending denial of motion to intervene, in part, because proposed intervenor was seeking “to intervene simply to obtain a stay of the action,” relief for which there is no basis”), citing cases, Report & Recommendation adopted, 2019 WL 5290940 (S.D.Fl. July 17, 2019); see generally Willson v. Bank of America,

N.A., 684 Fed. Appx. 897, 900 (11th Cir. 2017), citing Moses H. Cohen Memorial Hospital v.

Mercury Construction Corp., 460 U.S. 1 (1983). “Abstention from the exercise of federal

6 West Flagler’s Response to the Motion to Intervene established the history of Braman/Perez’s efforts to deprive Defendant of its right to build and operate a Summer Jai Alai operation in the City of Miami, pursuant to a permit issued by the State of Florida. The Response also showed that Braman/Perez’s delay in seeking to challenge the settlement should lead to a denial of their Motion to Intervene. Most significantly, as West Flagler pointed out, Plaintiffs could not achieve their true goal of taking the defense of West Flagler’s suit over form the City, even if they could set aside the Settlement Agreement. Under the doctrine of parens patriae, they could not establish that the City was not adequately representing the interests of the taxpayers. And under the rules of intervention, they had no right to raises defenses to West Flagler’s claims that the City chose not to raise and which are not even supported by the record that West Flagler developed in the Federal Litigation, and which led directly to the settlement. A copy of the Response, filed on April 24, 2020, at docket entry 51, without exhibits, is included in the accompanying Appendix as Exhibit “E.”

4 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 jurisdiction is the exception, not the rule,” and “is warranted only in exceptional circumstances.”

See Appendix, Exhibit E, at docket page 20 of 23, citing Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 813 (1976).7 Plaintiffs’ counsel made a conscious decision to try to avoid raising their challenges to the Settlement Agreement and the City’s defense of

West Flagler’s claims in federal court because they knew that they would not have a strong chance of prevailing in that court. Thus, they took the cynical, and legally indefensible position that the federal court should abstain from exercising its own reserved jurisdiction over the

Settlement Agreement while Plaintiffs tried to set aside the settlement and litigate the issues that the City chose not to litigate, before this Court, all in violation of the legal standard recognized in

Greenwich Ass'n, Inc., and other cases. See pages 13-15, infra.

Plaintiffs’ effort to challenge the Settlement Agreement, and to take over the City of

Miami’s defense of West Flagler’s claims runs smack into – and afoul of – a second binding principle of Florida law. As the Third District held in OPKO Health, Inc. v. Lipsius, 279 So. 3d

787, 791 (Fla. 3d DCA 2019)(discussed infra), principles of comity require this Court to refrain from interfering with the jurisdiction of the federal court---which first took jurisdiction over

West Flagler’s claims and which reserved jurisdiction to enforce the Settlement Agreement.

7 As West Flagler also presented in opposition to the Motion to Intervene, the federal court’s jurisdiction is so strong that District Judge Scola has the authority to enjoin this Court to act in a manner that interferes with the federal court’s jurisdiction over this Settlement Agreement. See Appendix, Exhibit E , at docket p. 19 of 23, citing Battle v Liberty Nat. Life Ins. Co., 877 F.2d 877 (11th Cir. 1989). As West Flagler presented in that Response, because West Flagler was not initially added as a Defendant in this case, it was not at that time exercising its rights to seek such an injunction. And because West Flagler has confidence that this Court would follow the binding authority of Greenwich Ass’n, Inc., there would be no need to seek injunctive relief from the federal court, at that time. See Appendix, Exhibit E, at docket p. 19 of 23, at note 19.

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The bulk of the Amended Complaint is devoted to a long dissertation regarding the zoning codes and procedures under the Miami 21 Code---issues which were, at one time, relevant to the underlying claims in the federal court action, but which have now been settled.

Even if the Plaintiffs had sought permission of the federal court to set aside the Settlement

Agreement, that court – not this Court –would resolve those issues in a rescheduled trial. If this

Court declines to dismiss this Case under the principles of Greenwich Ass'n, Inc., the case must be stayed under the principles of OPKO Health, Inc.8 See pages 15-18, infra.

If Plaintiffs can overcome these first two threshold issues, they must establish that they have standing to present their challenge. The Plaintiffs have asserted standing on four grounds:

1) pursuant to the Citizen’s Bill of Rights; 2) because they allegedly suffered a “special injury” sufficient to confer standing; 3) pursuant to Fla. Stat. §163.3251; and 4) pursuant to Fla. Stat.

§166.041(7). The City of Miami is addressing the insufficiency of Plaintiffs’ claims and their resulting lack of standing on issues 3) and 4) above. West Flagler adopts the City’s arguments regarding these standing issues and addresses below why Plaintiffs lack standing under the

Citizen’s Bill of Rights and the Special Injury requirements of Florida law. See pages 18-27, infra.

The City also challenges the Amended Complaint based on principles of sovereign immunity and separation of powers. West Flagler joins in those challenges because those legal doctrines not only protect the City from being sued; the doctrines also bar the claims that

8 The Motion to Intervene was fully briefed on May 8, 2020, and has been referred to Magistrate Judge Torres to issue a Report and Recommendation. See Order at docket entry 50, April 24, 2020. Pursuant to 28 U.S.C. § 636, the party that does not prevail on the Motion to Intervene, has the right to seek a de novo review of the Motion by District Judge Scola.

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Plaintiffs seek to assert. Finally, West Flagler joins in the City’s challenge to Plaintiffs because they fail to present justiciable claims and because they fail to state a cause of action.

Material Facts

Braman/Perez’s Successful Efforts to Violate West Flagler’s Established Rights

In the Material Facts section of its Response to the Motion to Intervene, West Flagler set forth a summary of the events leading to the Federal Litigation and the Settlement Agreement.

