Angela DiPilato

Case 7:07-cv-07636-CS Document 40 Filed 06/08/09 Page 1 of 2
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ff tf.A' 4h-J i 1o /AM Angela DiPilato
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, .. - PI 'I <f. Ut ""L ..L.JL 2310 E. Atlantic Boulevard (Suite 206)
tv\ (1.-1 a_ -- Pompano Beach, Florida 33062
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June 08, 2009
SO DR
VIA FACSIMILE
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Honorable Judge Cathy
Attn: Chambers
United States Courthouse
300 Quarropas Street
Whlte Plains, New York 1 0601-4150
MEMO ENDORSED
Fax No.: (914) 390-4278
Re:
Your Honor:
DiPilato, ProSe, v. 7-Eleven, Inc., et al.
Civil Adion Number: 07- CV-7636
Pre-.ftrl.otion Confere1rce and Defendants Request for
Adjournment and Telephone Conference
I am the Pro Se, plaintiff in the above-referenced action. I \\'rite in response to a
letter that I received in the mail. only yesterday, however, postmarked by the Court on May 21,
2009. I expect the delay was due to the fact that I am now living in the State of Florida (part time
) and I have fonvarded my mail here.
Additionally, I just got out of the hospital two weeks ago, whereas, I was hospitalized for
pneumonia. I am presently under a doctors care and cannot travel to New York.
The above-referenced letter calls for a pre-motion conference, tomorrow, June 09, 2009. Under
these circumstances, I cannot attend. I respectfully request a short adjournment and that the
matter be conferenced by telephone.
It seems that the Defendants recite the basis of their motion in a letter to the Court. In said letter
the Defendants accuse me of unconscionable acts, includirig filing a false affidavit in this
litigation.
Let me assure this Court that I did not file a false affidavit in this case. The defendants are
substantiating their accusations based upon my testimony in the matter of DiPilato v. Drake
.Manor. Inc. , a New York State Supreme Court case. During my testimony, I was asked if I
signed the Affidavit in this case, and I answered" No", and stated that my fiance signed the
affidavit .. Because it was the truth ...... I was not asked anything further.
Perhaps I can clarifY this matter without wasting the Court's valuable time on this motion. I
have given my fiance my Power-of-Attorney in all legal matters. Therefore, with my
authorization he signed the Affidavit. I was aware of the allegations contained therein.
Moreover, when the" Court" in that matter asked me if the documents were filed on my behalf
I answered " Yes ".
Simply put, there is no basis for this motion. I am currently waiting to see if the Court confirms
the Magistrate Judges's decision denying the Defendants Motion for Summary Judgment and
v.ish to proceed to trial, as soon as possible, once discovery is completed.
Lastly, it appears that counsel in this matter is sharing information with counsel in the matter
of; DiPilato v. Drake Nfanor, Inc. I am aware of common law that states that, it is improper for
these two attorneys' to act in this fashion, i.e., "' share information " for the purpose to attempt to
force settlement in these cases, among other things. I would appreciate it if the Court would take
judicial notice of the acts and actions of these two attorneys.
Thank you for the Court's valuable time in consideration of my request. I await your decision. I
can be reached by telephone at (914) 563-4510 or by Facsimile at (954) 782-5626.
cc: BARTON, BARTON & PLOTKIN
Gray Bar Building
420 Lexington A venue
New York, New York 10170
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -JC
Angela DiPilato
07 CIVIL 7636 (CS)
Plaintiff, JUDGMENT
-against-
7-Eleven, Jeanne Lynch,
Martina Hagler and
Arthur Rubinett,
Defendants.
- -X
Whereas the above entitled action having been assigned to the
Honorable Cathy Seibel, U.S.D.J., and the Court thereafter on
July 19, 2010, having handed down its Order granting defendants'
motion for attorneys' fees to the law firm of Barton Barton &
Plotkin LLP in the sum of $2,231.25 and denied motion seeking
sanctions and dismissed the complaint is its entirety, with
prejudice, it is,
ORDERED, ADJUDGED AND DECREED: That the complaint be and
it is hereby dismissed in its entirety with prejudice.
Dated: White Plains, New York
July 19, 2010
i'/judgment/dipilato.7636
__ _
Ruby J.
Case 0:10-cv-62492-JIC Document 1 Entered on FLSD Docket 12/22/2010 Page 1 of 38
SOUTHERN DISTRICT OF FLORIDA
CASE NO.:
ANGELA DIPILATO, Individually,
Plaintiff,
V.
RUDD & DIAMOND, P .A., a Florida
Corporation, PETER A. DIAMOND, Individually,
and OCEAN 4660, LLC., a Florida limited liability
company,
Defendants.
~ /
COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF
JURY DEMAND
1. Plaintiff alleges violation ofthe Fair Debt Collection Practices Act, 15 U.S.C. section 1692,
et. seq. ( hereinafter " FDCP A " ) and the Florida Consumer Collections Practices Act, Fla. Stat.
section 559.55, et. seq. (hereinafter" FCCPA" ).
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JURISDICTION AND VENUE
2. This Court has jurisdiction under 28 U.S.C. section(s) 1331, 1337, 1367 and 15 U.S.C.
section 1692k. Venue in this District is proper under 28 U.S.C. section 1391, because Plaintiff
resides here and Defendant does business in the District.
PARTIES
3. Plaintiff, ANGELA DIPILATO is a natural person, and citizen of the State ofNew York,
residing in Broward County Florida.
4. Defendant, RUDD & DIAMOND, P.A., ( "RUDD & DIAMOND") is a Florida for profit
Corporation, engaged in the practice oflaw and debt collection, and maintains a principal place
ofbusiness located at 4000 Hollywood Boulevard, Suite 165-S, Hollywood, Florida 33021.
5. Defendant, PETER A. DIAMOND, is a natural person, and citizen of the State of Florida,
employed by RUDD & DIAMOND, P.A., and working from offices located at 4000 Hollywood
Boulevard, Suite 165-S, Hollywood, Florida 33021.
6. Defendant, OCEAN 4660, LLC., ( " OCEAN 4660 " ) is a Florida limited liability company,
engaged in the ownership of real property located and doing business at 4660 North Ocean Drive,
Lauderdale by the Sea, Florida 33308 ("Hotel and Restaurant") and maintains a principal
place ofbusiness located at 40800 Woodward Avenue, Bloomfield Hills, Michigan, 48304.
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7. All Defendants regularly use the mail and telephone in a business, the purpose of which is
the collection of debt.
8. All Defendants regularly collect or attempt to collect debts for other parties;" they are" debt
collectors" as defined in the FDCPA. Heintz v. Jenkins, 514 U.S. 291 ( 1995 ).
9. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ., are Attorneys.
An Attorney who issues a three day eviction notice is a " debt collector " for purposes of the
FDCPA and must comply with the FDCPA. Initiation of a lawsuit in State Court seeking
recovery of unpaid rent is an" initial communication" within the meaning of the FDCPA.
Heintz v. Jenkins, 514 U.S. 291, 293-296. Goldman v. Cohen. 445 F. 3d 152 (U.S. Court of
Appeals for the Second Circuit ) (2006).
10. OCEAN 4660 is vicariously liable for the actions ofRUDD & DIAMOND, P.A. and
PETER A. DIAMOND, Individually. Fox v. Citicorp Credit Services. Inc., 15 F. 3d 1507,
( 9
1
h. Cir. 1994 ).
11. At all times material to the allegations of this complaint, Defendants was acting as a debt
collector with respect to the collection of Plaintiffs alleged debt.
12. With respect to the " Congressional findings and declaration of purpose " portion of the
FDCPA, The United States Congress has declared at 15 U.S.C. section 1692:
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(a) Abusive Practices
There is an abundant evidence ofthe use of abusive, deceptive, and
unfair debt collection practices by many debt collectors, Abusive debt
collection practices contribute to the number of personal bankruptcies,
to marital instability, to the loss of jobs, and to invasions of individual
pnvacy.
(b) Inadequacy oflaws
Existing laws and procedures for redressing these injuries are inadequate to protect
consumers.
FACTUAL ALLEGATIONS
13. Defendant sought to collect an alleged debt from Plaintiff arising from personal, family, or
household purposes.
14. On or about October 26, 2010, RUDD & DIAMOND, P.A. and PETER A. DIAMOND
prepared a Three (3) Day Eviction Notice in regards to an alleged delinquency of Plaintiffs rent.
A true and correct copy of the aforementioned notice is attached hereto as Exhibit " A ".
15. The notice fails to provide information that it is being sent from a debt collector in violation
of 15 U.S.C. section 1692e(11).
16. The notice fails to provide information of Plaintiffs right to dispute the debt in violation of
15 U.S.C. section 1692g(a)(3-5).
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17. The notice failed to provide information that Plaintiff had thirty days to dispute the debt
and failed to attach the FDCPA thirty day notice in violation of 15 U.S.C. section 1692(g)(a)(3-
5).
18. Based upon information and belief, RUDD & DIAMOND, P.C., and PETER A.
DIAMOND, solicited business in the State of Florida, yet failed to properly register to collect
debts in the State of Florida as required by Florida Statutes section 559.553, 559.555.
19. Federal Courts have held that the collection of an alleged rent deficiency is debt collection
activity and thus governed by the FDCPA. Romea v. Heiberger & Assoc., 988 F. Supp. 715 (
S.D.N.Y. 1998 ).
20. Based upon information and belief, OCEAN 4660 retained the services of or forwarded the
alleged debt to RUDD & DIAMOND and PETER A. DIAMOND for collection.
21. In the State court suit, Defendants' actions, among other things, necessitated Plaintiff to
incur thousands of dollars in attorney's fees.
22. RUDD & DIAMOND, P .C., and PETER A. DIAMOND sent various written
correspondences to Plaintiff and/or Plaintiffs' Attorney in the State case, William Watson Trick,
Jr., Esq.
23. The correspondences failed to provide information that it is being sent from a debt collector
in violation of 15 U.S.C. section 1692e(11).
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24. The correspondences failed to provide information of Plaintiffs right to dispute the debt in
violation of 15 U.S.C. section 1692g(a)(3-5).
25. Based upon information and belief, RUDD & DIAMOND, P.A., and PETER A.
DIAMOND solicited business in the State of Florida, yet failed to properly register to collect
debts in the State of Florida as required by Florida Statutes section 559.553, 559.555.
26. RUDD & DIAMOND, P .A., and PETER A. DIAMOND operate a business entity known
as " RUDD & DIAMOND, P .A. " which regularly practices debt collection through collection of
debt for landlords, eviction proceedings. Said entity sets this forth in its corporate documents
maintained within the Florida department of State Division of Corporations, among other things.
27. Upon information and belief, on or about November 05,2010, RUDD & DIAMOND, P.A.,
and PETER A. DIAMOND filed an eviction lawsuit against Plaintiff. A true copy of the State
Court lawsuit is annexed hereto as Exhibit " B ".
28. The state court lawsuit seeks, among other things, actual money damages, possession, as
well as attorney's fees.
29. The Supreme Court has held that the filing of legal proceedings on behalf of a creditor
constitutes debt collection activity. Heintz v. Jenkins, 514 U.S. 291,293-296. Initiation of a
lawsuit in State Court seeking recovery of unpaid rent is an " initial communication " within the
meaning ofthe FDCPA. Goldman v. Cohen, 445 F. 3d 152 (2006).
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30. A three day notice, summons and complaint devoid of any warnings and notices required
by 15 U.S.C. section 1692g is an initial communication for the purposes of the FDCPA. Sanz v.
Fernandez, ( U.S.D.F.L. )(2009 ), 633 F. Supp. 2d 1356. ( U.S.D.J. COHN); Goldman v. Cohen.
445 F. 3d 152 (2006).
31. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ., sent Plaintiff
a three day notice, summons and complaint which was devoid of the warnings and notices
required by 15 U.S.C. section 1692g and in violation of the FDCPA.
32. Federal Law supercedes Stale Law.
COUNT I
FAILURE TO ACCURATELY DISCLOSE PLAINTIFF'S RIGHTS IN
VIOLATION OF 15 U.S.C. section 1692g(a)(3-5)
33. Plaintiff incorporates Paragraphs 1 through 32 as if fully set forth again herein at length.
34. All Defendants failed to notify Plaintiff of the following: that she must dispute the alleged
debt in writing within 30 days of her receipt thereof or Defendant will assume the alleged debt is
valid in violation of 15 U.S.C. section 1692g(a)(3); a statement that ifthe consumer notifies the
debt collector in writing within the thirty-day period that the debt, or any portion thereof, is
disputed, the debt collector will obtain verification of the debt or a copy of a judgment against
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the consumer and a copy of such verification or judgment will be mailed to the consumer by the
debt collector valid in violation of 15 U.S.C. section 1692g(a)(4); and a statement that, upon the
consumer's written request within the thirty-day period, the debt collector will provide the
consumer with the name and address of the original creditor, if different from the current creditor
in violation of 15 U.S.C. section 1692g(a)(5).
35. WHEREFORE, Plaintiff requests that the Court enter judgment in favor ofPlaintiffand
against Defendants for:
a. Damages;
b. Attorney's fees (if any), litigation expenses and costs of suit, and
c. Such other and further relief as to this Court deems just and proper.
COUNT II
FAILURE TO DISCLOSE STATUS AS A DEBT COLLECTOR IN VIOLATION OF
15 U.S.C. section 1692e(ll)
3 7. All Defendants, in their various correspondences with Plaintiff, failed to disclose their
status as" debt collectors" in violation of 15 U.S.C. section 1692e(11 ).
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38. WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
a. Damages;
b. Attorney's fees ( if any ), litigation expenses and costs of the instant
lawsuit, and
c. Such other and further relief as the Court deems just and proper.
COUNT III
FAILURE TO REGISTER DEBT COLLECTION LICENSE
IN VIOLATION OF 15 U.S.C. section 1692e
40. All Defendants solicited business in the State of Florida yet failed to properly register to
collect debts in the State of Florida, as required by Florida Statutes section(s) 559.553, 559.555
and thus violated 15 U.S.C. section 1692e(5) and 15 U.S.C. section 1692e(10).
a. Damages;
lawsuit, and
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COUNT IV
ISSUING COMMUNICATIONS AND LAWSUITS IN VIOLATION OF
15 U.S.C. section 1692, et. seq.
43. Defendant(s) RUDD & DIAMOND, P.A., and PETER A. DIAMOND, ESQ. issued
notices to Plaintiff and initiated a lawsuit in state court against Plaintiff seeking recovery of
alleged unpaid rent in violation of 15 U.S.C. section 1692, et. seq.
44. WHEREFORE, Plaintiff requests that the Court enter judgment in favor ofPlaintiffand
a. Damages;
lawsuit, and
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COUNTV
HARASSMENT AND ABUSE IN VIOLATION OF 15 U.S.C. section 1692d
46. All Defendants have engaged in conduct the natural consequence of which is to harass,
oppress, or abuse Plaintiff in connection with the collection of a debt.
47. Without limiting the conduct ofDefendant(s) which was to harass, oppress or abuse
Plaintiff in violation of 15 U .S.C. section 1692d the Defendants committed the following:
A. Knowingly initiating an action in County Court to collect an alleged debt, which
debt is not subject to the jurisdiction of said court;
B. Knowingly initiating a lawsuit to collect an alleged debt when no debt is due;
C. Attempting to collect upon an illegal, unlawful, or otherwise improper debt;
D. Using and/or threatening of use of violence or other criminal means to harm the
physical person, reputation, or property of Plaintiff;
E. Using obscene and profane language or language the natural consequence of which
is to abuse the hearer or reader;
F. Knowingly using improper means to collect an alleged debt, and
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G. Among other things.
a. Damages;
lawsuit, and
COUNT VI
FALSE AND MISLEADING REPRESENTATIONS IN VIOLATION
OF 15 U.S.C. section 1692e
50. All Defendant(s) have engaged in specifically but not limited to the following conduct in
violation of 15 U.S.C. section 1692e: (i) falsely representing the character, amount, or legal
status of the alleged debt; (ii) representing or implicating that the nonpayment of the debt will
result in the seizure, garnishment, attachment or sale of any property or wages of the Plaintiff;
(iii) the false representation or implication that the consumer-plaintiff committed any crime or
other conduct in order to disgrace the consumer-plaintiff; (iv) the failure to disclose in the initial
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communication with Plaintiff and, in addition, if the initial communication was oral, that the debt
collector was attempting to collect an alleged debt, and that any information obtained will be
used for that purpose, and the failure to disclose in subsequent communications that the
communication was from a debt collector, and (vi) among other violations.
a. Damages;
lawsuit, and
COUNT VII
UNFAIR PRACTICES IN VIOLATION OF 15 U.S.C. section 1692f
53. All Defendant(s) have used unfair and unconscionable means to collect or attempt to collect
the alleged debt in violation of 15 U.S.C. section 1692f.
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54. Without limiting the conduct ofDefendant(s) which violates 15 U.S.C. section 1692fthe
Defendant(s) committed the following conduct: (i) the collection of an amount of the alleged
debt ( including any interest, fee, charge, or express incidental to the principal obligation ) unless
such amount is expressly authorized by the agreement creating the alleged debt or permitted by
law; (ii) there is no present right to possession of the property claimed as collateral through an
enforceable security agreement; (iii) the property is exempt by law from such dispossession or
disablement, and (iv) among other things.
a. Damages;
b. Attorney's fees (if any), litigation expenses and costs ofthe instant
lawsuit, and
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COUNT VIII
DEFENDANT HAS COMMENCED LEGAL ACTION IN VIOLATION
OF 15 U.S.C. section 1692i
57. Defendant(s) commenced legal action in the County Court in violation of 15 U.S.C. section
1692i.
a. Damages;
b. Attorney's fees (if any), litigation expenses and costs ofthe instant
lawsuit, and
COUNT IX
MALPRACTICE AND ATTORNEY MISCONDUCT
AGAINST RUDD & DIAMOND, P.A. AND PETER A. DIAMOND
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60. An attorney can be liable to a third party, absent an attorney-client relationship, for
intentional torts, fraud and illegal acts, among other things.
61. An attorney is liable to third parties in tort when there is fraud, collusion, malicious acts,
illegal acts or other special circumstances such as negligent misrepresentation, among other
things.
62. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND are attorneys
licensed to practice law in the State of Florida under Florida Bar number( s) 0180051, and others.
63. Upon information and belief, Defendant(s) RUDD & DIAMOND, P.A. were employed by
Defendant OCEAN 4660, LLC to provide legal advice; to provide legal advice in the collection
of an alleged debt and to collect a debt as a debt collector. Defendant PETER A. DIAMOND,
ESQ. was the partner or shareholder representative from Rudd & Diamond, P .A. who performed
some or all of the alleged illegal, unlawful and improper acts complained of herein.
64. Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND owed, failed and/or
refused the following duties:
(i) the duty of care, which requires an attorney to have knowledge and skill
necessary to confront the circumstances of each case;
(ii) the duty to represent the client and handle the client's affairs with the utmost
degree of honesty, forthrightness, loyalty and fidelity;
(iii) failure to exercise that degree of care, skill, and diligence commonly possessed
and exercised by members of the legal community;
(iv) among other things.
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65. Based upon including, but not limited to the following, Defendant(s) RUDD &
DIAMOND, P.A. and PETER A. DIAMOND, ESQ. Have committed malpractice and attorney
misconduct: (i) illegally and unlawfully operating an unregistered business for the collection of
debt in violation ofthe FDCPA and FCCPA; (ii) knowingly, willfully, wantonly, negligently,
fraudulently, illegally, unlawfully, and otherwise improperly violating the FDCPA and FCCPA;
(iii) violations ofthe FDCPA and FCCPA; (iv) knowingly, willfully, wantonly, negligently,
fraudulently, illegally, unlawfully and otherwise improperly collecting or attempting to collect a
debt; (v) knowingly, willfully, wantonly, recklessly, negligently, fraudulently, and otherwise
improperly attempting to or collecting an alleged debt that was not due; (vi) practicing" Rambo"
style litigation tactics, and (vii) among other things.
66. Based upon their acts and actions as complained of herein Defendant(s) RUDD &
DIAMOND, P.A. and PETER A. DIAMOND have committed malpractice and attorney
misconduct.
67. Defendant(s) knowingly, willfully, wantonly, fraudulently, negligently, illegally,
unlawfully, purposefully, recklessly, improperly; otherwise improperly and without due care,
among other things, committed the acts and actions complained of herein in violation of law.
68. Defendant(s) failed and/or refused to use due care.
69. Defendant( s) acts and actions were the cause of Plaintiffs damages.
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70. RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ. are vicariously liable for
each others acts.
71. As a direct and proximate result ofDefendant(s) RUDD & DIAMOND, P.A. and PETER
A. DIAMOND, ESQ.'s acts and actions as complained ofherein Plaintiffhas and will suffer
monetary losses and liability in the millions of dollars.
72. WHEREFORE, Plaintiff demands judgment be entered in its favor and against
Defendant(s) RUDD & DIAMOND, P.A. and PETER A. DIAMOND, ESQ. as follows:
a. actual compensatory, consequential, incidental, special and exemplary damages
in an amount to be proven at trial;
b. punitive damages;
c. such civil penalties as allowed by law;
d. attorneys' fees (if any) and costs, expenses ofthis lawsuit as allowed by law;
e. pre-judgment and post-judgment interest as allowed by law, and
f. Such other and further relief as to this Court deems just and proper.
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COUNT X
DECLARATORY RELIEF AND PERMANENT INJUNCTION
IN ACCORDANCE WITH THE FCCPA
74. Pursuant to 28 U.S.C. section(s) 2201 and 2202, Plaintiff seeks a declaration that
Defendants' practices are in violation of the FDCPA and FCCPA.
75. The FCCPA provides for equitable relief including injunctive relief. Berg v. Merchs. Ass'n
Collection Div .. 586 F. Supp. 2d 1336, 1345, (S.D. Fla. 2008 ).
76. Plaintiff seeks a permanent injunction prohibiting Defendants from collecting debts in the
State of Florida without first obtaining a license.
77. WHEREFORE, Plaintiff requests that the Court enter judgment:
a. Declaring that all Defendants violated the FCCP A and FDCP A for their failure to
obtain a license to collect debts in the State of Florida;
b. Permanently enjoining all Defendants from collecting upon the alleged debt;
c. Permanently enjoining the Defendants from pursuing the state court lawsuit for
the alleged collection of unpaid rent;
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d. Attorney's fees (if any ), litigation expenses and costs of suit, and
e. Such other and further relief as this Court deems just and proper.
RESERVATION OF RIGHTS
Plaintiff respectfully reserves the right to amend the Complaint.
JURY DEMAND
Plaintiff demands trial by jury.
~
Dated this 2.1- day of December, 2010.
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ANGELA DIPILATO, Pro Se
-Plaintiff, ProSe-
231 0 East Atlantic Boulevard, Suite 206
Pompano Beach, Florida 33062
Tel: (914) 5 -4510
Fax: (954 o 7- 05
EXHIBIT A
-:.:;. .. -NOTICE OF
Ociober 26, 2010
Sent Via Certified Mail & US Mail*
Angela Dipilato
4658 N. Ocean LLC

