DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ORNA MAMMON,

Appellant,

v.

SCI FUNERAL SERVICES OF FLORIDA INC., a Florida corporation

d/b/a MENORAH GARDENS AND FUNERAL CHAPELS, and

SERVICE CORPORATION INTERNATIONAL, INC.,

a Texas corporation,

Appellees.

No. 4D15-1788

[May 25, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE 14-

005841 (25).

Steven H. Osber and Emily A. Thomas of Kelley Kronenberg, P.A., Fort 

Lauderdale, for appellant.

Ted C. Craig and Anastasia Protopapadakis of GrayRobinson, P.A., 

Miami, for appellees.

GERBER, J.

The plaintiff widow appeals from the circuit court’s final order 

dismissing her complaint against the defendant cemetery companies due 

to lack of subject matter jurisdiction. The widow alleged that the 

defendants violated both the Florida Funeral, Cemetery, and Consumer 

Services Act and the Florida Deceptive and Unfair Trade Practices Act by 

mispresenting to her that they would bury her husband in accordance 

with “Jewish burial customs and traditions.” The defendants moved to 

dismiss the complaint with prejudice for lack of subject matter jurisdiction 

because the parties disputed what constituted “Jewish burial customs and 

traditions,” and if the court was to determine what constituted “Jewish 

burial customs and traditions,” then the court would violate the 

ecclesiastical abstention doctrine. The circuit court granted the motion to 

dismiss on that ground. We agree with the dismissal. Thus, we affirm. 
2

We present this opinion in five parts:

1. the widow’s complaint;

2. the defendants’ motion to dismiss for lack of subject matter 

jurisdiction;

3. the parties’ arguments on appeal;

4. our examination of the ecclesiastical abstention doctrine; and

5. our application of the ecclesiastical abstention doctrine to this case.

1. The Widow’s Complaint

The widow’s complaint alleged, in pertinent part, as follows.

Her husband had been battling terminal cancer. His medical providers 

advised her to prepare for his funeral and burial. Both she and her 

husband were devout Jews. Accordingly, she and her husband desired to 

be buried in accordance with “Jewish burial customs and traditions.”

She considered entrusting her husband’s burial to the defendants 

because they represented to the public that they provide cemetery services 

in accordance with “Jewish burial customs and traditions.” For example, 

the defendants’ website contained the following representation:

As one of the Dignity Memorial network’s Jewish providers, we 

are honored to serve Jewish families by providing funeral or 

cemetery services in accordance with Jewish custom. We 

understand the needs of today’s Jewish families because we 

share their history and experiences and their values. . . . 

Jewish funeral tradition pays tribute to . . . the principle of 

Kavod Ha-Met, or Honoring the Dead, which teaches that it is 

of utmost importance to treat the body with respect and care 

from the time of death until the burial is complete . . . . Serving 

you in accordance with the traditions of your Jewish faith is an 

honor for us. With knowledge of Orthodox, Conservative, and 

Reform Judaism, our Dignity Memorial providers are 

experienced in providing the Jewish funeral services and 

customs that are important to you and your family.

(emphasis added; brackets omitted).

The widow met with the defendants’ representative at one of its 

cemeteries known as “Menorah Gardens.” The widow expressed her desire 

that she wanted her husband to be buried in accordance with “Jewish 

burial customs and traditions.” 
3

The defendants’ representative confirmed that the defendants 

understood “Jewish burial customs and traditions,” and assured the 

widow that her husband would be buried in accordance with “Jewish 

burial customs and traditions.”

The widow also observed physical characteristics of the cemetery’s 

grounds which, when viewed in conjunction with the defendants’ 

advertisements and their representative’s oral statements, further 

enhanced the widow’s expectation that the defendants would provide 

cemetery services in accordance with “Jewish burial customs and 

traditions.” These physical characteristics included:

• a large Israeli flag flying high above the cemetery’s only point of 

ingress and egress;

• the cemetery’s sections are named after historic Jewish 

prophets, kings, matriarchs, and leaders; and

• the cemetery’s grounds contain large stone monuments of 

menorahs, the Star of David, and other Jewish symbols.

The widow, placing her trust and confidence in the defendants’ 

advertisements and their representative’s oral statements, purchased 

burial plots at Menorah Gardens for her husband and herself.