See Appendix, Exhibit E, at docket entry pp. 2-5 of 23. The Federal Litigation related to West

Flagler’s efforts to operate a pari-mutuel, jai alai fronton in the Edgewater area of the City of

Miami, pursuant to a Summer Jai Alai Permit issued by the State of Florida, and its right to operate a poker cardroom at the same location. Contrary to Plaintiffs’ characterizations, neither the federal case, nor the zoning verification letters in the underlying case, was related to

“gambling” in general, did not seek to “open up gambling” in the City of Miami, and did not relate to casinos.

Pari-mutuel wagering is based upon the division of a pot of funds provided by wagers (as opposed to bets being paid off by “the house” such as a casino).9 Pari-mutuel wagering is governed completely by state statute. The State of Florida has authorized pari-mutuel wagering dating back to the 1930’s, see Chapter 14832, Acts of 1931 and as recognized by the Florida

Supreme Court in Lee v. City of Miami, 163 So. 486 (1935). The residents of then Dade County approved pari-mutuel operations and West Flagler has operated a pari-mutuel facility, in accordance with state law and the consent of the residents of this County for decades. To the

9 See Fla. Stat. §550.002 defines “pari-mutuel” as “a system of betting on races or games in which the winners divide the total amount bet, after deducting management expenses and taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes.”

7 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 extent that Plaintiffs claim that West Flagler’s authorized pari-mutuel activity is in violation of the desires of the residents of this community, Plaintiffs are wrong. The residents of a subset of this County do not have the right to veto pari-mutuel activity that has been approved by all the residents of this County.

The pari-mutuel activity that is at issue in this case is the operation of what is known as a

Summer Jai Alai permit. West Flagler sought the issuance of a Summer Jai Alai permit from the

State, which would allow operation of a jai alai fronton on a very limited schedule with numerous restrictions. See Fla. Stat. 550, 0745. Once a Summer Jai Alai permit was issued, and

West Flagler commenced jai alai operation, it could seek a permit to establish a card room.

However, unlike pari-mutuel activities in general, the Florida Legislature established a specific approval process where the City of Miami would be required to approve card room operations.

See, Fla. Stat. 849.086(16). The Settlement Agreement carved out the potential to seek an authorized card room from West Flagler’s established right to operate a jai alai fronton. West

Flagler would need to secure the approval of the City of Miami if it ever would be allowed to operate a card room and the residents of the City would have the opportunity to be heard before that decision was made. See Appendix, Exhibit A, at docket entry pp. 3-4 of 14.

West Flagler was in litigation for several years with the State of Florida to obtain the right to apply for a Summer Jai Alai Permit and was ultimately successful in April 2017.10 After winning its appeal, West Flagler identified a location in Edgewater for its jai alia fronton and potential card room. As part of West Flagler’s application, the State of Florida required West

10 West Flagler Assocs., Ltd. v. Fla. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 216 So. 3d 692 (Fla. 1st DCA 2017).

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Flagler to provide a zoning verification letters from the City of Miami confirming the zoning of the property at issue permitted jai alai.

On January 30, 2018, the City’s Zoning Administrator issued 18 identical zoning verification letters to be provided to the State of Florida confirming jai alai, a legal form of entertainment, is an Entertainment Use under the Miami 21 Code. West Flagler continued to expend significant funds and resources in reliance on January 2018 zoning verification letters issued by the City. West Flagler obtained its Summer Jai Alai Permit on July 3, 2018.

On July 10, 2018, The Miami Herald published an article reporting that developers

Norman Braman and Jorge Perez had “declared war” on West Flagler’s effort to construct the jai alai fronton. They hired lawyers who immediately drafted a Resolution and proposed Ordinance seeking to change the Miami 21 Code to require that any gambling facility, as defined to include pari-mutuel wagering, would need to obtain an exception, through a special 4/5 supermajority approval by the City Commission, to obtain a building permit.

The City’s Planning and Zoning Appeals Board recommended that the proposed

Ordinance be rejected because it violated West Flagler’s established rights. But, Braman/Perez’s counsel ignored that recommendation, and the express risk that the City would be sued if the

Ordinance passed and West Flagler was denied its building permit. The Resolution was approved by the City Commission over West Flagler’s objection and was signed into law on

September 25, 2018.

In January 2019, the City’s Building Department rejected West Flagler’s building permit application for the jai alai fronton based on the newly enacted Ordinance. In April 2019, West

Flagler filed an action against the City of Miami, which was removed to federal court because of

West Flagler’s federal constitutional claims.

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The Federal Litigation and Settlement

West Flagler and the City engaged in extensive discovery in the Federal Litigation, including 15 depositions. The three City zoning administrators, and the City’s official witness, pursuant to Fed.R.Civ.P. 30(b)(6) confirmed that the zoning letters were simple verifications of the existing zoning in the area that West Flagler sought to operate the jai alai fronton. They were not zoning interpretations, subject to the notice and appeal provisions of the Miami 21 Code.

That was a position on which Braman/Perez’s attorney, Stephen Helfman, Esq., disagreed with in his deposition in the Federal Litigation. But Mr. Helfman’s disagreement with the City is not a proper basis for Plaintiffs to ask this Court to set aside the Settlement Agreement and seek to take over the City’s defense of West Flagler’s claims.

Due to the risks facing West Flagler and the City, after this discovery was concluded, counsel for the parties entered into a term sheet to settle the case, in January 2020. The case was scheduled to go to trial in May 2020. Mr. Helfman was told about the term sheet at his deposition and he was provided with the term sheet and the Joint Motion that the parties filed with District Judge Scola to extend some pretrial deadlines to give the City Commission to opportunity to consider the proposed settlement.

