Deangelis v. Mann

Filing 19

OPINION AND ORDER granting 15 Plaintiff's Supplemental Motion for Leave to File First Amended Complaint; denying as moot 8 Defendant's Motion to Dismiss and 14 Plaintiff's Motion for Leave to File First Amended Complaint. The Clerk is directed to file the First Amended Complaint (Doc. #15-1) as a new and separate docket entry. Signed by Judge John E. Steele on 10/27/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN
M.
DEANGELIS,
as
trustee of the Kelly K.
Deangelis revocable living
trust dated May 26, 1999,
Plaintiff,
v.

Case No:

JONATHAN
D.
individually,

MANN,

2:17-cv-447-FtM-29MRM

JR.,

Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Plaintiff’s Complaint (Doc. #8) filed on August 10, 2017,
and on Plaintiff’s Supplemental Motion for Leave to File First
Amended Complaint (Doc. #15) filed on September 18, 2017, to which
Defendant filed a Response in Opposition (Doc. #16) on September
20, 2017.

For the reasons set forth below, the Court grants

Plaintiff’s Supplemental Motion for Leave to File First Amended
Complaint and denies as moot Defendant’s Motion to Dismiss.
I.
This case arises out of an April 12, 2011 agreement conveying
the oil and gas rights (the Agreement) for a property located in
Ohio (the Property) from Professional Land Resources, LLC (PLR) to
The Kelly K. DeAngelis Revocable Living Trust Dated May 26, 1999

(the Trust). 1

On June 29, 2017, Plaintiff filed a one-count

complaint (Doc. #2) in the Circuit Court of the Twentieth Judicial
Circuit in and for Collier County, Florida.
Defendant,

a

West

Virginia

citizen,

of

The Complaint accuses
fraudulently

inducing

Plaintiff, a Florida citizen, to enter into the Agreement by
characterizing the Property’s wells as “viable” when Defendant
knew they were not.

Plaintiff seeks $135,000 in damages, which

is the amount he paid Defendant under the Agreement in exchange
for a 50% revenue interest in the wells’ output.
Defendant removed to this Court under 28 U.S.C. 1332(a) and
then moved to dismiss the case on the following grounds: (1)
Plaintiff’s fraud claim is barred by West Virginia’s two-year
“catch-all” statute of limitations, W. Va. Code § 55-2-12; 2 (2)
this Court lacks personal jurisdiction over Defendant; (3) the
Agreement’s merger clause prevents Plaintiff from succeeding with
establishing his fraud claim as a matter of law; 3 and (4) the

1

Plaintiff signed for the Trust, and Defendant signed for PLR.

2

The Agreement states that “the Agreement shall be interpreted
and construed in accordance with the laws of the State of West
Virginia.” (Doc. #8, p. 29.)

3

Article V of the Agreement, titled “Entire Agreement,” reads:
“This
Agreement
(including
the
Exhibits
attached
hereto)
constitutes the entire understanding, Wells [sic] between the
Parties with respect to the Lands and the superseding all
negotiations,
prior
discussions
and
prior
agreements and
understandings relating to the Lands and the NEW Wells.” (Doc.
#8, p. 28.)

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Complaint

fails

to

state

a

plausible

claim

for

fraudulent

inducement under West Virginia law and with the requisite Rule
9(b) specificity. 4
Plaintiff did not respond to the Motion to Dismiss, instead
moving under Rule 15(a)(2) for leave to file an amended complaint
that “seeks to address the issues brought in the Defendant’s Motion
to Dismiss, and to add a claim for punitive damages.” 5
p. 2.)

(Doc. #15,

Plaintiff states that the amendment is timely sought and

believes there is no substantial reason to deny leave.

Defendant

disagrees; He thinks allowing Plaintiff to amend will be futile
because the proposed amendments do not remedy the deficiencies
identified in his Motion to Dismiss.
II.
Amendment is governed by Federal Rule of Civil Procedure 15.
A party has twenty-one days in which to amend a pleading once as

4

Defendant also asserts that the Complaint “materially misstates
the facts surrounding the [Agreement].”
(Doc. #8, p. 11.)
However, as Defendant also knows, the Court must accept as true a
complaint’s well-pleaded factual allegations when evaluating a
motion to dismiss. Mink v. Smith & Nephew, Inc., 860 F.3d 1319,
1324 (11th Cir. 2017).
5

Plaintiff originally filed a motion to amend on September 6, 2017
(Doc. #14) and then filed a motion to supplement (Doc. #15). It
is not clear whether there is any difference between the two
motions or the proposed amended complaint attached to each (Docs.
## 14-1, 15-1). But as Defendant has responded to the Supplemental
Motion, the Court will presume that the Proposed Amended Complaint
attached to that document (Doc. #15-1) is the operative proposed
pleading.

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a matter of course.

Fed. R. Civ. P. 15(a)(1).

Thereafter,

amendment requires the opposing party’s written consent or the
court’s leave.

