Upfitters, L.L.C. v. Brooking et al

Filing 102

ORDER denying 90 Motion to Dismiss Defendants' Second Amended Counterclaims and by Third-Party Defendants Amanda Piersing and Bodie Bracken. Signed by Judge Marcia Morales Howard on 2/27/2020. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

UPFITTERS, L.L.C.,
Plaintiff/Counterclaim Defendant,
v.

Case No. 3:18-cv-496-J-34PDB

RICHARD K. BROOKING, in his individual
capacity, EDWARD SPENCER ROOKING,
in his individual capacity, BROOKING
INDUSTRIES, INC., and DANA SAFETY
SUPPLY, INC.,
Defendants/Counterclaim Plaintiffs/
Third-Party Plaintiffs,
v.
BODIE BRACKEN, AMANDA PIERSING,
and QCU, L.L.C.,
Third-Party Defendants.

ORDER
THIS CAUSE is before the Court on Third-Party Defendants Bodie Bracken and
Amanda Piersing’s motion to dismiss.

See Motion to Dismiss Defendants’ Second

Amended Counterclaims and by Third-Party Defendants Amanda Piersing and Bodie
Bracken and Memorandum of Law (Doc. 90; Motion), filed on July 12, 2019. Third-Party
Plaintiffs Richard K. Brooking, Edward Spencer Brooking, Brooking Industries, Inc., and
Dana Safety Supply, Inc. filed a response in opposition to the Motion on July 31, 2019.
See Defendants’ Response in Opposition to Motion to Dismiss (Doc. 97; Response).
Accordingly, the Motion is ripe for review.

I.

Procedural History
Upfitters, L.L.C. initiated this action on April 16, 2018, by filing a Complaint for a

Jury Trial and Injunctive Relief (Doc. 1) against Richard K. Brooking (Richard Brooking),
Edward Spencer Brooking, Brooking Industries, Inc., and Dana Safety Supply, Inc.
(collectively, the Brooking Group), asserting claims for patent infringement, copyright
infringement, and breach of contract. 1

On January 16, 2019, the Brooking Group

responded by filing a counterclaim and third-party complaint against Upfitters, Bodie
Bracken, Amanda Piersing, and QCU, L.L.C.

See Counterclaims and Third-Party

Complaint (Doc. 57). Upon review, the Court sua sponte issued an Order (Doc. 65)
striking the Counterclaims and Third-Party Complaint as an impermissible “shotgun
pleading.”

Specifically, the Court determined that counts two and three of the

Counterclaims and Third-Party Complaint adopted the allegations of all preceding
paragraphs, “‘causing each count to carry all that came before[.]’”

Id. at 1 (quoting

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 & n.11 (11th Cir.
2015)). As a result, the Brooking Group filed am amended counterclaim and third-party
complaint on February 1, 2019, see Amended Counterclaims and Third-Party Complaint
(Doc. 66), and the operative second amended counterclaim and third-party complaint on
June 25, 2019, see Second Amended Counterclaims and Third-Party Complaint (Doc. 87;
Third-Party Complaint). Bracken and Piersing’s Motion followed on July 12, 2019.

1

Upfitters filed its operative Second Amended Complaint (Doc. 53) on December 18, 2018.

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II.

Background2
On May 1, 2012, Brooking Industries, Bracken, and Piersing executed an

agreement (the May 2012 Agreement) governing “their joint efforts to invent, develop,
patent, and sell new products for the public safety marketplace.”

See Third-Party

Complaint ¶ 16. “To perform these functions, Brooking Industries and a third party . . .
formed an LLC named [PPV], and Bracken and Piersing separately formed . . . Upfitters.”
Id. ¶ 19. Thereafter, PPV and Upfitters formed QCU “to operate the business venture
envisioned by the May 2012 Agreement.”

Id. ¶ 20.