Ci'J
C/0 Beachside Grille
4658 North Ocean Drive
Lauderdale by the Sea, Florida 33308
RE: NOTICE OF EVICTION; THREE (3) DAY NOTICE TO PAY RENT OR
DELIVER POSSESSION
Dear Ms. Angela Dipilato:
Notice is hereby given, pursuant to the provisions of 83.20 of the Florida Statutes,
that:
1. Rent for the period of March, 2010 through October 2010 in the sum of
($96,000) is due and unpaid for the premises located at 4658 N. Ocean Drive, Lauderdale
by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale
Beachside Hotel" and owned by landiord, Ocea"fi'4660, LLC., in your possession pursuant
to a tenancy at sufferance, which provides for rental in the sum of $12,000 per month,
payable on the first of each month.
_Florida Statute 83.20(2) provides
Where such person holds over without permission as aforesaid, after any default in
the payment of rent pursuant to the agreement under which the premises are heJd, and 3
days' notice in writing requiring the payment of the rent or the possession of the premises
has been served by the person entitled to the rent on the person owing the same. The
service of the notice shaH be by delivery of a true copy thereof, or, if the tenant is absent
from the rented premises, by leaving a copy thereof at such place.
2. Accordingly, you are required, within three days (excluding Saturday, Sunday,
and legal holidays) after service of this notice on you, to pay all the delinquent rent or to
deliver up possession of the premises to' the undersigned, or C/0 Peter Diamond, Esquire,
Rudd and Diamond, P.A. 4000 Hoiiywood Blvd, Suite FL 33021, (954)
961-5?59 who is by the undersigned to of_!!25; pre.mises. if
you fall to do so, the understgned will begin legaj.pfficeepmgs to
_,.... . ./. .-----t-
3. This Notice is given to ord nee with but
' .. not limiled to 83.05 and 83.20. / / // . -
/ /:f'/ ..
/ / .
/ /OCEA , C, Landlord//
/ C/0 Pete Diamond, Esqt.;Jre/ . . .. ,
<- Rudd an. Diamond, P y: ,<:;J.'
4000. Hoflywood Blyd/ _;,_ Ql
Suite 165-S // .r
Hollywood, 03021
(954) 96 i tel.
(954) 9EJ-{-8953 fax.
. / . .
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this Notice was sent via certified
mail, regular mail, on the above-named tenant on this 26tn day of October 2010 and
personally serving the Notice on the tenant and by leaving a r:;ovy at the tenant's fast or
usual place of residence, in th$ tenant's absence.
' ;] /' )
Dated (""'....r-tDl-e..c , 2010. / J
.// / .. // / .
///./,. / _/
//;. //f // ./ .........
/
/ !I j
... / ...
//0Cft4r.'N 60, LLC,
// CJO D.iamond: .S<1Uire
/ pudd_a d . -.'P.A.
...->-- j4000 H ood.Bivd
L Suite 165-S
Hollywood, FL 33021
(954) 961-5059 tel.
(954) 961-8953 fax .
. ) ,
EXHIBITB
FORM 1.997. CIVIL COVER SHEET
The civil cover sheet and the information contained herein neither replace nor supplement the filing and service of
pleadings or other papers as required by law. This form shall be filed bv the plaintiff or petitioner for the use of the Clerk
of the Court for the purpose of reporting judicial workload data pursuant to Florida Statues section 25.075.
I. CASE STYLE
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD
OCEAN 4660. LLC,
- ---- ---- --P Ja i r:l tiff,--- .
VS.
ANGELA DIP/LA TO, individually, and
OCEANSIDE LAUDERDALE, INC., d/bia
BEACHSIDE GRILL, a Florida Corporation
Defendants.
II. TYPE OF CASE
i-1 0

01506

judge: __________ _
(If the case fits more than one type of case, select the most definitive category.) If the most descriptive
label is a subcategory (is indented under a broader category), place an "x" in both the main category and
subcategory boxes.
C Condominium.
! .. Contracts and indebtedness
c: Eminent domain
,_ Auto negligence
Negligence- other
C1 Business governance
0 Business torts
0
I]
Environmental/Toxic tort
Third party indemnification
Construction defect
[i Mass tprt
c; Negligent security
' Nursing home negligence
CJ Premises liability- commercial
C; Premises liability- residential
C; Products liability
CJ Real Property/Mortgage foreclosure
C Commercial foreclosure $0- $50,000
'" Commercial foreclosure $50,001 - $249,999
[i Commercial foreclosure $250,000 or more
Homestead residential foreclosure $0-$50.000
CJ Homestead residential foreclosure
$50,001 - $249,999
_ Homestead residential foreclosure $250,000 or more
_ Non-homestead residential foreclosure $0- $50,000
["; Non-homestead residential foreclosure $50,001 - $249,999
: 1 Non-homestead residential foreclosure S250,00 or more
L (Other real property actions $0 - $50,000
Other real property actions $50,001 -$249,999
,.., Other real property actions $250,000 or more-f<?-:t
Professional malpractice
Malpractice -business
__ Malpractice - medical
0 Malpractice -other professional
; Other
;;r;mrust/Trade Rtgulalfon
Business Transaction
C Constitutional challenge-statute or ordinance
;__. Constitutional chailer.ge-proposed amendment
C Corporate TnJsts
:::.: Discrimination-employment or other
Insurance claims
L: lnteliectual property
Libel/Slander
C1 Shareholder derivative action
SecuriUes
L Trade secrets
L Trust litigation
Ill. REMEDIES SOUGHT (check ali that apply):
C?--T\1oneta ry;
!?.---Non-monetary declaratory or injunctive relief;
n Punitive
IV. NUMBER OF CAUSES OF ACTION: ( Q_)
(Specify}
6
"-,,..1 e/7-1'-,: .t .....
V. IS THIS CASE A CLASS ACTION LAWSUIT?
.Li Yes

_...
VI. OF ANY KNOWN RELATED CASE BEEN FILED?
l2' No

';,._I
Yes - If "yes" list all related cases by name, case number and court:
VIL IS JURY TRIAL DEMANDED IN COMPLAINT?
C Yes
j -
/
No
. ;, ....... -
_,,.,__ .... ,
i CERIIFY the information I in-this.rove-F--s-heerlsaccurate to the best of my knowledge and belief.
- . .---- ----
...... ...--- .,/""/ ---!"---
Sig.pcrture: _. -
.:Attorney or Party
:) ------- I
. f- '_)-r_ -- I '\ . I
f. - I . ,--" I t.J f'v? ,r-,
Date: ;/- 5-----/ c:)
Type or print name
)_
-- ...
OCEAN 4660, -LLC
Plaintiff
V.
IN THE COUNTY COURT OF THE
17TH JUDlClAL CJRCUJT IN AND
FOR BROWARD COUNTY,
FLORIDA
GENERAL JURJSDICTJON
CASE-NO.:
ANGELA DIPILA TO, individuallv. and
OCEANSIDE LAUDERDALE, fNC .. d/b/a
BEACHSIDE GRILL, a Florida
\10 01506
)'. 6 2
't'J!tt:rn-A...ttlN :MiiJ.RlS
Defendant(s)
__________________________ !
CIVIL ACTION SUMMONS
THE STATE OF FLORIDA:
TO EACH SHERIFF OF THE STATE:
YOU ARE COMi\iANDED to serve this summons and a copy of the Eviction
Complaint or petition, under Summary Procedure, in this action on Defendant:
ANGELA DIPILA TO
1035 S. Riverside Drive
Pompano Beach, FL 33062
Each Defendant is required to serve written defenses to the complaint or petition on
Plaintiff's A ttomey:
PETER A. DIAMOND, ESQUIRE
RUDD & DIAMOND, P.A.
4000 HOLLYWOOD BLVD.
SUITE 165-S
HOLLYWOOD, FL 33021
(954) 961-5059
within 5 days after service of this summons on that Defendant, exclusive of the day of
service, and to file the original of the defenses witb the Clerk of this Court either before
service Plaintiffs or immediately tbereafte:. If fails to do_ so, a
default wi.ll be entered agamst that Defendant 11 the complamt or
petition. . BY: f'UERST I NOV 0 5 2010
DEPUTY
' I. _K t:, .._,ut' i ,
t . 'otullv Couri St;<ll !
. l
DATE:
, ..
OCEAN 4660, LLC ,.
Plaintiff
v
lN THE COUNTY COURT OF THE
17TH JUDICIAL CIRCUIT fN AND
FOR BROWARD COUNTY,
FLORIDA
GENERAL JURISDICTION
ANGELA DIPILATO, individuaJJy, and
-..OCEA."l\ISIDE LAUDERDALE, INC., d/b/a
BEACHSJDE GRILL, a Florida Corporation

CIVIL ACTION SU1\LMONS fJf.f.1f.'i+ 6 2
THE STATE OF FLORIDA: 'fY-."11,RI -...h.NJ\i
TO EACH SHERIFF OF THE STATE:
YOU ARE CO.l\H>1ANDED to serve this summons and a copy of tbe Eviction
OCEANSIDE LAUDERDALE INC.
D/B/A BEACHSIDE GRTLL
KENNETH FR.i\J\TK
REGISTERED AGENT
2310 E. A TLANTlC BLVD., (SUITE #206)
POMPANO BEACH FL 33062 US
Plaintiffs Attorney:
SUITE 165-S
HOLLYWOOD, FL 33021
(954) 961-5059
service, and to file the original of the defenses with the Clerk of this Court either before
service on Plaintiff's Attomey or immediately thereafter. lf a Defendant fails to do so, a
default will be entered against that Defendant. . in the complaint or
petition. I CH.ZUSTOPHEH l NOV n5 ZG1fl
l
if'" 1 v
' .::."' l,....J".:... J.. i
BY: ::
DATE:
rEAL
.. ):.tun;,y Sc.a.t \
r i
\ ........ ...,._...;r......... ............. .. -J
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION
QCEAN 4660, LLC
CASE NO.:
: ...... ; ...
Plaintiff
v.
_, __ 0 - ____ individually, and
OCEANSIDE d/6/a-
0
- OOo
0
BEACHS!DE GRILL, a Florida COif:Joration
Defendant(s)

COMPLAINT
COMES NOW Plaintiff, OCEAN 4660, LLC., by and through their undersigned
counsel and sues Defendant(s) ANGELA OJPILATO, individually and OCEANSIDE
LAUDERDALE, INC., dlbia BEACHSIDE GRJLL, and alleges alleges:
COUNT 1- EVICTION
1.
0
This is an action to evict a tenant from real property in Broward County,
Florida.
2. Plaintiff owns the following property described in said county:
4658 N. Ocean Drive, Lauderdale by the Sea,
Florida 33308, located within the Hotel
Property known as "Lauderdale Beachside
Hotel", in Lauderdale-by-the Sea, FL.
3. Defendant ANGELA DIPILATO has possession of the property under an
oral agreement to pay rent of $12,000.00 payable the first day of each month.
i -0
1
r
:. .
4.
Defendant ANGELA DIP!LATO failed to pay rent due on fvlarch 1, 2010 for
the month of Ivlarch, 2010 and has failed to pay any rent whatsoever through October 1,
2010.
5. Plaintiff served Defendant ANGELA OIPILATO with a 3-notice on October
. - - - ~ ~ ~ : ~ : - ; i ' ..
29, 2010, to pay the rent or deliver possession of the property. (See Exhibit A to the
Complaint). The Defendant ANGELA DIPILATO has refused to either pay rent or deliver
-- .. -- - p_g_ssess_ipf] _pfJhe_prop_erj:y ..
6. Upon receipt of the Notice to Evict, the Defendant ANGELA DIPILATO
has engaged in a series of calculated acts to destroy, vandalize and brutalize the
Plaintiffs real property and the Plaintiff has been harmed and otherwise prejudiced.
These actions were conducted in an effort to attempt to frustrate the imminent and
instant Eviction action and said actions are a ruse to attempt to frustrate and otherwise
attempt to relieve the Defendant from its obilgation(s) to pay rent, pay back rent and
andior deliver possession of the property to the Plaintiff.
7. In accordance with paragraph #6 hereinabove and for other justifiable
reasons, the Plaintiff elects to proceed on the equitable eviction portion of this
Complaint under Summary Procedure prescribed under Fla. Stat 51.011 and Summary
Proce9ure is requested and demanded.
WHEREFORE Plaintiffs OCEAN 4660, LLC., demands judgment for possession
of the property against the Defendant ANGELA DIPILATO, individually, and further
seeks money damages for breach of contract/failure to pay 8 months rent of $12,000.00
per month, totaling $96,000.00, attorney's fees and costs to the extent the same are
available and actionable and for any other relief deemed just and proper.
i -
2
COUNT II- FORCIBLE ENTRY AND DETENTION COMPLAINT AGAINST
OCEANSIDE LAUDERDALE. INC.
8. This is an action to recover possession of real property unlawfully
detained in Brpward County, Florida.
..,
9. Plaintiff is entitled to possession of the following real property in said
county:
10.
. Florida 333os, lOcated within the Hotel
Dafer.dant OCEANSIDE LAUDERDALE, INC., d/b/a BEACHSIDE GRiLL
has unlawfully turned Plaintiff out of and withholds possession of the property from the
Plaintiff.
11. The Plaintiff eJects to proceed on the equitable unlawful detention portion
of this Complaint under Summary Procedure prescribed under Fia. Stat 51.011 and
Summary Procedure is requested and demanded.
WHEREFORE P!aintlffOCEAN 4660, LLC., demands judgment for possession of
the property and damages against the Defendants OCEANSIDE LA.UDERDALE, INC.,
d/b/a BEACHSIDE GRILL, attorney's fees and costs to the
....::::.-"' .4'' ... ::>'..
available ,and actionable and for any other relief deemed }S!--st:'8rip' .. --"
Dated this 5
1
h day of November, 2010. .
""' ,/ I _,,.- , ..(
/.' /7 ):'.>:/ .
. _.,.. By .!" . '".Y'
/
. .:
3
/_.:.
. .:"/
CERTIFICATION OF PLEADINGS
Dated this 5
1
h day of November, 2010.
,.
' .
4
EXHIBIT ~
state of FLORIDA
case Number NOT ASSIGNED
Plain!ifl
OCEAN -4660, LLC
vs.
Defendant
,TURN OF SERVICE
County of SROWARD
ANGELA DIPILA TO AND BEACHSIDE GRILLE
For
Peter Diamond
RLJDD & DIAMOND, P.A
4000 Hollywood Blvd.
Ste #165 S
Hollywood, Fl. 33C2:
Court
Received by Gissen & Zav.yer Process Se:vioe, Inc. on the 28th day ofOdober, 2010 a110:25 am fu be se.'Ved on
ANGELA DIPILATO CJO BEACHSIDE GRJLLE, 4058 NORTH OCEAN DR, LAUDERDALE BY THE SEA, fl moa
Posted Commercial Service by attaching a true ::;opy of this NOTICE OF EVICTION LETTER TO BE SERVED
TO THE INDIVIDUAL AND ALSO POSTED TO PROPERTY with the date and hour of service endorsed thereon
by me, togetherwi'.h a copy of the Complaint or Petition, to a conspicuous place on the property described within
after ;-;;eking two attempts. ;-;ot less than stx houro apart. The fir5t attempt was on i0/29110 at 12:25 pm and on
both attempts, !he tenant cO!lld not be found and !here was no employee present upon whom service could be
made.
Addition:allnformo:tlon pertaining to this Service:
THE PLACE AT THE PROV1DED ADDRESS IS CLOSED DOWN
I certify that I am over !he age of 1 B, have no interest ir.lhe above action, and am a Certified Proc,ss SeNer or an
Appointed Process Server in goods tanding in !tie judicia' circuit in which the process was served. Under Penalty of
Peryury I declare that r have read the fol<!going Retum of Service and !h<;t !he facls stated in it are true and correct.
Nolar, nol reqt:ired pursuant to F.S. 92.525.
FEL
Glssan & Z:awyer Process Service, Inc.
15SO Bmcayne Blvd
Suit& 200
Miami, FL 33132
(305) 371-4664
Our Job Serial Number. ZPS-2010138<;03
Ref: 46.9473
-r .;
-NOTICE OF
Angela Dipilato
4658 N. Ocean LLC
C/0 Beachside Grille
4658 North Ocean Drive
October 26, 2010
Sent Via Certified Mail & US Mail*
Lauderdale by the Sea, Florida 33308
.- ',_
RE: NOTICE OF EVICTION; THREE (3) DAY NOTICE TO PAY RENT OR
DELIVER POSSESSION
Dear Ms. Angela Dipilato:
Notice is hereby given, pursuant to the provisions of 83.20 of the Florida Statutes,
that
1. Rent for the period of March, 2010 through October 2010 in the sum of
($96,000) is due and unpaid for the premises located at 4658 N. Ocean Drive, Lauderdale
by the Sea, Florida 33308, located within the Hotel Property known as "Lauderdale
Beachside Hotel" and owned by landlord, Ocecin'4660, LLC., in your possession pursuant
to a tenancy at sufferance, which provides for rental in the sum of $12,000 per month,
payable on the first of each month .
. Florida Statute 83.20(2) provides
Where such person holds over without permission as aforesaid, after any default in
the payment of rent pursuant to the agreement under which the premises are held, and 3
days' notice in writing requiring the payment of the rent or the possession of the premises
has been served by the person entitled to the rent on the person owing the same. The
service of the notice shall be by delivery of a true copy thereof, or, if the tenant is absent
from the rented premises, by leaving a copy thereof at such place.
2. Accordingly, you are required, within three days (excluding Saturday, Sunday,
and legal holidays) after service of this notice on you, to pay all the delinquent rent or to
deliver up possession of the premises to'- the undersigned, or C/0 Peter Diamond, Esquire,
Rudd and Diamond, P.A. 4000 Hoiiywood Blvd, SuiJe FL 33021, (954)
961-5?59 who is authorized by the undersigned to r_ecefve;_nssession pre_mlses. if
you fall to do so, the undersigned will begin legaJ.proceepmgs to
_,.,' /.. ____..-;'---
... . .3. This Notice is given t/yo m/:./ ord nee w1.th eluding but
not lrm1led to 83.05 and 83.20. / ./ . ' '
.'
/ / /
/
/ OCEA , C, LandJord // ........ (
<- / CIO Pete. D.iamond, .
Rudd an. Otamond, P .:fo ,l(}.
4000 Blvd' . ... -
) /
v ... y
(954) 96'1:;ED59 tel.
(954) 99{-8953 fax.
. I . . .
I HEREBY CERTIFY that a true and correct copy of this Notice was sent via certified
mail, regular mail, on the above-named tenant on this 26th day of October 2010 and
personally serving the on the tenant and by leaving a /r;oyV at the tenant's fast or
usual place of residence, m the tenant's absence.
Dated r......t -tDt"E'-C' f-..::. '2010. / /)
.."/ . / / .
/
////:}// /,/ // .. /
,., .
//OCftM\1 60, LLC, LandlcyV./
// C/0 (et Diamond, EsqUire
/ Jl{ud '_a d . ;-f.A.
"',__ /4000 H ood Blvd
L Suite 165-S
Hollywood, FL 33021
(954) 961-5059 teL
(954) 961-8953 fax.
cow;;,- :: }'.';! ii' :1 ::Jr. I'; :::f!!Jl H
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Case 0:10-cv-62492-JIC Document 1-1 Entered on FLSD Docket 12/22/2010 Page 1 of 1
">lS 44 (Rev. 2/08)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 197 4, is requtred for the use of the Clerk of Court for the purpose of mitiating
the civil docket sheet. (SEE INSTRUcTioNs oN THE REVERsE oF THE FORM.) NOTICE: Attorneys MUST Indicate AU Re-filed Cases Below.
I. (a) PLAINTIFFS
Angela DiPilato
DEFENDANTS
Rudd & Diamond, P.A., Peter A. Diamond and Ocean 4660, LLC
(b) County of Residence of First Listed Plaintiff ..;;;B;.;r;..;;o;...;w.;..;a;;.;r;..;;d;......_____ _
County of Residence of First Listed Defendant B;;;.r;..o::;.w':-'-"'a::.rd=---------
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorney's (Finn Name, Address, and Telephone Number)
Plaintiff, Pro Se
2310 E. Atlantic Boulevard, Suite 206
. 10
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT
LAND INVOLVED.
Attorneys (If Known)
4000 Hollywood Boulevard., Suite 165-S
Hollywood, Florida 33021
D MIAMI DADE 0 MONROE BROWARD 0 PALM BEACH 0 MARTIN 0 ST. LUCIE 0 INDIAN RIVER :::J OKEECHOBEE
HIGHLANDS
II. BASIS OF JURISDICTION (Place an "X'" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Piace an "X'" in one Box for Plaintiff
.J 1 U.S. Government
Plaintiff
CJ 2 U.S. Government
Defendant
.{a 3 Federal Question
(U.S. Government Not a Party}
0 4 Diversity
(Indicate Citizenship of Parties in Item Ill)
IV. NATURE 0 F SUIT (Place an '"X'" in One Box Only)
CONTRACT TORTS
:::J II 0 Insurance PERSONAL INJURY PERSONAL INJURY
0 120 Marine D 310 Airplane 0 362 Personal Injury
0 130 Miller Act a 315 Airplane Product Med. Malpractice
CJ 140 Negotiable Instrument Liability 0 365 Personal Injury
0 150 Recovery of Overpayment :::J 320 Assault, Libel & Product Liability
& Enforcement of Judgment Slander D 368 Asbestos Personal
0 151 Medicare Act 0 330 Federal Employers' fnjury Product
0 152 Recovery of Defaulted Liability Liability
Student Loans a 340 Marine PERSONAL PROPERTY
(Excl. Veterans) a 345 Marine Product 0 3 70 Other Fraud
0 153 Recovery of Overpayment Liability CJ 3 71 Truth in Lending
of Veteran's Benefits 0 350 Motor Vehicle 0 380 Other Personal
0 160 Stockholders' Suits 0 355 Motor Vehicle Property Damage
0 190 Other Contract Product Liability :::J 385 Property Damage
0 195 Contract Product Liability 0 360 Other Personal Product Liability
0 196 Franchise Injury
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS
0 210 Land Condemnation 0 441 Voting 0 510 Motions to Vacate
0 220 Foreclosure :::J 442 Employment Sentence
R 230 Rent Lease & Ejectment 0 443 Housing/ Habeas Corpus:
0 240 Torts to Land Accommodations :::J 530 General
:::J 245 Tort Product Liability 0 444 Welfare D 535 Death Penalty
:::J 290 All Other Real Property
a 445 Amer. w/Disabilities
0 540 Mandamus & Other
Employment
0
446 Amer. w/Disabilities
0 550 Civil Rights
Other
0 440 Other Civil Rights 0 555 Prison Condition
(For Diversity Cases Only)
PTF
Citizen of This State CJ
Citizen of Another State LJ
Citizen or Subject of a D
FORFEITURE/PENALTY
CJ 610 Agriculture 0
0 620 Other Food & Drug :::J
0 625 Drug Related Seizure
of Property 21 USC 881
0 630 Liquor Laws
CJ 640 R.R. & Truck 0
0 650 Airline Regs. 0
0 660 Occupational 0
Safety/Health
0 690 Other
LABOR
0 710 Fair Labor Standards 0
Act CJ
0 720 Labor/Mgmt. Relations D
D 730 Labor/Mgmt.Reporting 0
& Disclosure Act 0
0 740 Railway Labor Act
0 790 Other Labor Litigation CJ
0 791 Empl. Ret. Inc. Securit
Act 0
IMI lll":A >TION
0
462 Naturalization
Application
0
463 Habeas Corpus-Alien
Detainee
0
465 Other Immigration
Actions
and One Box for Defendant)
PTF DEF DEF
D I Incorporated or Principal Place
of Business In This State
0 :::J 4
Incorporated and Principal Place
of Business In Another State
:::J D 5
0 3 Foreign Nation 0 :::J 6
BANKRUPTCY OTHER STATUTES
422 Appeal28 USC 158 CJ 400 State Reapportionment
423 Withdrawal 0 410 Antitrust
28 usc 157 0 430 Banks and Banking
0 450 Commerce
PR' IPERTY Rl H...I_S 0 460 Deportation
820 Copyrights :::J 4 70 Racketeer Influenced and
830 Patent Corrupt Organizations
840 Trademark 0 480 Consumer Credit
0 490 Cable/Sat TV
D 810 Selective Service
SOCIAL SECURITY 0 850 Securities/Commodities/
861 HIA (139511) Exchange
862 Black Lung (923) 0 875 Customer Challenge
863 DIWC/DIWW (405(g)) 12 usc 3410
864 SSID Title XVI 0 890 Other Statutory Actions
865 RSI (405(g)) CJ 891 Agricultural Acts
FEDERAL TAX SUITS D 892 Economic Stabilization Act
870 Taxes (U.S. Plaintiff 0 893 Environmental Matters
or Defendant) CJ 894 Energy Allocation Act
871 R S ~ Third Party 0
895 Freedom of Information Act
26 usc 7609
0 900 Appeal of Fee Determination
Under Equal Access to Justice
0
950 Constitutionality of State
Statutes
V. ORIGIN
.fJ I Original
Proceeding
(Place an "X .. in One Box Only)
0 2 Removed from 0 3
State Court
Re-filed-
(see VI below)
0
Transferred from
4 Reinstated or 0 5 another district
Reopened (specify)
0 6 Multidistrict
Litigation
0 7
Appeal to District
Judge from
Magistrate
VI. RELA TED/RE-FILED
CASE(S).
VII. CAUSE OF ACTIO
VIII. REQUESTED IN
COMPLAINT:
(See instructions
second page):
a) Re-filed Case 0 YES 0 NO
JUDGE Cohn-Seltzer
Jud ent
b) Related Cases 0" YES 0 NO
DOCKET NUMBER 1 0-62386-Cv-COHN/SEL 0
Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless
diversity):
Violation(s) of Fair Debt Collections Practices Act, 15 USC section 1692
LENGTH OF TRIAL via
0 CHECK IF THIS IS A CLAS
UNDER F.R.C.P. 23
CHECK YES only if demanded in complaint:
JURY DEMAND: ~ Yes 0 No
ABOVE INFORMATION IS TRUE & CORRECT TO
THE BEST OF MY KNOWLEDGE
DATE
December 22,2010
AMOUNT RECEIPT# IFP
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE No.: 10-62492-CIV- Altonaga-Brown
Plaintiff,
...,.,
,-
: c-_::> 1_,.,
v.
RUD & DIAMOND, P.A., a Florida
Corporation, PETER A. DIAMOND,
Individually, MICHAEL RUDD,
Individually, OCEAN 4660, LLC.,
A Florida limited liability company, and
REMO POLSELLI, Individually,
Defendants.