A few days later, her husband died. The day after his death, he was 

buried in the purchased plot at Menorah Gardens.

One month after the burial, the widow visited her husband’s grave. The 

widow observed that the defendants allowed non-Jews to be buried within 

the same section as their burial plots. In particular, a pastor of a different 

religious faith was buried only yards away from their burial plots.

According to the widow, burying non-Jews in the same section as Jews

violated “Jewish burial customs and traditions.”

Based on the foregoing, the widow filed a complaint against the 

defendants, alleging four counts:

(I) fraudulent, deceptive, and misleading sales practices in 

violation of the Florida Funeral, Cemetery, and 

Consumer Services Act, section 497.152(9)(e)-(f),

Florida Statutes (2013) (the “Cemetery Services Act”);
4

(II) fraudulent, deceptive, and misleading advertising in 

violation of the Cemetery Services Act’s related Florida 

Administrative Code Rule 69K-29.001 (2013);

(III) a per se violation of the Florida Deceptive and Unfair 

Trade Practices Act, section 501.201, et seq., Florida 

Statutes (2013) (“FDUTPA”); and 

(IV) intentional or reckless infliction of emotional distress. 

Specifically, the widow alleged that the defendants’ actions violated

“Jewish burial customs and traditions” for the following reason:

According to Jewish customs, it is a well-established tenet of 

burial customs to be buried on consecrated or sanctified 

grounds. Customarily, the burial ground is consecrated with 

a special ceremony and is to be utilized for the exclusive use 

as a Jewish cemetery. It is to be separated from 

unconsecrated ground using a wall, fence, or a solid hedge, 

using a separate entrance. According to Jewish customs, 

every Jew is entitled to be buried in a Jewish cemetery, a 

fundamental right of Jewish burial practices. In short, 

Defendants knowingly desecrated [the husband’s] burial 

ground by [their] actions . . . .

2. The Defendants’ Motion to Dismiss for

 Lack of Subject Matter Jurisdiction

The defendants answered the complaint, and filed a separate motion to 

dismiss for lack of subject matter jurisdiction. In their motion to dismiss, 

the defendants argued that resolution of the widow’s claims “would require 

[the] Court to weigh, interpret, and enforce purported tenets of the Jewish 

religion in violation of the First Amendment” and “this First Amendment 

prohibition operates to divest a court of subject matter jurisdiction.”

The defendants filed two pieces of evidence in support of their motion 

to dismiss for lack of subject matter jurisdiction. See Steiner Transocean 

Ltd. v. Efremova, 109 So. 3d 871, 873 (Fla. 3d DCA 2013) (although as a 

general rule, when considering a motion to dismiss, a court is limited to 

the four corners of the complaint and any attachments, “a court is 

permitted to consider evidence outside the four corners of the complaint 

where the motion to dismiss challenges subject matter jurisdiction”) 

(footnotes with citations omitted).
5

First, the defendants relied upon the following excerpts from their 

deposition of the widow:

Q. Tell me what the effect of the pastor being buried at 

Menorah Gardens is on your husband.

A. . . . [I]t’s not in accordance with the Jewish law. This is a 

Jewish cemetery. 

Q. What Jewish law?

A. That no non-Jewish person should be buried in Menorah 

Gardens. 

Q. Where does that law come from? 

A. Our Jewish religion. I don’t know one Jewish cemetery in 

Israel that has . . . non-Jewish people. A Jewish cemetery 

is a Jewish cemetery. A Catholic cemetery is a Catholic 

cemetery. A pet cemetery is a pet cemetery. 

. . . .

Q. Okay. Why is it offensive to you to have non-Jewish 

people buried next to your husband? 

A. Because I follow my Jewish faith correctly. . . . 

. . . .

Q. You keep referring to this Jewish law regarding burials. 

What is the law? Where does it come from? 

A. It comes from the law when Moses walked down with the 

Ten Commandments. We follow the Jewish law. The laws 

of Abraham. We follow the Old Testament.

. . . .

Q. Is it your belief that the Old Testament states that a nonJewish person may not be buried near a Jewish person? 

A. I can’t answer that. I am not so knowledgeable. You 

should ask the rabbi. . . . [B]ut I follow the Old Testament. 
6

Q. But you’re not sure what the Old Testament says, correct? 

A. Well, I know a lot about the Old Testament, but I can’t tell 

you specifics. . . . I’m not a rabbi. . . .

