Runion et al v. Bernard et al

Filing 43

ORDER granting in part and denying without prejudice in part 39 Defendants' motion to dismiss. Plaintiffs' Amended Complaint (Doc. 37) is DISMISSED WITHOUT PREJUDICE as a shotgun pleading. Plaintiffs must file a Second Amended Comp laint that complies with this Order on or before 5/11/2021. Defendants' motion to dismiss (Doc. 39) is DENIED WITHOUT PREJUDICE to the extent it seeks any greater or different relief than this Order grants. See Order for details. Signed by Judge John L. Badalamenti on 4/27/2021. (NM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEREK RUNION and FLORIDA CAPITAL
ASSETS, LLC,
Plaintiffs,
v.

Case No. 2:20-cv-718-JLB-MRM

PAUL BERNARD, IBEX ENERGY INC.,
and JOHN BIALLAS,
Defendants.
ORDER
Before the Court is Plaintiffs Derek Runion and Florida Capital Assets,
LLC’s (“Florida Capital”) Amended Complaint. (Doc. 37.) Defendants Paul
Bernard, Ibex Energy, Inc. (“Ibex”), and John Biallas argue that the Amended
Complaint is a shotgun pleading and ask this Court to dismiss the Amended
Complaint with prejudice. (Doc. 39.) Although the Court agrees that the
Amended Complaint is a shotgun pleading, it dismisses the Amended Complaint
without prejudice. Accordingly, Defendants’ motion to dismiss (Doc. 39) is
GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.
BACKGROUND 1
The operative pleading consists of over 200 paragraphs and asserts eight
claims under Florida law, mostly sounding in fraud. (Doc. 37.) A section titled
At this stage, “all well-pleaded facts are accepted as true, and the
reasonable inferences therefrom are construed in the light most favorable to the
1

“Facts Common to All Counts” sets forth 147 paragraphs ostensibly relevant to each
Count of the Amended Complaint. (Id. ¶¶ 12–159.)
The essential facts are as follows. In early 2019, Defendants—and other
individuals not named in this lawsuit—formed a conspiracy around the buying and
selling of jet fuel with the goal of defrauding prospective investors. (Id. ¶ 30–31.)
Mr. Runion fell victim to this scheme when, on December 4, 2019, Mr. Bernard and
his co-conspirators called him and offered a deal. (Id. ¶ 50.)
Mr. Bernard explained that he had contracted with a Russian petrochemical
company to buy and resell two million barrels of jet fuel. (Id. ¶¶ 32, 58.) The only
problem was that he needed $200,000 for transportation and storage costs so he
could offload the jet fuel in Texas. (Id. ¶ 61.) His company, Ibex, would handle
the transaction, and Mr. Biallas, a licensed attorney, would act as an escrow agent
overseeing the funds through a trust account. (Id. ¶¶ 52–57.) Mr. Bernard and
Mr. Biallas provided fraudulent documents and phony assurances, convincing Mr.
Runion this was a legitimate business opportunity. (Id. ¶¶ 86, 98.) The pitch
worked. Ibex and Florida Capital (Mr. Bernard and Mr. Runion’s respective
companies) executed a Proceeds Sharing Agreement (“PSA”) that same day. (Doc.
37-1, Ex. C.) Under the PSA, Florida Capital was to receive either $300,000 or
$400,000 (i.e., its initial $200,000 investment plus profit) depending on the

plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1274 n.1 (11th Cir. 1999)
(citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)).

