Arcadia Development LLC v. Winn-Dixie Stores, Inc. et al

Filing 40

ORDER denying 20 Defendants' Motion to Dismiss Amended Complaint. Plaintiff is directed to file a Second Amended Complaint in order to correct the typographical error identified in its response on or before January 5, 2018; thereafter, Defendants shall have fourteen (14) days to file an Answer. Signed by Judge Sheri Polster Chappell on 12/28/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARCADIA DEVELOPMENT LLC,
Plaintiff,
v.

Case No: 2:17-cv-552-FtM-99MRM

WINN-DIXIE STORES, INC. and
WINN-DIXIE STORES LEASING,
LLC,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendants’ Motion to Dismiss Amended
Complaint for Lack of Standing (Doc. 20) filed on November 3, 2017. Plaintiff filed a
Response in Opposition (Doc. 31) on November 20, 2017. For the reasons set forth
below, the Motion is denied.
BACKGROUND
Plaintiff Arcadia Development LLC (Arcadia) brings a one-count Amended
Complaint for breach of a commercial lease agreement. (Doc. 12). At all relevant times,
Arcadia was the owner and landlord of commercial property located in Arcadia, Florida
(the Premises), which was leased to Winn-Dixie. (Id. at ¶ 8). Arcadia was not always

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Winn-Dixie’s landlord. Winn-Dixie Stores, Inc. first began leasing the Premises in 1992
when it entered into a written lease agreement with Arcadia’s predecessors-in-interest on
October 1, 1992 (the Lease).2 (Id. at ¶¶ 9-10). Plaintiff has attached a copy of the 1992
Lease to the Amended Complaint as Exhibit A. (Docs. 12-2 – 12-6). Plaintiff has also
attached copies of the Assignment and Assumption of Leases, which Plaintiff states
shows that the prior owner/landlord assigned all of its rights, title, and interest in the Lease
to Carnegie Companies, Inc. (Carnegie), after which Carnegie assigned all of its rights,
title, and interest in the Lease to Arcadia. (Doc. 12, ¶ 9; Doc. 12-8).
Winn-Dixie terminated its business operations at the Premises in or about
February 2015, but retained control of the Premises until the Lease terminated pursuant
to its terms on April 30, 2017. (Doc. 12, ¶¶ 21-23). Plaintiff alleges that during this twoyear period, Winn-Dixie allowed the Premises to fall into a state of disrepair, in
contravention of the Lease terms, resulting in over $600,000 in damages. (Id. at ¶ 37).
DISCUSSION
Defendants move to dismiss the Amended Complaint for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) because Plaintiff lacks standing.
Specifically, Defendants argue that Plaintiff has failed to allege that the Lease was
properly assigned from 1992 until the present such that Arcadia would have a proper
interest in the Lease. Defendants point to the 1992 Lease Agreement (Doc. 12-2), which
Winn-Dixie entered into with Josef Strauss, Joanne R. Fox, Cheryl E. Stone, and
successor co-trustees of the Erna D. Strauss Grandchildren Trust. Defendants state that

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Winn Dixie Stores, Inc. subsequently assigned its rights under the Lease to Defendant
Winn-Dixie Leasing, LLC. (Doc. 12, ¶ 11; Doc. 12-9).

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the Amended Complaint does not demonstrate the assignment of any interest from the
Strauss Trust to any party, let alone Plaintiff or any predecessors. (Doc. 20, ¶ 10).
Defendants mount a “facial” attack to the Court’s subject matter jurisdiction (Doc.
20, ¶ 8). A facial attack challenges subject matter jurisdiction based on the allegations in
the complaint, and the Court takes the allegations in the complaint as true in deciding the
motion. Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir. 2003). The complaint
may be dismissed for a facial lack of standing only “if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the allegations.”
Jackson v. Okaloosa County, 21 F.3d 1531, 1536 n.5 (11th Cir.1994) (citation omitted).
Under Florida law3, an assignment generally transfers to the assignee all interest
of the assignor under the assigned contract. See Livingston v. State Farm Mut. Ins. Co.,
774 So. 2d 716, 718 (Fla. 2d DCA 2000). “Generally, contract rights can be assigned
unless they involve obligations of a personal nature or there is some public policy against
the assignment or such assignment is specifically prohibited by the contract.” New
Holland, Inc. v. Trunk, 579 So. 2d 215, 217 (Fla. 5th DCA 1991) (citation omitted).
Here, the Amended Complaint alleges that Arcadia is the owner and landlord of
the Premises pursuant to the Lease to which the prior owner/landlord assigned all of its
rights, title, and interest to Arcadia. (Doc. 12, ¶¶ 8-9). The Court will take the allegations
as true for purposes of this Motion to Dismiss. Furthermore (and contrary to Defendants’
assertions), the attachments to the Amended Complaint show assignments and
assumptions of the Lease from the original parties to the 1992 Lease agreement, all the

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In diversity cases, a federal court applies the law of the forum in which it sits. Cambridge
Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230, 1232 (11th Cir.1983). The Lease also states
that Florida law applies. (Doc. 12-2, ¶ (bb); Doc. 12-4, ¶ 30).

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way to Arcadia. See Doc. 12-8. “A district court can generally consider exhibits attached
to a complaint in ruling on a motion to dismiss, and if the allegations of the complaint
about a particular exhibit conflict with the contents of the exhibit itself, the exhibit controls.”
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (citation omitted). Thus,
the Amended Complaint and the attached exhibits plausibly allege an assignment of all
interest in the Lease to Plaintiff; therefore, the facial attack on the Court’s subject matter
jurisdiction is due to be denied.4
Finally, Plaintiff states that there is a typographical error in paragraph 9 of the
Amended Complaint as “Carnegie Companies, Inc.” should read “Carnegie Properties,
Inc.” (Doc. 31, n.1). Plaintiff will be directed to file a Second Amended Complaint to
correct this error.
Accordingly, it is now
ORDERED:
(1)

Defendants’ Motion to Dismiss Amended Complaint (Doc. 20) is DENIED.

(2)

Plaintiff is directed to file a Second Amended Complaint in order to correct

the typographical error identified in its response on or before January 5, 2018; thereafter,
Defendants shall have fourteen (14) days to file an Answer.

However, constitutional standing always remains a “live” issue in a case, and may be
asserted at virtually any stage of the proceedings, if, for instance, the validity of the assignment
is challenged. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (“The objection that a federal
court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative,
at any stage in the litigation, even after trial and the entry of judgment.” (internal citation omitted)).
A factual attack challenges the existence of subject matter jurisdiction using materials extrinsic
from the pleadings, such as affidavits or testimony. Stalley ex. rel. U.S. v. Orlando Reg'l
Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008).
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DONE and ORDERED in Fort Myers, Florida this 28th day of December, 2017.

Copies: All Parties of Record

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