On December 20, 2012, PPV

transferred its ownership interest in QCU, a portion of which PPV transferred to ISP—
another LLC owned by Brooking Industries—and the remaining portion PPV transferred to
Upfitters.

Id. ¶ 21.

Later, on July 18, 2013, ISP transferred its interest in QCU to

Upfitters. Id. ¶ 38. “Effective on or about August 23, 2014, QCU terminated the parties’
business venture.” Id. ¶ 31.
During their business venture, the parties developed copyrights and patents. See
id. ¶¶ 24-29, 32. According to the Brooking Group, although Richard Brooking “made
significant contributions to the inventions claimed” in the patents, Bracken and Piersing
are “erroneously and wrongfully . . . identified as the sole inventors . . . .” Id. ¶ 25, 27.
The Brooking Group alleges that “Bracken and Piersing, individually and through
Upfitters,” are now “wrongfully” asserting these patents and copyrights against the

2
In considering the Motion, the Court must accept all factual allegations in the Third-Party Complaint
as true, consider the allegations in the light most favorable to the Brooking Group, and accept all reasonable
inferences that can be drawn from such allegations. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291,
1297 (11th Cir. 2015) (quotations and citations omitted). As such, the recited facts are drawn from the
Third-Party Complaint and may differ from those that ultimately can be proved.

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Brooking Group “as a basis of their infringement suit in this case.” Id. ¶¶ 29, 32.
In conjunction with the transfer of ISP’s interest in QCU to Upfitters on July 18,
2013, “QCU executed a Promissory Note to Brooking Industries,” and “QCU, ISP, Upfitters,
and Brooking Industries executed a Mutual Release and Settlement Agreement.” Id. ¶
36. In the Promissory Note, QCU promised to pay Brooking Industries $44,653.87 by
June 20, 2018, for products that QCU had previously purchased from Brooking Industries.
Id. ¶ 35, 38. The Brooking Group alleges that QCU has defaulted on the Promissory
Note. Id. ¶ 39. In addition, after executing the Promissory Note, QCU continued to
purchase products from Brooking Industries. Id. ¶ 40. The Brooking Group alleges that
Brooking Industries invoiced QCU for the products and that QCU never objected to the
invoice, but QCU has failed to pay the invoice. Id. ¶¶ 41-43; id., Exhibit B: Brooking
Industries, Inc. Customer Balance Detail (Doc. 87-2; Invoice).
Importantly, the Brooking Group seeks to pierce the LLC veils of Upfitters and QCU
to hold Bracken and Piersing personally liable for QCU’s alleged default on the Promissory
Note and failure to pay the Invoice. See generally Third-Party Complaint. In doing so,
the Brooking Group alleges that QCU is the alter ego of Upfitters, id. ¶ 45, Upfitters is the
alter ego of Bracken and Piersing, id. ¶ 55, and QCU is the alter ego of Bracken and
Piersing, id. According to the Third-Party Complaint, Upfitters is the parent company and
sole member of QCU, and that Bracken and Piersing are the sole members of Upfitters.
See Third-Party Complaint ¶¶ 5-6. The Brooking Group further alleges, “upon information
and belief,” that Upfitters and QCU share common officers and directors; Upfitters provides
QCU with its funding to operate; Upfitters dominates QCU to such an extent that QCU
lacks an independent existence; Upfitters has used QCU to perpetuate injustice and to