.. . !"""
,c"*" '"
. :.
PLAINTIFF'S MOTION TO DISQUALIFY, COMPEL DISCOVERY, AMEND
COMPLAINT AND STAY PROCEEDINGS AND SUPPORTING
MEMORANDUM OF LAW
Plaintiff, ANGELA DIPILATO, ProSe, hereby files this Motion to Disqualify Counsel for
OCEAN 4660, LLC.( hereinafter " OCEAN 4660 " ), REMO POLSELLI ( hereinafter "
POLSELLI " ), RUDD & DIAMOND, PC. ( hereinafter " R&D " ), PETER A. DIAMOND
c?
t\)
ESQ. (hereinafter" DIAMOND " ), and MICHAEL RUDD, ESQ. (hereinafter" RUDD " ), to
Compel Discovery from Defendants of Insurance Policies which an insurer may be liable to
satisfy all or part of the judgment which may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment, to amend the complaint in this action to
- 1 -
include applicable claims and Stay Proceedings. The grounds for this motion are more
particularly set forth as follows and in the accompanying memorandum of law. Plaintiff also
incorporates by reference the attached Affidavit of Plaintiff in support of this Motion identified
as Exhibit 1.
-BACKGROUND AND FACTS-
* Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond, Esq., and Michael Rudd, Esq.
represented** Defendant Ocean 4660, LLC., in a landlord-tenant proceeding in the County
Court of the 17th. Judicial Circuit in and for Broward County, Florida (Summons and Complaint
- County Court Action - Annexed Hereto as Exhibit " 2 " ). While representing Defendant Ocean
4660, LLC in said proceeding the Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond and
Michael Rudd committed various violation of the Fair Debt Collections Practices Act, 15 USC
section 1692, et. seq. ( hereinafter " FDCP A " ) and multiple other violations of both State and
Federal Laws, all which are the subject of, and related to this litigation. These actions are
now inextricably intertwined. Further, upon information and belief, Defendants Rudd &
Diamond, P.A., Peter Diamond and Michael Rudd have represented Defendant(s) Ocean 4660,
LLC, Remo Polselli, and related entities on numerous matters for a six year period preceding the
commencement of this action.
* The individual Attorney Defendant(s) Peter A. Diamond, Esq. and Michael Rudd, Esq. are the principles,
and partnen in the Defendant corporate entity Rudd & Diamond, P.A.
** The individual Defendant Remo Polselli is the alleged corporate representative of Defendant Ocean, 4660,
LLC, and bas a prior and ongoing Attorney-Client relationship with Defendant(s) Rudd & Diamond, P.A.,
Peter A. Diamond, and Michael Rudd.
-2-
Since these Attorneys' Defendant(s) Rudd & Diamond, P.A., Peter A. Diamond and Michael
Rudd are now co-defendants with each other and, Defendant(s) Ocean 4660, LLC and Remo
Polselli an insurmountable conflict of interest which violates the Rules of Professional Conduct
regulating the Florida Bar has arisen.
MEMORANDUM OF LAW
I. Standard for Disgualification
In determining whether or not to grant Plaintiff's Motion to Disqualify, the Court must look to
the standards imposed by the Florida Bar Rules of Professional Conduct. " An order involving
the disqualification of counsel must be tested against the standards imposed by the Florida Bar
Rules of professional Conduct." Estright v. Bay Point Improvement Ass'n. Inc .. 921 So. 2d 810 (
Fla. 1st. DCA 2006 ), citing Morse v. Clark. 890 So. 2d 496, 497 (Fla. 5th. DCA 2004 ).
" A trial court does have the authority to disqualify an attorney from representing a party if the
court determines that the continued representation would deprive the litigants of an ' impartial
forum in which their complaints and defenses may be presented, heard and decided with fairness.
"Arthur v. Gibson. 654 So. 2d 1357, 1359 ( Fla.5th DCA 1995 ), citing, Pantori. Inc. v.
Stephenson. 384 So. 2d 1357, 1359 (Fla. 5th DCA 1980 ).
- 3-
II. Current Client Rules
Rule 4-1.7 of the Florida Bar Rules of professional Conduct is the applicable rule which deals
with representing adverse interests of current. existing clients. It reads as follows:
(a) Representing Adverse Interest. Except as provided in subdivision (b), a lawyer shall not
represent a client if:
(1) the representation of 1 client will directly adverse to another client;
or
(2) there is a substantial risk that the representation of 1 or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client
or a third person or by personal interest of the lawyer.
(b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer
may represent a client if:
( 1) the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client;
(2) the representation is not prohibited by law:
(3) the representation does not involve the assertion of a position adverse to another
client when the lawyer represents both clients in the same proceeding before a
tribunal; and
(4) each affected client gives informed consent, confirmed in writing or clearly
stated on the record at a hearing.
In this case, as outlined in the attached Affidavit of Plaintiff Angela DiPilato, Defendant( s)
Ocean 4660, LLC and Remo Polselli are current clients ofDefendant(s) R&D, Diamond and
Rudd, and now co-defendants in the instant action. Defendant Diamond ( Attorney of Record for
-4-
All Defendants ) ( See, Court's Docket Report - Annexed Hereto as Exhibit " 3 " ) is a
Defendant within this action, with a personal interest ( of the lawyer ) that is or there is an
extremely substantial risk that the representation of I or more clients will be materially limited
by the lawyer's responsibilities to another client, a former client or a third person or by personal
interest of the lawyer, and (ii) the representation of I client will directly adverse to the other
clients. Subsection (b) clearly is not applicable to this situation in the case at bar. Defendant
Diamond, any member or employee of Rudd & Diamond, P .A. should not be permitted to
represent any adverse party in this matter.
" The existing client rule is based on the ethical-concept requirement that a lawyer should not
act with undivided loyalty for his client and not place himself or herself in a position where a
conflicting interest may affect the obligations of an ongoing professional relationship. It is
difficult to imagine how a lawyer could appear in court one day arguing vigorously for a client,
and then face the same client the next day and vigorously oppose him in another matter, without
seriously damaging their professional relationship. " Morse v. Clark. 890 So. 2d 496, 498 ( Fla.
5th. DCA 2004)( disqualification warranted in case where opposing party was current client of
law firm). Surely, there is the substantial risk that Defendant Diamonds personal interest places
him in adversity to the other defendants and a substantial likely to an adverse judgment imposing
liability on one or more of the defendants will prompt litigation between these defendant parties.
The attached Affidavit of Plaintiff Angela DiPilato clearly illustrates that; (i) the representation
of one client will be directly adverse to the others and, (ii) there is a substantial risk that the
representation of I or more clients will be materially limited by the lawyer's responsibilities to
another client, third persons because of Attorney Diamond's conflict and personal interest as a
- 5-
defendant in this action and hence immediate disqualification of Peter A. Diamond, Esq. is
required, likewise, representation by R&D its members or employees must be prohibited by this
Court, and furthermore, all pleadings filed subsequent to this motion by R&D and/or Peter A.
Diamond, Esq. Should be stricken from the record.
III. Former Client Rule
Rule 4-1.9 of the Florida Bar Rules of Professional Conduct is the former client rule and
provides:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless the
former client gives informed consent; or
(b) use information relating to the representation to the disadvantage of the former client
except as Rule 4-1.6 would permit with respect to a client or when the information has
become generally known.
At this point, it is undeniably clear that Defendant(s) R&D, Diamond and Rudd have formerly
represented Defendant(s) Ocean 4660 and Polselli prior to these proceedings and, specifically, in
the" substantially related" landlord-tenant action in County Court, where Defendant(s) R&D,
Diamond and Rudd's violations of the FDCPA, FCCPA and other State and Federal Laws
precipitated this action. The mere fact that; Defendant(s) Ocean 4660 and Polselli are vicariously
liable for Defendant(s) R&D, Diamond and Rudd's violations oflaw and ethical violations,
places them squarely at insurmountable adversity and in violation of Rule 4-1.9. Defendant(s)
R&D, Diamond and Rudd must be prohibited from further representation ofDefendant(s) Ocean
4660, LLC and Polselli, as well as, themselves. As will be set forth in greater detail, infra.
- 6-
In determining whether attorney-client privilege applies so as to disqualify attorney from
representing a former client the focus is on perspective of person seeking out lawyer, not on what
the lawyer does after the consultation. Lane v. Sarfari. 676 So. 2d 475 (Fla. 3d DCA 1996 ). The
attached Affidavit of Plaintiff clearly illustrates that the matters which are involved in this
lawsuit are substantially related to the landlord-tenant matter with which Defendant(s) R&D,
Diamond and Rudd gave advice in violation of law that precipitated this lawsuit.
Defendant(s) R&D, Diamond and Rudd have provided legal advice and counsel on an ongoing
basis to Defendant(s) Ocean 4660 and Polselli since approximately 2005, including ongoing
counsel and legal advice regarding real estate matters pending in State Court where Plaintiff
herein and Defendant(s) Ocean 4660 and Polselli are adversaries. (See, Oceanside Lauderdale
Inc .. Kenneth A. Frank and Angela DiPilato v. Ocean 4660. LLC .. Shutters on the Ocean, LLC ..
Boutique Hotels America. LLC .. Hanna Karcho and Remo Polselli. et. al .. Case No.: CACEI0-
22268(13) in the Circuit Court of the 17th. Judicial District in and for Broward County Florida,
being presided over by the Honorable Judge Tuter.) These issues and information are
substantially related and involved in the instant lawsuit. One of the claims in Oceanside
Lauderdale. Inc .. and DiPilato v. Polselli. supra is a claim for violation(s) of Florida's Civil"
RICO" statute. Surely, Polselli's conduct herein is reflective in that action and vice-versa.
The legal service and advice is substantially related to both the landlord-tenant action which
precipitated this action and the " RICO " case, supra. This clearly requires the disqualification of
Defendant(s) R&D, Diamond and Rudd.
Furthermore, Defendant(s) R&D, Diamond and Rudd have obtained extensive, confidential
information from Defendant(s) Ocean 4660 and Polselli which could be used to their
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disadvantage in this matter which requires their disqualification.
This Court should heed the words of Bankruptcy Judge A. Jay Cristol in In Re Servicio. Inc ..
149 B.R. 1009 (S.D. Fla. Bank 1993 ), and step in to reject this attempt to affront the basic
principles of fairness that surfaces when attorneys pit themselves against their own clients or
former clients:
" But when a shame that the need for law business is so dire
that attorneys do not care if they give appearance of evil or
impropriety. No wonder the prestige of the profession takes
such a beating in public opinion polls. Does the public want
a skilled attorney who will fight ferociously for its client
while it is being paid and next week fight with equal ferocity
on behalf of the client's enemy against the client? CLF & Y,
it appears, has walked so close on the edge of the sewer that
it appears to have been splashed with sewage. Perhaps it has
escaped the splash but Clark, Ladner, Fortenbaugh & Young
cannot escape the smell ........................................................... "
The Plaintiff in this matter has legal rights and this Court should afford her an impartial and
fair tribunal in order to air these rights in an arena free from stench. It would be a complete
affront to the system of justice for Rudd & Diamond, P.A. and/or Peter A. Diamond, Esq. to
continue its representation in this matter.
- 8-
IV. Law Firm Disqualification
If any of the firm of Rudd & Diamond, P .A.'s lawyers are disqualified, all must be disqualified.
Akrey v. Kindered Nursing Centers East. LLC. 837 So. 2d 1142, 1144 (Fla. 2d DCA 2003),
citing, Matluck v. Matluck 825 So. 2d 1071 (Fla. 4th. DCA 2002 ).
Rule 4-1.10 of the Florida Bar Rules of Professional Conduct is the Imputation of Conflicts of
Interest; General Rule which sets forth in pertinent part:
(a) Imputed Disqualification of All Lawyers in Firm. --While lawyers are associated in
a firm, none of them shall knowingly represent a client when any 1 of them practicing
alone would be prohibited from doing so by Rule 4-1.7 or 4-1.9 except as provided
elsewhere in this rule, or unless the prohibition is based on a personal interest of the
prohibited lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
Here, it is clear that the principles of Defendant R&D, i.e., Attorneys' Diamond and Rudd are
Defendants. Rule 4-1.7 and 4-1.9 prohibits their continued representation, therefore, the entire
firm must be disqualified. Most certainly, a clear significant risk limiting further representation
by the firm is present herein.
V. Conflicts in Liti&ation
Rule 4-1.7 paragraph( o ), subdivision (a) prohibits representation of opposing parties in
litigation. Simultaneous representation of parties whose interests in litigation may conflict, such
as co-plaintiffs and co-defendants is governed bu paragraph ( o) subdivisions(b) and ( c ). An
impermissible conflict exists by reason of substantial discrepancy in the parties' testimony,
incompatibility in positions in relation to the opposing party, or the fact that there are
-9-
substantially different possibilities of settlement of the claims or liabilities in question ..... See, In
Re: Amendment to Rules of Regulating Florida Bar. 605 So. 2d 252 (1992).
A conflict of interest arises when an Attorney is representing two or more clients. In general an
Attorney has an ethical obligation to avoid conflicts of interest and should advise the Court when
one arises. Cuyler v. Sullivan. 446 U.S. 335, 100 S. Ct. 1708 (1980 ). An actual conflict of
interest that adversely a lawyer's performance violates U.S. Cost. Amend. VI and cannot be
harmless error. Id Glasser v. United States. 315 U.S. 60, 62 S. Ct. 457 (1942 ); Foster v. State.
387 So. 2d 344 (Fla. 1980 ). Counsels allegiance to a client must remain unaffected by
competing obligations to other clients, and an actual conflict of interest renders judicial
proceedings unfair. United States v. Alvarez. 580 F. 2d 1251 (5th. Cir. 1978 ). A conflict occurs
whenever one defendant stands to gain significantly by counsel adducing protective evidence or
advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is
also representing Foxworth v. Wainright. 516 F. 2d 1072, 1076 (5th. Cir. 1975 ). See, also,
Barclay v. Wainright. 444 So. 2d 956 (1984)(Supreme Court of Florida).
Here, it is undeniable that no greater conflict can exist than herein. In this action, we have one
Attorney who is a defendant within the action attempting to represent the other defendants. Said
continued representation is impermissible because it stands in violation of Rule 4-1.7, inter alia.
For this reason alone, Defendant(s) R&D, Diamond and Rudd must be disqualified as counsel.
- 10-
VI. Evidentiary Hearin&
The Plaintiff requests that the Court conduct an evidentiary hearing on this matter as required
by law. The trial judge must conduct a hearing on a motion to disqualify counsel for an opposing
party. Arthur v. Gibson. 654 So. 2d 983 (Fla. 5th. DCA 1995 ); Simon DeBartolo Group v.
Bratley. 741 So. 2d 1254 (Fla. 1st DCA 1999)( holding that an evidentiary hearing was necessary
to determine whether a law firm had a conflict of interest); Akrey v. Kindered Nursing Centers
East. L.L.C .. 837 So. 2d 1142 (Fla. 2d DCA 2003 ).
VII. Stay of Proceedin&s
The Plaintiff also requests that all matters in this case be stayed, until an Order is rendered on
Plaintiff's Motion to Disqualify. To allow this matter to continue on its current course without
the matters raised in this Motion being addressed will cause significant prejudice to the Plaintiff.
The undersigned has attempted to confer with counsel for the Defendants regarding this Motion
without the benefit of a response, therefore, it is believed that they do not agree to this Motion.
COMPEL RESPONSE TO DISCOVERY
Plaintiff Angela DiPilato in the above styled matter and, pursuant to Federal Rule of Civil
procedure 3 7, files this Motion to Compel Responses to Discovery due to the complete willful
failure ofDefendant(s) R&D, Diamond, Rudd, Ocean 4660 and Polselli to respond. Additionally,
- 11 -
because Plaintiff has not received the discovery responses for the Defendants and needs the
requested information to prosecute this case. Finally, Plaintiff moves this Court for an award of
expenses, including attorneys' fees ( if any ) as permitted by federal Rule of Civil Procedure 3 7.
Accordingly, Plaintiff shows the Court as follows:
This is a case where Plaintiff has been substantially damaged by violation(s) of Law by
Defendant(s) R&D, Diamond and Rudd who are Attorneys. On numerous occasions, both
individual Defendant(s) Diamond and Rudd have blatantly and, in open public threatened the
Plaintiff to drop this case because their insurance rates will be effected. Simply put, the
Defendants have admitted to the existence of insurance policies, whereas, insurance agreements
exist under which any person carrying on an insurance business may be liable to satisfy part or all
of a judgment which may be entered in the action or to indemnify or reimburse for payments
made to satisfy a potential judgment. Both Rule26( d) and Rule 34 require disclosure of these
policies.
On or about January 18, 2011, the Plaintiff Angela DiPilato served the Defendant(s) with a"
Notice for Discovery and Inspection for Insurance Agreements". (See, Copy of Demand for
Insurance- Annexed Hereto as Exhibit" 4" ). By way of letter incorrectly dated January 18,
2010, the Defendant Diamond, Esq. (counsel for all defendants) refused to provide the
requested discovery, i.e., setting forth contradictory statements, to wit; (i) there is no insurance
coverage, and (ii) in the next sentence, stating that " carriers of insurance have not been informed
and will not be made aware of this lawsuit ". ( See, Letter from Defendant Diamond to Plaintiff-
Annexed hereto as Exhibit " 5 " ). Defendant Diamond as counsel for all Defendants wilfully
refused to provide existing discovery.
- 12-
Additionally, both Defendant(s) Diamond and Rudd have stated" the existence of insurance
policies that will be effected by this litigation " to Plaintiffs' counsel in the State Court
proceedings William Trick, Esq.
Defendants letter is written in an abusive fashion with its sole intent to harass and hinder the
plaintiff in the prosecution matter. Likewise, the untruthful statements contained in this letter
constitute a violation of the Rules Regulating the Florida Bar, to wit;
Rule 4-4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by
Rule 4-1.6.
Said letter also indicates Defendants intent to use " Rambo " - Style Litigation Tactics within
this action in contravention to Rule 1 mandate. Rule 1 fixes the objectives of the Federal Rules:
they are to be construed and administered so as to achieve the" just, speedy and inexpensive
determination of every action ". Federal trial judges have cited this mandate in regulating "
Rambo" style litigation tactics, In re Amezaga. 195 B.R. 221 ( Bkrtcy. D.P.R. 1996 )(noting
that " Rambo Litigation " is not tolerated by the Court because, although it may project zealous
advocacy, it does not promote Rule 1's goals of a just, speedy, and inexpensive determination of
every action); Applied Telematics. Inc. v. Sprint Corp . No. 94-CV-4603, 1995 WL 79237 ( E.D.
Pa. 1995)( decrying counsel's " Rambo Litigation " deposition defense tactics as failing to
- 13-
promote goals of Rule 1 ), in decrying misbehavior by counsel. Nissan Motor Co . v. Nissan
Computer Cor.p .. 180 F. Supp. 2d 1089, 1096 ( C.D. Cal. 2002 ).
Defendant Diamond's violations of the Ru1es Regu1ating the Florida Bar will be the subject of
a Complaint to the Bar Association.
At the time of this filing, no further communication regarding discovery has been received by
Plaintiff regarding responses to said discovery request. Both Rule(s) 26(d) and 34(a) require the
production of these insurance agreements by defendants.
Rule 34(a) allows a party to a request the opposing party to produce and permit the requesting
party or its representative to inspect, copy, test, or sample any designated documents or
electronically stored information, any designated tangible things, or to permit entry onto
designated land or other property possessed or controlled by the responding party. Ru1e
34(b)(2)(A) then states that "[t]he party to whom the request is directed must respond in writing
within 30 days after being served." If this deadline is not met, the Rules allow for the party
requesting responses to Request for the Production of Documents to move for an order
compelling an answer thereto. Federal Ru1e of Civil Procedure 37(a)(3)(B)(iv). Since all
Defendants have indicated their willful noncompliance in writing, Plaintiffs' motion for an Order
is justified. Plaintiff therefore requests that this Court order Defendants to respond to the Request
for the Production of Insurance Agreements and to pay Plaintiff's reasonable expenses in making
this motion, including attorney's fees (if any), as noted below.
- 14-
Award of Reasonable Expenses
When a motion to compel is granted, " the court must, after giving an opportunity to be heard,
require the party ... whose conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred in making the motion,
including attorney's fees" Fed. R. Civ. P. 37(a)(5)(A). The result is the same whether the motion
is granted and the party is compelled to answer discovery, or if the requested discovery is
provided after the motion was filed. ld.
The award of reasonable expenses is not allowed when the movant did not act in good faith to
obtain discovery without court action, if the opposing part's failure to respond was substantially
justified, or some other circumstances make an award of expenses unjust. Id.
However, none of these situations exist in the present situation. First, Plaintiff has made a good
faith effort to request the discovery responses through written communications requesting the
discovery responses. Second, Defendants have no substantial justifications for their willful and
unlawful failure to provide responses to the discovery; this Court has found that being busy with
other casework or trials is not substantial justification for not properly conducting discovery.
Drexal Burnham Lambert. Inc. v. Warner. 655 F. Supp. 1549, 1554 (S.D. Fla. 1987 ). This is
substantially beyond what this Court determined was not substantial justification. The
Defendants acts and actions" flies in the face of justice" and" is a waste of this court's valuable
time". Accordingly, this Court should award the Plaintiff the expenses incurred in bringing this
motion, including attorneys' fees.
- 15-
Defendant(S) R&D. Diamond and Rudd are Impeding the Insurers Right to Counsel of Choice
Defendant(s) R&D, Diamond and Rudd by failing to tum over insurance agreements between
them and insurers, who may be liable to satisfY part or all of a judgment which may be entered in
the action or to indemnify or reimburse for payments made to satisfY the judgment, are
intentionally impeding said parties " right to the counsel of their choice " in these proceedings.
Moreover, these insurers who may be found liable have the right to participate in these
proceedings. The acts and actions ofDefendant(s) R&D, Diamond and Rudd in withholding the
insurance information is further violative of the Rule Regulating the Florida Bar and an act of
fraud.
-MOTION TO AMEND COMPLAINT-
The Legal Standard for Amending Pleadings
Fed. R. Civ. P. 15(a) provides that when a time period for filing an amendment of a pleading as
of right has expired, an amendment may be sought " by leave of court or by written consent of
the adverse party. " /d. Moreover, leave to amend " shall be freely given when justice so requires.
" Id The Eleventh Circuit has held that motions for leave to amend complaints should be
liberally granted when necessary in the interest of justice. Garfield v. NDC Health Corp .. 466 F.
3d 1255, 1270 ( 11th. Cir. 2006 )(stating that leave to amend shall be freely given when justice so
requires under Fed. R. Civ. P. 15(a)); Florida Evergreen Foliage v. E.I. DuPont De Nemours and
- 16-
Co., 4 70 F. 3d 1036, 1041 ( 11th. Cir. 2006 )( " Unless a substantial reason exists to deny leave to
amend, the discretion of the District Court is not broad enough to permit denial. : ) citing,
Shipner v. E. Airlines, Inc., 868 F. 2d 401, 407 (11th. Cir. 1989); Bzyant v. Dupree. 252 F. 3d
1161, 1164 (11th. Cir. 2001 )(stating that the lengthy nature oflitigation, without any other
evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not justify
denying plaintiffs the opportunity to amend their complaint) citing, Floyd v. Eastern Airlines.
Inc . 872 F. 2d 1462, 1490 (11th. Cir. 1989 ).
An Amended Complaint is Warranted In the Interest of Justice
Although a pleader not give reasons for requesting leave to amend, Halliburton & Assoc .. Inc.
v. Henderson. Few. & Co .. 774 F. 2d 441,443-444 (11th. Cir. 1985 ), Plaintiff has substantial
well-founded reasons for seeking amendment, including, but not limited to the following:
1. To add a necessary party, i.e., Comerica Bank who has been alleged as a" debt collector" by
Defendant Polselli. Said Defendant is a necessary party to this action;
2. To add additional and relevant Federal and State claims that Plaintiff now feels are
applicable in this matter;
3. No Delay: No undue delay or prejudice will inure to any Defendant from Plaintiffs' filing a
Second Amended Complaint. This is so for numerous reasons, including, that as of the filing of
this motion none of the Defendants have filed a responsive pleading.
- 17-
4. No Bad Faith or Dilatmy Pumoses: As stated by the United States Supreme Court in the
seminal case ofFoman v. Davis. 371 U.S. 178, 182 (1962), "[i]n the absence of any apparent or
declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc." - non of
which are applicable here-" the leave sought should, as the rules require, be" freely given".
When a party submits a motion to amend, the particularity requirement of Rule 7(b)
require the party to attach to the motion a copy of the proposed amended pleading, unless the
motion adequately describes the contemplated revision. See, Moore v. Indiana, 999 F. 2d 1125,
1131 ( 7th. Cir. 1993 )(motion alone is adequate if it places adversary on notice of amendments
content).
Plaintiff respectfully requests that this Court waive the requirement that Plaintiff attach a
proposed amended complaint due to the early stages of this litigation, (ii) the fact that none of the
defendants has filed a responsive pleading, and (iii) since none of the defendants will be
prejudiced by an amendment or (iv) alternatively, allow Plaintiff ten days to submit the amended
complaint if this Court so requires.
-CONCLUSION -
A lawyer's ethical obligations generally requires disqualification of the lawyer's entire firm
where any potential for conflict arises. Brotherhood Mutual insurance Company v. National
Presto Industries. 846 F. Supp. 57 (1994)(U.S. Dist. Court Middle Dist. of Florida).
- 18-
In State Farm Mutual Auto. Co. v. K.A.W .. etc .. et al .. 575 So. 2d 630, 633 (Fla. 1991 ), the
Florida Supreme Court ruled that attorneys must still avoid even the appearance of professional
impropriety. Accordingly, it has been held " even an appearance of impropriety may, under the
appropriate circumstances, require prompt remedial action from the court ... Consequently, any
doubt is to be resolved in favor of disqualification. /d. At 718.
Plaintiff respectfully asserts that there is more than just the appearance of impropriety in
Defendant Diamond, Esq., representing himself and co-defendants herein. Further the Florida
Bar Rules require disqualification of defense counsel and the entire firm of Rudd & Diamond.
WHEREFORE, Plaintiff Angela DiPilato respectfully requests that Rudd & Diamond, P.A.,
Peter A. Diamond, Esq., Michael Rudd, Esq., any member or employee ofRudd & Diamond,
P.A. be disqualified in this matter, any pleading filed subsequent to the filing of this motion, by
Rudd & Diamond, P.A. and/or Peter A. Diamond, Esq. be stricken, the Defendant(s) Rudd &
Diamond P.A., Peter A. Diamond, Esq., Michael Rudd, Esq., Ocean 4660, LLC and Remo
Polselli be compelled and ordered to produce any and all insurance policies or agreements under
which any person carrying on an insurance business may be liable to satisfy part or all of a
judgment which may be entered in the action or to indemnify or reimburse for payments made to
satisfy the judgment, an evidentiary hearing be set on this matter, plaintiff be granted leave to
amend the complaint and all proceedings, in this matter be stayed until an order is rendered on
these matters.
- 19-
Dated this I t1 day of February 2011.
231 0 East Atlantic Boulevard, Suite 206
Tel: (914) 563-4510
Fax: (954) 657-8405
I HEREBY CERTIFY that a copy of the foregoing has been mailed first-class U.S. Mail:
Rudd & Diamond, P.A., Peter A. Diamond, Esq., Michael Rudd, Esq., Ocean 4660, LLC and
Remo Polselli (by service upon Defendant(s).fttomey) at 4000 Hollywood Boulevard, Suite
165-S, Hollywood, Florida 33021 on this l!f.._t-day of February, 2011.
-20-
ela DiPilato, Pro Se
- Plaintiff-
EXHIBIT 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE No.: 10-62492-CV- Altonaga-Brown
Plaintiff,
v.
RUDD & DIAMOND, P.A., a Florida
Individually, OCEAN 4660, LLC., a
Florida limited liability company, and
REMO POLSELLI, Individually,
Defendants.
~ /
AFFIDAVIT OF PLAINTIFF ANGELA DIPILATO IN SUPPORT OF
MOTION TO DISQUALIFY, COMPEL DISCOVERY, AMEND COMPLAINT AND
STAY PROCEEDINGS
STATE OF FLORIDA
COUNTY OF BROW ARD
BEFORE ME, the undersigned authority, personally appeared ANGELA DIPILATO,
who, after being first duly sworn, deposes and says:
1. Plaintiff-Affiant is a natural person, is over the age of eighteen years, competent, and has
authority to make this affidavit.
2. As the Plaintiff, Pro Se, in this action, I am fully familiar with the facts and circumstances
surrounding this motion.
3. The Defendant-Attorneys, Rudd & Diamond, P.A., Peter A. Diamond, Esq., and Michael
Rudd, Esq. represented the Defendant Ocean 4660, LLC (of which Defendant Polselli is
allegedly the corporate representative ) in a landlord-tenant proceeding in State Court. The
Defendants violation(s) of the Fair Debt Collections Practices Act (" FDCPA" ), 15 USC
section 1692, et seq., which are the subject of this litigation are substantially related to the former
landlord-tenant case and the Defendants representation of Defendant Ocean 4660, LLC therein.
4. Some of the Defendant(s) Ocean 4660, LLC and Remo Polselli's liability in this matter
was a result of the Defendant(s) Rudd & Diamond, P.A., Peter Diamond and Michael Rudd's
prior legal counsel.
5. Upon information and belief, Defendant(s) Rudd & Diamond, P.A., Peter Diamond, Esq.,
and Michael Rudd, Esq. have represented Defendant(s) Ocean 4660, LLC and Remo Polselli in
numerous other matters for a six year period.
6. Defendant Peter Diamond, Esq. has elected to be counsel for all the Defendants in a case
where he himself is a defendant.
7. As a Defendant, Peter Diamond, Esq. clearly has a significant personal interest here that
places him in adversity to the other defendants.
8. Upon information and belief, Defendant Diamond, Esq.'s representation of the co-
defendants in this matter is not prohibited by law and violates the Florida Bar Rules of
Professional Conduct
9. I believe that I cannot get a fair tribunal in this matter and that my legal rights would be
violated by the Defendants' continued representation in this matter.
10. That there is a severe incompatibility in positions by Defendant Diamond's representation
of his co-defendants.
11. I believe that Peter Diamond, Esq. has an ethical obligation as a member of the Florida Bar
to avoid this conflict of interest and had a duty to advise this Court of such a conflict.
12. I have made a proper motion for discovery of the defendants insurance policies and the
defendants have refused to respond to my discovery demands. I was left no other choice but to
make a motion to compel the necessary discovery.
13. I respectfully request that the Court allow me to amend the complaint in this action because
Defendant Polselli has stated that " he is collecting debt " for another party " who he named to be
Comerica Bank. Additionally, other State and Federal claims that now seem appropriate must be
added to the complaint.
14. None of the Defendants have filed a responsive pleading to date. Therefore, there can be no
undue hardship in the Court allowing a further amendment at this early stage in the proceedings.
15. I believe that Defendant Rudd & Diamond, P.A., and Peter Diamond, Esq.'s continued
representation will deprive me of an " impartial forum " in this litigation.
16. I strenuously object to the continued representation ofRudd & Diamond, P.A., Peter A.
Diamond, Esq. or any member or employee thereof, in this matter. I believe it is unlawful and
completely improper for them to serve as opposing counsel in this matter.
17. I respectfully refer the Court to my Motion and Memorandum of Law annexed herewith
and incorporate them by reference.
18. I have read the foregoing Affidavit and know the matters contained herein to be true accept
to those matters stated upon information and belief and as to those matters I believe them to be
true.
FURTHER AFFIANT SAITH NAUGHT.
Affiant
SWORN TO AND SUBSCRIBED before me this of February, 2011, by Angela
DiPilato, who ( ) is personally known to me, and/or who has produced ... V(LJS L,'c.<l()St"'
as identification bearing identification number ________ _
[NOTARIAL SEAL]
[ type/print name below signature ]
NOTARY PUBLIC, State ofFlorida
Commission No.: l::>b 153-3\ --q.-3:
My Commission Expires: TI<:le:)\ 3

