Innovative Food Holdings, Inc. v. Ferrone et al

Filing 20

OPINION AND ORDER denying 14 motion to stay; directing plaintiff to respond to 11 Motion to Dismiss within 7 days; and directing plaintiff to show cause why defendant Michael Ferrone should not be dismissed for failure to prosecute. Signed by Judge John E. Steele on 3/8/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
INNOVATIVE
INC.,

FOOD

HOLDINGS,

Plaintiff,
v.

Case No: 2:16-cv-843-FtM-99CM

MICHAEL
FERRONE
CHRISTOPHER BROWN,

and

Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion to
Stay (Doc. #14) filed on January 17, 2017.

Plaintiff filed a

Response in Opposition (Doc. #19) on January 31, 2017.

For the

reasons set forth below, the motion is denied.
I.
On November 18, 2016, plaintiff Innovative Food Holdings,
Inc. (plaintiff or Innovative) filed a five-count Complaint (Doc.
#1) against defendants Michael Ferrone (Ferrone) and Christopher
Brown (Brown) seeking damages for breach of contract, fraudulent
misrepresentation, fraud, and tortious interference with contract.
The

Complaint

Innovative’s

alleges
common

that

stock,

Ferrone,
breached

a

beneficial

certain

owner

agreements

of
with

Innovative by initiating transfer to Brown of stock shares via a
settlement agreement and by failing to fully disclose to Brown

certain limitations on shares of Ferrone’s stock, such as transfer
restrictions.

Innovative, Brown, and Ferrone are all parties in

a first-filed and currently-pending case in the United States
District

Court

for

the

Western

District

of

North

Charlotte Division (the “North Carolina Action”).

Carolina,

In that case,

Brown filed suit against Innovative and Ferrone, asserting a claim
against Innovative for tortious interference with a settlement
agreement between Brown and Ferrone, among other claims.
Although both parties agree that the North Carolina Action
and the instant case are substantially related, the parties do not
agree regarding the proper forum that their disputes should be
litigated.

Innovative believes it is this Court and Brown says

North Carolina, prompting motion practice.

Innovative filed a

Motion to Dismiss or Alternatively, to Transfer Venue, in the North
Carolina Action, which was fully briefed on December 15, 2016.

On

January

or

4,

2017,

Brown

filed

his

own

Motion

to

Dismiss

Alternatively, Motion to Transfer this action to the North Carolina
District Court for lack of personal jurisdiction, failure to state
a claim, or for transfer, arguing that plaintiff’s claims are
really compulsory claims that should have been brought in the North
Carolina Action.

(Doc. #11.)

Plaintiff moves to stay this Court’s consideration of Brown’s
motion to dismiss in this action until the North Carolina court

- 2 -

resolves its motion to dismiss or transfer. 1

Plaintiff contends

that the North Carolina court’s decision on the motion to dismiss
will likely necessitate that the pleadings be amended in this
action (either Innovative will need to amend its Complaint or Brown
will have to assert his claims against Innovative and Ferrone in
this action).

Brown disagrees, arguing that Innovative chose to

file the action in this Court instead of waiting until the firstfiled North Carolina case was resolved and that this Court cannot
wait an indefinite amount of time for a ruling by the North
Carolina court.
II.
“[T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes
on its docket with economy of time and effort for itself, for
counsel, and for litigants.”
254 (1936).

Landis v. N. Am. Co., 299 U.S. 248,

Determining whether a stay is justified requires an

“exercise of judgment, which must weigh competing interests and
maintain an even balance.”

Id. at 254-55.

“The party moving for

a stay bears the burden of demonstrating that it is appropriate.”
Harris Corp. v. Rembrandt Technologies, LP, No. 07-CV-796, 2007 WL
2757372, at *1 (M.D. Fla. Sept. 20, 2007).

1

Plaintiff asks this

The Court previously stayed plaintiff’s time to respond to
Brown’s motion to dismiss until the Court rules on the motion to
stay. (Doc. #16.)

- 3 -

Court

to

exercise

its

discretionary

authority

and

stay

consideration of Brown’s motion to dismiss.
The

Court

fails

to

see

how

the

North

Carolina

court’s

resolution of Innovative’s motion to dismiss is necessary to this
Court’s consideration of Brown’s motion to dismiss as the motions
involve consideration of dismissal of different claims, brought by
different parties.

This Court is not required to afford a decision

in the North Carolina Action any deference and if the parties
believe that any decision by the North Carolina court warrants an
amendment to the pleadings, the parties may move for such relief,
but a stay is not warranted.
III.
Finally, the Court notes that plaintiff has not obtained
service of process on defendant Ferrone and the time to do so has
expired.

Therefore, plaintiff will be required to show cause why

defendant Ferrone should not be dismissed for failure to execute
service of process within the time allotted under Fed. R. Civ. P.
4(m).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiff’s Motion to Stay (Doc. #14) is DENIED.

2.

Plaintiff’s response to Brown’s Motion to Dismiss or

Alternatively, Motion to Transfer (Doc. #11) is due within SEVEN
(7) DAYS of this Opinion and Order.

- 4 -

3.

Plaintiff shall show cause within SEVEN (7) DAYS of this

Opinion and Order why defendant Michael Ferrone should not be
dismissed for failure to prosecute.

The failure to respond will

result in a dismissal without prejudice and without further notice
as to defendant Michael Ferrone.
DONE and ORDERED at Fort Myers, Florida, this
March, 2017.

Copies:
Counsel of Record

- 5 -

8th

day of