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justify its wrongful conduct; QCU is a mere instrumentality of Upfitters; Bracken and
Piersing dominate Upfitters to such an extent that Upfitters lacks an independent
existence; Bracken and Piersing have used Upfitters and QCU to perpetuate injustice;
Upfitters and QCU are severely undercapitalized; Upfitters and QCU do not maintain
adequate records or observe organizational formalities; Upfitters’ and QCU’s assets have
been used to pay the personal obligations of Bracken and Piersing; QCU, Bracken, and
Piersing comingle assets and affairs; QCU and Upfitters are the mere instrumentalities of
Bracken and Piersing; Bracken and Piersing have used Upfitters and QCU to perpetuate
injustice, which has damaged the Brooking Group. See id. ¶¶ 45-64. In addition, after
Upfitters initiated this lawsuit, Bracken and Piersing “purportedly assigned all of their rights
and obligations under the May 2012 Agreement to Upfitters . . . .” Id. ¶ 44.
Based in part on these allegations, the Brooking Group asserts nine claims for relief
against Upfitters, QCU, Bracken, and Piersing.3 As relevant here, the Brooking Group
asserts the following three third-party claims against Bracken and Piersing: Breach of
Promissory Note – Alter Ego (Count II); Breach of Contract/Account Stated – Alter Ego
(Count IV); and Breach of the May 2012 Agreement (Count V). In Count II, the Brooking
Group alleges that QCU defaulted on the Promissory Note by failing to pay Brooking
Industries the amount due thereunder, and that Bracken and Piersing are personally liable
for QCU’s wrongful conduct. Id. ¶¶ 69-73. In Count IV, the Brooking Group alleges that
QCU failed to pay Brooking Industries for products purchased after the execution of the
Promissory Note, and that Bracken and Piersing are personally liable for QCU’s wrongful

3

The Brooking Group realleges relevant factual allegations in each third-party claim, see ThirdParty Complaint ¶¶ 69, 79, 86, but it appears that only Brooking Industries is a proper plaintiff as to those
claims. Indeed, the wherefore clauses of Counts II, IV, and V ask that judgment be entered in favor of
Brooking Industries. See id. at 12, 15, 16.

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conduct. Id. ¶¶ 79-85. Finally, in Count V, the Brooking Group alleges that Bracken and
Piersing breached the May 2012 Agreement and that their “purported assignment of the
May 2012 Agreement to Upfitters after this litigation was commenced was an improper
and legally ineffective attempt to escape liability.” Id. ¶¶ 86-91.
In their Motion, Bracken and Piersing assert several reasons why the third-party
claims against them should be dismissed with prejudice. First, they contend that all three
counts constitute a “shotgun pleading” and that even “[i]f Count IV is not a shotgun
pleading, [it] is too vague to answer.” See Motion at 2, 5, 7. Second, Bracken and
Piersing assert that Count V is due to be dismissed because they are no longer parties to
the May 2012 Agreement in light of the assignment to Upfitters. Id. at 8. Third, Bracken
and Piersing argue that Counts II and IV should be dismissed because the Brooking
Group’s “alter ego theory fails.” Id. at 3-4, 6. Fourth, Bracken and Piersing maintain that
all claims against them should be dismissed because the Mutual Release and Settlement
Agreement “released Bracken and Piersing by contract.” Id. at 13. Finally, Bracken and
Piersing argue that this Court does not have personal jurisdiction over them under Florida’s
long-arm statute. Id. at 9-12.
III.

Standards of Review
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept

the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also
Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In
addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall
v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet

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some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250,
1262-63 (11th Cir. 2004) (citations omitted).

Indeed, while “[s]pecific facts are not

necessary[,]” the complaint should “‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the
plaintiff must allege “enough facts to state a claim that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A “plaintiff’s

obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]”
Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at
1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal”) (internal citation and
quotations omitted).

Indeed, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions[,]” which simply
“are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680. Thus, in
ruling on a motion to dismiss, the Court must determine whether the complaint contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570).
Additionally, in considering a motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2), the “plaintiff seeking the exercise of personal jurisdiction over a nonresident
defendant bears the initial burden of alleging in the complaint sufficient facts to make out