(emphasis added).

Second, the defendants relied upon two papers demonstrating that, 

within the Jewish rabbinical community, a theological debate exists 

regarding whether Jews and non-Jews may be buried in the same 

cemetery. One paper, entitled, “Burial of a Non Jewish Spouse and 

Children,” discusses conflicting rabbinical interpretations concerning 

whether Jews and non-Jews may be buried in the same cemetery, and 

specifically, whether a non-Jewish spouse or children of an interfaith 

marriage may be buried in a Jewish cemetery. The other paper, entitled 

“Peaceful Paths: Burial of Non-Jews in a Jewish Cemetery Following a 

Common Disaster,” acknowledges “the traditional ban on burial together 

of Jews and non-Jews,” but recognizes “special circumstances in which

such burial may be permitted.” 

At the hearing on the defendants’ motion to dismiss, the widow’s 

counsel argued:

Although this [case] involves religious principles, Your 

Honor, it’s a straightforward tort. It’s a fraudulent 

misrepresentation, and that’s how this court needs to view 

this case; the promise that [her husband] would be buried not 

only in accordance with Jewish customs, but in compliance 

with Orthodox practices and that the Menorah Gardens did 

not live up to that by engaging in the practice of burying the 

pastor in the same section that [her husband] was buried. 

. . . You’re going to have experts that are going to give 

opinions about Jewish law. The defense will have theirs. The 

plaintiffs will have theirs just like any other that involves 

expert testimony, whether it’s medical malpractice, whether 

it’s accounting practices, construction practices. It’s a 

determination based on the experts.

After the hearing, the circuit court entered a final order granting with 

prejudice the defendants’ motion to dismiss. The court reasoned:
7

The Complaint and Plaintiff’s deposition are based upon an 

interpretation of alleged faith based burial requirements and 

whether the Defendant[s] failed to comport with Jewish burial 

customs and traditions.

3. The Parties’ Arguments on Appeal

This appeal followed. Our review is de novo. See Bogdanoff v. Broken 

Sound Club, Inc., 154 So. 3d 410, 411 (Fla. 4th DCA 2014) (an appellate 

court reviews de novo a motion to dismiss challenging subject matter 

jurisdiction).

The widow primarily argues the circuit court erred in finding that the 

disposition of her complaint would require “an interpretation of alleged 

faith based burial requirements and whether the [defendants] failed to 

comport with Jewish burial customs and traditions.” The widow does not 

dispute there is a theological debate concerning whether Jews and nonJews may be buried in the same cemetery. However, according to the 

widow, the question before the circuit court was simply whether the 

defendants’ representations were fraudulent, deceptive and/or 

misleading.

The defendants respond that to answer the widow’s question as framed, 

however, the circuit court preliminarily would have to determine whether 

the defendants violated “Jewish burial customs and traditions.” According 

to the defendants, because of the recognized theological debate on that 

preliminary issue, the ecclesiastical abstention doctrine prohibits any 

court determination of that issue.

4. The Ecclesiastical Abstention Doctrine

The ecclesiastical abstention doctrine is rooted in the First Amendment 

to the United States Constitution. See U.S. Const. amend. I (“Congress 

shall make no law respecting an establishment of religion, or prohibiting 

the free exercise thereof . . . .”). The Florida Supreme Court has described 

the ecclesiastical abstention doctrine as follows:

[T]he First Amendment prevents courts from resolving 

internal church disputes that would require adjudication of 

questions of religious doctrine. For example, the [United 

States] Supreme Court has stated that “it is not within ‘the 

judicial function and judicial competence’” of civil courts to 

determine which of two competing interpretations of scripture 

are correct. United States v. Lee, 455 U.S. 252, 256 . . . (1982). 
8

Instead, civil courts must defer to the interpretations of 

religious doctrine made by the “highest ecclesiastical 

tribunal.” Serbian E. Orthodox Diocese [for U.S.A. & Canada

v. Milivojevich], 426 U.S. [696,] 709 . . . [(1976)]. Thus, the 

First Amendment provides churches with the “power to decide 

for themselves, free from state interference, matters of church 

government as well as those of faith and doctrine.” Kedroff [v. 