Contrary to the Plaintiffs’ mischaracterizations of the settlement, West Flagler provided significant consideration and made numerous material concessions in reaching its settlement with the City. West Flagler secured only two concessions from the City: a) the right to proceed with the building permit for its jai alai fronton without being subject to the new restrictions in the

Ordinance; and b) the right to a majority vote by the City Commission if West Flagler, in the

10 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 future, sought to operate card room.11 West Flagler’s permit applications and other aspects of its site development were required to comply with applicable zoning laws under the settlement. See

Appendix, Exhibit A, at docket entry p. 3 of 14.

In exchange for those two limited concessions, the City received several significant concessions. First, West Flagler gave up the right to ever seek to operate slot machines at the jai alai fronton location, something the City could not have obtained by proceeding to trial in the lawsuit. Second, West Flagler agreed to release its claim that the Ordinance was preempted by the Florida Statute regarding the card room vote, which would have invalidated the entire

Ordinance, if successful. Third, West Flagler agreed not to challenge the Ordinance with regard to future projects at other locations. Fourth, West Flagler waived its substantial attorney’s fees claim, which the City Attorney estimated could be as high as $1,000,000 if Plaintiff prevailed on its Section 1983 unlawful targeting claim.

West Flagler had developed a record in discovery that it believed presented a strong claim that it had been unlawfully targeted, at the guiding hands of Braman/Perez, by the City.

While the Plaintiffs’ Amended Complaint focuses solely on West Flagler’s vested rights/equitable estoppel claim, it ignores West Flagler’s federal civil rights claims under Section

1983 and claims for preemption, which were also released by the settlement. 12

11 Even that concession could be limited because the City Attorney has opined that if the Mayor were to veto the approval of a car room, the City Commission would be required to override the veto with a 4/5 supermajority vote – the same standard set forth in the Ordinance.

12 Plaintiffs’ counsel claims that the City would have defeated West Flagler’s preemption claim. What Plaintiffs’ counsel overlooks was that both West Flagler and the City were facing litigation risk. Thus, as in the vast majority of litigation, a settlement was achieved to avoid that risk. As the City points out in its Motion to Dismiss, avoiding risk through a settlement is the type of action that is protected from a litigation second-guessing that decision by the doctrine of

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On February 13, 2020, at a publicly notice meeting, the City Commission approved the settlement. Mr. Helfman opposed the settlement. On February 21, 2020, the Mayor, at the urging of Mr. Braman, wrote a letter asserting a veto of the Commission’s approval. The City

Attorney concluded that the Mayor’s veto was invalid because it was outside his limited right of veto under the City Charter. On February 24, 2020, after considering the legal opinion from the

City Attorney, the City Commission decided it was unnecessary to address the Mayor’s argument regarding his veto powers and the Settlement Agreement was subsequently executed by the City Manager. Mr. Helfman’s partner counsel opposed the City Attorney’s view of the

Mayor’s veto.

The City Attorney and the City Manager informed the Mayor that they intended to execute a Settlement Agreement with West Flagler. On March 4, the Mayor, joined by these

Plaintiffs, filed an action in this Court seeking an injunction to prevent the City Manager from executing a settlement agreement with West Flagler. But, the Mayor and Plaintiffs withdrew that lawsuit, the same day. They chose not to take legal action before a settlement was finalized.

Then they waited.

On March 11, 2020, the City Manager and City Attorney executed the Settlement

Agreement. On March 12, 2020, West Flagler executed the Settlement Agreement and filed the

Joint Motion of Dismissal with the Court. See Appendix, Exhibit A. On March 13, 2020,

District Judge Scola entered a Final Order granting the parties’ Joint Motion for Dismissal without Prejudice and expressly reserved jurisdiction to enforce the Settlement Agreement. See

sovereign immunity. Messrs. Braman and Perez surely can use the political process to seek to replace City administrators who they believe have not properly performed their functions. But they do not have the right to ask a second court to undo a municipal settlement in this manner.

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Appendix, Exhibit B. Then, on April 1, 2020, Plaintiffs, but not the Mayor, filed the Motion to

Intervene in the federal court action and, on May 21, 2020, Plaintiffs, but not the Mayor, filed and served the Amended Complaint.

ARGUMENT

A. Plaintiffs Cannot Challenge The Validity of The Federal Settlement Agreement Through This Separate State Court Action The Plaintiffs are not permitted, under Florida law, to collaterally attack the federal court

Final Order through this independent state court action. The only available method to challenge the Final Order and Settlement Agreement would have been to move to intervene in the Federal

Litigation, in a timely manner, and move to set aside the Final Order pursuant to Federal Rule of

Civil Procedure 60. See Greenwich Ass'n, Inc. v. Greenwich Apartments, Inc., 979 So. 2d 1116,

1118 (Fla. 3d DCA 2008).13

In Greenwich Ass’n, Inc., the plaintiff condominium association sued a neighboring residential complex over the disputed use of a two-story parking structure owned by the plaintiff.

Greenwich, 979 So. 2d at 1117. The parties subsequently entered into a settlement agreement permitting the neighboring complex to use one story for parking. The agreement was executed by the plaintiff’s president on behalf of the unit owners. However, that action was not submitted to the unit owners for a vote. After execution, the settlement agreement was incorporated into a final order of the circuit court dismissing the case. Id.

13 Plaintiffs’ counsel will claim that this case is not governed by Greenwich Ass'n, Inc. and is, instead governed by principles of collateral estoppel and res judicata. Plaintiffs are wrong because West Flagler has not raised collateral estoppel or res judicata as a bar to this case. And, the reason West Flagler has not raised those defenses is that the Federal Court has not yet ruled on the Motion to Intervene. Depending on how the Federal Court rules, collateral estoppel and res judicata may, or may not become, an appropriate defense. But, for now, Plaintiffs’ argument is a red herring that should be rejected by this Court.