+"' ..'8(i> HEIDI WHEElER
* MYCOMMISSIONtD0873177
.. EXPIRES: March 27, 2013
Banded Tlvu lludJIII Healy S.WC.
EXHIBIT 2
FORM 1.997. CIVIL COVER SHEET
The civil cover sheet and the information contained ::.a:e nor supplement the filing and service of
pleadings or other papers as required by law. This fl:lm' Sll!at :E ::.1 the plaintiff or petitioner for the use of the Clerk
of the Court for the purpose of reporting judicial worldoad cra:a to Florida Statues section 25.075.
I. CASE STYLE
IN THE COUNTY COURT OF THE 17TH : ::;_-IN AND FOR BROWARD c6{)-S&RIDA
OCEAN 4660, LLC,
_. -
vs.
ANGELA DIPILA TO, Individually, and
OCEANSIDE LAUDERDALE. INC., dlbia
BEACHSIDE GRILL, a Florida Corporation
Defendants.
II. TYPE OF CASE
i10 01506
_ _ __ ---- Cas.e#:- -_, .....
Judge: ____________ __
(If the case fits one t}IPe ::1 :::iillllllf!;. .:--.ast definitive category.) If the most descriptive
label is a subcategory (is :ooenmd ; :r--e:.,-:, ;:a:egory), place an x" in both the main category and
subcategory boxes.
c Condominium.
p
-
Contracts and indebtedness
[i Eminent domain
0 Auto negligence
r
''
Negligence - other
...... \
0 Business governance
0 Business torts
0 Environmental/Toxic tort
0 Third party indemnification
0 Construction defect
0 Mass tort
rJ Negligent security
"
Nursing home negligence u
[J Premises liability - commercial
[!
Premises liability - residential
r
_,
Products liability
0 Real Property/Mortgage foreclosure
[j
Commercial foreclosure $0-$50,000
r<
Commercial foreclosure $50,001 - $249,999 .....
[i
Commercial foreclosure $250,000 or more
[J
Homestead residential foreclosure $0- $50.00C
0 Homestead residential foreclosure
$50,001 - $249,999
_ Homestead residential foreclosure $250.00C, :r
Non-homestead residential foreclosure SD - ss: X(.
r: Non-homestead residential foreclosure SSO )': -
r 1 Non-homestead residential foreclosure OC :r- -=:-a
l. (Other real property actions $0 - $50.000
0 Other real property actions $50,001 - $249.9$
o Other real property actions $250,000 or rriore
J Professional malpractice
o Malpractice - business
0 Malpractice - medical
o Malpractice - other professional
il Other
---r:- AAmrust/TradEfRegatation
c Business Transaction
u Constitutional challenge-s1atute or ocdinan::e
c Constitutional challenge-proposed arnencre-:
-. Corpo."ate Trusts
_ Jisc.,mination-employment or other
;r.surance c;aims
_ 'nteLI.ec!'.lal properr.)'

- it"e;a:;o-
-- 7raoe sec.:'"etS
- T rustlmgator:.
Ill. REMEDIES SOUGHT (check all that apply):

declaratory or injunctive relief;
1J Punitive
IV. NUMBER OF.CAUSES OF ACTION:J_Q.)
(Specify} &,c....ft-:;>0 A"-J f?CC4.bl< e.dr-
7
.t :P<t"...,<""
V. IS THIS CASE A CLASS ACTION LAWSUIT?
o Yes

VI. OF ANY KNOWN RELATED CASE BEEN FILED?
J Yes - If yes" list all related cases by name, case number and court:
VII. IS JURY TRIAL DEMANDED IN COMPLAINT?
o Yes
......

... ;_..,../
//
I CERTIFY that the infqrmaijon I hav to the best of my knowledge and belief.
.-- // .. ---- Fla. Bar# 0/f" OCS (
:.-Attorney or Party - __ (if attorney) . .,,,_,
/J d. 11 5 /'
u:.f--c.c I ,) IC1 na Date: 1r---, 0
Type or print name
OCEAN 4660, 'bLC
Plaintiff
v.
17TH JUDICIAL CIRCUIT IN AND
FOR BROW ARD COUNTY,
FLORIDA
JURISDICTION
CASE<NO.:
ANGELA DIPILA TO, individually. and
OCEANSIDE LAUDERDALE, D\C., db c.
BEACHSIDE GRILL, a Florida
\10 otso6
Jr-62
TOll-ANN MJLl.d
Defendant(s)
CIVIL
THE STATE OF FLORIDA:
TO EACH SHERIFf OF THE STATE:
YOU ARE to serve this summons and a copy of the Eviction
ANGELA DIPILA TO
l 035 S. Riverside Drive
Plainti.ff's Attorney:
RUDD & DIAMOND, P .A.
SUITE 165-S
HOLLYWOOD, FL 33021
(954) 961-5059
service, and to file the original of the defenses with the Clerk of this Court either before
service on Plaintiffs Attorney or immediately thereafter. If a Defen t fails to do so, a
default will be entered against that Defendant it\ the complaint or
petition. FUERST } NOV 0 5 2010
BY: I
DEPUTY