St. Nicholas Cathedral of Russian Orthodox Church in N. Am.],

344 U.S. [94,] 116 . . . [(1952)].

Malicki v. Doe, 814 So. 2d 347, 355-56 (Fla. 2002) (footnote and other 

internal citations omitted).

However, the Florida Supreme Court recognized that a First 

Amendment violation does not occur any time a case requires a court to 

examine church law or policies:

A court thus must determine whether the dispute is an 

ecclesiastical one about “discipline, faith, internal 

organization, or ecclesiastical rule, custom or law,” or whether 

it is a case in which [it] should hold religious organizations 

liable in civil courts for purely secular disputes between third 

parties and a particular defendant, albeit a religiously 

affiliated organization.

Id. at 357 (citations and other internal quotation marks omitted). See also 

Favalora v. Sidaway, 995 So. 2d 1133, 1135 (Fla. 4th DCA 2008)

(“Although courts are required to accept a religious body’s 

pronouncements of its internal laws and cannot adjudicate matters purely 

within the religious organization’s authority, courts are not forbidden from 

examining a religious organization’s internal laws or structure, especially 

where the inquiry is relevant to a third party’s purely secular tort or 

contract claims.”) (citation omitted).

5. Our Application of the Ecclesiastical

 Abstention Doctrine to This Case

Applying the Florida Supreme Court’s description of the ecclesiastical 

abstention doctrine to this case, we conclude that although the widow’s 

complaint is framed in counts alleging deceptive and fraudulent 

misrepresentations regarding “Jewish burial customs and traditions,” the 

disposition of those counts cannot be accomplished without first

determining, as a matter of fact, what constitutes “Jewish burial customs 

and traditions.” Thus, the dispute here, at its core, is “an ecclesiastical 
9

one about [an] ‘ecclesiastical rule, custom or law,’” precluding judicial 

review under the First Amendment. Malicki, 814 So. 3d at 357.

Our conclusion is consistent with two cases from other jurisdictions 

where a court dismissed a private individual’s action against a secular 

entity because the dispute required an ecclesiastical determination: 

Wallace v. Conagra Foods, Inc., 920 F. Supp. 2d 995 (D. Minn. 2013), 

vacated on other grounds, 747 F.3d 1025 (8th Cir. 2014); and Abdelhak v. 

Jewish Press, Inc., 985 A.2d 197 (N.J. Super Ct. App. Div. 2009). We 

address each case in turn.

In Wallace, a federal district court dismissed for lack of subject matter 

jurisdiction a case brought by a group of Jewish consumers alleging that

the defendant manufacturer misrepresented its food products as “100% 

Kosher” when such products were not produced in the manner required 

to be considered Kosher. 920 F. Supp. 2d at 996. The court reasoned: 

“[T]he determination of whether a product is in fact ‘kosher’ [is] 

intrinsically religious in nature. Any judicial inquiry as to whether 

Defendant misrepresented that its [products] are ‘100% kosher’ . . . would 

necessarily intrude upon rabbinical religious autonomy.” Id. at 998.

In Abdelhak, a state appellate court affirmed the dismissal for lack of 

subject matter jurisdiction of a case brought by an Orthodox Jewish doctor 

who claimed a news publication and others made defamatory statements

about his alleged noncompliance with Orthodox Jewish religious 

requirements concerning his wife. 985 A.2d at 200-02. The plaintiff had 

refused to grant his wife an Orthodox Jewish consent to divorce, called a 

Get. Id. at 200-01. However, according to the plaintiff, the defendants

falsely stated he had defied a rabbinical court’s contempt order, known as 

a Seruv, requiring him to provide a Get to his wife. Id. at 201-02. In 

affirming the trial court’s dismissal, the appellate court held:

[T]o evaluate whether plaintiff’s reputation suffered any 

injury, a jury would, of necessity, be required to determine 

how a Seruv Listing is viewed within the Orthodox Jewish 

community and whether an Orthodox Jew would be offended 

by another’s refusal to provide a Get. To make that 

determination, a jury would be obligated to consider the 

intricacies of Jewish doctrine. Such consideration would 

require a jury to delve deeply into the importance of giving a 

Get and the disdain heaped on a man who refuses one. . . . 