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a prima facie case of jurisdiction.” See United Techs. Corp. v. Mazer, 556 F.3d 1260,
1274 (11th Cir. 2009). Where a defendant “challenges jurisdiction by submitting affidavit
evidence in support of its position, ‘the burden traditionally shifts back to the plaintiff to
produce evidence supporting jurisdiction.’” See id. (quoting Meier ex rel. Meier v. Sun
Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). In ruling on a motion to dismiss
for lack of personal jurisdiction, a district court has discretion to conduct an evidentiary
hearing. See Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th
Cir. 1988). However, where the court does not conduct a hearing, or where the defendant
does not submit evidence challenging jurisdiction, “the plaintiff must present only a prima
facie showing of . . . personal jurisdiction.” Id. A plaintiff makes a prima facie showing
by presenting evidence sufficient to withstand a motion for directed verdict on the issue of
personal jurisdiction. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). Thus,
“[t]he district court must construe the allegations in the complaint as true, to the extent they
are uncontroverted by defendant's affidavits[.]” Id. (citing Delong Equip. Co., 840 F.2d
at 845). This construction in favor of the plaintiff is particularly necessary where, as in
the instant case, the jurisdictional questions are intertwined with the merits of a case. See
Delong Equip. Co., 840 F.2d at 845.
IV.

Discussion
A.

Failure to State a Claim

Bracken and Piersing raise a variety of arguments as to why the third-party claims
against them should be dismissed for failure to state a claim. First, Bracken and Piersing
argue that the Third-Party Complaint constitutes a “shotgun pleading.” See Motion at 2,
5, 7.

In particular, they contend that Counts II, IV, and V impermissibly incorporate

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irrelevant factual allegations, and therefore, are “replete with conclusory, vague, and
immaterial facts not obviously connected to any particular cause of action.” Id. (quoting
Weiland, 792 F.3d at 1322).4 As to the breach of contract claim in Count IV, specifically,
Bracken and Piersing argue that the Brooking Group improperly incorporated factual
allegations relating to the May 2012 Agreement and the Promissory Note, which makes it
impossible for Bracken and Piersing to know which agreement they are accused of
breaching.

See Motion at 6.

Upon consideration, the Court finds these arguments

unavailing.
The Brooking Group’s original Counterclaim and Third-Party Complaint was,
indeed, a shotgun pleading, which this Court struck, sua sponte. In the operative ThirdParty Complaint, the Brooking Group does not re-allege the allegations of each proceeding
claim into the next like it did in its first pleading, but rather re-alleges a specific set of factual
allegations for each claim for relief.

See Third-Party Complaint at ¶¶ 59, 79, 86.

Contrary to the arguments asserted by Bracken and Piersing, this pleading method did not
cause Counts II, IV, and V to contain “conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action.” See Weiland, 792 F.3d at 1322.
Even if some of these factual allegations are not necessary to a particular count, they at
least appear to be relevant, as the third-party claims are bound to share some factual
overlap.

The Court declines to require the kind of surgical precision in drafting that

Bracken and Piersing demand.

Moreover, although Count IV incorporates factual

allegations regarding the May 2012 Agreement and the Promissory Note, it is apparent

4

To the extent that Bracken and Piersing also argue that Counts II, IV, and V contain “‘a variety of
contract and tort claims interwoven in a haphazard fashion,’” see Motion at 2 (quoting Weiland, 792 F.3d at
1320), the Court finds the argument entirely lacking in merit. Indeed, the Third-Party Complaint contains
no tort claims.

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that the Brooking Group is referring to QCU’s alleged failure to pay the Invoice. Indeed,
Count IV is labeled “Breach of Contract/Account Stated – Alter Ego.” See Third-Party
Complaint at 14 (emphasis added). The Brooking Group alleges that Brooking Industries
invoiced QCU for $23,103.72 worth of products, QCU has not paid the Invoice, and these
products were not covered by the Promissory Note. Id. ¶¶ 80-82. The Brooking Group
further alleges that Bracken and Piersing are personally liable for QCU’s failure to pay the
Invoice, id. ¶ 85, and seeks damages in the amount of the invoice, plus interest and costs,
id. ¶ 86. Based on these allegations, it is clear that the Brooking Group is not alleging a
breach of the Promissory Note or the May 2012 Agreement in Count IV. As such, Counts
II, IV, and V are not subject to dismissal for being impermissibly pled or vague.
Next, Bracken and Piersing assert that Count V is due to be dismissed because
they are no longer parties to the May 2012 Agreement.