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The plaintiff association subsequently filed a new lawsuit seeking reformation or cancellation of the settlement agreement. Much like the Plaintiffs in this action, the association challenged the settlement agreement by claiming that the association president signed the settlement agreement without submitting it to the unit owners for a vote and therefore it was invalid. The plaintiff argued that the settlement agreement (and the final order incorporating the settlement agreement) should be stricken as void because the agreement “was the result of a void, ultra vires act of the plaintiff’s president.” Id. at 1118.

The trial court rejected the plaintiff’s argument and held that “the settlement agreement was subsumed into a court order, and therefore, the plaintiff was limited to an appeal from that judgment or to the rights provided by Florida Rule of Civil Procedure 1.540(b).” Id. The trial court also held that the judgment was merely voidable, and not void.

The Third District Court of Appeal affirmed, holding that any defect in the underlying settlement agreement merely rendered the judgment voidable, not void. The Court concluded that “because the 2001 judgment was not void, and the plaintiff did not allege an extrinsic fraud upon the court, the plaintiff’s independent action cannot stand.” Id. at 1119.14

Greenwich Ass’n, Inc. is consistent with a well-established body of Florida law. See

Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009)(Because the subject judgment was only voidable, “a challenger's options are limited to taking a timely appeal from the judgment or

14 A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person. Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009). On the other hand, “if a court has jurisdiction over the person and the subject matter, an error in the judgment does not make the judgment void,” but rather voidable. Dep’t of Health & Rehab. Servs. v. Morley, 570 So. 2d 402, 404 (Fla. 5th DCA 1990) (holding that the incorporation of a void and unenforceable agreement into a final judgment does not render the judgment void, but only voidable).

14 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 filing a timely motion to set aside the judgment on one of the limited grounds for relief set forth in Florida Rule of Civil Procedure 1.540(b).”); Palmer v. Palmer, 109 So. 3d 257, 258 (Fla. 1st

DCA 2013)(“[A]an agreement that is merely voidable is not subject to collateral challenge once it has been incorporated into the final judgment,” citing Wells v. Wells, 832 So.2d 266 (Fla. 4th

DCA 2002).

Plaintiffs’ sole, proper remedy was to seek to intervene in the Federal Litigation and to seek permission to file a Fed.R.Civ.P. 60 motion (the equivalent of a Rule 1.540(b) motion in federal court) to attempt to set aside the Final Order and Settlement Agreement. See, e.g., Nat.

Res. Def. Council, Inc. v. City of Long Beach, 2010 WL 11595729, *3 (C.D. Cal. Dec. 13,

2010)(the proper way for plaintiffs to have challenged the settlement agreement at issue in the instant case is by way of a Rule 60 motion challenging the final judgment, especially where the court had on going jurisdiction over the settlement).

Plaintiffs’ failure to follow this proper -- and only -- available course of action in a timely manner, does not open the door to a separate action in this Court seeking to set aside the

Settlement Agreement, especially where the federal court reserved jurisdiction over the settlement. Because such an end-run of the Federal Litigation and the Settlement Agreement is not permitted, the Amended Complaint must be dismissed.

B. Principles of Comity Dictate that this Action Should Be Stayed Pending Resolution of Issues in the First Filed Federal Court Action

Under principles of comity, Florida law is clear that when substantially similar cases are proceeding in different courts, it is an abuse of discretion for the court in the later-filed case to refuse to abate or stay that case pending the outcome of the earlier case. See, e.g., OPKO Health,

Inc. v. Lipsius, 279 So. 3d 787, 791 (Fla. 3d DCA 2019):

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Although a trial court has broad discretion to order or refuse a stay of an action pending before it, it is nonetheless an abuse of discretion to refuse to stay a subsequently filed state court action in favor of a previously filed federal action which involves the same parties and the same or substantially similar issues. This rule is based on principles of comity.”

OPKO Health, 279 So. 3d at 791 (citation omitted); see, e.g., Benihana of Tokyo, Inc. v.

Benihana, Inc., 129 So. 3d 1153, 1154 (Fla. 3d DCA 2014) (court abused its discretion in refusing to stay later action pending outcome of first-filed federal action); Sorena v. Gerald J.

Tobin, P.A., 47 So. 3d 875, 877-78 (Fla. 3d DCA 2010) (“Comity principles dictate that an action should be stayed, and a trial court departs from the essential requirements of law by failing to grant such a stay, when the first-filed lawsuit involves substantially similar parties and substantially similar claims.”); Pilevsky v. Morgans Hotel Group Mgmt., LLC, 961 So. 2d 1032,

1035 (Fla. 3d DCA 2007) (trial court abused discretion when it refused to stay later action pending the outcome of an earlier action in another state); Beckford v. Gen. Motors Corp., 919

So. 2d 612, 613 (Fla. 3d DCA 2006) (“It is well-settled that when a previously filed federal action is pending between substantially the same parties on substantially the same issues, a subsequently filed state action should be stayed pending the disposition of the federal action.”);

Royal Globe Ins. Co. v. Gehl, 358 So. 2d 228, (Fla. 3d DCA 978) (trial court committed reversible error by failing to dismiss lawsuit filed in Dade County where case involving same insurance claim was already pending in Missouri).15

15 Florida’s other appellate courts are in agreement. See, Spacebox Dover, LLC v. LSREF2 Baron LLC, 112 So.3d 751 (Fla. 2d DCA 2013) (absent any such special circumstances, a trial court abuses its discretion in refusing to grant a stay based on the principle of priority); Shooster v. BT Orlando Ltd. Partnership, 766 So. 2d 1114, 1115 (Fla. 5th DCA 2000) (where state and federal court have concurrent jurisdiction, the tribunal where jurisdiction first attaches retains jurisdiction exclusively and will be left to determine the controversy and to decide every issue or question properly arising in the case); Schwartz v. DeLoach, 453 So. 2d 454, 456 (Fla. 2d DCA

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Further, “Florida law is clear that, ‘the causes of action do not have to be identical ... [i]t is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.’” OPKO Health, 279 So.

