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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 9:20-cv-81175-AHS

STEVEN UNGER,

Plaintiff, 

v.

MAJORCA AT VIA VERDE 

HOMEOWNERS ASSOCIATION, INC.,

Defendants. 

__________________________________/ 

DEFENDANT MAJORCA AT VIA VERDE HOMEOWNERS’ 

ASSOCIATION, INC.’S MOTION TO DISMISS THE COMPLAINT AND 

INCORPORATED MEMORANDUM OF LAW

Comes Now, Defendant MAJORCA AT VIA VERDE HOMEOWNERS’ 

ASSOCIATION, INC. (“Majorca” or “Association”), by and through its undersigned counsel, and 

pursuant to Fed. R. Civ. P. 12(b)(6), hereby moves this Honorable Court for entry of an Order 

granting dismissal with prejudice in its favor as to Plaintiff’s, STEVEN UNGER, Complaint [DE 

1], together with the incorporated Memorandum of Law, and in support thereof, states as follows:

BACKGROUND

This is an action arising out of allegations of failure to reasonable accommodate a disability 

pursuant to the Fair Housing Act (“FHA”). Plaintiff alleges that he suffers from a physical 

disability which inhibits him from attending Association meetings in person. Compl. ¶10, 13. 

Plaintiff alleges he requested, among other things, recordings and transcripts of the monthly board 

meetings. Id. at ¶21. Initially, the timing of the Plaintiff’s complaint cannot be overlooked. In 

light of the COVID-19 global pandemic, the Association has conducted all board meetings via 

Zoom since March 2020, thus enabling Plaintiff an opportunity to attend Board meetings from the 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

comfort of his home. Id. at ¶27. Nevertheless, Plaintiff admits the Association’s property manager 

offered him the option of “designat[ing] a set representative by power of attorney to attend 

the meetings for you and then that person may record or take notes as necessary of the Board 

meeting” since the Board does not record its meetings. Id. at ¶22 (emphasis added). Despite the 

clear interactive discussions and efforts to satisfy Plaintiff’s request, Plaintiff claims he was 

somehow denied a reasonable accommodation and brings the instant suit. Id. Additionally, even 

though Plaintiff acknowledges the property manager advised him meeting minutes would be 

placed on the developing community website for all members upon approval at the next board 

meeting, Plaintiff claims this too is somehow a violation of the FHA since the minutes are not 

instantaneously available to him. Id. at ¶23 (alleging access is available “only a month after the 

meeting subsequent to approval at the next board meeting.”). Plaintiff’s claims are wholly 

contradicted by the allegations and exhibits he attached to his pleading and insufficient to create a 

justiciable controversy regarding statutory violations of the Fair Housing Act. Accordingly, 

dismissal of the Complaint is appropriate, as Plaintiff fails to state a cause of action. 

MEMORANDUM OF LAW

A. Legal Standard 

In deciding a motion to dismiss, the Court assumes that all of the allegations in the 

complaint are true, and construes all of the facts in favor of the plaintiff. Scott v. Taylor, 405 F.3d 

1251, 1253 (11th Cir. 2005). That said, a complaint must provide more than "labels and 

conclusions" or a "formulaic recitation of the elements of a cause of action" to survive a motion to 

dismiss. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). A complaint must state a 

plausible claim for relief, and "[a] claim has facial plausibility when the plaintiff pleads factual 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 

“A motion to dismiss for failure to state a claim [generally] tests the sufficiency of the 

complaint.” Hazel v. Schl. Bd. of Dade County, 7 F. Supp. 2d 1349 (S.D. Fla. 1998). A motion to 

dismiss for failure to state a claim will be granted when “‘it appears beyond doubt that the plaintiff 

can prove no set of facts in support of his claim which would entitle him to relief.’” Hazel, 7 F. 

Supp. 2d at 1352 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Mallo v. Public Health 

Trust of Dade Cty, 88 F. Supp. 2d 1376 (S.D. Fla. 2000). It is of great importance that a complaint 

alleges facts properly setting forth the essential elements of a cause of action. Hazel, 734 F. Supp. 