Id. at 8.

In Count V, the

Brooking Group alleges that Bracken and Piersing breached the May 2012 Agreement by,
among other things, “asserting (through their alter ego Upfitters) copyright and patent
infringement actions against Brooking Industries, its agents, and licensees on products
and works that Bracken, Piersing, and Brooking Industries worked collaboratively to
develop.” See Third-Party Complaint ¶ 89. Although the Brooking Group acknowledges
that Bracken and Piersing assigned their rights and obligations under the May 2012
Agreement to Upfitters after Upfitters initiated this litigation, the Brooking Group alleges
that the assignment “was an improper and legally ineffective attempt to escape liability.”
Id. ¶ 91. See also id. ¶ 57 (“Upon information and belief, Bracken and Piersing have used
Upfitters and QCU to perpetuate injustice, and to justify their wrongful conduct, including,
but not limited to, assigning their interests in the May 2012 Agreement to Upfitters in an

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effort to try to avoid their individual liability.”). In moving to dismiss Count V, Bracken and
Piersing argue that the Brooking Group failed to offer “evidence that this assignment was
anything but lawful and Bracken and Piersing had full rights to do so.” See Motion at 10.
The Court rejects the suggestion that the Brooking Group must substantiate the allegations
of the Third-Party Complaint with evidence at this stage of the proceedings. Instead, the
Court must accept the Brooking Group’s nonconclusory factual allegations in the ThirdParty Complaint as true. See Ashcroft, 556 U.S. at 678. Viewing the facts in the light
most favorable to the Brooking Group, as the Court must, the Court finds that the Brooking
Group has alleged facts sufficient to state a plausible claim for breach of the May 2012
Agreement against Bracken and Piersing.
Finally, Bracken and Piersing contend that Counts II and IV should be dismissed
because the Brooking Group has failed to allege facts upon which the Court could pierce
the LLC veils of Upfitters or QCU to hold Bracken and Piersing personally liable for QCU’s
alleged wrongdoings. See Motion at 3-4, 6. To pierce an entity’s liability shield under
Oklahoma law,5 a plaintiff must show “either (1) that the separate corporate existence is

5

This Court has supplemental jurisdiction over the Brooking Group’s state law claims in Counts II
and IV. As such, the Court must “apply the conflict-of-laws rules of the forum state. Once it has
characterized the legal issue, it determines the choice of law rule that the forum state applies to that particular
type of issue.” Grupo Televisa, S.A. v. Telemundo Commc'ns Grp., Inc., 485 F.3d 1233, 1240 (11th Cir.
2007). Here, Counts II and IV state claims for breach of contract, but they also seek to pierce the LLC veils
of Upfitters and QCU so that the Brooking Group can hold Bracken and Piersing personally liable for QCU’s
alleged breaches. Under Florida’s choice-of-law rules, the law of the state of formation applies in
determining whether an entity’s liability shield is pierced. See Pulte Home Corp. v. Ply Gem Indus., 804 F.
Supp. 1471, 1489 (M.D. Fla. 1992) (concluding that law of state of incorporation governs attempts to pierce
corporate veil) (citing Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1458 n.19 (11th Cir. 1989)); Chatlos Found., Inc.
v. D’Arata, 882 So. 2d 1021, 1023 (Fla. 5th Dist. Ct. App. 2004) (“Claims involving ‘internal affairs’ of
corporations, such as the breach of fiduciary duties, are subject to the laws of the state of incorporation.”
(internal quotation and citations omitted). Thus, because QCU and Upfitters are Oklahoma LLCs, see ThirdParty Complaint ¶¶ 5-6, the Court applies Oklahoma law in determining whether the Brooking Group has
adequately plead facts to show that QCU is the alter ego of Upfitters, and that QCU and Upfitters are the
alter egos of Bracken and Piersing. The Court notes, however, that “a claim based on the alter ego theory
is not in itself a claim for substantive relief,” but instead “a means of imposing liability on an underlying cause
of action[.]” See William M. Fletcher, Fletcher Cyclopedia of the Law of Corporations § 41.10. As such,
the underlying breach of contract claims may ultimately be governed by Florida law.