3d at 791 (citing Pilevsky v. Morgans Hotel Grp. Mgmt., LLC, 961 So. 2d 1032, 1035 (Fla. 3d

DCA 2007)). Comity principles dictate that “[w]here a state and federal court have concurrent jurisdiction over the same parties or privies and the same subject matter, the tribunal where jurisdiction first attaches retains jurisdiction.” Id.

This principle of comity was explained decades ago by the Florida Supreme Court in Wade v. Clower, 114 So. 548, 551 (Fla. 1927). The court held that “[w]here a state and federal court have concurrent jurisdiction over the same parties or privies and the same subject- matter, the tribunal where jurisdiction first attaches retains it exclusively and will be left to determine the controversy and to fully perform and exhaust its jurisdiction and to decide every issue or question properly arising in the case.” The Florida Supreme Court explained that the jurisdiction of the first tribunal continues until the judgment rendered in the first action is satisfied “and extends to proceedings which are ancillary or incidental to the action first brought.” See also, Battle v. Liberty Nat. Life Ins. Co., 877 F.2d 877, 881 (11th Cir.

1989)(where federal court entered judgment pursuant to a settlement agreement and reserved jurisdiction, federal court properly subsequently enjoined separate state court action which challenged the propriety of the judgment which could “only undermine the district court's continuing jurisdiction over the case.”).

1984) (“Since the action now pending in federal court was filed first, the court abused its discretion in refusing to stay the subsequent suit”).

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In order to be subject to this rule, the causes of action in the two lawsuits “do not have to be identical; it is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently filed case.” Fla.

Crushed Stone Co. v. Travelers Indem. Co., 632 So. 2d 217, 220 (Fla. 5th DCA 1994). It is undisputed that the federal court first retained jurisdiction over this dispute on April 30, 2019.

This action was not filed until March 17, 2020. Under any standard, it is clear that the federal court first exercised jurisdiction. See Mabie v. Garden St. Mgmt. Corp., 397 So. 2d 920, 921

(Fla. 1981) (“When two actions between the same parties are pending in different circuits, jurisdiction lies in the circuit where service of process is first perfected.”).

Accordingly, in the event this case is not dismissed, under principles of comity, this case must be stayed until the federal court has fully addressed all pending motions and disputes among these parties.

C. The Citizens Bill of Rights Does Not Provide Plaintiffs with Standing If Plaintiffs could overcome the principles of Greenwich Ass’n, Inc., and if the Federal

Litigation is resolved in a manner that allows Plaintiffs to proceed in this Court under principles of comity, Plaintiffs still must establish that they have standing to challenge the Settlement

Agreement and to raise the other challenges that they set forth in the Amended Complaint. As an initial matter, the Plaintiffs that are corporate entities16 do not have standing under the Citizens’

Bill of Rights, which only applies to natural persons. The only Plaintiffs who can arguably assert

16 Specifically, Plaintiffs, Brickell Homeowners Association, Inc, 2020 Biscayne Boulevard, LLC, 2060 Biscayne Boulevard LLC, 2060 NE 2nd Ave, LLC, 246 20th Terrace, LLC, Morningside Civic Association, LLC and Paraiso Beachclub Operator, LLC are all corporate entities.

18 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 standing under the Citizen Bill of Rights on its face are individual Plaintiffs Ernesto Cuesta and

Ronald M. Friedman.17

The City Charter provides that “Residents of the City shall have standing to bring legal actions to enforce the City Charter.” (emphasis supplied). Nowhere in the Bill of Rights does it state that corporate entities have the right to bring legal actions. Because the plain language of the Bill of Rights contains interchangeable references to “persons”, “residents” and “citizens”, as well as the specific rights granted therein, it is clear that the Citizens’ Bill of Rights refers only to natural persons and not corporate entities. See also, Chabau v. Dade County, 385 So. 2d 129

(Fla. 3d DCA 1980)(Association representing individual property owners in opposition to developers’ request for zoning variances were not an "aggrieved party" and lacked standing).

Notwithstanding the lack of standing of the corporate entities, even assuming arguendo that they could employ the Citizens’ Bill of Rights, as a threshold matter, a taxpayer must establish a special injury in order to have standing to challenge governmental action. “[T]he

Florida Supreme Court has repeatedly held that citizens and taxpayers lack standing to challenge a governmental action unless they demonstrate either a special injury, different from the injuries to other citizens and taxpayers, or unless the claim is based on the violation of a provision of the

Constitution that governs the taxing and spending powers.” Herbits v. City of Miami, 207 So. 3d

274, 281 (Fla. 3d DCA 2016); Solares v. City of Miami, 166 So. 3d 887, 888 (Fla. 3d DCA 2015)

17However, although he is an individual Plaintiff, Mr. Cuesta lacks standing to assert a special injury because he does not reside in the neighborhood where the subject project is located, but lives in the Brickell area, located approximately 5 miles from the subject project. If any of the concerns alleged in the Amended Complaint regarding increased traffic and neighborhood congestion affected Mr. Cuesta, they would be consequences that affected the community as a whole, thereby negating any claim for special injury required to establish standing. (See discussion regarding special injury infra, at Section D).

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(citing Sch. Bd. of Volusia Cnty. v. Clayton, 691 So.2d 1066, 1068 (Fla.1997) (“The requirement that a taxpayer seeking standing allege a ‘special injury’ or a ‘constitutional challenge’ is consistent with long established precedent.”).

