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