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timeframe in which Ibex sold the jet fuel. (Id. at 8, 10.) Needless to say, after he
wired Mr. Biallas the $200,000, Mr. Runion did not receive any such payment.
As a result, Plaintiffs sue for: (a) Breach of Contract against Mr. Biallas and
Ibex (Count I) (Doc. 37 at 16); (b) Civil Theft against all Defendants (Count II) (id.
at 17); (c) Conversion against all Defendants (Count III) (id. at 18); (d) Civil
Conspiracy for Fraud against all Defendants (Count IV) (id. at 20); (e) Aiding and
Abetting Fraud against all Defendants (Count V) (id. at 22); (f) Unjust Enrichment
against all Defendants (Count VI) (id. at 23); (g) Violation of Florida’s Deceptive and
Unfair Trade Practices Act (“FDUTPA”) against all Defendants (Count VII) (id. at
24); and (h) finally, to Pierce the Corporate Veil of Ibex Energy, Inc. against Ibex
(Count XIII [sic]) (id. at 25). 2
DISCUSSION
Generally speaking, a shotgun pleading is: (1) a “complaint containing
multiple counts where each count adopts the allegations of all proceeding counts”;
(2) one “replete with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) one that does not separate “each
cause of action or claim for relief” into a different count; or (4) one that “assert[s]
multiple claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of the defendants
the claim is brought against.” Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d

The eighth and final claim is titled “Count XIII,” (Doc. 37 at 25) even
though immediately prior is “Count VII” (id. at 24.) To avoid confusion, and for
consistency, the Court will refer to this claim as: “Count XIII [sic].”
2

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1313, 1321–23 (11th Cir. 2015). “The unifying characteristic of all types of shotgun
pleadings is that they fail to one degree or another, and in one way or another, to
give the defendants adequate notice of the claims against them on the grounds upon
which each claim rests.” Id. at 1323. 3
The Complaint here is a hybrid of the second and fourth type of shotgun
pleading. It is “rife with immaterial factual allegations . . . [and] irrelevant
details.” Barmapov v. Amuial, 986 F.3d 1321, 1325 (11th Cir. 2021). Plaintiffs
maintain that “[a]dmittedly, the complaint [sic] lays out significant background
information, but in doing so, only articulates the factual basis to present clear and
concise causes of action.” (Doc. 42 at 4.) If only the pleading’s length were at
issue, the Court would agree. But the main problem is that each Count
“indiscriminately incorporates and repeats [147] numbered paragraphs of factual
allegations . . . [with minimal] effort to connect or separate which of those [147]
factual allegations relate to a particular count.” Barmapov, 986 F.3d at 1325.
And the Amended Complaint, as pleaded, contains a plethora of material
inconsistencies and typographical errors. Neither Defendants nor the Court should
be expected to piece together which fact supports which claim. Even in the Counts
where Plaintiffs attempt to summarize the facts, it is almost impossible to unpack
the relevant allegations here. (See, e.g., Doc. 37 ¶¶ 180(a)–(f).)

Plaintiffs deny that the Amended Complaint is a shotgun pleading. (Doc.
42.) Even so, they consent to the dismissal without prejudice of their Civil Theft
claim (Count II) against Mr. Biallas. (Id. ¶ 12.) They also consent to the dismissal
of their Conversion (Count III) and FDUPTA (Count VII) claims. (Id. ¶¶ 13, 17.)
3

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By way of illustration, one need only look at Plaintiffs’ breach-of-contract
claim in Count I. Count I’s heading asserts it is against Defendants Biallas and
Ibex only. (Doc. 37 at 16.) But the supporting allegations provide that Mr.
Bernard individually entered into and breached the PSA. (Id. ¶¶ 161, 168.) 4 The
Amended Complaint also fluctuates between using the singular “Defendant” when
referring to multiple parties and seeks judgment against “Defendant’s [sic].” (Id.
¶¶ 166, 169.) 5 It also fails to sufficiently distinguish Mr. Runion from Florida
Capital, instead slipping between the singular “Plaintiff/the Plaintiff” and the
plural “Plaintiffs.” (Id. ¶¶ 188–189.)
This running theme makes it almost impossible for the Court to reach the
merits of the Amended Complaint or Defendants’ motion to dismiss. For example,
Count VI is for unjust enrichment against all Defendants. (Doc. 37 at 23.) But as
Defendants correctly note (Doc. 39 ¶ 21), such claims are “precluded by the
existence of an express contract between the parties concerning the same subject
matter.” Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st
DCA 2008). And despite Plaintiffs’ assertion that their lengthy factual recitation
presents “clear and concise causes of action,” (Doc. 42 at 4), those facts allege that
Mr. Runion (not Florida Capital) and all Defendants entered into an express written
A review of the PSA which Plaintiffs attach to the Amended Complaint
shows that Mr. Bernard signed the PSA as Ibex’s president, not in his individual
capacity. (Doc. 37-1, Ex. C at 11.)
4