1
L
'ounty Court Seal 1
1
DATE:
\. THE COUNTY COURT OF THE
"""::i JUDICIAL CIRCUIT IN AND FOR
COUNTY, FLORIDA
:;::NERAL JURISDICTION
.Q.CEAN 4660, LLC
..
.:ASE NO.:
Plaintiff
v .
. __ , __ .. .. QJf_I .. .. __
OCEANSIDE LAUDERDALE, INC., d:'b:a
BEACHSIDE GRILL, a Florida Corporator
- -- -- -. ... --A .. - -- .. -
,.., 62
Defendant(s)
'rDRI
4
ANN MRLER .
COMPLAiNT
COtviES NOW Piaintfff. OCEA."i 4660, U...C . by ar: through their undersigned
counsel and sues Defendant(s) ANGELA DIPILATO, individually and OCEANSIDE
LAUDERDALE, INC., d/b/a BEACHSIDE GRILL, and alleges alleges:
COUNT I EVICTION
1. This is an action to evict a tenant from real property in Broward County,
Florida.
2. Plaintiff owns the following property described in said county:
Florida 33308, located within the Hotel
3. Defendant ANGELA DIPILATO has possession of the property under an
oral agreement to pay rent of $12,000.00 payable the first day of each month.
1
4. Defendant ANGELA DtPI.ATO ia1-a-: ::. ;:ay rent due on March 1, 2010 for
the month of March, 2010 and has faiecl to ;:a'! a""'
1
-=m whatsoever through October 1,
2010 .
.. ,, , Plaintiff served Defendart _ .:_ :1?1LA TO with a 3-notice on October
29, 2010, to pay the rent or deliver pas;sa sst:> :: :ne property. (See Exhibit A to the
Complaint). The Defendant ANGELA -as ::efused to either pay rent or deliver
___ ,. ________ .. .. ___ _ __ ....... -- ------ ......... --- -----
6. Upon receipt of the Na1a lj, :...;:.. ::.e Defendant ANGELA DIPILATO
has engaged in a series of caiodata:t ::. vandalize and brutalize the
Plaintiffs real property and the ""as :Et- :-"ra.:::"'.ed and otherwise .prejudiced.
These actions were condu:tec r, ;,: f!!Ft:r: ;:; ro frustrate the imminent and
instant Eviction action ana said aca::aus ar.: a -_:s= :: a::empt to frustrate and otherwise
attempt to relieve the Defendant from ts to pay rent, pay back rent and
and/or deliver possession of the prope:rt
1
t :-.:: ::o a:..-::::f.
7. In accordance with paragrao'"l' ==. :-.areinabove and for other justifiable
reasons, the Plaintiff elects to proceed o- ::1e equitable eviction portion of this
Complaint under Summary Procedure under Fla. Stat 51.011 and Summary
Procedure is requested and demanded.
WHEREFORE Plaintiffs OCEAN 4ooC= ;_:...c . demands judgment for possession
of the property against the Defendant ANGELA DIPILATO, individually, and further
seeks money damages for breach of contra:::t:faiiure to pay 8 months rent of $12,000.00
per month, totaling $96,000.00, attorney's fees and costs to the extent the same are
available and actionable and for any other relief deemed just and proper.
2
COUNT 11- FORCIBLE ENTRY AND DETENTION COMPLAINT AGAINST
OCEANSIDE LAUDERDALE, INC.
8. This is an action to of real property unlawfully
detained in Broward County, Florida.
-': 'i
9. Plaintiff is entitled to of the following real property in said
county:
10.
4658 N. Ocean Or-r.: by_ the .. S.ea,
--- Florida-. 333oa. o::a-.e:: ,.,;thin the .. Hotel
Property known as Beachside
Hotel", in Lauderdaie-t)'-:;""a Sea, FL.
Defendant OCEANSiDE Lt..._;JEq:;.ALE, INC., d/b/a BEACHSIDE GRILL
has unlawfully turned Plaintiff out of aoc possession of the property from the
Plaintiff.
11. The Plaintiff elects to proceec .:1'1 tte equitable unlawful detention portion
of this Complaint under Summary Procec_'e :::-escnbed under Fla. Stat 51.011 and
Summary Procedure is requested and dena 1:.ed.
WHEREFORE Plaintiff OCEAN 466C . demands judgment for possession of
- .
the property and damages against the Defencants OCEANSIDE LAUDERDALE, INC.,
d/b/a BEACHSIDE GRILL, attorney's fees and costs to the ext e
..... A$
available and actionable and for any other :-e1ief deemed _,._fr-
Dated this 5th day of November, 2010. , /;.(.:;.ec, ""',/"/
/ J"..,'.r- ,_,..
/By: " . _ _...:.
/ P8mRWn_g(Esq.
{
/
/
,.-:t
3
CERnFtCATION OF PLEADINGS
Dated this 5th day of November, 2C'l:
. .
. -. -. _.;- -.
4
EXHIBIT3
CMIECF - Live Database - flsd Page 1 of4
REF_PTRL, STB
U.S. District Court
Southern District of Florida (Ft. Lauderdale)
CIVIL DOCKET FOR CASE#: 0:10-cv-62492-CMA
Dipilato v. Rudd & Diamond, P .A. et al
Assigned to: Judge Cecilia M. Altonaga
Date Filed: 12/22/2010
Jury Demand: Plaintiff
Referred to: Ch. Magistrate Judge Stephen T. Brown
Cause: 15:1692 Fair Debt Collection Act
Nature of Suit: 230 Rent Lease &
Ejectment
Plaintiff
Angela Dipilato
individually
v.
Defend3nt
Rudd & Diamond, P.A.
a Florida Corporation
Jlefendant
Peter A. Diamond
individually
Defendant
Ocean 4660, LLC.
a Florida limited liability company
Ddendant
Michael Rudd
Jurisdiction: Federal Question
represented by Angela Dipilato
2310 E. Atlantic Blvd
Suite 206
Pompano Beach, Fl33062
PROSE
represented by Peter Alexander Diamond
Rudd & Diamond PA
4000 Hollywood Boulevard
Presidential Circle Suite 165S
Hollywood, FL 33021
954-961-5059
Fax: 954-961-8953
Email: pdiamond@rudddiamond.com
ATTORNEY TO BE NOTICED
(See above for address)
LEAD ATTORNEY
LEAD ATTORNEY
LEAD ATTORNEY
https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?739112174864987-L 560 0-1 2/14/2011
D_dendant
Remo Polselli
individually
Date Filed
12/22/2010
12/22/2010
12/22/2010
12/22/2010
12/23/2010
12/23/2010
12/29/2010
01114/2011
01114/2011
01114/2011
01118/2011
01118/2011
01118/2011
01118/2011
#
2
Docket Text
COMPLAINT against Peter A. Diamond, Ocean 4660, LLC., Rudd &
Diamond, P.A .. Filing fee$ 350.00, filed by Angela Dipilato. (Attachments:#
Civil Cover Sheet)(mg) (Entered: 12/22/2010)
Judge Assignment RE: Electronic Complaint to Judge Cecilia M. Altonaga
(mg) (Entered: 12/22/2010)
Clerks Notice of Receipt of Filing Fee received on 12/22/2010 in the amount
of$ 350.00, receipt number FLS 00000804 (mg) (Entered: 12/22/2010)
Summons Issued as to Peter A. Diamond, Ocean 4660, LLC., Rudd &
Diamond, P.A .. (mg) (Entered: 12/22/2010)
ORDER PROVIDING INSTRUCTIONS TO PRO SE LITIGANT. Signed by
Judge Cecilia M. Altonaga on 12/22/2010. (ps1) (Entered: 12/23/2010)
ORDER REFERRING CASE to Ch. Magistrate Judge Stephen T. Brown for
rulings on all pre-trial, non-dispositive matters and for issuance of a Report and
Recommendation on any dispositive matters. Signed by Judge Cecilia M.
Altonaga on 12/23/2010. (ps1) (Entered: 12/23/2010)
ORDER on Discovery- [see order for full details]. Signed by Ch. Magistrate
Judge Stephen T. Brown on 12/28/2010. (dt) (Entered: 12/29/2010)
SUMMONS (Affidavit) Returned Executed Ocean 4660, LLC. served on
12/23/2010, answer due 1113/2011. (rgs) (Entered: 01114/2011)
SUMMONS (Affidavit) Returned Executed Peter A. Diamond served on
12/23/2010, answer due 1113/2011. (rgs) (Entered: 01114/2011)
SUMMONS (Affidavit) Returned Executed Rudd & Diamond, P.A. served on
12/22/2010, answer due 1112/2011. (rgs) (Entered: 01/14/2011)
First AMENDED COMPLAINT against Peter A. Diamond, Ocean 4660,
LLC., Rudd & Diamond, P.A., Michael Rudd, Remo Polselli, filed by Angela
Dipilato.(rgs) (Entered: 01118/2011)
ORDER on Default Procedure, re Summons Returned Executed,
Summons Returned Executed, Summons Returned Executed. Signed by
Judge Cecilia M. Altonaga on 1118/2011. (psi) (Entered: 01/18/2011)
NOTICE of Attorney Appearance by Peter Alexander Diamond on behalf of
Rudd & Diamond, P.A. (Attachments:# Exhibit A)(Diamond, Peter)
(Entered: 01118/2011)
01/18/2011
01118/2011
01118/2011
01119/2011
01119/2011
01127/2011
01128/2011
02/10/2011
02/10/2011
02/10/2011
02/10/2011
Peter A. Diamond (Attachments:# Exhibit A)(Diamond, Peter) (Entered:
01/18/2011)
Ocean 4660, LLC. (Attachments:# Exhibit A)(Diamond, Peter) (Entered:
01118/2011)
Emergency MOTION for Extension of Time to File Response/Reply as to
Amended Complaint, Order by Rudd & Diamond, P.A .. (Attachments:#
Exhibit A, # Exhibit B, # Exhibit C, # Exhibit D, # Exhibit E, #
Exhibit F)(Diamond, Peter) Modified Text/Links on 1118/2011 (Is). (Entered:
01118/2011)
17 Clerks Notice to Filer re Defendant's MOTION for Extension of Time to
File Response/Reply as to Summons Returned Executed, Complaint,
Summons Returned Executed, Summons Returned Executed,
OrderDefendant's MOTION for Extension of Time to File Response/Reply as
to Summons Returned Executed, Complaint, Summons Returned
Executed, Summons Returned Executed, Order. Emergency Document
Filed Electronically; ERROR - Emergency matters may not be filed
electronically, they must be filed in the conventional paper format in the
division where the judge is chambered. The Clerk contacted Chambers and
corrected the docket text to indicate the document is an emergency matter. It is
not necessary to refile this document but future filings must comply with the
CMIECF Administrative Procedures and Local Rules. (Is) (Entered:
01118/2011)
ORDER setting aside Order on default procedure; denying Motion for
Extension of Time to Respond; Defendants' response is due by 2/20111. Signed
by Judge Cecilia M. Altonaga on 1119/2011. (ps1) (Entered: 01119/2011)
Set/Reset Answer Due Deadline: Peter A. Diamond and Rudd & Diamond,
P.A.'s response due 2/20/2011. (ps1) (Entered: 01119/2011)
Order Requiring Joint Scheduling Report and Certificates of Interested Parties
to be filed by 2/17/2011. Signed by Judge Cecilia M. Altonaga on 1/27/2011.
(ps1) (Entered: 01127/2011)
Summons Issued as to Remo Polselli. (rgs) (Entered: 01/31/2011)
MOTION to Dismiss Amended Complaint by Michael Rudd. Responses
due by 2/28/2011 (Attachments:# Exhibit A,# Errata B)(Diamond, Peter)
(Entered: 0211 0/2011)
MOTION to Dismiss Amended Complaint by Rudd & Diamond, P.A ..
Responses due by 2/28/2011 (Attachments:# Exhibit A,# Exhibit B)
(Diamond, Peter) (Entered: 02/10/2011)
MOTION to Dismiss Amended Complaint by Ocean 4660, LLC ..
MOTION to Dismiss Amended Complaint by Peter A. Diamond.
02/11/2011 ORDER denying without prejudice Motion to Dismiss; denying Motion
to Dismiss; denying Motion to Dismiss; denying Motion to Dismiss.
Signed by Judge Cecilia M. Altonaga on 2/10/2011. (ps1) (Entered:
02/11/2011)
Transartion Receipt
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https://ecf.flsd.uscourts.gov/cgi-bin!DktRpt.pl?739112174864987-L 560 0-1 2/14/2011
EXHIBIT4
Case No.: 10-62492-CV-Altonaga-Brown
Plaintiff,
v.
Florida limited liability company, and
REMO POLSELLI, Individually.
Defendants.
_______________________________ /
SIRS:
NOTICE FOR DISCOVERY AND
INSPECTION
FOR
INSURANCE AGREEMENTS
PLEASE TAKE NOTICE, that Pursuant to Rule 34 ofthe Federal Rules of Civil
Procedure you are hereby required to produce and permit discovery by ANGELA DIPILATO, or
her attorney, or someone acting on her behalf, of the following documents or things for
inspection at 2310 East Atlantic Boulevard, Suite 206, Pompano Beach, Florida 33062 on the 1
51