Id. at 15(a)(2).

Although whether to grant leave

is within the district court’s discretion, Foman v. Davis, 371
U.S. 178, 182 (1962), that discretion “is severely restricted by
Fed. R. Civ. P. 15(a), which directs that leave to amend shall be
freely given when justice so requires.”

Bryant v. Dupree, 252

F.3d 1161, 1163 (11th Cir. 2001) (citation and internal alterations
omitted).

“Justice”

does

not

“so

require”

in

a

number

of

situations, including when the party seeking to amend has delayed
in requesting leave, and when permitting leave would be “futile.”
Foman, 371 U.S. at 182.

“Leave to amend a complaint is futile

when the complaint as amended would still be properly dismissed or
be immediately subject to summary judgment for the defendant.”
Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017)
(quoting Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)).
Here, Plaintiff is outside the twenty-one-day window and because Defendant opposes amendment – Plaintiff seeks the Court’s
permission to amend.

According to Defendant, allowing Plaintiff

to amend is futile because: (i) Plaintiff’s fraud claim is still
time-barred, (ii) the Court still lacks personal jurisdiction over
Defendant, and (iii) the Proposed Amended Complaint still fails to
adequately plead a fraudulent inducement claim.

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The Court disagrees that granting leave to amend would be
futile.

As to the statute of limitations, even assuming West

Virginia law applies to this dispute, 6 it is not “apparent from
the

face

of

the

complaint

that

the

claim

is

time-barred.” 7

Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th
Cir. 2013) (citation omitted).

Regarding personal jurisdiction,

the Proposed Amended Complaint appears to state a prima facie case
of specific personal jurisdiction under the “tortious activity
prong”

of

Florida’s

long-arm

statute,

Fla.

Stat.

§

48.193(1)(a)(2), the exercise of which comports with due process. 8
See Williams Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 394 (11th
Cir. 1988).
Proposed

Finally, it is not yet clear to the Court that the

Amended

Complaint

lacks

the

requisite

Rule

9(b)

6

Compare Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761
So. 2d 306, 313 (Fla. 2000) (providing an affirmative answer to
the Eleventh Circuit’s certified question of whether “a choiceof-law provision . . . control[s] the disposition of a claim that
the agreement was fraudulently procured”), with Green Leaf Nursery
v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1301 (11th Cir.
2003) (holding that the contract’s Delaware choice of law provision
did not control which state's law applied to a fraudulent
inducement claim).
7

According to the Proposed Amended Complaint, Plaintiff did “not
learn of the untrue nature of Defendant’s material representations
until December of 2015.” (Doc. #15-1, ¶ 26.)
8

Plaintiff alleges that Defendant traveled to Naples, Florida in
2010 to convince Plaintiff to invest in the Property, and that
Plaintiff decided to invest “largely on the basis of Defendant’s
representations to Plaintiff during” that trip. (Id. ¶ 10, 15.)
Plaintiff also alleges he executed the fraudulently-procured
agreement in Florida. (Id. ¶ 19.)

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specificity 9 or that the fraud claim is barred by the Agreement’s
merger provision.
Defendant has not opposed Plaintiff’s request to add a claim
for punitive damages.

Punitive damages may be awarded for a

successful claim of fraudulent inducement under Florida law.

HGI

Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 877 (11th
Cir. 2005) (citing Conn. Gen. Life Ins. Co. v. Jones, 764 So.2d
677, 680–82 (Fla. 1st DCA 2000)).

As such, the Court will grant

Plaintiff’s unopposed request to amend to add such a claim.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Supplemental Motion for Leave to File First

Amended Complaint (Doc. #15) is granted.
2.

Plaintiff’s

Motion

for

Leave

to

File

First

Amended

Complaint (Doc. #14) and Defendant’s Motion to Dismiss (Doc.

#8)

are denied as moot.

9

Plaintiff alleges that he “made the decision to invest in the
[Property] largely on the basis of Defendant’s representations to
Plaintiff during Defendant’s trip to [Naples,] Florida” (Doc. #151, ¶ 15), which trip occurred “[i]n 2010.”
(Id. ¶ 11.)
Defendant’s own Affidavit, filed with his Motion to Dismiss,
acknowledges that he traveled to Florida in 2010, during which
time he met with Plaintiff. (Doc. #8, p. 33.) Although Defendant
denies “discuss[ing] oil and gas ventures at that time” (id.),
Defendant nevertheless has notice of the precise epoch during which
much of the alleged fraud occurred. See Ziemba v. Cascade Int'l,
Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (“The particularity
rule serves an important purpose in fraud actions by alerting
defendants to the precise misconduct with which they are charged .
. . .” (quotation omitted)).

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3.

The Clerk is directed to file the First Amended Complaint

(Doc. #15-1) as a new and separate docket entry.
DONE and ORDERED at Fort Myers, Florida, this 27th day of
October, 2017.

Copies:
Counsel of Record

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