Confusing matters even more, Plaintiffs’ response asserts that the “Cause
[sic] states it is against John Biallas and IBEX Energy, Inc. This is clearly stated.”
(Doc. 40 ¶ 10.) Not so. Count I states that “Defendant’s [sic] Bernard and Biallas
are liable in damages . . .” (Doc. 37 ¶ 169 (emphasis added).)
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contract (the PSA) concerning the subject matter of Plaintiffs’ claim. (Doc. 37 ¶
161.) 6 Similarly, in their attempt to pierce Ibex’s corporate form (Count XIII [sic]),
Plaintiffs seek to hold not just its president (Mr. Bernard) liable for the
corporation’s deeds, but the “wherefore” clause of Count XIII [sic] seeks judgment
against all Defendants—including Mr. Biallas. 7 As best the Court can tell,
Plaintiffs have set forth no facts showing why this is appropriate in light of their
allegation that Mr. Bernard was Ibex’s “sole shareholder.” (Doc. 37 ¶ 198.)
CONCLUSION
“[D]isposing of [] otherwise viable claims because a plaintiff’s lawyer pled too
many facts may seem like strong medicine . . . .” Barmapov, 986 F.3d at 1327
(Tjoflat, J., concurring) (emphasis in original). But it is not without good reason.
“[D]istrict courts have neither the manpower nor the time to sift through a morass
of irrelevant facts in order to piece together claims for plaintiff’s counsel.” Id. at
1327–28. As illustrated above, that is precisely the situation the Court finds itself
facing with Plaintiffs’ Amended Complaint. But even though Plaintiffs have
already amended their pleading once, the Court does not agree with Defendants
The PSA itself creates even more confusion when juxtaposed against these
facts as it shows only Ibex and Florida Capital—and potentially Mr. Biallas—are
parties to the contract. Simply put, the Court can neither make heads nor tails of
Plaintiffs’ unjust enrichment claim. It seems implausible that both Plaintiffs can
state a viable unjust enrichment claim against every Defendant.
6

“Piercing the corporate veil is not itself an independent [] cause of action,”
Peacock v. Thomas, 516 U.S. 349, 354 (1996), but a theory to impose liability on
individuals for the debts and actions of a corporation, see Arthur Andersen LLP v.
Carlisle, 556 U.S. 624, 631 (2009). Technicalities aside, Count XIII [sic] lumps all
Defendants together without factually distinguishing their conduct (particularly
Mr. Biallas).
7

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that a dismissal with prejudice is appropriate. Instead, the Court will allow
Plaintiffs one final opportunity to set forth their facts and claims in a clear,
concise, and cogent manner. The Court will therefore reserve ruling on the
remainder of Defendants’ arguments in their motion to dismiss and reconsider
them, if appropriate, should Defendants raise them against a future complaint.
Accordingly, it is ORDERED:
1.

Defendant’s motion to dismiss (Doc. 39) is GRANTED IN PART and
DENIED WITHOUT PREJUDICE IN PART.

2.

Plaintiffs’ Amended Complaint (Doc. 37) is DISMISSED WITHOUT
PREJUDICE as a shotgun pleading.

3.

Plaintiffs must file a Second Amended Complaint that complies with
this Order on or before May 11, 2021.

4.

Defendants’ motion to dismiss (Doc. 39) is DENIED WITHOUT
PREJUDICE to the extent it seeks any greater or different relief than
this Order grants.

ORDERED at Fort Myers, Florida, on April 27, 2021.

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