The Plaintiffs purport to assert standing under the Miami-Dade Citizens’ Bill of Rights.

However, the Citizens’ Bill of Rights does not create an independent basis for standing in this action and does not relieve the Plaintiffs from pleading a viable “special injury” necessary to establish standing. See Herbits, 207 So. 3d at 281; see also, Brickell Homeowners Association,

Inc., et al. v. City of Miami, Case No. 2019-006750 CA 01 (J. Rudolfo Ruiz) (March 22, 2019), at Exhibit “F”.

In Herbits, taxpayers filed a lawsuit against the City of Miami and a property developer seeking declaratory and injunctive relief regarding the developer’s plans to develop public land on Watson Island for commercial use. Herbits, 207 So. 3d at 276-77. The development at issue was approved in a referendum that took place after the developer has submitted a winning proposal for development of the land to the City Commission in 2000. Id. After the referendum, many years passed during which time the type of development to be built was renegotiated between the City and the developer several times before construction commenced and before any lease was executed. Id. In their lawsuit, the taxpayers alleged several violations of the City

Charter, which included: (1) the City’s failure to lease the property to the developer at fair market value; (2) the City materially changing the terms of the transaction with the developer from what was approved in the referendum; (3) the City’s failure to provide public notice and an opportunity for the public to compete for the transaction; and (4) the City concealing information from the public related to the rental value of the land and changes to the project that had been made through renegotiation. Id. at 281-286.

20 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43

For the purpose of establishing their standing, the taxpayers pled facts alleging that they had suffered a special injury as a result of the City’s actions because they were residents located closest to Watson Island and therefore suffered the most injury from traffic and noise from the planned development. Id. at 279. In a separate count, the taxpayers also alleged that they could establish standing independently under the Citizens’ Bill of Rights. Id. at 284.

On the City’s motion, the trial court dismissed all of the plaintiffs’ claims with prejudice for lack of standing and failure to establish special injury, including the claim under the Citizens’

Bill of Rights. Id. at 280. On appeal, the Third District affirmed the trial court’s order of dismissal. Id. at 287. The court found that the taxpayers’ allegations were insufficient to rise to the level of a special injury and their mere proximity to the project did not create a special damage. Id. at 282. Further, the court held that the Citizens’ Bill of Rights did not provide independent basis for standing except as to their claim for “truth in government” violations (a claim not present here). Id. at 284.

The court explained that while an exception to the general rule that taxpayers must show special injury to challenge governmental action can exist “when legislation provides a cause of action and standing to private citizens,” it found that the taxpayer plaintiffs could not establish standing for their claims of ordinance violations under the Citizens’ Bill of Rights because the cause of action provided by the Citizens’ Bill of Rights was limited to “truth in government” violations, “not for the possible and prospective ordinance violations alleged in the complaint.”

Id.

Recently, former Circuit Judge Rudolfo Ruiz addressed this issue in Brickell

Homeowners Association, Inc., et al. v. City of Miami, Case No. 2019-CA-006750 (2019). In that case, one of the Plaintiffs in this case, Brickell Homeowners Association, Inc., (of which

21 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43

Plaintiff Cuesta was and remains the President), along with other individual taxpayers, sought to enjoin the Ultra Music Festival from going forward, claiming a special injury. Judge Ruiz held that the Miami-Dade Citizens’ Bill of Rights did not independently create standing for all alleged violations of the City Charter and did not remove or lower the requirement to establish special injury altogether. (See Order Denying Plaintiffs’ Emergency Motion for Temporary Injunction

(“Injunction Order”) dated March 22, 2019, is included in the accompanying Appendix as

Exhibit “F”). Judge Ruiz explained on the record (which was incorporated by reference in the

Court’s Order):

The language that is being used to bring this suit is [….] silent on a number of very salient issues, notably the concerns that have been raised regarding an injury. [I]njury is not even mentioned nor does the plain language of the provisions in […] the Citizens’ Bills of Rights.

The Court is very sensitive to the pronouncements of the mayor and the commission and what they were hoping to accomplish but we are bound by what actually was ultimately passed. […]

The reality is that the commission, and what is passed, and what we are interpreting, makes no mention of lowering the injury requirement. […]

At the end of the day, it’s a two-fold issue. One, if they wanted to seek to lower from special injury to injury, they should have spoken on that. They did not, and therefore I haven’t seen anything in that, that intended to do that or the plain meaning of it, contemplated that.

Second, the argument that somehow injury is presumed or that injury is in fact it’s a per se injury when we don’t purportedly follow the procedures and we don’t need to be explicit in lowering that, that runs afoul of, and we cited it, plenty of binding Supreme Court case law that dictates that standing must come with injury and there must be a causal relationship to that injury. […]

[T]here is just no basis to bring this action, from a standing perspective, because opinions are truly silent as to any injury whatsoever, let alone a special injury, and no case law would support a reading that simply, breaching some part of the charter automatically creates injury so as to not have to plead it. That is just not in the case law. […]

22 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43

If [eliminating special injury] is what the City wanted to do, the City needed to explicitly reference dropping the special injury threshold. And if they really thought they could somehow eliminate the injury, as an injury has always been interpreted as a gateway to standing, the City may attempt to do that. But I would venture a guess, looking at our Supreme Court case law, that that would improperly and perhaps even unconstitutionally eliminate injury as a gateway issue when it comes to bringing these types of actions.

(Id. at pp. 3-8).

Even more recently, in an ongoing case, Kabbani v. City of Miami, Case No. 20-00950

(Fla. 11th Cir. Ct.) (J. David C. Miller), a group of City of Miami residents sued the City seeking declaratory and injunctive relief to preclude the City from implementing a resolution authorizing the Ultra Music Festival to take place at Bayfront Park. Just as in Brickell Homeowners, the citizen plaintiffs alleged that their standing arose under the Citizens’ Bill of Rights, and that their proximity to the Festival caused them to suffer special injuries. (Id. at 2-3).