Unless a jury evaluates these deeply religious questions – that 

are limited to the practices and doctrine of the insular 

Orthodox Jewish community – the jury would be unable to 
10

perform the threshold task of deciding whether the false Seruv 

Listing was defamatory at all.

Id. at 207.

Here, as in Wallace and Abdelhak, to evaluate whether the defendants 

made deceptive and fraudulent misrepresentations regarding “Jewish 

burial customs and traditions,” the circuit court would, by necessity, be 

required to determine what constitutes “Jewish burial customs and 

traditions.” To make that determination, the circuit court would be 

obligated to consider “the intricacies of Jewish doctrine,” Abdelhak, 985 

A.2d at 207, or matters which are “intrinsically religious in nature” and 

“would necessarily intrude upon rabbinical religious autonomy,” Wallace,

920 F. Supp. 2d at 998. Because the First Amendment’s ecclesiastical 

abstention doctrine precludes the circuit court from evaluating these 

deeply religious questions, the court would be unable to perform its 

ultimate task of deciding whether the defendants made deceptive and 

fraudulent misrepresentations regarding “Jewish burial customs and 

traditions.” Thus, the First Amendment’s ecclesiastical abstention 

doctrine precludes the court from having subject matter jurisdiction here.

The widow conceded as much in both her deposition and her argument 

to the circuit court. In her deposition, after repeatedly being asked to 

identify what Jewish law prohibited non-Jews from being buried with 

Jews, the widow ultimately answered: “You should ask the rabbi. . . . I 

am not a rabbi.” In her argument to the court, the widow ultimately 

argued: “You’re going to have experts that are going to give opinions about 

Jewish law. . . . [J]ust like any other that involves expert testimony, 

whether it’s medical malpractice, whether it’s accounting practices, 

construction practices. It’s a determination based on the experts.” 

(emphasis added). However, unlike a medical malpractice, accounting, or 

construction case, the First Amendment’s ecclesiastical abstention 

doctrine precludes the court from relying upon experts to make such a 

determination in this case.

The case upon which the widow primarily relies, Malicki, is 

distinguishable. In Malicki, the plaintiffs brought various claims against 

a priest, his church, and the regional Archdiocese for damages resulting 

from the priest sexually assaulting the plaintiffs on church premises. 814 

So. 2d at 352. The Florida Supreme Court rejected the argument that the 

case should be dismissed pursuant to the ecclesiastical abstention 

doctrine. Id. at 351. The court reasoned:
11

In this case, the Church Defendants do not claim that the 

underlying acts of its priest in committing sexual assault and 

battery was governed by sincerely held religious beliefs or 

practices. Nor do they claim that the reason they failed to 

exercise control over [the priest] was because of sincerely held 

religious beliefs or practices. Therefore, it appears that the 

Free Exercise Clause is not implicated in this case because 

the conduct sought to be regulated[,] that is, the Church 

Defendants’ alleged negligence in hiring and supervision[,] is 

not rooted in religious belief. Moreover, even assuming an 

incidental effect of burdening a particular religious practice,

the [plaintiffs’] cause of action for negligent hiring and 

supervision is not barred because it is based on neutral 

application of principles of tort law.

Id. at 360-61 (citation and internal quotation marks omitted).

Unlike Malicki, the widow’s cause of action for violation of the Cemetery 

Services Act and FDUTPA is based on more than a neutral application of 

those statutes. The First Amendment is implicated because the conduct 

sought to be regulated, that is, the defendants’ alleged misrepresentations 

regarding “Jewish burial customs and traditions,” is rooted in religious 

beliefs about what constitutes “Jewish burial customs and traditions.”

Conclusion

A court’s determination of whether the cemetery companies violated 

both the Cemetery Services Act and FDUTPA, by mispresenting to the 

widow that it would bury her husband in accordance with “Jewish burial 

customs and traditions,” would require the court first to determine what 

constituted “Jewish burial customs and traditions.” That preliminary

determination would violate the ecclesiastical abstention doctrine. Based 

on the foregoing, we affirm the circuit court’s final order dismissing with 

prejudice the widow’s complaint against the defendant cemetery 

companies for lack of subject matter jurisdiction.

Affirmed.

STEVENSON and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.