Day ofFe&ruilry, 2011, at 9:30 o'clock in the fore-noon of that day:
Any insurance agreement under which any person carrying on an insurance business may be
liable to satisfy part or all of a judgment which may be entered in the above-entitled action
against the Defendant(s) or to indemnify or reimburse for payments made to satisfy the judgment.
The inspection is to be made by means of copying or photocopying the documents.
t
This demand shall be deemed relevant to All Defendants.
Dated: January 18,2011.
To:
MICHAEL RUDD, ESQ.
PETER A. DIAMOND, ESQ.
4000 Hollywood Boulevard, Suite 165-S
OCEAN 4660, LLC.
REMO POLSELLI
c/o RUDD & DIAMOND, P.A.
Attorneys for Defendants.
n ~
2310 East Atlantic Boulevard, Suite 206
Tel: (914) 563-4510
Fax: (954) 657-8405
I
EXHIBIT 5
FIRM PARTNERS
MICHAEL P. RUDD
MRUDD@RUDDDL\MOND.COM
PETER A. DIAMOND
PDIAMOND@JlUDDDIAMOND.COM
Angela Dipilato
H.UDD & DIAMOND, P.A.
PRESIDENTIAL CIRCLE
SUITE 165-S
4000 HOLLYWOOD BLVD
HOLLYWOOD, FLORIDA 33021
TELEPHONE (954) 961-5059
FACSIMILE (954) 961-8953
WWW.RUDDDIAMOND.COM
January 18,2010
RE: ANGELA DIPILATO v. RUDD & DIAMOND et al.
Case No.: 10-07506 COSO 62
Our File No.: 46.9473
Dear Ms. Dipilato:
----
TINA H. Vo
BRE'ITYONO"i
LAUREN SHAPIIto
JASON L Com:."
MAlu.ENE COLLUO
CHRISTOPHER SAUY.U
PATRICK}. GERACE
JAIME NICOSIA
LAUREN C. Tow
As with my previous letter, the purpose of this letter is two-fold. First, I would like to
confirm receipt of your Amended Complaint for Damages. I'm not sure who your server was here to
serve, as your server merely came into my office reception area and rudely and unprofessionally
threw papers at my receptionist in a threatening manner. As we have already alerted you, serving
my receptionist is useless and I would suggest not paying your server for that service as it is invalid.
My receptionist is not authorized to accept service for my firm, my partner or me. However rather
than make a whole big deal about this, I assume as with last time, you will agree to extend to me.
Peter Diamond, my partner, Michael Rudd, and my firm, Rudd and Diamond. P _-\ . :...t:;: s.2...--:::;;
courtesy you did before whereby you sent us waiYers of ser';i.:.:. K:.::.i.:_. --... ,;;
agree to extend the response deadline for Peter Diamond, Michael Rudd and Rudd and Diamond
through February 28, 2011.
As I have already indicated to you, I represent all of the above-referenced Defendants in this
lawsuit, in addition to Ocean 4660 and now Remo Polselli. As such, I represent all Defendants in
this lawsuit. Kindly let me know when you serve Ocean 4660 and Remo with the Amended
Complaint and once you confirm service, I will file the appropriate responses thereto. In
anticipation of your agreement/consent, I have enclosed a proposed Agreed Order for your review
and approval.
Second and more importantly, in addition to the issues I previously raised in my January 14,
1
RUDD & DIAMOND. P.A.
FLORIDA DEFENSE ATTORNEYS
2011 letter to support a Rule 11 motion for sanctions, I have additional support for the Rule 11
sanctions I intend to seek as it is clear that you will not go away quietly. Assuming arguendo, that
your Amended Complaint states a non-frivolous cause( s) of action, you cannot prove compensable
damages. I know this because you have not been "debt" harmed. In fact, any and all "debts" that
you believe may have been existed, have been negated, dismissed and otherwise died on the vine, as
the Plaintiff voluntarily dismissed its claims for any and all money damages. That said, your credit
rating and the like is not and cannot have been said to harmed/damages as there is no debt!!!
Additionally I did receive your purported discovery request. The form of your request is not
valid. As I have already informed you, there is no insurance coverage for your complaint and even
to the extent that there is, carriers have NOT been informed of this lawsuit and will not be made
aware ofthis lawsuit. My firm's relationship with whatever carriers you believe exists is a personal
one that you will never be able to invade!!!! For that reason and that reason alone, please consider
this my Local Rule attempt to confer with you to resolve the instant discovery matter. I object to
producing any insurance agreements, and will not voluntarily agreed to do so. Additionally as
drafted, no such insurance agreements, exist that are responsive to the same. Additionally in light of
the fact that your request for inspection seeks insurance agreements that "satisfy the judgment,"
unless I missed something, our response to your request is none exist! Kindly let me know if this
response is acceptable or whether I need to file a formal objection and motion for protective order. If
so I will seek Rule 11 sanctions for your persistent frivolous attempt to obtain objectionable and
non-existent materials.
Oddly, while I was drafting this letter, I came across a troubling order from the Court. The
Court entered an Order on Default Procedure suggesting that you, as Plaintiff, never filed the
waivers of service that we ha- i_gned and agreed to. I confirmed this fact that the waivers were
never filed. In response, I just filed the attached notices of appearance and waivers that we had
previously agreed to. That said, I am also enclosing an Agreed order on Extension of time to
Respond to the Amenderl Complaint, addressed above. Kindly, review the same and let me know if
the same is acceptable to send the Court.
As an aside, in my frantic search of the Court record to determine why I received the Order
on Default Procedure, I learned that your process server certified to the Federal Court that he serYed
all Defendants at my office and that my receptionist accepted service. That simply is not true but I
am not going to make a stink about it at this time assuming you agree to the Jll!!
order contained herein.
Upon your receipt and review of this, please contact me to alert me whether or
not you will be dismissing the lawsuit discussed herein. If you do not agree to the dismiss,
agree to the terms of the proposed Agreed Order Granting Extension ofTill!e for Defendant's to
respond to the Complaint. Additionally, I need some direction about the, ,disco7ery request as well. I
look forward to your anticipated response hereto. I re1pain,
, Sincerely' yours,
J ,"
Peter A Diamond
/'-f.-.-
1 :::>
The judgment is amended to correct a mathematical error. The figure of
1
$4,018.50 in the prior Final Judgment for Fees [DE 141] did not include the 0.4 hours of
Eric Gruber and the 0.6 hours of Jordan Cohen, as explained at the top of page 8 of the
Order Granting Defendants Motion for Attorneys Fees [DE 140].
CASE NO. 10-62492-CIV-COHN
ANGELA DIPILATO, individually,
Magistrate Judge Seltzer
Plaintiff,
vs.
corporation, PETER A. DIAMOND, individually,
MICHAEL RUDD, individually, OCEAN 4660, LLC,
a Florida limited liability company, COMERICA
BANK, a Michigan corporation, and
REMO POLSELLI, individually,
Defendants.
_______________________________________/
AMENDED FINAL JUDGMENT FOR FEES
1
THIS CAUSE is before the Court upon the separately entered order granting
Defendants Ocean 4660, LLCs Motion for Attorneys Fees [DE 140]. Accordingly it is
ORDERED AND ADJUDGED that Judgment for fees is hereby entered on behalf of
Ocean 4660, LLC, and against the Plaintiff, Angela Dipilato, and Ocean 4660, LLC shall
recover $4,253.50 in attorneys fees, plus interest thereon at the rate of 0.17% per
annum from the date of this Final Judgment, for which let execution issue. The prior
Final Judgment for Fees [DE 141] is vacated.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 24 day of February, 2012.
th
Copies furnished to:
Angela DiPilato, pro se (via CM/ECF regular mail)
counsel of record on CM/ECF
CASE NO.: 10-62492-Civ- COHN-SELTZER
Plaintiff,
vs.
Individually, OCEAN 4660, LLC.,
A Florida limited liability company,
COMERICA BANK, a Michigan
Corporation and REMO POLSELLI,
Individually,
Defendants.
____________________________ !
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PLAINTIFF ANGELA DIPILATO'S OPPOSITION TO DEFENDANT
OCEAN 4660, LLC's MOTION FOR ATTORNEY FEES
:;;j
-
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(..)
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en
Pursuant to Rule 11 of the Federal Rules of Civil Procedure and Rule 7.3 of the District -Court
:::!!
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fT1
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0
for the Southern District of Florida, Plaintiff Angela DiPilato ( hereinafter " DiPilato " ) files this
Memorandum of Law opposing the Motion for Attorney Fees ("Motion") filed by Defendant
Ocean 4660, LCC (hereinafter " Ocean 4660 " ). Ocean 4660 is not entitled to recover any
attorney's fees from DiPilato in this matter because: (1) they do not cite any contract authorizing
an award of attorneys' fees; (2) Florida Law does not permit an award of attorneys' fees, and
1
(3) Defendants' Motion is fatally defective in violation of Rule 11 ofthe Federal Rule of Civil
Procedure and Local Rule 7.3. Even were Defendant Ocean 4660 entitled to recover attorney's
fees, which it is not, they are not entitled to recover the attorney's fees sought in this motion.
PROCEDURAL HISTORY
This action was brought against multiple parties pursuant to the Fair Debt Collections Practices
Act. Plaintiff filed a Notice of Pendency.
On or about, September 26, 2011, Defendant Ocean 4660 filed an Emergency Motion to
Discharge Lis Pendens or, Alternatively, to set Lis Pendens Bond. Said Motion is annexed hereto
as Exhibit "A", and incorporated herein by reference. (Exhibit "A"].
On or about, October 25, 2011, this Court granted Defendant Ocean 4660's Motion to the
extent the Court required Plaintiff to post a bond. (See, Court's October 25, 2011, Order
annexed hereto as Exhibit "B", and incorporated herein by reference).
Plaintiff was not financially cable to obtain a bond in the amount imposed by this Court.
Plaintiff should not be further penalized.
ARGUMENT
I. OCEAN 4660 is Not Entitled to Recover Anv Attorneys' Fees from DiPilato:
Under the American rule, litigants are ordinarily responsible for their own attorneys' fees.
See, Travelers Cas. & Sur. Co. o(Am. v. Pac. Gas and Elec. Co., 549 U.S. 443, 448 (2007).
2
Under the facts of this case, Defendant Ocean 4660 has no right to recover any attorneys' fees
from PlaintiffDiPilato.
This Court in Ameripatlz, Inc. v. Dr. Robert Wes!ev Wetherington, et. a!., Case No.: 10-60766
(2011) determined that Florida law governs an award of attorney's fees, citing, Nukote Int'l, Inc.
v. Office Depot, Inc., Case No.: 09-82363-CIV, 2010 WL 4942838, at** 2 (S.D. Fla. Nov. 30,
2010) (citing Champion Produce, Inc. v. Ruby Robinson Co .. Inc .. 342 F. 3d 1016, 1022 (9th.
Cir. 2003 ), and Alhambra Homeowners Ass'n. Inc. v. Asad. 943 So. 2d 316,318 (Fla. Dist. Ct.
App. 2006)). Florida follows the American Rule, providing that a" prevailing litigant is
ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline
Serv. Co. v. Wilderness Soc 'y, 421 U.S. 240, 247 (9175); Price v. Tyler, 890 So. 2d 246, 250 (
Fla. 2004) ("Under Florida law, each party generally bears its own attorneys' fees ... ")
Fla. Stat. Ann. 48.23 subdivision (3), does not statutorily provide for an award of attorneys'
fees for discharging a Lis Pendens. The statute provides the Court authority to discharge certain
types of Lis Pendens. In fact, there is no mention in the statute authorizing an award of attorneys'
fees.
Moreover, the sole case relied upon by Defendant Ocean 4660 in its quest to recover attorneys'
fees, S&T Builders v. Globe Properties. Inc., 944 So. 2d 302 (Fla. 2006) is distinguishable and
authorizes the Court to add an award of attorneys' fees to the amount of a Lis Pendens bond. It
does not mandate the award of attorneys' fees.
In Wagner v. Birham. 460 So. 2d 463 (Fla. 3d DCA 1984), the Court held that" there is no
statutory authority for the award of attorney's fees in discharging a lis pendens.
For this reason alone, the Defendant Ocean 4660 is not entitled to an award of attorney's fees.
3
A. Ocean 4660 is Not Entitled to Recover Attorneys' Fees from Plaintiff Because those
Fees were Not Incurred in connection with Discharging the Lis Pendens and the
Amount of Attorney's Fees sought in this motion.
Even were Defendant Ocean 4660 entitled to recover certain attorney's fees in this matter.. ...
( which as set forth above, they are not ), Ocean 4660 is not entitled to recover the amount of fees
sought in their Motion.
Defendant Ocean 4660's attorney's have submitted time sheets purported to substantiate the
requested reward of attorney's fees in the amount of$ 4,535.50. Attorney time sheets are
annexed hereto as Exhibit "C", and incorporated herein by reference. A cursory review of said
billing time sheets reveals that all of the time billed was not in connection with discharging the
Lis Pendens and, (ii) there exists a substantial disparity in the amount of legal fees sought to be
recovered and the actual billing for legal fees.
The Defendants assertion for legal fees alleged to be incurred in connection with the discharge
of the Lis Pendens, is simply incorrect.
II. Defendant 4660's Motion for Attorney's Fees is Not properly Verified, is Fatally
Defective in Violation of Rule 7.3(a) of the Local Rules of the United States District
Court for the Southern District of Florida:
Rule 7.3(a) subdivision (7) of the Local Rules for the United States District Court for the
Southern District of Florida governing Motions for Attorneys Fees states in pertinent part:
(7) be verified ....... .
A review of the Motion for Attorneys fees filed by Defendant Ocean 4660 reveals that the
Verification is fatally defective, to wit;
4
i. the verification was not sworn to in the presence of an authorized officer, such
as a notary public.
Defendant Ocean 4660's Motion for Attorney's Fees is annexed hereto as Exhibit "D", and
incorporated herein by reference.
Black's Law Dictionary defines verification as:" A formal declaration made in the presence of
an authorized officer, such as a notary public. Traditionally, a verification is used as a conclusion
to all pleadings that are required to be sworn.
Alternatively, the unsworn verification is fatally defective under 28 USC section 1746 because
it does not contain a date that it was executed, among other defects.
Simply put, here the Defendants' unsworn verification makes the motion fatally defective.
III. Plaintifrs Motion for Attorney's Fees Was Not Mentioned In the Caption oflt's
Motion to Discharge Lis Pendens, therefore, It Is fatally Defective:
Plaintiff failed to mention a request for attorney's fees in its Motion to Vacate the Lis Pendens.
A request for Attorney's fees was not mentioned in the caption of said Motion nor in its request
for relief.
As this Court ruled in Certex USA. inc. v. Vidal, Case No.: 09-61818, the failure to request
attorney's fees in the Motion to Discharge Lis pendens warrants the denial of the Motion for
Attorneys' fees.
IV. Plaintifrs request for Attorney's Fees does Not meet the Requirements of Local Rule
7.3(a):
Local Rule 7.3(a) provides a specific mechanism for Motions requesting Attorney's fees,
5
Defendant Ocean 4660's counsel failed to follow the governing rule; to wit;
1. Plaintiffs counsel never made a good faith effort to resolve by agreement prior to filing its
motion, and
2. Plaintiffs counsel failed to serve a draft of the Motion in accordance with the rule;
V. Fed. R. Civ. P. 11 also governs a Motion for Attornev's Fees:
Fed. R. Civ. P. 11 is analogous to a Motion for Attorney's fees as herein. See, Hill v. Lazarous
Enterprises, Inc., Case No.: 10-61479 ( U.S.D.F.L. ).
Under Rule 11, courts generally require that motions for sanctions be filed as soon as
practicable after the alleged violation has occurred. Hunter v. Earthgrains Co. Bakerv. 281 F. 3d
144, 152 (4th Cir. 2002 ). Here, the Lis Pendens was filed in 2010. Defendant Ocean 4660 did
not make a Motion to Discharge the Lis pendens until September, 2011.
Now, some five (5) months later Defendants' bring this untimely motion in violation of Rule
11 and Rule 7.3 (A), Local Rules for the Southern District. Not only is the motion untimely, the
mere filing of this motion for exorbitant legal fees which were never incurred, subjects the
Defendants' and Mr. Patrick K. Dahl, Esq., to dismissal of the motion and sanctions under Rule
11 for their abuse of process. See, Budget Rent-A-Car Svstems. Inc. v. Consolidated Equity.
L.L.C.. 428 F. 3d 717, 718 (7th. Cir. 2005 ). Rule 11(c) provides that in appropriate
circumstances the court may sanction attorneys, law firms, or parties. See, Union Planters Bank
v. L & J Development Co .. 115 F. 3d 378, 384 (6th. Cir. 1997 ).
6
Improper Rule 11 Motions
The Courts' have routinely cautioned Attorneys about bringing improper Rule 11 Motions
because Rule 11 violations may be raised by motions, such motions themselves are subject to
review under Rule 11, and can be the subject of additional allegations of violations of Rule 11.
See, Blue v. United States Department ofthe Army, 914 F. 2d 525,548 (4th. Cir. 1990 )(holding
"Litigants should be able to defend themselves from the imposition of sanctions without
incurring further sanctions "). The mere failure to prevail on a particular pleading or motion does
not, of itself, establish a violation of Rule 11. See, Altran Corp. v. Ford Motor Co., 502 U.S. 939,
112 S.Ct. 373. Simply put, in the instant case that is all that transpired. Here, these Defendants'
seek to improperly punish the Plaintiff for seeking redress in Court through the bringing of this
wanton, malicious and otherwise improper Rule 11 motion.
Rule 11 requires that the Defendants make this motion as soon as practicable after the alleged
violation. Rule 11 does not allow an allegedly injured party to move for sanctions after a case has
ended. See, Hunter v. Earthgrains Co. Bakery, 281 F. 3d 144, 152 ( 4
1
h. Cir. 2002 ).
The acts and actions in making this frivolous, wanton, malicious and otherwise improper
motions subjects the Defendants' and Patrick K. Dahl, Esq. to sanctions. See, DiPaolo
v. Moran, 407 F. 3d 140 (3d. Cir. 2005 ).
Plaintiff herein sought to redress it's grievances in Court. Plaintiff did not bring the Action for
improper purposes, or to harass Defendants. At all times relevant, Plaintiff believed that the
Complaint was reasonable. Plaintiffs' pro se status must be weighed in determining the
reasonableness of Plaintiffs acts and actions in bringing the lawsuit. See, Kennedy v. National
7
Juvenile Detention Association 187 F. 3d 690, 696 ( 7
1
h. Cir. 1999). Plaintiff respectfully states
that it did not bring the Complaint for any improper purpose.
DEFENDANTS FAILED TO COMPLY WITH LOCAL RULE 7.1(A)(3).
a. DEFENDANTS' MOTION IS UNTIMELY
Defendants' Motion for Attorneys Fees is untimely pursuant to Rule 7.3(A), Local Rules of the
Southern District of Florida.
Rule 7.3(A) states in pertinent part:
" any motion for attorneys fees and/or to tax costs shall be filed
and served within thirty (30) days of entry of a final judgment
or other appealable orders which gives rise to a right to attorneys
fees or costs ................................................................................... "
The Court entered a final Order discharging the Lis Pendens on October 25, 2011. (See,
Court's October 25, 2011 -Order- Annexed Hereto as Exhibit" B ").Defendants' counsel did
not file its Motion for Attorneys Fees until December 05, 2011 (some two months thereafter).
Defendants' counsel was required to file any such motion on or before November 25, 2011.
Defendants' failure to timely file its motion requires the motion to be denied.
The United States District Court has strictly followed Local Rule 7.3(A) denying such untimely
motions without regard to the issues raised within the motion. See, Miller v. Relationserve. Inc ..
et.al.. 2006 U.S. Dist. LEXIS 87139 ( Civ. Action No.: 05-61944- DIMITROULEAS/TORRES
) (holding" untimely motion must simply be denied on procedural basis alone); Robinson v.
Alutiiq- Mele. LLC .. 643 F. Supp. 2d 1342 ( U.S.D.F.L. )(2009) (procedural requirements of
8
Rules are strictly construed); Kave v. Pers. Injury Fundin2:. LP., (2009) 2009 U.S. Dist. LEXIS
12730 ( U.S.D.F.L. ).
b. DEFENDANTS FAILED TO COMPLY WITH LOCAL RULE 7.l(A)(3)
Local Rule 7.l(A)(3) requires:
"prior to filing any motion in a civil case, ... counsel for the moving party
shall confer ( orally or in writing), or make reasonable effort to confer ( orally or in writing ),
with counsel for the opposing party in a good faith effort to resolve by agreement the issues to be
raised in the motion ..... At the time of filing the motion, counsel for the moving party shall file
with the Clerk a statement certifying either: (a) that counsel have conferred in a good faith effort
to resolve the issues raised in the motion and have been unable to do so; or (b) that counsel for
the moving party has made reasonable effort ( which shall by identifies with specificity in the
statement) to confer with the opposing party but has been able to do so. Failure to comply with
the requirements of this rule may be cause for the court to grant or deny the motion and impose
on counsel an appropriate sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a reasonable attorney's fee."
Mr. Dahl, Esq. has made absolutely no attempt to confer with counsel-Plaintiff(s), ProSe nor
has he filed the requisite statement certifying that he has attempted to confer with Plaintiffs, Pro
Se regarding this particular matter. As such, Defendants' motion should be denied, with an award
of costs and reasonable expenses to Plaintiffs for having to respond to this motion.
Defendant(s) Rule 11 Motion must be Dismissed for Untimeliness
Under Rule 11, Courts generally require the motion to be filed as soon as practicable after the
alleged violation has occurred. See, Hunter v. Earthgrains Co. Bakery, 281 F. 3d 144, 152 ( 4
1
h.
Cir. 2002 )(holding delay of 14 months in moving for sanctions is unacceptable, even where
opponent of sanctions has not alleged prejudice or lack of notice ). Here, the Lis Pendens was
9
filed on or about December, 2010. In it's own motion to discharge the Lis Pendens, Defendant(s)
set forth that the alleged Rule 11 violation occurred on or before December, 2010.
The Court entered judgment on the Pleadings on December 21,2011.
Now, after the case has ended, Defendants make the untimely Rule 11 motion. Under Rule 11
it is well settled that a movant's duty to offer the offending party a" safe harbor" means that an
injured party may not move under Rule 11 after a case has ended. See, Tompkins v. Cyr, 202 F.
3d 770, 787-88 (5th. Cir. 2000 ); Ridder v. Citv of Springfield, 109 F. 3d 288 (6th. Cir. 1997 ).
Under the " safe harbor "provision of Rule 11, the Defendant Ocean 4660 had a duty to file its
motion as soon as practicable after the alleged violation occurred. Here, that was in 2010 when
the Lis Pendens was filed. Likewise, the " safe harbor" provision required that Defendant Ocean
4660 file its Motion for Attorney's Fees prior to the Court's discharging the Lis Pendens. See,
Tomvkins v. Cvr. 202 F. 3d 770, 787-88 (5th Cir. 2000 )(holding injured party may not move for
sanctions after a case has ended or the court has rejected the offending contention).
For this reason alone, Defendants Rule 11 motion must be dismissed and Plaintiff be awarded
the costs and expenses of defending this motion.
Defendants' Motion is Violative ofRule 11
Rule 11 (b), sets forth the grounds upon which such a motion can be brought about. Nowhere
in Defendants Motion for Attorneys' fees do they set forth what subdivision of Rule 11(b) the
Plaintiff allegedly violated. Therefore, the Plaintiff cannot defend against such a motion.
For this reason alone, the Defendants motion should be dismissed and Plaintiff awarded the
costs and expenses of defending this motion.
10
ProSe Litigants
Rule 11 applies to pro se litigants. However, a party's pro se status is a factor that is weighed
in determining whether the party's behavior was reasonable under the standard of Rule 11. See,
Kennedv v. National Juvenile Detention Association, 187 F. 3d 690, 696 (7th. Cir. 1999 )(
affirming conclusion that clairri was not frivolous," especially considering the plaintiffs lack of
legal representation"); Moore v. Time. Inc .. 180 F. 3d 463, ( 2d Cir. 1999 )(affirming district
court's denial of Rule 11 sanctions on attorney who appeared pro se where district court had
reasoned that attorney was " not sophisticated " ).
Defendants' Request for Attorneys' Fees in an Exorbitant Amount constitutes
an ' Abuse of Process '
Rule 11(c)(l)(a) provides the Court with discretion to award costs, including attorney's fees,
associated with presenting or opposing a sanctions motion. See, Margolis v. Ryan, 140 F. 3d 850
( 9
1
h. Cir. 1988 ).
If a party arguably entitled to attorneys' fees pursuant to Rule 11 asks for an exorbitant amount,
such a request itself is an abuse of process and therefore, is grounds for the denial of an award.
See, Budget Rent-A-Car System. Inc .. v. Consolidated Equity. LLC .. 428 F. 3d 717, 718 (7th. Cit.
2005 ) ..
Here, Defendants' counsel has asked for fees umelated to discharging the Lis Pendens and has
drastic accounting errors.
11
Plaintiff respectfully requests an evidentiary hearing related to counsels exorbitant request for
legal fees and demands strict proof that counsel billed the fees requested and proof of payment
thereof. Additionally, Plaintiff requests to examine Hanna Karcho (the managing member of
Defendant Ocean 4660 LLC ) the party who allegedly verified the legal billings.
c. DEFENDANTS FAILED TO COMPLY \VITH PROCEDURAL
REQUIREMENTS OF RULE 11.
Counsel for the Defendants' Patrick K. Dahl, Esq. never served the motion upon Plaintiffs' as
required by Rule 11 ( c )(1 )(A). Rule specifically requiring the motion seeking sanctions to be
served upon the parties it is directed to, and not filed for twenty (21) one days following service,
and to specifically describe the specific conduct alleged to have violated subdivision (b) of Rule
11.
Failure to comply with the notice requirement requires a denial of Defendants' motion.
d. DEFENDANTS HAVE FAILED TO ANY BASIS FOR THE IMPOSITION
OF RULE 11 SANCTIONS- THE AWARD OF ATTORNEYS' FEES.
Defendants' motion for Attorneys' fees fails to set forth what the alleged violation of Rule
1l(b) is. Nowhere, in defendants' motion does it set forth what subdivision ofRule 11(b)
Plaintiff allegedly violated or the conduct which is the subject of such a violation.
Rule 11 (b) requires an attorney filing a motion or pleading to certify that the motion or
pleading is not being filed for an improper purpose or to harass, that the legal contentions are
warranted by existing law, that the allegations and factual contentions have evidentiary support,
12
and that any denials of factual contentions are warranted on the evidence. Defendants' motion
under Rule 11 is devoid of the requisite certification. (Exhibit "D" ). This too is troubling.
e. PATRICK K. DAHL, ESQ.'S MOTION IS INSUFFICIENT FOR
FAILURE TO ANNEX A VERIFIED STATEMENT OF ATTORNEYS
FEES.
The only issue raised in Defendants' motion is for Attorneys' fees. Rule 11 requires that a
request for Attorneys fees be verified by the Attorney's. These Attorneys have failed to do
so. As such, Attorney Dahl's motion for legal fees is fatally defective and must be denied.
CONCLUSION
Defendants have failed to demonstrate that: (i) Plaintiff has violated any provision of Rule 11;
(ii) Defendants' motion for Attorneys' fees is fatally defective and untimely, therefore, must be
dismissed, (iii) Defendants' request for exorbitant Attorneys' fees is an abuse of process, and (iv)
Defendants' purpose for bringing such a motion was to harass and otherwise harm Plaintiff in
violation of Rule 11 which subjects them to sanctions.
For the foregoing reasons, this Court should deny Defendant ocean 4660's Motion and enter an
Order ruling that Defendant Ocean 4660 is not entitled to recover attorney's fees. If the Court
does permit Defendant Ocean 4660 to recover certain attorney's fees, the Court should reduce
any award as set forth herein.
Plaintiff respectfully requests that this Honorable Court sanction the Defendants' and their
Attorney, Patrick K. Dahl, Esq. for bringing such a motion and award Plaintiff reasonable costs
13
and expenses for defending the motion.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny Defendants'
Motion for Attorneys' Fees, sanction the Defendant Ocean 4660 and their Attorney, Patrick K.
Dahl, and award Plaintiff reasonable costs and expenses for defending this motion, along with all
other relief this Court deems just and appropriate.
Tel: (914) 563-4510
Fax: (954) 657-8405
I HEREBY CERTIFY that on February f!> 0 1 2 I filed the foregoing instrument with the
Clerk of the Court. I also certifY that the foregoing document is being served this day on
WICKER, SMITH, O'HARA, MCCOY & FORD, P.A., c/o Patrick K. Dahl, Esq., attorney for
Defendant Ocean 4660, LLC via regular mail, at his offices located at 515 East Las Olas
14
EXHIBIT A
69417-7
UJ'.HTED STATES DISCTRJCT COURT
FOR THE SOUTHERN DISTRJCT OF FLORJDA
Plaintiff,
vs.
Corporation, PETER A. DIAl\101\TD,
Florida limited liability company,
COMERlCA BANK, a Michigan
Corporation and REMO POLSELLI,
Individually,
Defendandnts.
________________________ !
CASE NO. 1 0-62492-Civ-Altonaga/Brown
EMERGENCY MOTION TO DISCHARGE LIS PENDENS OR,
ALTERNATIVELY, TO SET LIS PENDENS BO:ND
Defendant, Ocean 4660, LLC ("Ocean 4660"), moves this Court pursuant to Rule
65 of the Federal Rules of Civil Procedure and Section 48.23 of the Florida Statutes
(Fla.Stat.Ann. 48.23), for the entry of an order dissolving the lis pendens filed by the
plaintiff, Angela DiPilato ("DiPilato") because this action does not concern the property
against which the lis pendens has been filed. Alternatively, Ocean 4660 requests that this
court enter an order requiring DiPilato to set a lis pendens bond sufficient to address the
potential loss and/or damages caused in the event that the lis pendens is determined to be
unjustified. In support thereof, Ocean 4660 states as follows:
Case 0:10-cv-62492-J!C Document 100 Entered on FLSD Docket 09/26/2011 Page 2 of 7
PRELIMINARY STATEMENT
EMERGENCY NATURE OF I\IOTION
1. Ocean 4660, LLC ("Ocean 4660") is a Florida limited liability company.
Ocean 4660 owns real property located at 4658-4660 North Ocean Drive, Lauderdale-by-
the-Sea, Bioward County, Florida (the "4660 Property").
2. This motion requests the court to address a lis pendens filed against the
4660 Property.
3. As noted by the Fifth Circuit, "[t]he affect of a lis pendens on the owner,
however, is constraining. For all practical purposes, it would be virtually impossible to
sell or mortgage the property because the interest of a purchaser or mortgagee would be
subject to the eventual outcome of the lawsuit." Beefy King Intemational, Inc. v. Veigle,
464 F.2d 1102 (5th Cir. 1972).
1
4. On September 2, 2011, Ocean 4660 entered into an agreement to sell the
Ocean Property (the "Agreement").
2
5. The Agreement provides for a sixty day period within which to resolve
title issues identified by the purchaser. To the extent that the title issues are not resolved
within that period, the purchaser may terminate the Agreement. One of the title issues
identified by the purchaser is the lis pendens that is the subject of the present motion.
6. As a result of the present time constraint, Ocean 4660 is seeking relief on
an emergency basis to address and resolve not only the lis pendens, but to address any
1
Pursuant to Bonner v. Prichard, 661 F.2d 1206, 1209 (ll
1
h Cir. 1981) (en bane), all decisions of the
former Fifth Circuit announced prior to October I, 1981, were adopted as binding precedent by the
Eleventh Circuit.
2
Case 0:1 0-cv-62492-JIC Document 100 Entered on FLSD Docket 09/26/2011 Page 3 of 7
CASE NO. 10-62492-Civ-Altonaga/BrO\:vn
concerns raised by the court within sufficient time to address and resolve those issues
prior to the expiration of the sixty day period.
MOTION TO DISCHARGE LIS PENDENS
7. Ocean 4660, LLC ("Ocean 4660") is a Florida limited liability company.
Ocean 4660 owns real property located at 4658-4660 Ocean Drive, Lauderdale-by-the-
Sea, Broward County, Florida (the "4660 Property").
8. On March 21, 2011, DiPilato, proceeding pro se, filed her Second
Amended Complaint ("Complaint") in which she has asserted claims against various
defendants for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. 1692 et. seq. (DE 58.)
9. On the same day DiPilato filed the Complaint, she filed and caused to be
recorded a document entitled "Notice of Pendency" which was recorded by the Broward
County Records Office at Book 4 7663, page 1853 (the "lis pendens").
10. In the Notice of Pendency, DiPilato claims that this action has been
commenced in which DiPilato is seeking a judgment: (i) enjoining the use of the 4660
Property; (ii) invalidating and setting aside the deed and subsequent deeds; (iii) awarding
title to real property to the plaintiff; (iv) directing the restoration of the grades thereof to
the extent that the court deems it necessary; (v) impressing a lien on the 4660 Property to
ensure performance of any court orders.
11. Put simply, the Complaint neither involves nor concerns the 4660
Property. The Complaint contains 14 separate counts against various defendants in
2
Factual support for these statements are set forth in the exhibits and materials submitted with the
3
CASE NO. 10-62492-Civ-Altonaga/Brown
which DiPilato has asserted various FDCP A claims. Nowhere does DiPilato request or
suggest that her action involves the Ocean Property sufficient to justify the continuation
of the lis pendens.
12. By statute, and as recognized by the Fifth Circuit, this Court may dissolve
or discharge the lis pendens. See Beefy King International, Inc. v. Veigle, 464 F.2d 1102
(5th Cir. 1972); see also Fla.Stat.Ann. 48.23(3).
13. In addition to the discharge of the lis pendens, Ocean 4660 requests that it
be awarded the costs incurred in connection with this motion as required by 48.23. See
S&T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006) (holding that an award
of attorney's fees incurred in discharging a lis pendens is statutorily authorized" under
section 48.23(3).)
"WHEREFORE, Defendant, Ocean 4660, LLC, respectfully requests that this
Court enter an order discharging the lis pendens recorded at Book 4 7663, page 1853, for
an award of attorneys fees and costs incurred in having the lis pendens discharged, and
for whatever other relief this Court deems just and proper.
ALTER'lATIVE MOTION FOR SETTING OF LIS PENDENS BOND
14. Alternatively, to the extent that the Court chooses not to dissolve the lis
pendens, Ocean 4660 requests that this court set a lis pendens bond sufficient to address
the potential damages caused by the lis pendens in case it is determined that it was
improperly filed.
contemporaneously filed memorandum.
4
Case 0:10-cv-62492-JIC Document i 00 Entered on FLSD Docket 09/26/2011 Page 5 of 7
15. Pursuant to Florida law, the trial court has wide discretion concerning
whether to require the proponent of a lis pendens to post a lis pendens bond. Medical
Facilities Development, Inc. v. Little Arch Creek Properties, Inc., 675 So.2d 915 (Fla.
1996). Hovvever, the failure to require the bond proponent to post such a bond has been
held to constitute reversible error where the bond proponent can demonstrate that
damages or injury will likely be suffered from the lis pendens. Empire Ocean Residence
Realty, LLC v. CDR Creances, S.A.S., 44 So. 3d 179 (Fla. 3rct DCA 2010).
16. As set forth in the accompanying memorandum, Ocean 4660 can and will
suffer damages and injury in the event that a bond is not posted. As such, in the event
that the lis pendens is not discharged, a bond should be required in an amount equal to the
present sale price for the 4660 Property as reflected in the Agreement of$13,250,000.00
WHEREFORE, Ocean 4660, LLC respectfully requests that this Court enter an
order requiring the Angela DiPilato to post a lis pendens bond in the amount of
$13,250,00.00 or in some other amount as the court deems appropriate.
INCORPORATION OF OF LA 'V
17. Ocean 4660 has filed, contemporaneously with this motion, a supporting
memorandum of law. Ocean 4660 adopts and incorporates by reference the arguments
and authorities cited therein as though fully set forth herein.
CERTIFICATE OF GOOD FAITH CONFERENCE; CONFERRED BUT
UNABLE TO RESOLVE ISSUES PRESENTED IN THE MOTION
18. Pursuant to Local Rule 7.1(a)(3)(A), I hereby certifY that counsel for the
movant has conferred with all parties or non-parties who may be affected by the relief
5
CASE NO. 1 0-62492-Civ-Altonaga/BrO\vn
sought in this motion in a good faith effort to resolve the issues but has been unable to
resolve the issues. A copy of the correspondence counsel received to his efforts to
resolve this matter is attached hereto as Exhibit A.
I HEREBY CERTIFY that on September 26, 2011, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the
foregoing document is being served this day on all counsel of record identified on the
attached Service List in the manner specified, either via transmission of Notices of
Electronic Filing generated by CM/ECF or in some other authorized mam1er for those
counsel or parties who are not authorized to receive electronically Notices of Electronic
Filing.
6
W1CKER, SMITH, O'HARA, MCCOY &
FORD, P.A.
Attorney for
515 E. Las Olas Boulevard
SunTrust Center, Suite 1400
P.O. Box 14460
Ft. Lauderdale, FL 33302
Phone: (954) 847-4800
Fax: (954) 760-9353
By: /s/ Patrick K. Dahl
Robert E. Paradela
Florida Bar No. 842095
Patrick K. Dahl
Case 0:1 0-C'/-62492-JIC Document 100 Entered on FLSD Docket 09/26/2011 Page 7 of 7
Peter Diamond, Esq.
Rudd & Diamond, P.A.
4000 Hollywood Blvd., Suite 165-S
Angela DiPilato
Angela DiPilato
2310 E. Atlantic Boulevard
Suite 206
Alejandro Vilarello, Esq.
16400 NW 159
1
b Ave.
Miami Lakes, Florida 33014
CASE NO. 1 0-62492-Civ-AltonagaiBrown
Service List
7
EXHIBITB
Case: 0:10-cv-62492-JIC Document#: 119 Entered on FLSD Docket: 10/25/2011 Page 1 of 4
Plaintiff,
vs.
Defendants.
__________________________________ /
CASE NO. 1 0-62492-CIV-COHN
ORDER GRANTING EMERGENCY MOTION TO REQUIRE PLAINTIFF TO POST
SUPERSEDEAS BOND OF $13,250.000.00
ORDER DIRECTING PLAINTIFF TO RELEASE LIS PENDENS
ORDER DIRECTING PLAINTIFF TO PROVIDE EMAIL ADDRESS TO FACILITATE
NOTICE OF COURT ORDERS
THIS CAUSE is before the Court upon Defendant Ocean 4660, LLC's
Emergency Motion to Require Plaintiff to Post Supersedeas Bond, or Alternatively, to
Compel Release of Lis Pendens [DE 114]. The Court has carefully considered the
motion and accompanying memorandum [DE 115], and is otherwise fully advised in the
premises. The Court notes that Plaintiff Angela DiPilato ("Plaintiff'), acting pro se, has
failed to respond to the motion by the Court imposed deadline of Friday, October 21,
2011.
On September 26, 2011, Defendant Ocean 4660 filed an emergency motion to
discharge a lis pendens o.n the property, or to request the posting of a bond [DE 1 00].
According to the affidavit of Hanna Karcho, the sole member of Defendant Ocean 4660,
LLC, Plaintiff filed a Notice of Lis Pendens against the property at 4658-4660 North
u
case: 0:10-cv-62492-JIC Document#: 119 Entered on FLSD Docket:

J
Ocean Drive, Lauderdale-by-the-Sea, Florida, with the Broward County Clerk on
.._,
0
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Q
0
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iS'
January 21, 2011. Affidavit of Owner, 0 [DE 101-1 ]. On September 2, 2011,
"1 ..
Defendant Ocean 4660 entered into an agreement to sell the property at issue to a non-
party for $13,250,000. !.9.:. 7. The agreement provides for a 60 day period to
resolve any title issues. The purchaser has identified the Lis Pendens filed by Plaintiff
as one of those issues. !.9.:. 11.
The Court set a hearing on Defendant Ocean 4660's discharge motion for
October 7, 2011. Plaintiff opposed the motion and sought a continuance of the hearing
[DE 1 06]. Given the exigent nature of the requested relief, the Court denied the motion
to continue [DE 1 07]. Plaintiff did not appear at the hearing [DE 1 08]. After hearing the
argument of Defendant and asking several questions, the Court granted the motion to
discharge the lien [DE 1 09]. The next business day, Plaintiff filed a Notice of
Interlocutory Appeal [DE 111 ].
Defendant Ocean 4660 now seeks this Court to require Plaintiff to post a
supersedeas bond. Defendant contends that under Florida law the pendency of an
appeal effectively operates to stay the discharge of a lis pendens. Therefore,
Defendant asks the Court to require Plaintiff to post a bond, or to compel release of the
lis pendens.
This Court notes that it is not necessarily clear that Florida law governs this
issue, as although this is an interlocutory appeal, Rule 62(d) of the Federal Rules of
Civil Procedure provides that an appellant normally can only obtain a stay by posting a
supersedeas bond. Thus, assuming that Florida law applies, the Court does conclude
that it is appropriate in this case to require Plaintiff to post a bond to cover the potential
damages if her failure to discharge the lis pendens causes the contracted for sale of the
2
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L::-JIC- - Document#: 119 Entered on FLSD Docket: 10/25/2011

,/
Page 3 of"'
property not to close. This conclusion finds further support in this Court's recent

/
// order granting the Rudd & Diamond Defendants motion to dismiss in this action [DE
117], in that several of the Defendants have now been dismissed.
1
The amount of the
bond is best determined in this case by the amount of the contracted price for the
property ($13,250,000).
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant Ocean 4660, LLC's Emergency Motion to Require Plaintiff toPost
Supersedeas Bond, or Alternatively, to Compel Release of Lis Pendens [DE 114]
is hereby GRANTED;
2. By 12 noon on October 28, 2011, Plaintiff Angela DiPilato shall file a
supersedeas bond in the amount of $13,250,000 in the docket of this action;
3. Plaintiff shall immediately take the necessary action to release and/or discharge
the Notice of Pendency filed in the records of Broward County, Florida, with filing
location CFN # 109821421, OR BK 47663 Page 1853, Recorded 01/21/2011 at
11 :46am;
4. Failure to timely file the bond shall result in the release of the Notice of
Pendency;
5. Plaintiff is further directed to provide this Court, in a written filing in this action,
with an electronic mail address, so as to facilitate prompt notice of all filings,
including Court orders, to Plaintiff. Pursuant to Court policy, pro se litigants
cannot file documents in the CM/ECF system, but can with Court approval,
1
The Second Amended Complaint in this action brought Fair Debt Collection
Practices Act claims against various defendants, though Defendant Ocean 4660 was
not alleged to have taken action independent of the attorneys it hired to collect funds
from Plaintiff.
3
Case: 0:10-cv-62492-JIC Document#: 119
receive such filed documents.
-- '
.,
Florida, this 25
1
h day of October, 2011.
Angela DiPilato, prose (via CM/ECF regular mail)
and via facsimile to 954-657-8405
4
-------------------------
EXHIBIT C
. ,. :' '
. -r ::_ . --=-... .._
....... .. .. .. <iH
entered on FLSD '
Wicker; Smith, O'Hara ' . /"'' \
McCoy &i=ord, P.A. !:"
Remo Polselll
Ocean 4600, LLC
55 E. Long lake Road
Unit 204
'Troy, Ml 48098
Attorneys at Law
2800 Ponce de Leon Boulevard
Suite 800
Coral Gables, Florida 33134
(305) 448 -3939
TIN NO. 65-0089075
INIERIM BILL
October 25, 2011
Invoice 326971
Page 1
For Services Through September 30, 201 1
Our Matter# 69417-7
._
09/19/1 i
09/19/11
09/19/11
09/19/11
1
09/i 9/11
09/19/11
09/20/11
DIPilato; Angela vs. Rudd & Diamond, P.A.; Peter A. Diamond; Michael Rudd; Remo Polselli; Ocean 4660,
LLC
INSURED:
0/LOSS:
CLAIM#:
Analysis of pending Second Amended Complaint to identify
allegations concerning property ownership and allegations or
requests for relief directed against the Ocean 4660 Property for
use In motion to discharge lis pendens.
Drafted portion of memorandum in support oi motion do
discharge lis pendens.
Initiated telephone call to "*W*49lo obtain purchaser's
consent to disclose the purchase agreement as part of motion to
discharge lis pendens to avoid potential breach of confidentiality
provisions contained within purchase agreement.
Analysis of correspondence from1iWfl?#p4660 Property
purchaser, authorizing disclosure of purchase agreement as part
of motion to discharge iis pendens.
Analysis of reported decisions concerning entitlement to and
usage of attorney's fees as basis for claiming damages and
injury as a result of compensable harm in connection with lis
pendens.
Drafted correspondence to purchaser !fitillt4lik to formally
request consent to disclose purchase agreement as part of lis
pendens motion in light of confidentiality provisions contained
within purchase agreement.
Analysis of property purchase agreement to identify specific
provisions concerning obligation to provide clear title, impact of
failure to provide clear title, and resulting damages associated
from breach of same for use in establishing harm component
necessary for lis pendens motion.
Revised Emergency Motion to Discharge Lis Pendens and
Memorandum of Law
E. J. Gruber
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
J. S. Cohen
0.40
0.50
0.20
0.10
0.40
0.20
0.50
0.40
40.00
117.50
47.00
23.50
94.00
47.00
117.50
130.00
09/20/11
09/20/11
09/20/11
09/20.'11
09/21/11
09/21/11
09/21/11
09/22/11
09/22/11
09/22/11
09!22!11
09/22/11

.
- '
1
<
2
'9--1 Entered on FLSD Docket 12/05/2011
.
' Wicker, Smith, O'Hara
Page 2 of 14
McCoy & Ford, P.A.
at Law
2800 Leon Boulevard
Suite 800
(305) 448 -3939
TIN NO. 65-0089075
Completed draft of Memorandum is Support of Emergency
Motion to Discharge Lis Pendens or Alternatively, To Set Lis
Pendens Bond.
Drafted correspondence to clients for review and approval of Lis
Pendens memorandum and H. Karcho affidavit.
***
2
ii#*+ #Rr *
h*iSM'&
Received telephone call from client's general counsel, IZ
; :AW, concerning issues associated with damages affidavit
and review of proposed motions.
Analysis of correspondence from Ei1MibC general counsel
for Ocean 4660, concerning purchaser's revocation of authority
to attach and disclose purchase agreement and resulting impact
upon ability to provide quantifiable damages for use in bond
setting portion of lis pendens motion.
initiated telephone call to alternative
methods of establishing potential damages in H. Karcho affidavit
as part of iis pendens bond motion.
Received telephone call from W$1W\IP, punchaser, concerning
issues with and alternatives to disclosure of sale agreement as
part of !is pendens and related filings.
lniiiated telephone call lo"%'4C&d#t, general counsel for
Ocean 4660, to discuss revisions to H. Karcho affidavit in light of
purchaser's revocation of authorization to disclose agreement
and to develop additional damages theories for use in setting lis
pendens bond amount.
Revised and supplemented H. Karcho affidavit to address
additional potential damages theories for review by client as part
of lis pendens motion filing.
Analysis of correspondence, executed affidavit, and supporting
deed information establishing ownership to ensure that
supporting and related documents were appropriate and
appropriate to disclose as part of proceedings to have lis
pendens bond amount set.

P. K. Dahl
P. K. Dahl
P. K. Dahl
P K. Dahl
P. K. Dahl
P K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
Invoice 326971
Page 2
2.70 634.50
0.10. 23.50
0.10 23.50
0.10 23.50
0.10 23.50
0.20 47.00
0.20 47.00
0.20 47.00
0.10 23.50
0.20 47.00

09/22!1 1
09/22/1 1
09/22/11
09/22!11
09/22!11
09/22/11
09/23/11
09/23/11
09/23/11
09/23/11
09/23/11
09/23/11
I
._..-<:'.

Entered on FLSD Docket 12/05/2011
S 'th O'H
Page 3 of
Wicker, m1 , ara
McCoy & Ford, P.A.
Attorneys at Law
2800 Ponce'de Leon Boulevard
Suite 800
Gural Gables, Florida 33134
(305) 448 -3939
TIN NO. 65-0089075
Analysis of proposed affidavit prepared by client regarding
damages sustained as a result of fls pendens for use in lis
pendens bond component of motion.
Drafted correspondence to *ii

M egarding revised
affidavit for H. Karcho execution.
.... M :::IIIII Ill 11!111,;
reo MiJ.PDIWii -..
Analysis of reported decisions concerning lis pendens bond
setting for use in identification of alternative damages
quantification methods to support lis pendens bond amount in
light of purchaser and clients position that purchase agreement
should not be disclosed as part of motion.
Revised and supplemented Emergency Motion (lis pendens) to
remove references to agreement in light of purchaser and clients
withholding of permission tc attach same as exhibit to pleadings.
Revised and supplemented Emergency Moiion Memorandum (lis
pendens) to remove reference and citations to agreement in light
of client and purchasers instructions to the effect that agreement
could not be attached as exhibit.
Revised and supplemented Karcho affidavit to address holes in
factual section of motion and memorandum created by absence
of agreement.

Analysis of revised executed affidavit by H. Karcho to confirm
acceptance of all new allegations, no additional revisions had
been made, and to ensure affidavit complete prior to filing.
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
Invoice 326971
Page 3
0.20
0.10

0.30
0.10
0.20
0.20

0.10
-
47.00
23.50
70.50
23.50
47.00
47.00

23.50

09/23/11
09/23/11
B
0
6)
09/25/11
09/25/11
09/25/11
09/25/i 1
09/26/11
09/26/11
09/26/1 i
09/26/11
;
..
_-::;.:
129-1 Entered on !=LSD Docket 12/05/2011
Page 4 of 14
Wicker, Smith, O'Hara
pending discovery.
McCoy & Ford, P .A.
at Law
Suite 800
' (305) 448 -3939
TIN NO. 65-0089075
lniiiated telephone call purchaser's counsel, to
obtain authorization to disclose certain information contained
withing purchase agreement such as the existence of the
agreement, purchase price, and ability to cancel If clear title is
not provided in light of confidentiality provision contained within
agieement.
Initiated telephone call to S iAII, purchaser, to obtain
authorization to disclose certain information contained withing
purchase agreement such as the existence of the agreement,
purchase price, and ability to cancel if clear title is not provided
in light of confidentiality provision contained within agreement.
Drafted correspondence to client and general counsel
concerning
Initiated telephone call to A. DiPllato to discuss motion and
satisfy conference requirements of local rule 7.1 in advance of
tiling motion.
ew &iM#I&#if#S#Si#1f.
. ::=1? Riiiti'i&i'AP
p tfflbt#S!f6D

Analysis of detailed correspondence from K. Franks and A..
DiPilato concerning rejection of attempt to resolve issues
concerning lis pendens and threatening action should any
attempts be made to file an appearance or represent defendants
in present action.
Revised and supplemented lis pendens motion to incorporate
rejection letter and threat correspondence.
Initiated telephone call tc clerk for US District Court for Southern
District of Florida to obtain judge specific procedures for Judge
Cohn for addressing emergency motions.
\
P. K. Dahl
P. K. Dahl
P. K. Dahl
P.'.K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
P K. Dahl
P. K. Dahl
P. K. Dahl
P. K. Dahl
t
Invoice 326971
Page4
0.10 23.50
0.10 23.50
0.20
8
O.iO

/
.J:fJl!l-

...

020 47.00
0.20 47.00
0.10 23.50

09/27/11
09/28/11
08/28/11
09/28/11
129-1 Entered on FLSD Docket 12/05/2011
. ..,ume
'
McCoy & Ford, P .A.
Law
Suite 800
(305) 448 -3939
TIN NO. 65-0089075
Analysis of notifications from federal court acknowledging receipt
of emergency motion documents.
P. K. Dahl
P. K. Dahl
Invoice 326971
Page 5
0,10
..
-
23.50
P. K. Dahl
sB
09/29/1.) Initiated lelephone call to Judge Cohn's judlcal assistant to
discuss receipt of emergency motion, protoccls for obtaining
emergency hearing date, and related matters associated with
emergency motion and current pleadings.
P. K. Dahl
09/30/11
09/30/11
1
09/26/11
Analysis of Amended Order from Federal Court changing
hearing date on emergency motion from 1 0/14 to 1 0/7
Analysis of Federal Court order setting emergency motion for
hearing on October 14, 2011.
P. K. Dahl
Total :=ees for Professional Services ..................................................... .
Summary of Fees
Name Title Hours Raie/Hr
E. J. Gruber Associate 0.40 100.00
J.S.Cohen Partner 0.40 325.00
c::s)
Associate 11.60 235.00
12.40
Reimbursable Costs
255 Photocopies - p
0.10
23.50
Fees
$40.00
$130.00
$2,726.00
--._
25.50
I
.. <.-. 7"''- .
'
_tJment 129-1 Entered on FLSD Docket 12/0S/2011
Page 6 of14
09/26/11
09/30/11
1 Photocopies - p
T elecopier Charges
McCoy & Ford, P A.
A:torneys at Law
;
Suite 800
Coral Gables, Rorida 33134
(305) 448 -3939
TIN NO. 65-0089075
Reimbursable Costs
Total Expenses ....................................................................... ..
Totals for TF1is Marter
Fees for Professional Services ................................ ..
Reimbursable Costs ................................................ ..
NET CURRENT BILLING FOR THIS MADER
TOTAL DUE FOR THIS MATTER
Invoice 326971
Page 6

_,,.

Name
Number
..
Matter Number
Date Worked Work Status
Page 7 of 14

"oi/oi/19cio-tJ;u llf07/2011
Description
Notes
Codes
Hours
Rate
Dollars
.: . . ... ...........
Printed from RalnMakerPia1inum on: Monday, November07, 2011 11:09:16 AM Page 1 of 8 Wicker, Smith, O'Hara, McCoy&. Ford, PA

Timekeeper V\
1
orked Detail Report
Worked between 0 l/0 l/1900 drru 11/07/2011

Client Number
Matter 1Yumber
Description
Notes
69417-.r:: 'DiPIIato. Angela vs. Rudd-& Diamond, P.A.;-Peter A Di""'"""' Budd; Re.mo.Polselli
Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P.A.; Peter A.
Diamond; Michael Rudd; Remo Polselli
Total For 04662: Ocean 4600, LLC
Cohen .;io"doncsi::Jsc
4600;n:c -
Hours
Hours
Hours
BiPilatq,;Angela :vs .. Diamand,.P-.A.: .Peter-P. .. 'Ramo
1011112011 . 7776349 Revised Motion to Require Plalntiff to -=::::-
12:00:00 AM
PHASE: L250
Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P.A.; Peter
Diamond; Michael Rudd; Remo Polsalli
For Cohen, Jordon S.: JSC
oant, Patrlck.-K.: PKD
04662: Ocean 4600, LLC
Hours
Hours
Hours
69417-7: DIPIIato, .Angela vs. Rudd & Diamand,P.A.; Peter A Diamond; Michaei-Rudd; Rsmo Pcilseill
0.20
0.20
Dottars
Dollars
Dollars
Dollars
Dollars
Dollars
0.20
325.00
ss.oo
------B5.0o
... .. ...
Printed from RainMaker Platinum on: Monday, November 07, 2011 11 :C9:15 AM Page 2 of 8 Wicker, Smllh. O'Har-a, McCay & Ford,
,'/"_,uName
_.;;;;,(Number
.. "'Matter Number
./
Work Status

=---. ----
...- ent 129-1
_..:::um
14
.Detail Jiep o:rt
. Worked between 01/0111900 thru 11/07/2011
Description
Noter
Codes
Page 10 of
Hours
Rate
Do//ars

.... : r. ' ,. .. --
1 On/2011 Work-In-Process
12:00:00 AM
10/7/2011 Work-In-Process
12:00:00 AM
1 0/7/2011 Work-In-Process
12:00:00 AM
1 On/2011 Work-In-Process
12:00:00 AM
12:00:00 AM
10/7/2011 Work-in-Process
12:00:00 AM
PHASE: L210 L210 PLEADINGS
7773750 Completed preparation for hearing on Motion to Discharge Lis Pendens or,
Alternatively, to Set Lis Pendens Bond before Judge Cohn.
7773751 Attended and participated in hearing on Emergency Motion to Discharge Lis
Pendens or, Alternatively, to Set Lis Pendens Bond before Judge Cohn.
PHASE: L210 L210 PL::ADINGS
7773752 Drafted correspondence
developments at and ruling on Emergency Motion to Discharge Lis Pendens
.
7773755
PHASE: L210'L210 PLEADINGS
. ...
Initiated telephone call to R. Polselli concerning developments and ruling at
emergency motion hearing, further steps to discharge lis pendens, and plan for
responding to likely future
PHASE: L21 0 L210 PLEADINGS
7773757 Received telephone call prior to emergency motion hearing to
discuss argument ahd recent developments affecting arguments Including
. numerous text messages sent by K. Frank in preceding 24 hours.
PHASE: L120 L120ANALYSIS/STRATEGY
7773761 Analysis of preliminary minute order (DE 1 09) entered by Judge Cohn granting
motion to discharge lis pendens.
--
0.50
235.00
117.50
1.20
235.00
282.00
0.30
235.00
70.50
6\
235.00
47.00
235.00
47.00
-
-
0.10
235.00
23.50
- .
prin\ed from on: Monday, November07, 201111:D9:16'AM Page 4 oi8 Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Date Worked Work Status
Description
Notes
Entry No. Codes
:.- ::. .-
O!f.662_;.0cean,4600, LLC