One of the defendants, Event Entertainment Group, Inc. (“EEG”), moved to dismiss

Counts I, III, and IV of the Complaint, on the grounds that the defendants lacked standing. (See

Defendant Event Entertainment Group, Inc.’s Motion to Dismiss Plaintiff’s Complaint, Case No.

20-CA-00905, is included in the accompanying Appendix as Exhibit “G”). Specifically, EEG argued that the plaintiffs failed to plead special injury and that the Citizens’ Bill of Rights could and did not dispense with that pleading requirement. (Appendix, Exhibit G, at p. 7-11).

As to the count based upon the Citizens’ Bill of Rights (Count III), the plaintiffs took the position that pleading residence alone was sufficient to establish standing under the Citizens’ Bill of Rights and that special injury was not required. Judge Miller rejected the plaintiffs’ argument, holding that plaintiffs “must still allege and establish a special injury,” and dismissed Count III of the Complaint. (See Order on Motions to Dismiss and Order Cancelling Hearings on Motion for Summary Judgment, Case No. 20-CA000950 (March 4, 2020), is included in the

23 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 accompanying Appendix as Exhibit “H,” at p. 2, citing Solares v. City of Miami, 166 So. 3d 887,

888-89 (Fla. 3d DCA 2015)).

Given the foregoing authority, Plaintiffs are required to plead a special injury different from the taxpayers at large to establish standing in order to challenge the governmental action at issue. See Herbits, 207 So. 3d at 281; Solares, 166 So. 3d at 888. Having failed to properly allege special injury (as discussed below), Plaintiffs’ claims based upon the Citizens’ Bill of

Rights should be dismissed.

D. Plaintiffs Fail to Allege a Cognizable Special Injury

Plaintiffs allege that they will suffer special injury as follows: “Plaintiffs’ properties, and

Plaintiffs’ neighborhoods [will be impacted] by, among other things, increasing neighborhood traffic, increasing neighborhood congestion, increasing criminal activity, reducing open spaces, and reducing their property values.” (Amend. Compl. at ¶¶ 38, 136, 152, 166 and 179). These allegations fail, as a matter of law, to establish special injury because they are injuries that, if they occurred, would be suffered by the community at large and are not limited to the named

Plaintiffs. Such allegations, as those that have been made by the Plaintiffs, have been consistently rejected as giving rise to special injury in numerous cases. See Exch. Investments,

Inc. v. Alachua County, 481 So. 2d 1223, 1225 (Fla. 1st DCA 1985) (“authorities generally agree that traffic is a matter of general concern and does not grant standing in zoning matters”);

Skaggs-Albertson's Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So. 2d 113,

116-17 (Fla. 2d DCA 1976) (increased traffic congestion that may be caused by development of neighboring property did not give rise to special injury); Florida Palm-Aire Corp. v. Delvin, 230

So. 2d 26, 27–28 (Fla. 4th DCA 1969) (“The proofs establish plaintiffs’ injuries, i.e., obstruction of view, increased use of utilities, increased traffic, etc., to be not special but those which follow

24 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 as a natural consequence of increased population and thereby sustained by the public as a whole in that particular area.”); see also, Liddle v. Corps of Engineers of U.S. Army, 981 F. Supp. 544,

557 (M.D. Tenn. 1997) (holding plaintiffs’ allegations of “proximity to the traffic, noise, and pollution” caused by the YMCA's use of a nearby site failed to establish special injury for the purposes of standing); Henry L. Doherty & Co. v. Joachim, 200 So. 238, 240 (Fla. 1941)

(holding resident did not have special injury to establish standing to maintain action against city to enjoin the closure of a public walkway adjacent to his property because claimed injury, if any, was suffered by the public as a whole).

The type of allegations made by the Plaintiffs are consistently rejected as creating special injury because they are common byproducts of urban development and would improperly restrict development of a city if deemed to cause special harm. In Skaggs-Albertson’s, the Second

District, quoting a Georgia decision on the same issue, described the problems inherent in recognizing such allegations as special injuries as follows:

Such an inconvenience is a condition incident to urban living. It is merely the result of normal, urban growth and development. To hold that such an inconvenience would give to any resident or property holder of an urban area the right to override the decisions of boards of zoning appeals any time such property owner or resident disagreed with such decision would be a dangerous precedent to establish. It would result in materially slowing, if not completely stopping, the inevitable and necessary growth of large modern cities. . . .

332 So. 2d at 117 (quoting Victoria Corp. v. Atlanta Merch. Mart, Inc., 112 S.E.2d 793, 795

(Ga. Ct. App. 1960).

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In two recent decisions in the U.S. District Court for the Southern District of Florida, the court disposed of the cases (dismissal and summary judgment, respectively) for failure to state special injury on allegations virtually identical to those pled by the Plaintiffs in the instant case.18

In Gagliardi, the plaintiffs sued the City of Boca Raton attempting to stop the City from allowing an 18,000 square foot, two story religious building from being built in their residential neighborhood. 2017 WL 5239570 at *6. To establish special injury for the purpose of standing the plaintiffs alleged that the development would “increase[] potential for flooding, increase[] traffic in the area surrounding the proposed Chabad site, increase[] difficulty for emergency vehicles to access the area surrounding the proposed Chabad site, and [cause a] change in the character of the area” and also made a “reference to alteration in property values.” Id. On the defendant’s motion to dismiss, the district court held that these allegations were insufficient to establish standing because (1) they represented injuries that were suffered in common with people in the area generally and were not particularized, and (2) were conjectural or hypothetical, not representing actual or imminent injury. Id. The case was dismissed for lack of subject matter jurisdiction as a result of the plaintiffs’ failure to establish standing. Id. at *9. The dismissal was subsequently affirmed on appeal on the grounds that the case had become moot. 889 F.3d at 735.

