Doshi et al v. Cagle Road Land LLC et al

Filing 15

ORDER adopting Report and Recommendation 14 , and granting, in part, and denying, in part, Defendants' Motion to Dismiss Complaint 5 . Plaintiffs shall have up to and including March 2, 2018, to file a motion seeking leave to amend the complaint. See Order for details. Signed by Judge Marcia Morales Howard on 2/15/2018. (DS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PARESH DOSHI and JITENDRA DOSHI,
Plaintiffs,
Case No. 3:17-cv-308-J-34JRK
vs.
CAGLE ROAD LAND LLC, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Doc. 14;
Report), entered by the Honorable James R. Klindt, United States Magistrate Judge, on
January 23, 2018. In the Report, Magistrate Judge Klindt recommends that Defendants’
Motion to Dismiss Complaint (Doc. 5; Motion), filed on April 25, 2017, be granted, in part,
and denied, in part. See Report at 23. Specifically, Judge Klindt recommends that the
Court dismiss Counts I, III and V in their entirety, and dismiss the claims in Counts II and
IV to the extent Plaintiffs assert these claims against Defendants Mahendra F. Doshi and
Ryan K. Burress. Id. In all other respects, Judge Klindt recommends that the Court deny
the Motion. Id. Additionally, Judge Klindt recommends that Plaintiffs be permitted to
amend their complaint. Id. The parties have failed to file objections to the Report, and
the time for doing so has now passed.
The Court “may accept, reject, or modify, in whole or in part, the finding or
recommendations by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections
to findings of facts are filed, the district court is not required to conduct a de novo review

of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions de
novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May
14, 2007).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge. In doing so, the Court seeks to clarify one matter.
In the Complaint (Doc. 1), Plaintiffs allege that Cagle Road Land LLC (Cagle Road) “is
named as a Defendant because the relief sought involves the rescission of the sale of
Cagle Road.” See Complaint ¶7. However, “[a]lthough Florida’s courts have muddied
the waters by confusing the law of remedies with underlying causes of action, a claim for
‘rescission’ is well-recognized under Florida law.” Ahern v. Fid. Nat’l Title Ins. Co., 664 F.
Supp. 2d 1224, 1229 (M.D. Fla. 2009) (citing Billian v. Mobil Corp., 710 So. 2d 984, 991
(Fla. 4th DCA 1998) and Crown Ice Mach. Leasing Co. v. Sam Senter Farms, Inc., 174
So. 2d 614, 617 (Fla. 2d DCA 1965)); see also Bland v. Freightliner LLC, 206 F. Supp. 2d
1202, 1206 (M.D Fla. Apr. 15, 2002); but see Lowy v. German Creek Resorts, LLC, No.
5:07-cv-187/RS/MD, 2008 WL 725119, at *2 (N.D. Fla. Mar. 17, 2008) (“Rescission is not
a cause of action, but an available remedy if the Plaintiff is successful on another count.”).1
Despite this, in the Complaint, Plaintiffs do not state an independent cause of action for
rescission. See generally Complaint. Instead, in the wherefore clauses asserted at the

Notably, the Court does not find Lowy persuasive because it is unpublished, and the court fails to
cite any authority to support its assertion.
1

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conclusion of Plaintiffs’ claims for fraudulent misrepresentation (Count I), fraudulent
concealment (Count II), negligent misrepresentation (Count III), and breach of fiduciary
duty (Count IV), Plaintiffs seek damages, “or alternatively, the rescission of the
Agreement.” See Complaint at 7, 8, 10-11.
In the event Plaintiffs wish to pursue a cause of action for rescission, they would
be required to plead such a claim, which under Florida law requires that a party allege:
(1) The character or relationship of the parties; (2) The making of the
contract; (3) The existence of fraud, mutual mistake, false representations,
impossibility of performance, or other ground for rescission or cancellation;
(4) That the party seeking rescission has rescinded the contract and
notified the other party to the contract of such rescission[;] (5) If the moving
party has received benefits from the contract, he should further allege an
offer to restore these benefits to the party furnishing them, if restoration is
possible[;] [and] (6) Lastly, that the moving party has no adequate remedy
at law.
Ahern, 664 F. Supp. 2d at 1229 (quoting Crown Ice Mach. Leasing Co., 174 So. 2d at 617);
see also Barber v. Am.’s Wholesale Lender, No. 8:12-cv-1124-T-27TBM, 2013 WL
1149316, at *3 (M.D. Fla. Mar. 19, 2013) (dismissing a claim for rescission due to the
plaintiff’s failure to allege facts sufficient to state a cause of action for rescission);
Saittiewhaite v. Kula & Samson, LLP, No. 12-24178-CIV-ALTONAGA/Simonton, 2013 WL
12091098, at *6 (S.D. Fla. Feb. 25, 2013) (same); Chaney v. Crystal Beach Cap., LLC,
No. 8:10-cv-1056-T-30TGW, 2011 WL 17638, at *4 (M.D. Fla. Jan. 4, 2011) (same); Moran
v. Crystal Beach Cap., LLC, No. 8:10-cv-1037-T-30AEP, 2011 WL 17637, at **3-4 (M.D.
Fla. Jan. 4, 2011) (same). Plaintiffs do not appear to have attempted to allege such a
claim here. Because neither party addressed this pleading irregularity, the Court will take
no action other than draw it to the parties’ attention to be addressed in whatever manner

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they deem appropriate.2 Accordingly, it is hereby
ORDERED:
1. The Magistrate Judge’s Report and Recommendation (Doc. 14) is ADOPTED
as the opinion of the Court.
2. Defendants’ Motion to Dismiss Complaint (Doc. 5) is GRANTED, in part, and
DENIED, in part.
a. The Motion is granted to the extent that Counts I, III, and V are
DISMISSED without prejudice, and Counts II and IV are DISMISSED
without prejudice to the extent they are brought against Defendants
Mahendra F. Doshi, Ryan K. Burress, and Cagle Road Land, LLC.
b. The Motion is denied in all other respects.
3. If Plaintiffs wish to file a motion to amend the Complaint, they must file a properly
supported motion for leave no later than March 2, 2018. Before filing any such
motion Plaintiffs must confer with opposing counsel in accordance with Rule
3.01(g) of the Local Rules of the United States District Court for the Middle
District of Florida.3
DONE AND ORDERED in Jacksonville, Florida this 15th day of February, 2018.

2

The Court questions the necessity of separately naming Cagle Road, the entity that has allegedly
been fraudulently sold, as a defendant, but will leave that matter for the parties to consider.
3

Although the Magistrate Judge recommends simply permitting Plaintiffs to file an amended
complaint, the Court is of the view that given the procedural history of the case, they should be required to
file a motion seeking leave to do so. Plaintiffs did not avail themselves of the ability to amend as a matter
of right. Moreover, despite instruction from the Court regarding the manner to seek amendment before
resolution of the instant Motion, see Order (Doc. 8), they opted not to do so.

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Lc25
Copies to:
Counsel of Record

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