2d at 1352. Federal Rule 12(b)(6) provides that dismissal of a complaint is appropriate “if it is 

clear that no relief could be granted under any set of facts that could be proved consistent with the 

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 

Additionally, “a copy of a written instrument that is an exhibit to a pleading is a part of the 

pleading for all purposes.” Fed. R. Civ. P. 10(c). “If an exhibit facially negates the cause of action 

asserted, the document attached as an exhibit controls and must be considered in determining a 

motion to dismiss.” Fladell v. Palm Beach Cty., 772 So. 2d 1240, 1242 (Fla. 2000)(citation 

omitted); see also Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736, 737 (Fla. 3d DCA 

1971)(finding that an exhibit has the “effect of neutralizing each allegation and rendering the 

pleading objectionable” where there are inconsistencies between the general allegations in a 

complaint and the specific facts revealed by the exhibit). Here, in examining the exhibits attached 

to the Plaintiff’s Complaint, the claims are “neutralized” by inconsistencies between the general 

allegations in the Complaint and the specific facts of the exhibit. Moreover, a document outside 

the four corners of the complaint may still be considered if it is central to the Plaintiff’s claims and 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

is undisputed in terms of authenticity. See e.g., Maxcess, Inc. v. Lucent Technologies, Inc., 433 

F.3d 1337, 1340 (11th Cir. 2005); Day v. Taylor, 400 F. 3d 1272 (11th Cir. 2005). 

B. Plaintiff’s Claim for Failure to Reasonably Accommodate Fails To State A 

Claim Upon Which Relief Can Be Granted. 

Plaintiff has failed to allege any actions by the Defendant Association that would constitute 

a violation of the federal Fair Housing Act (42 U.S.C. §3601, et seq.). Specifically, 42 U.S.C. 

§3604(f)(3)(B) states: 

 For purposes of this subsection, discrimination includes- 

 ... 

(B) a refusal to make reasonable accommodations in rules, policies, practices, 

or services, when such accommodations may be necessary to afford such 

person equal opportunity to use and enjoy a dwelling; 

See 42 U.S.C. §3604(f)(3)(B) (emphasis added). To state a reasonable accommodation claim

under the Fair Housing Act, a plaintiff must plead four elements: (1) he is disabled within the 

meaning of the FHA; (2) he requested a reasonable accommodation, (3) the requested 

accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling, 

and (4) the defendant refused to make the requested accommodation. Schaw v. Habitat for 

Humanity of Citrus County, Inc., 938 F.3d 1259 (11th Cir. 2019).1 

1. Plaintiff Has Failed to Sufficiently Set Forth A Prima Facie Case For 

Failure to Reasonably Accommodate. 

The FHA prohibits discriminating against a person on the basis of a “handicap,” or a 

disability, by refusing to make reasonable accommodations when necessary to afford the person 

equal opportunity to use and enjoy a dwelling. Bhogaita v. Altamonte Heights Condo. Ass’n, 765 

F.3d 1277 (11th Cir. 2014). The FHA defines “handicap” as “(1) a physical and mental impairment 

 

1 The Complaint identifies and attaches correspondences requesting an accommodation. See Exhibit A. 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

which substantially limits one or more of such person’s major life activities, (2) a record of having 

such impairment, or (3) being regarded as having such an impairment. . .” 42 U.S.C. § 3602(h). 

Case law indicates that Courts should consider major life activities to include ‘functions such as 

caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, 

learning and working.’ Peklun v. Tierra Del Mar Condominium Association, Inc., 2015 WL 

8029840 (S. D. Fla. 2015); Hillburn v. Murata Electronics of N. America, Inc., 181 F.3d 1220, 

1226-27 (11th Cir. 1999). 

Plaintiff conclusively alleges that he is handicapped and limited in his ability to walk, 

concluding that he cannot attend meetings himself. Compl. ¶¶10, 13. These are precisely the type 

of deficient and generic allegations that fall below the applicable pleading requirements. See 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.”). Importantly, the Complaint is 

entirely devoid of allegations as to how or why Plaintiff’s disability interferes with his ability to 

attend Board meetings. For example, there are no allegations that the place where the Association 

Board meetings are held are not handicap or wheelchair accessible. Accordingly, Plaintiff’s 

Complaint fails to allege sufficient facts to survive a motion to dismiss. 