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a design or scheme to perpetrate fraud, or (2) that [the] corporation is so organized and
controlled and its affairs so conducted that it is merely an instrumentality or alter-ego of
the shareholder. In other words, it must appear that one corporation is merely a dummy
or sham.”6 King v. Modern Music Co., 33 P.3d 947, 952 (Okla. Civ. App. Div. 4. 2001).
See also Fanning v. Brown, 85 P.3d 841, 846 (Okla. 2004) (“Courts may disregard the
corporate entity and hold stockholders personally liable for corporate obligations or
corporate conduct under the legal doctrines of fraud, alter ego and when necessary to
protect the rights of third persons and accomplish justice.” (citations omitted)).

“[A]

corporation may be deemed to be a mere instrumentality [or alter ego] of an individual if
(1) the corporation is undercapitalized, (2) without separate books, (3) its finances are not
kept separate from individual finances, individual obligations are paid by the corporation
or vice versa, (4) corporate formalities are not followed, or (5) the corporation is merely a
sham.” Home-Stake Prod. Co. v. Talon Petroleum, C.A., 907 F.2d 1012, 1018 (10th Cir.
1990) (citations omitted).
Here, the Third-Party Complaint alleges that QCU is the alter ego of Upfitters, and
that QCU and Upfitters are the alter egos of Bracken and Piersing. See Third-Party
Complaint ¶¶ 45, 55. To support these assertions, the Brooking Group alleges, upon
information and belief, that Upfitters and QCU share common officers and directors;
Upfitters provides QCU with its funding to operate; Upfitters dominates QCU to such an

6

Courts routinely apply the corporate law doctrine of veil piercing to LLCs. Kaycee Land &
Livestock v. Flahive, 46 P.3d 323, 327-28 (Wyo. 2002) (“Most, if not all, of the expert LLC commentators
have concluded the doctrine of piercing the veil should apply to LLCs. . . . It also appears that most courts
faced with a similar situation—LLC statutes which are silent and facts which suggest the LLC veil should be
pierced—have had little trouble concluding the common law should be applied and the factors weighed
accordingly.” (collecting authority)); Hollowell v. Orleans Reg’l Gen. Hosp. LLC, 217 F.3d 379, 385 n.7 (5th
Cir. 2000) (“Commentators also agree that for purposes of piercing the corporate veil, an LLC would be
treated like a corporation.”).

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extent that QCU lacks an independent existence; Upfitters has used QCU to perpetuate
injustice; QCU is a mere instrumentality of Upfitters; Bracken and Piersing dominate
Upfitters to such an extent that Upfitters lacks an independent existence; Bracken and
Piersing have used Upfitters and QCU to perpetuate injustice; Upfitters and QCU are
severely undercapitalized; Upfitters and QCU do not maintain adequate records or
observe organizational formalities; Upfitters’ and QCU’s assets have been used to pay the
personal obligations of Bracken and Piersing; QCU and Upfitters are the mere
instrumentalities of Bracken and Piersing. See id. ¶¶ 45-64. Viewing these allegations
in the light most favorable to the Brooking Group, as the Court must, the Court finds that
the Brooking Group has alleged sufficient factual information to support its claim for alterego liability.
To the extent Bracken and Piersing find fault with the Third-Party Complaint
because it contains allegations based on “information and belief,” See Motion at 3-4, this
argument fails.

