Diamond Resorts v Pandora Marketing

Case Number: 2:20-cv-05486

Last Updated: April 16, 2021

Status

Pending ruling on Defendants’ Motions to Dismiss and to Strike pursuant to California’s Anti-SLAPP statute

Location

USDC, CA Central District (transferred from USDC, FL Middle District)

Presiding Judge

Hon. Dale S. Fischer

Date Filed

06/19/2020

Highlights

Defendants’ anti-SLAPP motion is pending.

This lawsuit was transferred from USDC, Florida Southern District to USDC, California Central District over Diamond’s objection. California’s anti-SLAPP jurisprudence protects defendants sued for petition activity/litigation in a manner that rivals any other state — including providing an asymmetrical right to attorney fees for the prevailing defendant. While the amount of attorney fees must be fixed by motion, the right to such fees.

Case Posture

Claims:

In its Second Amended Complaint filed in US District Court, Middle District of Florida, but transferred over Diamond’s objection to the Central District of California, Diamond alleges violations of the Lanham Act, Florida Deceptive and Unlawful Trade Practices, tortious interference, and civil conspiracy against California-resident timeshare contract cancellation attorneys and affiliated marketing companies.

Posture:

Case is not yet at issue. A jury trial is set for October 12, 2021.

Summary:

Diamond alleges that defendant marketing companies (Timeshare Compliance, a dba of Pandora Marketing, etc.) falsely guarantee the ability to cancel timeshare contracts and scare customers into believing their heirs will inherit their timeshare obligations, and interfere with Diamond contracts with Diamondowners by instructing Diamond owners to stop paying their mortgage; Defendant attorneys are co-conspirators because they send Letters of Representation to Diamond that block communications between Diamond owners and Diamond, attorneys send boilerplate letters are ineffective and intended to deceive Diamond owners into believing that any legal cancellation of their ownership is possible; while the consumers could achieve the same result by ceasing payments or by utilizing Diamond’s voluntary surrender program,Transitions (™).

For their part, the defendants argue that the lawsuit is “part of a strategic anticonsumer effort by Diamond to punish parties who assist timeshare owners who wish to escape the burden of their contracts and to deter those parties from assisting timeshare owners in the future.”

The attorney defendants have responded in their respective motions to dismiss that it is no conspiracy to represent timeshare owners who were induced to enter into long-term timeshare contracts with Diamond based on false representations and half-truths.

All defendants have responded that Diamond has failed to state a claim of interference, and that the purported deceptive or unfair trade practices identified center on services provided to timeshare owners who desire to cancel their timeshares.

Selected Events:

11/9/20 – Order entered granting Lawyer Defendants’ Motions to Dismiss. [234]

Count IX is DISMISSED without leave to amend.

Counts VI, VIII, X, and XII are DISMISSED with leave to amend.

11/9/20 – Order entered granting in party, denying in part Exit Company Defendants’ Motions to Dismiss. [233]

6/19/20 – Order entered granting Defendants’ Motion to Transfer (Forum Non Conveniens). [116]

The many defendants – all of whom are citizens of California or have that state as a principal place of business – successfully moved to transfer the lawsuit to the Central District of California, on the federal statute codifying the common law doctrine of forum non conveniens providing for transfer to another federal district court where the defendant shows that on balance, convenience of the parties favors a different home for the litigation. The court noted that Diamond’s principal place of business is Nevada, a state that abuts California. Moreover, the court noted that the parties’ anticipated respective witnesses were concentrated in California. Finally, the ongoing COVID-19 pandemic increased the danger of requiring the parties and witnesses from California to Florida. The defendants were expressly granted leave to refile their motions to dismiss the lawsuit on substantive grounds after completion of the transfer to California.

Accordingly, USDC, Southern District of Florida Judge Middlebrooks ordered the case transferred to USDC, California Central District. Which state’s substantive law (Florida or California) applies is an open question.

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Transcripts

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Parties

Plaintiffs:

DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC; and DIAMOND RESORTS HAWAII COLLECTION DEVELOPMENT, LLC

Plaintiffs’ counsel:

Baker & Hostetler LLP

Defendants:

PANDORA MARKETING, LLC d/b/a TIMESHARE COMPLIANCE; INTERMARKETING MEDIA, LLC d/b/a
RESORT ADVISORY GROUP; SLATTERY, SOBEL & DECAMP, LLC; JL “SEAN” SLATTERY, ESQ.; UNLOCK LEGAL, APLC; MCCROSKEY LEGAL; and MIRANDA MCCROSKEY, ESQ.

Defendants’ counsel:

Pandora Marketing – Jonathan Vine, Sheena Smith of Cole Scott Kissane
Sean Slattery, Esq., Slattery, Sobel & Decamp, LLC – Johnny Antwiler, II. Sam Edgerton, III of O’Hagan Meyer LLC
Miranda McCroskey, Unlock Legal – Amy Baker and John Benford of Wilson Elser
Intermarketing Media, LLC (Resort Advisory Group) – Andrew Stolper of Frank Sims and Stolper LLP