2. Plaintiff Cannot Establish that an Accommodation was Necessary to 

Afford Plaintiff an Equal Opportunity to Use and Enjoy his Dwelling.

 The Complaint also fails to allege sufficient facts as to how Plaintiff’s requested 

accommodation is “necessary to afford [Plaintiff] equal opportunity to use and enjoy” the relevant 

dwelling. In fact, Plaintiff fails to allege how any other (non-disabled) owner is in a different 

position or is treated differently. A disabled person must show the relationship between the 

person’s disability and the need for the requested accommodation. Sabal Palm Condominiums of 

Pine Island Ridge Ass’n, Inc. v. Fischer, 6 F. Supp. 3d 1272, 1289 (S.D. Fla. 2014). 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

Here, there are no allegations that other (non-disabled) owners receive meeting minutes 

before they are approved, no allegations that Plaintiff would have any ability to vote on or change 

the meeting minutes, no allegations that he was not afforded any equal opportunities that other 

owners have, nor how or why being unable to attend board meetings would have violated his ability 

to use and enjoy his dwelling. Instead, Plaintiff requested that Defendant provide him access to 

unapproved and draft meeting minutes as an accommodation because he is allegedly unable to 

attend the next Board meeting when those meeting minutes would be introduced. Immediate 

access to unapproved meeting minutes is not alleged to be afforded to any other owner, nor is it 

possible based upon the Board’s reasonable practices relating to how they approve and finalize 

their meeting minutes. Rather, the Plaintiff confirms he would have access to the minutes at the 

same time and in the same manner as every other owner – as such minutes would be posted online 

once approved by the Board. See generally Compl. ¶¶22, 23. 

Plaintiff’s requested accommodation to be immediately provided unapproved and/or draft 

meeting minutes is not proper nor necessary for the use and/or enjoyment of his dwelling. Plaintiff 

has wholly failed to plead how he is being treated unequally compared to any other resident instead 

attempting to place himself in a better position than other owners. “The [Fair Housing] Act only 

ensures that the handicapped person is provided an equal opportunity to use and enjoy a dwelling, 

not a better opportunity than members of the surrounding community.” See Schaw, supra. As such, 

Plaintiff’s requested accommodation to be provided meeting minutes immediately after a Board 

meeting would undoubtedly fundamentally alter the nature of the Association’s operations and 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

provide Plaintiff a better opportunity than other members of the community which is not what the 

Fair Housing Act requires of a housing provider.2 

Further, “to show that a requested accommodation may be necessary, there must be an 

identifiable relationship, or nexus, between the requested accommodation and the individual's 

disability.” Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 6 F. Supp. 3d 

1272, 1289 (S.D. Fla. 2014). Here, there is no nexus alleged between Plaintiff’s disability and 

early/immediate access to the Board’s draft meeting minutes. Plaintiff instead alleges that “online 

access to the minutes of the HOA meetings is important to [Plaintiff]...” and “online access to 

minutes of the HOA meeting has been made available to residents, but only a month after the 

meeting subsequent to approval at the next board meeting”. Compl. ¶¶14, 23 (emphasis added). 

No such nexus exists between the requested accommodation and the Plaintiff’s disability and no 

allegation indicates how or why the same would be necessary or related. As such, Plaintiff has 

failed to state a cause of action for failure to reasonably accommodate. 

3. Plaintiff’s Allegation that Defendant Refused to Make an 

Accommodation is Wholly Contradicted by the Allegations and 

Exhibits Attached to the Complaint. 

Plaintiff claims that he requested a recording or transcript of the Board meeting, which 

accommodation was rejected by the Association in favor of other options. Compl. ¶13. Notably, 

the law entitles a disabled person only to an accommodation that is reasonable and necessary, not 

to an accommodation of his/her choosing. Weiss v. 2100 Condo. Ass’n, 941 F. Supp. 2d 1337, 

1344 (S.D. Fla. 2013). Here, a review of the Complaint and its Exhibits reveal that Defendant 

never denied Plaintiff’s request for an accommodation. To the contrary, the March 27, 2020 

 

2 Additionally, even assuming arguendo Plaintiff was somehow entitled to this very specific accommodation, which 

he is not, the meeting minutes would be in draft form and subject to change providing either incomplete or inaccurate, 

non-final information.