“[T]he mere fact that a complaint includes allegations asserted on

information and belief is not, in and of itself, a basis for dismissal.” Latele Television C.A.
v. Telemundo Commc'ns Grp., LLC, Case No. 12-cv-2539, 2013 WL 1296314, at *11 (S.D.
Fla. March 27, 2013) (citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2010)). Indeed, “[t]he Twombly plausibility standard, which applies to all civil actions, see
Iqbal, 129 S.Ct. at 1953, does not prevent a plaintiff from ‘pleading facts alleged upon
information and belief’ where the facts are peculiarly within the possession and control of
the defendant, see, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008), or where
the belief is based on factual information that makes the inference of culpability plausible,
see Iqbal, 129 S. Ct. at 1949 (‘A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’).” Arista, 604 F.3d at 120. In short, the Court is of the view
that the claims raised against Bracken and Piersing in the Third-Party Complaint are
sufficiently pled, Bracken and Piersing have received adequate notice of the claims against
them, and they can frame an appropriate response to Counts II, IV, and V as drafted. As
such, to the extent Bracken and Piersing seek dismissal of these counts for failure to state
a claim, the Motion is due to be denied.
B.

Mutual Release and Settlement Agreement

Next, Bracken and Piersing argue that all three third-party claims against them
should be dismissed because they were waived as part of the Mutual Release and
Settlement Agreement executed by QCU, ISP, Upfitters, and Brooking Industries on July
18, 2013. See Motion at 15. The relevant portion of the Mutual Release and Settlement
Agreement provides as follows:
That for and in consideration of the settlement agreement as
herein contained, the parties hereto mutually release and forever
discharge one another, . . . and any and all other persons, firms
or corporations with whom any of the former have been or now or
may be hereinafter affiliated, of and from any and all past, present
or future claims, demands, obligations, actions, causes of
actions, rights, damages, costs, expenses and compensation of
any nature whatsoever, whether based on tort, contract or other
theory of recovery, and whether for general, compensatory,
special, consequential or punitive damages which QCU, Upfitters
or I.S.P., their agents, partners, owners, shareholders, investors,
insurance carriers if any, now have or may hereinafter acquire on
account of or in any way growing out of the acts or omissions
which are the subject matter of the formation and operation of
QCU, L.L.C., Upfitters, L.L.C. and/or I.S.P., L.L.C., including
without limitation any and all known or unknown claims which
have resulted or which may result from the alleged acts,
commissions, omissions or breaches of QCU, Upfitters and/or
I.S.P.

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See Second Amended Complaint, Exhibit 24: Mutual Release and Settlement Agreement
(Doc. 53-24; Settlement Agreement) (emphasis added) at 3. 7

In its Response, the

Brooking Group contends that the consideration referred to in the first sentence of the
Settlement Agreement is QCU’s “payment of $44,653.87 (by June 21, 2018) required by
the contemporaneously executed promissory note.” See Response at 15. Significantly,
in the Third-Party Complaint, the Brooking Group alleges that QCU defaulted on the
Promissory Note by failing to pay that amount. See Third-Party Complaint ¶¶ 65-68. As
such, Bracken and Piersing’s argument that the claims against them are subject to the
release in the Settlement Agreement turns on factual disputes inappropriate for the Court
to determine on a motion to dismiss. Accordingly, the Court will not dismiss the thirdparty claims on the basis of the Settlement Agreement.
C.

Personal Jurisdiction

Finally, Bracken and Piersing argue that they “are not subject to jurisdiction under
the Florida Long-Arm statute.” 8 Motion at 13.