. .16i7/2o1 i . l7737'T3 ;f to discharge lis pendens.
12:00:00 AM
Oi e
10110/2011 Work-in'Process
12:00:00 AM
1 0/10/2011 Work-In-Process
12:00:00 AM
101111201 1 Work-In-Process
'12:00:00 AM
10/111201 i Work-In-Process
12:00:00 AM
12:00:00 AM
12:00:00 AM
12:00.:00 AM
12:00:00 .A.M
7788153 Analysis of reported decisions addressing effect of an appeal on a lis pendens
to identify any further action that would be required to obtain discharge of lis
pendens in the event that piaintiff follows through with threat reflected in her
correspondence.
7788155 Analysis of reoorted decisions addressing authority of trial court to set
appellate bond In light of purported threat of appeal of order d'1scharging lien.
PHASE: L 120 L 120 ANALYSIS/STRATEGY
7785833 Drafted Emergency Motion to Compel PlaintlffTa Post Supersedeas Bond Or
To Discharge Us Pendens.
PHASE: L210 L210 """' .. , ... .,.,,"'_
7785834 Drafted Memorandum In Support of Motion to Set Supersedeas Bond Or to
Of Lis Fleridi!q?.
7785835 Analysis of Notice of Appeal filed by A. DiPilato concerning the October 7,
2011 and October 5, 2011 orders.
PHASE: L210 L2i0 PLEADINGS
7785836 Analysis of reported decisions concerning authority to require plaintiff to past
bond as pari of pendency of appeal for use In Motion to Compel posting of
supersedeas bond.
7785837 Initiated telephone Motion and plan to address
appeal in light of time constraints.
7785838 Drafted concernino Supersedeas Band Motion
and
Hours
Rate
Dollars
0.10
235.00
23.50
0.40
235.00
94.00
0.40
235.00
94.00
i .00
235.00
235.00
2.70
235.00
634.50
G
0.60
235.00
141.00
0.10
235.00
23.50
0.10
235.00
23.50
..
Page 5 of 8 Wicker, Smith, O'Hara, & Ford, P .A.
Description
Noles
6 94'1;7 iPllato, .Ail>jela :vs.iRucid. & Blaniond, 'P.A.; :Peter A :Oiamond;Michaei.RudCJ; 'Ramo .Poise ill __________ :.o_- .. -. .
10/1212011 Wori<:-in-Process
12:00:00 AM
12:00:00 AM
12:00:00 AM
7785780 Revised and supplemented Emergency Motion fer Supersedeas Bond to
incorporate comments from Comerica's counsel.
7785805 Analysis of notice of ac::eotance of Emergency Motion concerning
supersedeas bond.
7783363 Analysis of order from Judge Cohn pursuant to which he entered expedited
hearing and briefing concerning for appellate bond.
Page 12 of
---
o.20
235.00
47.00
0.10
235.00
23.50
---
o.10
===...," .... .. ..
Printed iram RainMaksr Platinum an: Monday, November 07, 2011 11:09:16 AM Page 6 of 8 Wicker, Smith, O'Hara, McCoy & Ford, p.
;'': : ":"'':'!""_ ... ------...... ---- .-..
-'. . E. FLSD Docket 12/05/2011 Page 13 of
,.AffTlent 129-1 n ___ _. -. _
---
_, _.,",. --. -Worked between 01/01/1900 thru 11/07/2011
Descr(otion
Notes
Date Worked Work Status Entry No. Codes
Hours
Rate
Dollars
...r:

. -t'".r
/

Hours
_,__.. . ...,:" .Description
/
/'
/--
.
r
< & Dlmood. P 1 Pem; A Dl,mood Mlomol Rodd Romo . .. . .. '
10/25/2011 Work-In-Process 7833645 Analysis oi order granting appeal bond motion and compelling posting of bond
. -"'<-
0.20
I ; 12:00:00 AM or altematively, to discharge the lis pendens.
235.00
47.00
0.50
!'
,,
i
i
,,
..
12:00:00AM
1200:00 AM
7833647 Drafted Appeal Bond Motion Reply pointing out failure to timely respond,
content of prior order, and requesting that plaintiff immediately be required to
post bond.
PHASE: l210 l210 PLEADINGS
7829596 Analysis of affidavit ffled and rec:Jrded by A DIPIIato in Ocean 4660 chain of
title concerning the fact that she had appealed the order discharging the lis
pendens.
PHASE: L 120 L 120 ANALYSIS/STKATcGY
Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P .A.; Peter A.
Diamond; Michael Rudd; Remo Polselll
Hours
Dollars-
Hours
Total For Dahl, Patrick K.; PKD
Hours
PHASE: l110 L 110 FACT INVESTJGATION/DEVELO
Total For 69417-7: DiPilato, Angela vs. Rudd & Diamond, P .A.; Peter A.
Diamond; Michael Rudd; Remo Polselli
Total For Hainline, Eric T.: ETH
Report Totals
Hours
Hours
Hours
Hours
Dollars
Dollars
Dollars
Dollars
Dollars
Dollars
235.00
117.50
0.10
235.00
23.50
. ....
Pnntad rrom RainMaker Platinum on: Monday, November 07, 2011 11:09:16 AM Page 8 of 8 Wicker, Smith, 0 Hara, McCoy & Ford, P .A..
EXI-IIBIT D
-------- -------- ------- -- ---------- - ------------------ ---- -------- ---------- -------------- -
c:ase 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 1 of 8
mn:TED STATES DISTRICT COURT
CASE NO. 1 0-62492-Civ-Cobn/Selt:ier
Magistrate Judge:
ANGELA individually,
. Plaintiff, .
vs ..
RUDD & DlAJvfO:NTI, P.A., a.Florida .
Corporation, PETER A. DIAMOND, Individually,.
MICHAEL RUDD, IndividuaUy, OCEAN 4660,
LLc.; a Florida limited liabilitY company,.
CO MERICA BANK, a .Michigan Corporation and.
REMO POLSELLI, Individuallly,
Defendants.

MOTION FOR ATTOR1'ffiYS' FEES
Defendant, Ocean 4660, LLC ("Ocean 4660") moves this Court pursuant
48 .. 23(3) of the EioridaStatutes and Rule 7.3(a) of the Local Rilles of the United States
. for the Souiliern District of Florida; for ep.tr)r of an. order awardlng
attorneys fe.es in favor of Ocean 4660 and the plaintiff, Angela DiPilato
("DiPilato") forthe costs associated with obtaining the discharge of a lis pendens filed
)JiPilato as reflected .in the Courts. order dated October 7., 2011. (DE-1.09) and "Oct<;>ber 25,
., .,_ . . ' '
2011 (DE J 19). In si.rpport-thereof, bcean4660 as
- --------
LEGAL AUTHOlUTY .SUPPORTING A WARD OF ATTORNEYS' .FEES
1. to sifuatio.ns frrvolving concerning. the
. .. . . . '
propriety. of lis .filed Florida prope.rty .. Beefy King lnc:
' "''- ."',..,, ' --r __._,,
. . . . . I . , ?----- . ----. ---------" ------ .
&;h,'b/ .0
Case Document 129 Entered on FLSD Docket 12/05/2011 Page 2 of 8
CASE NO. 1 0-62492-Civ-Cohn/Seltzer
v. Veigle, 464 F.2d .1102, 1104 (5th Cir. 1972) (noting that in addressing a to
a lis pendens, courts rely on Florida law, citing Fla.Stat.Arm. 48.23.)
2. A party who obtains discharge of a lls pendens l:>y
. .
operation of 48.23 is entitled to recover its attorneys' fees incurred in obtaining the
see S&T Builders "V. <Globe Properties, Inc;., 944 So.2d 302 (Fla. 2006)
.(holding that. an award of attorney's fees incurred m a pendens is
statutorily authorized under section 48.23(3).)
. . .
3. . In the present action, Ocean 4660 obtained the discharge of an improperly
filed lis pendens through the means and manner.proscribed by 48.23(3). See DE 100
(Motion); DE 107 (Order Granting Motion).
4. According1y, by operation 'of existing precedent, Ocean .4660 is entitled to .
a.TJ award of its atton;1eys' fees incurred in obtaining the discharge oftheZis pendens.
RULE 7.3(a) ELEMENTS
'5. . . This motion has been served .. upon the plaintiffs within 30 days of the .
. . .
. entry of the order giving rito the clai::rt for fees:_ In particular, it was. served
upon plaintiff on November '7, 2011. By it ca."l will be Jiled 6o of
.
6. . The. judgment or other order giving rise io the present motion is the
Court's October 7, which it {DE
.1 07) and tp.e pursuant which the was. sent that .
. . . .. ' . ' .
. :
ihe. LisP (DE 119) ... Attorneys' fee's . .
- . ' . . . ' . . . . . . . .
, ..
' I ' ,. '
.. pursuant io . Florida st.atute and Jir'ecedent, Fla.Stat:Ann: 48:23(3). and
- .. - ----.:. -- ________ .....__ "--. -
Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 45 of 50 ------ --- ----:-------- -----------...----------------:--- -.-----
/ Case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 3 of 8
CASE NO. 1 0-62492-CFv-Cohn/Seltzer
' ..
subsequent decisions from the Florida Supreme Court. S&T Builders -v. Globe
Properiies, Inc., 944 So.2d 302lfla. 2006):
7.. The amount of attorneys' fees. being sougbt in the present motion is
-$4,535.50.
. , .... 8..
Pursuant to the Fee Agreement between Ocean 4660 and its counsel, -
,Ocean 4660 is required to pay attorneys' feesJor the time spent by attorney in
with ihe litigation EJ.t counsel's regular hourly rates. Tne hourly rates associated With this'
action are $325/hr for partners and $235/hr for associates.
9. Partner Jordan Cohen, and Associates Patrick K. Dahl and Eric Gruber
were the exclusive time keepers associated with obtaining the of the Lis
_)
Pendens in this action. Required information concerning Messrs. Cohen, J?ahl and
Gruber is setforth below:
A. Jordan S. Cohen
(1) identity, experience, and quali:fications for eacktimekeeper
for whom fees are sought: Mr. Cohen isa 2001 graduate of the Duke .University Law
School. He 'is admitted to practice in Florida (2002) including the and
Southern of Florida. Upon graduating ciericedfor .. two y'ears
. . . . . . .
. .Court Mark E ... Polen .. Since ;ri;ate
. \ .
. He has spent.his entire involved iri civil litigation,. practicing ,0 South
Florid.a with. Wicker, .. & where his has
. . .
. continued to focus soiely upon civil litigation in state and .federal courts .
. 3
,.r'r
I
///.---Case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 4 of 8
CASE NO. 10-62492.:.Civ-Cohn/Seltzer
(2) the number of hours reasonably expended by each such
timekeeper: Mr. Cohen's total hours in :connection With this action are 0.6 and are
reflected inthe invoices, copies of which are attached hereto as Exhibit A. Said invoices
have been redacted to omit infonnation that would reflect or disclosme the mental
thoughts and of counser. The total nuillber of hours reasonable and
. .
necessary in order to effecttiate the discharge of the Lis Pendens within the necessary
time parameters.
(3) a description of.the tasks done durin-g hours: the
are identified on Exhibit A. .
( 4) the. hourly ra{e(s) claimed for each time keeper: :Mr.
Cohen's hourly rate is $325/hr.
B. Patrick K. Dahl
(1) identity, experience,. and qualifications fcir each timekeeper
foJ whom fees sought: lvfr. Dahl is a 2002 graduate of the University Dame-
Law -School. He.is ad.m,itted topractice in (2092) and Fiorida (2010). He is.
'; adrilltted to before Federal Courts iri the N orthem District Illinois (2602). and
. . . . . . . . . . . .. l
Florida (20 i 1). He has spent. his entire '9 year legal. car e'er involved in civil litigation,
practicing in Chicago With the firms of Bollillger, Ruberry Garvey from.
. . . . '
thiough 20.05 Dahl & Bo:i:u1dies from 2005 throughiOlO .. upon movmg to
,he has.been employed as an associate at.the law fum of Wicker, Smith, O'Hara, McCoy
.. . . . . ' . .. ..
& Ford.' P.A., where his c;ntinued to focus civ1i in ..
' ' . . ' . . . . ' .
and federal c_ourls.
4
Case 0:10-cv-62492-JIC Document 137 Entered on FLSD Docket 02/13/2012 Page 47 of 50 - -- -- -- -. -
case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page .S of 8
-- I

(2) the number of hours reasonably expended by each such
timekeeper: Mr. Dahl's total hours in connection with this action are 18.3. arid are
reflected in the invoices, copies of which are attached hereto as Exhibit A. Said invoices
have been redacted to o:nUt "information that would reflect or disclosure the mental
. . .
thoughts and impressions of counsel. The total number of hours was reasonable :rnd.
necessary in order to effectuate the discharge of the .Lis .Pendens within the necessary
time paraineters.
(3) a description of the tasks done du.rlng those hams: the tasks
are identified on Exhibit A.
(4) the hourly rate(s) claimed for time keeper: Mr. Dahl's
hourly rate is $235/hr.
C. Eric Gruber
(1) identity, experience, arid qualifications for each iimekeeper .
for whom fees are sought: l\.1r. Gruber is a. 2011 graduate of the Uniyersity of Florida
. Law School. He is admitted to practice in Florida (2011); He is employed as an
associate at law. :finn of Wicker, Smith, O'Hara, McCoy & Ford, where his
practice fotuses upon
' . . .. . '
.(2) number. of hours by each such
timekeeper: Mr. Gruqers' total connection with. this are o .4 and are
re'flected upon the 'invoices, of whlch are attached hereto as Exhibit X Said
invoices have been redacted to oinit. information that would rer1ect or disclosUre the .
mentaL thoughts .. and impressions of counsel. The total nmnber. of
5
JP,., . ..-r ----- ------ ---- ---. - --------------------------
,/""'':!C Document 129 Entered FLSD Docket 12/05/2011 Page 6 of 8
.
. ,,-:: .
/
/'
. .
CASE NO. 1 0-62492-Civ-Cobn/Seltzer
and necessfu-y in order to effectuate the discharge of the Lis Pendens within the necessary
time_parameters.
(3) a description of the tasks done during those hours: the tasks
. .
are identified orr Exhibit A,
(4) ihe hourly rate(s) claimed_ for_ each. iime keeper: Mr ..
Gruber's hourly rate. is $100/hr. as he was not admitted to practice at the time he
. .
completed his work (he was anxious awaiting his bar results - he successfully completed
the -bar exam and has subsequently been admitted to practice ill Florida.)
10.. It is not believed-that 28 U.S.C. 1920 applies to the present motion.
11. The present motion has been verified by Hanna Karcho, Ocean4660's
Manager.
12. At the time of the submission ofthls Motion, Ocean 4660 attempted to
comply resolve these issues. A copy of this proposed motion was submitted to DiPilato
on November 7, 2011. That same proposed motion was accompanied by conespondence
. .
to DiPilato ill counsel fo;r 4660 invited. Dp?ilato to c'ontact discuss
\ . . .
associated with the motion. (Ex. -B, November 7., 2011 Correspondence.)
-.The days pra.vided under the applicable. rule has since passed_ a'nd effort. .
has }?een made by: DiPilato i:o discuss or resolve these. issues.
WHEREFORE, Ocean 4660, LLC, requests thls Court enter 'an order: (i)
granting. this mQtion;' ?TI-d (il) awarding it a total of .so, :representing the attorneys'
fees incpi-red in connection obtaining the d}scharge::o:f fue lis pendens in i:he
6
case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket 12/05/2011 Page 7 of 8
CASE NO.
I HEREBY CERTIFY that bn , I. electronically filed the foregoing
-----
docume:nt 'With the Clerk of the Court using CJ\1/ECF. I also certify that the foregoing
document is being served this day on all counsel of record identified on the attached
Service List in the manner specified; either via transmission of Notices of Electronic
Filing generated CM!ECF or in some other authorized manner for those counsel or
parties who are not authorized tci receive Electronic . .
:7
\VICKER, SMITH, O'F .. .ARA., MCCOY &
FORD,P.A.
Attorney for Ocean 4660, LLC .
515 E. Las Olas BoUlevard
SunTrust Center, SUite 1400
P;O. Bo_x 14460
Ft. Lauderdale,'FL 33302
Phone: (954) 847-4800
Fax: (954) 760-9353
. By: /sf-Patrick K. Dahl
Patrick K. Dahl
.
/
'
i
/
//

.. .:" case 0:10-cv-62492-JIC Document 129 Entered on FLSD Docket r-age o u1 o

Peter Diamond, Esq.
Rudd & Diamond, P .A.
4000 Hollywood Blvd., Suite 165-S
_Angela DiPilato
_Angela DiPilato
. 2310 E. Atlantic Boulevard
Suite 206
Pompano Beach,.FL 33062
Service List
..
s
CASE NO. 10-62492-CIV-COHN
Plaintiff,
vs.
Defendants.
_______________________________________/
ORDER GRANTING MOTION TO DISMISS
ORDER GRANTING MOTION FOR EXTENSION OF TIME
THIS CAUSE is before the Court upon Defendants Peter Diamond, Michael Rudd
and Rudd & Diamond, P.A.s (collectively, the Rudd & Diamond Defendants) Motion to
Dismiss Plaintiffs Second Amended Complaint [DE 77], Plaintiffs Response in
Opposition to the Motion [DE 92], and the Rudd & Diamond Defendants Reply [DE 93].
The Court has carefully considered the motion and is otherwise fully advised in the
premises.
I. BACKGROUND
Plaintiff Angela DiPilato (Plaintiff), acting pro se, filed this action for alleged
violations of the Fair Debt Collection Practices Act (FDCPA) against Defendants Rudd
& Diamond, Peter Diamond and Michael Rudd (collectively, the Rudd & Diamond
Defendants), two attorneys and their law firm, related to their attempts to collect a debt
owed by Plaintiff to Defendant Ocean 4660, LLC. All fourteen of the claims in the
2
Second Amended Complaint allege violations of either the FDCPA or the Florida
Consumer Collection Practices Act (FCCPA) [DE 58]. No specific actions of
Defendants Ocean 4660, Remo Polselli, or lender Comerica Bank are alleged in the
Second Amended Complaint, though they are listed as defendants because of their
relationship with the Rudd & Diamond Defendants.
The Rudd & Diamond Defendants move to dismiss the Second Amended
Complaint for failure to state a claim because Plaintiff cannot establish that the alleged
debt the Defendants tried to collect is a debt under the FDCPA, and that the
Defendants are not debt collectors under the Act. Plaintiff opposes the motion.
II. DISCUSSION
A. Legal Standard
Until the Supreme Court decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), courts routinely followed the rule that, a complaint should not be dismissed for
failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no
set of facts in support of his claim which would entitle him to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir.
2001). However, pursuant to Twombly, to survive a motion to dismiss, a complaint must
now contain factual allegations which are enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact). 550 U.S. at 555. While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitle[ment] to relief requires more than labels
3
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Id. Taking the facts as true, a court may grant a motion to dismiss when, on the
basis of a dispositive issue of law, no construction of the factual allegations will support
the cause of action. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d
1171, 1174 (11th Cir. 1993). In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009), the
Supreme Court further stated that a court need not accept legal conclusions as true, but
only well-pleaded factual allegations are entitled to an assumption of truth.
B. Plaintiff has Failed to Establish a Consumer Debt Under the FDCPA.
Section 1692e makes it a violation of the FDCPA for a debt collector [to] use any
false, deceptive, or misleading representation or means in connection with the collection
of a debt. 15 U.S.C. 1692e. To recover under the FDCPA, a plaintiff must make a
threshold showing that the money being collected qualifies as a debt. Oppenheim v.
I.C. Sys., Inc., 627 F.3d 833, 838-39 (11th Cir. 2010). In their Motion to Dismiss, the
Rudd & Diamond Defendants argue they are entitled to judgment as a matter of law on
Plaintiffs FDCPA claim because Plaintiff cannot establish that the alleged debt is a
debt as that term is defined under 15 U.S.C. 1692a. The FDCPA defines debt as
any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the subject of
the transaction are primarily for personal, family, or household purposes. 15 U.S.C.
1692a(5).
According to the state court documents Plaintiff attached to the Second Amended
Complaint, Plaintiff operated a restaurant and lounge on the premises owned by
The Court may consider documents referred to by a plaintiff in a complaint
1
which are central to the plaintiffs claim and undisputed as to authenticity for purposes
of a motion to dismiss without conversion of the motion to dismiss into a motion for
summary judgment. SFM Holdings, Ltd. v. Banc of America Securities, LLC, 600 F.3d
1334, 1337 (11 Cir. 2010); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337,
th
1340, n.3 (11 Cir. 2005).
th
4
Ocean 4660. See 3.A, Answer and Affirmative Defenses of Defendant Angela
DiPilato, Exhibit C to Second Amended Complaint [DE 58 at p. 57-58] (hereinafter,
State Court Answer). On November 5, 2010, the Rudd & Diamond Defendants filed a
1
state court eviction action against Plaintiff, alleging a back rent balance of $96,000,
based upon 12 months of $8,000 per month. Exhibit B to Second Amended Complaint.
In opposition to the present motion, Plaintiff contends that she operated the restaurant
under some kind of oral management agreement, rather than pursuant to a commercial
lease, and therefore the management fees she owed were for Plaintiffs personal
purposes. See Response in Opposition at p. 5 [DE 92]. However, the documents
Plaintiff filed in state court that she attached to her Second Amended Complaint in this
action clearly indicate that the premises at issue was being used by Plaintiff for the
business purpose of operating a restaurant and lounge business, and that Plaintiff
actually conducted business on the subject premises. See 3.A, 3.C, and 3.F of State
Court Answer.
The legal question here is not whether a commercial lease or management
agreement existed rather, it is clear that Plaintiff was operating a business when
incurring the debt. Therefore, no construction of these factual allegations will support an
FDCPA claim, because the debt involved in this action does not arise out of a
transaction in which the property that is the subject of the transaction was primarily for
In Oppenheim, the United States Court of Appeals for the Eleventh Circuit
2
concluded that because the plaintiff in that action was selling his personal computer for
funds transferred to his personal bank account, he was not running a business. 627
F.3d at 839.
5
personal, family, or household purposes. Transactions which enable the consumer to
earn money through a job or business do not qualify as a debt under the FDCPA.
2
III. CONCLUSION
The Court therefore concludes that the Rudd & Diamond Defendants Motion to
Dismiss should be granted. The Court need not reach the issue of whether these
Defendants were acting as debt collectors under the FDCPA.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants Peter Diamond, Michael Rudd and Rudd & Diamond, P.A.s Motion
to Dismiss Plaintiffs Second Amended Complaint [DE 77] is hereby GRANTED;
2. Defendants Peter Diamond, Michael Rudd and Rudd & Diamond, P.A. are hereby
DISMISSED from this action;
3. Plaintiffs Motion to Extend Time to File a Response to Coamerica Banks Motion
for Judgment on the Pleadings [DE 112] is hereby GRANTED. Plaintiffs
response to Defendant Comerica Banks Motion for Judgment on the Pleadings is
now due on November 10, 2011.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 18 day of October, 2011.
th
Angela DiPilato, pro se (via CM/ECF regular mail)

Angela DiPilato

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