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

correspondence confirms that the Association granted Plaintiff a reasonable accommodation to 

fully address his inability to personally attend Board meetings. Not only did the Association invite 

Plaintiff to attend board meetings via Zoom along with the rest of the world following the COVID19 outbreak, but the Association further offered Plaintiff the ability to designate any third party to 

record the meetings or attend in his place. See Exhibit B; See also, Exhibit D. 3

Thus, Plaintiff’s allegations of the Association failing to accommodate his disability is 

flatly contradicted by the very exhibits he attaches to the Complaint. Notably, where an exhibit 

facially negates a cause of action, the document attached as an exhibit controls. Fladell v. Palm 

Beach Cty., 772 So. 2d 1240, 1242 (Fla. 2000)(citation omitted). To be sure, Plaintiff does not 

allege that the Association prevented him from designating a third person, prevented that person 

from recording, or otherwise did anything contrary to the proffered reasonable accommodation. 

Nor does Plaintiff provide any facts to support an inference that the proposed accommodation was 

somehow insufficient to address Plaintiff’s concerns in affording him an equal opportunity as his 

non-disabled peers. As such, the exhibits contradict Plaintiff’s claims that the Association refused 

to reasonably accommodate him and therefore, Plaintiff’s Complaint must be dismissed.

4. Plaintiff’s Claim for Failure to Reasonably Accommodate is Moot. 

The United States Constitution limits the jurisdiction of federal courts to the consideration 

of ‘cases and controversies.’ U.S. Const. Art. III § 3. The doctrine of mootness derives from the 

case-or-controversy limitation because an action that is moot cannot be characterized as an active 

case or controversy. Troiano v. Supervisor of Elections, 382 F.3d 1276 (11th Cir. 2004). The Fair 

 

3 Defendant Association also notes that there are no allegations that the Association prevented Plaintiff’s wife, who 

does not suffer from a disability, from attending board meetings, recording board meetings, or otherwise accessing 

meeting minutes in the same way as other owners. Instead, Exhibit D specifically addresses that Plaintiff’s wife will 

similarly be able to attend (as she always has had the ability to do) including granting her the ability to tape or video 

record the meetings for Plaintiff’s personal use when in person meetings resume. See Plaintiff’s Exhibit D. As such, 

Plaintiff’s claim is entirely moot and should be dismissed.

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

Housing Act does not demand that housing providers immediately grant all requests for 

accommodation. Schwarz, 544 F.3rd at 1219. However, Plaintiff asserts a claim for failure to 

reasonably accommodate on the factually incongruous grounds that Defendant has refused to grant 

his request for reasonable accommodation to be provided with meeting minutes or a recording of 

the meetings because he allegedly cannot physically attend Association meetings. Compl. ¶40. 

Although it may not be precisely the “accommodation” he requested, Plaintiff acknowledges that 

he has access to the meeting minutes online after they are approved. Compl. ¶23. A case is moot 

when the issues presented are no longer “live” or the parties lack a legally cognizable interest in 

the outcome. Troiano, supra. Here, Defendant provided Plaintiff with a reasonable 

accommodation - that he could designate any individual to record meetings that he could not attend 

in person and that all other relevant materials requested would be placed on the community website

for his use and enjoyment. Compl. ¶22. Based on the allegations of the Complaint, it is clear that 

Plaintiff’s claim is entirely rendered moot.

Furthermore, as alleged in the Complaint, since the beginning of COVID-19, Plaintiff had 

(and still has) access to Board meetings including the ability to attend virtually pursuant to Zoom 

technology along with every other Association member. Nevertheless, because Plaintiff 

experienced technology delays in that he was “kept in the waiting room” at one of the recent board 

meetings, he believes the same serves as sufficient basis to file the instant federal lawsuit. 

