TAMPA -- The Tampa District Court hasdenied a man’s motion to strike his former friend’s counterclaims and have him sanctioned for perpetuating a fraud on the court, stating the motion did not provide clear evidence.
The court order, written June 21 by Judge Virginia M. Hernandez Covington, said. “The court is not convinced that [Robert] Libbey and his counsel intentionally lied in their pleadings about the purchase price for the Knotta Klu.”
Michael Kosterlitz filed a motion to strike former friend Robert E. Libbey’s pleadings and counterclaim for fraud after Libbey responded to Kosterlitz’s petition filed alleging Kosterlitz is the rightful owner to the 40-foot catamaran Knotta Klu that is under dispute.
Kosterlitz says Libbey’s unsigned promissory note for the sale is manufactured and that Libbey filed an action in the state court the same day Kosterlitz filed this action, using different prices for the sale of the vessel than his answers in this action, proving he is lying to the court.
The motion states, “Libbey should be sanctioned for perpetrating a fraud on the court by having his answer and affirmative defenses stricken, having default entered against him, and having the counterclaim dismissed with prejudice.”
Kosterlitz filed a petition in March for claims of petitory and possessory in admiralty as well as claims for malicious prosecution, civil theft, conversion, and false arrest, stating he is the owner of the Knotta Klu.
Kosterlitz says he and Libbey tried to negotiate a sale of the boat but after two years, they had not reached a sale price for the Knotta Klu. In December 2017, Kosterlitz went to Libbey’s house and took the boat.
Libbey called the sheriff when he discovered the boat was taken. Kosterlitz was arrested for grand larceny, but no charges were brought. Libbey says he finalized the sale in 2015 by taking over a note payment to an individual referred to as “Christensen” and paying cash.
Libbey alleges he paid a total of “$40,974.60 in cash together with the in-kind value of a F-27 trimaran vessel with an agreed minimum value of $30,000, together with [Libbey’s] assumption of the promissory note.”
Kosterlitz says Libbey’s lawyer also represents Christensen. The lawyer filed suit against Kosterlitz on behalf of Christensen “claiming Kosterlitz owes Christensen the note” and did not acknowledge the alleged “‘replacement’ agreement between Libbey and Christensen.”
Covington stated,, “While this calls into question the behavior of Libbey’s counsel, it does not suggest that Libbey does not believe his assumption of the debt is valid, let alone that Libbey fabricated the promissory note in order to fool the Court.”
The order said although Libbey’s complaints are not clear, “poor draftsmanship and a muddled theory of the case appear to be the culprits.”
The court denied Kosterlitz’s motions, stating Kosterlitz had not presented “clear and convincing” evidence that a fraud had been perpetrated on the court.
U.S. District Court Middle District of Florida, Tampa Division, case number 8:18-cv-569-T-33JSS