Similarly, in Buena Vista, the plaintiffs sued the City of Miami attempting to enjoin the construction of two commercial developments near their neighborhood. 2008 WL 1848389 at *1.

In their complaint, the plaintiffs described 19 injuries that they would suffer if the developments were permitted to be constructed, including “loss of property value, ‘injury of damaging

18 Gagliardi v. City of Boca Raton, 16-CV-80195-KAM, 2017 WL 5239570 (S.D. Fla. Mar. 28, 2017), aff'd sub nom. Gagliardi v. TJCV Land Tr., 889 F.3d 728 (11th Cir. 2018); Buena Vista E. Historic Neighborhood Ass'n v. City of Miami, 07-20192-CIV, 2008 WL 1848389 (S.D. Fla. Apr. 22, 2008).

26 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43 precedent of large-scale buildings where none currently exist, noise from future parties, aesthetic intrusion, increased traffic congestion ‘causing delays to residents, increase of danger to homes, and delays in emergency response time,’ increased air pollution, loss of privacy, and falling construction debris, along with eleven other potential injuries.” Id. at *3 and fn3.

On the defendant’s motion for summary judgment, the district court examined whether the plaintiffs could establish standing to pursue their claims, including whether they had sufficiently pled a special injury. Id. at *2-5. The district court granted summary judgment, holding that the plaintiffs had failed to establish special injury because the injuries were

“speculative or conjectural” and were “suffered by the community as a whole.” Id. at *3-5.

As in Gagliardi and Buena Vista, the Plaintiffs have failed to allege special injury because their alleged injuries, if they occurred, would be injuries that would be suffered by the public as a whole. Further, just as in Gagliardi and Buena Vista, the purported injuries are entirely speculative and are thus fatally insufficient. Liebman v. City of Miami, 279 So. 3d 747,

752 (Fla. 3d DCA 2019), reh'g denied (Sept. 12, 2019), review denied, SC19-1777, 2020 WL

3412107 (Fla. June 22, 2020) (affirming dismissal of complaint on grounds plaintiff “lacked standing because his allegation of a special injury was conclusory and speculative”); McCall v.

Scott, 199 So. 3d 359, 368 (Fla. 1st DCA 2016) (affirming dismissal of complaint, holding “trial court properly determined that [the plaintiff’s allegations of special injury] were conclusory and speculative,” even if presumed to be true). Because the Plaintiffs cannot allege special injury, they lack standing and their claims should be dismissed accordingly.

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Conclusion

For the foregoing reasons, the Amended Complaint should be dismissed, or in the alternative, this action should be stayed in deference to the pending federal court action.

Certificate of Conferral

Pursuant to CLP 4.3, the undersigned, Joseph DeMaria, conferred with counsel for the

Plaintiffs, Grace Mead from Stearns Weaver and Brian Shack, during a lengthy telephone conference on July 2, 2020, which included Raquel Rodriguez, counsel for the Defendant City of

Miami. Prior to the telephone conference, West Flagler and the City sent Plaintiffs’ counsel an email summarizing the arguments in their respective motions to dismiss. The parties had a fulsome discussion of all issues raised in the motion, but were unable to resolve the issue raised in the motions to dismiss despite a good faith effort.

Respectfully submitted,

FOX ROTHSCHILD LLP Attorneys for West Flagler Associates, Ltd. 2 South Biscayne Blvd., Suite 2750 Miami, Florida 33131 Telephone: 305.442.6547 By: s/Joseph A. DeMaria Joseph A. DeMaria Board Certified Specialist – Business Litigation Florida Bar No: 764711 Email: [email protected] Susanne M. Calabrese Florida Bar No. 89512 Email: [email protected]

28 FOX ROTHSCHILD LLP CASE NO. 20-006298-CA 43

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismiss or Stay Amended Complaint was served via e-mail and the Florida E-Portal to all counsel listed below on this 2nd day of July, 2020. BRIAN J. SHACK, ESQ. RAQUEL A. RODRIGUEZ, ESQ. Assistant General Counsel S. CAREY VILLENEUVE, ESQ. Braman Management Association Buchanan Ingersoll & Rooney PC 2060 Biscayne Blvd., 2nd Floor One Biscayne Tower; Miami, Florida 33137 2 S. Biscayne Blvd, Ste. 1500 Telephone: 305.576.1889 Miami, FL 33131-1822 Email: [email protected] Telephone: 305.374.080 Email: [email protected] Attorneys for 2020 Biscayne Boulevard, LLC; [email protected] 2060 Biscayne Boulevard, LLC; 2060 NE 2Ave., LLC and 246 NE 20th Terrace, LLC Attorneys for the City of Miami

EUGENE E. STERNS, ESQ. GRACE L. MEAD, ESQ. JENEA M. REED, ESQ. JOSEPH J. ONORATI, ESQ. Sterns Weaver Miller Weissler Alhadeff & Sitterson PA 150 West Flagler Street, Suite 2200 Miami, Florida 33130 Telephone: 305.789.3200 Email: [email protected] [email protected] [email protected] [email protected]

Attorneys for Ernesto Cuesta; Brickell Homeowners Association; Ronald M. Friedman; 2020 Biscayne Boulevard, LLC; 2060 NE 2nd Ave., LLC; 24 NE 20Terrace, LLC; Morningside Civic Association; and Paraiso Beachclub Operator LLC s/Joseph A. DeMaria Joseph A. DeMaria

29 FOX ROTHSCHILD LLP