Curiously absent from his Complaint is any allegation that Plaintiff informed the Association of 

his inability to enter any Zoom meeting, that he ever complained regarding this inability to enter 

any Zoom meeting, or that he was otherwise denied the ability to attend via Zoom, let alone an 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

allegation that no other Board member had a similar experience with the technology.4 Instead, 

Plaintiff concludes that because he was allegedly unable to enter the meeting, such conduct must 

have been intentionally (or with reckless disregard) done by the Association to prevent his 

attendance which, he concludes, must have something to do with his disability. Id. at ¶32. Such 

threadbare allegations do not support a cause of action for failure to reasonably accommodate and

Plaintiff’s claim must be dismissed. 

Of course, due to the fact that all board meetings are being held virtually, Plaintiff’s claim 

is rendered moot as there are no in-person board meetings occurring. Further, there is no fear of 

any issue in the future because, as addressed by Defendant in response to Plaintiff’s requested 

accommodation, a reasonable accommodation allowing a designated third person (or Plaintiff’s 

wife) to record the meetings was indicated to address his concerns relating to in-person attendance. 

Plaintiff’s claim summarily fails.

CONCLUSION

In light of the arguments above, Defendant respectfully requests this Court dismiss the 

Complaint with prejudice in its entirety. Here, it is clear on the face of the Complaint, and the 

exhibits attached thereto, that the Association at all times acted within the purview of the Fair 

Housing Act and engaged in an interactive process designed to address Plaintiff’s requested 

accommodation. This Complaint is a disguised effort to merely circumvent compliance with the 

Association’s proffered reasonable accommodations due to Plaintiff’s personal preference. 

Therefore, it is clear that Plaintiff’s Complaint fails to state a claim upon which relief can be 

 

4 In fact, as expressly indicated in Exhibit D to the Complaint, “[a]ll owners received timely notice, as well as 

instructions, on how to ‘attend’ and take part in these virtual meetings. Specifically [Plaintiff and his wife] received 

email notices to the email address they previously registered with the Association.” See Plaintiff’s Exhibit D. Plaintiff 

does not contradict this assertion in his allegations. It is clear that Plaintiff (and his wife) had an equal opportunity to 

attend the meetings, just like every other owner, and that any purported disability limiting Plaintiff’s ability to walk is 

entirely irrelevant and mooted. 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

granted. There simply is no case or controversy at issue here. Plaintiff concedes that he has access 

to meeting minutes online (just not immediately after the meeting- which no resident has an 

opportunity to do), has been provided the same opportunities to attend Board meetings via Zoom 

technology as every other owner, and has been granted the ability to designate any other individual 

to attend and record meetings for his viewing pleasure to accommodate his alleged inability to 

attend in person (which is not the typical practice of the Association). 

WHEREFORE, Defendant MAJORCA AT VIA VERDE HOMEOWNERS’ 

ASSOCIATION, INC., respectfully requests that this Honorable Court enter an Order dismissing 

Plaintiff’s, STEVEN UNGER, Complaint with prejudice for failure to state a cause of action upon 

which relief can be granted, and take such further action as it deems just and proper. 

Dated: September 8, 2020.

Respectfully Submitted,

COLE, SCOTT & KISSANE, P.A.

Counsel for Defendant Majorca HOA 

Esperante Building 

222 Lakeview Avenue, Suite 120 

West Palm Beach, Florida 33401 

Telephone (561) 383-9228 

Facsimile (561) 683-8977 

Primary e-mail: rachel.beige@csklegal.com

Secondary e-mail: justin.edell@csklegal.com

By: /s/ Justin D. Edell .

 RACHEL K. BEIGE

 FBN: 0016366 

JUSTIN D. EDELL

 FBN: 105105 

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COLE, SCOTT & KISSANE, P.A. ESPERANTE BUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA 33401 (561) 383-9200 - (561) 683-8977 FAX 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of September, 2020, a true and correct copy of 

the foregoing has been furnished by electronic filing with the Clerk of the Court via CM/ECF, 

which will send notice of electronic filing to all counsel of record.

By: /s/ Justin D. Edell

RACHEL K. BEIGE

Florida Bar No.: 0016366 

JUSTIN D. EDELL

Florida Bar No.: 105105

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