Florida’s long-arm statute provides in

pertinent part:
(1)(a) Any person, whether or not a citizen or resident of this state,
who personally or through an agent does any of the acts enumerated in
this subsection thereby submits himself or herself and, if he or she is a
natural person, his or her personal representative to the jurisdiction of the
courts of this state for any cause of action arising from the doing of any of
the following acts:
7

The Brooking Group did not attach the Settlement Agreement to the Third-Party Complaint.
To determine whether personal jurisdiction exists over nonresident defendants, courts ordinarily
engage in a two-part inquiry. See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir.
2004). First, courts determine “whether the exercise of jurisdiction is appropriate under [Florida]’s long-arm
statute.” Id. (citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996)). Second,
courts consider whether exercising personal jurisdiction over the nonresident defendants is consistent with
“the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which requires
that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction over the
defendant does not offend ‘traditional notions of fair play and substantial justice.’” Id. (quoting Sculptchair,
Inc., 94 F.3d at 626). Here, Bracken and Piersing do not argue that exercising personal jurisdiction over
them is inconsistent with the Due Process Clause.
8

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1.
Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an office or
agency in this state.
...
7.
Breaching a contract in this state by failing to perform acts
required by the contract to be performed in this state.
...
9.

Entering into a contract that complies with s. 685.102.

Fla. Stat. § 48.193.
The Brooking Group contends that the Florida long-arm statute permits the exercise
of personal jurisdiction over Bracken and Piersing because Bracken and Piersing were
carrying on a business in Florida, breached a contract in Florida, and entered into a
contract that complies with Florida Statutes section 685.102. See Response at 9-15. In
support of its assertion that Bracken and Piersing were carrying on a business in Florida,
the Brooking Group alleges the following:
This Court has personal jurisdiction over Bracken and Piersing
because they have transacted business in the state of Florida,
collaborated with Richard Brooking, a citizen of Florida, and his
agents regarding the design and developments of products that
were then sold to Bracken and Piersing and shipped out of
Florida, purchased numerous quantities of product from Brooking
Industries produced in Florida, collaborated with Richard
Brooking and his agents regarding the design and content of
certain products’ instructions that were then sold with certain
products out of Florida, conducted a joint business venture and
executed at least one contract with Brooking Industries (a Florida
Corporation), with such joint business venture and contract
forming the basis for this lawsuit. Bracken and Piersing have
only just recently purportedly assigned their rights under that
contract to Upfitters.

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Id. ¶ 13. In addition, the Brooking Group argues that Bracken and Piersing “breached the
May 2012 Agreement by bringing suit against Brooking Industries in Florida, the effects of
which will obviously be felt by Brooking Industries in Florida.” Response at 14.
In challenging the Court’s personal jurisdiction over them, Bracken and Piersing
argue only that the “assertions concerning Bracken [and] Piersing[’s] business activities in
Florida are false and unsupported.”

Motion at 13.

They maintain that Brooking

Industries did business with QCU, not Bracken or Piersing. Id. However, this argument
goes to the merits of the Brooking Group’s Third-Party Complaint, and Bracken and
Piercing have not submitted any evidence challenging these allegations. Instead, they
have chosen to rely solely on the allegations of the Third-Party Complaint. As such, the
Brooking Group need “present only a prima facie showing of . . . personal jurisdiction.”
Delong, 840 F.2d at 845. Taking the allegations of the Third-Party Complaint as true, the
Court determines that the Third-Party Complaint sufficiently alleges that Bracken and
Piersing were conducting business in Florida sufficient to satisfy section 48.193(1)(a)(1.)
and are alleged to have breached a contract in Florida sufficient to satisfy section
48.193(1)(a)(7.).9
Accordingly, it is
ORDERED:

9

The Court is of the view that it is unlikely that section 48.193(1)(a)(9.) provides an alternate basis
for personal jurisdiction given the language in the May 2012 Agreement. Nevertheless, given that the ThirdParty Complaint contains sufficient allegations to satisfy sections 48.193(1)(a)(1.) and (7.), the Court need
not consider whether section 48.193(1)(a)(9.) provides an alternative basis for personal jurisdiction.

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1.

The Motion to Dismiss Defendants’ Second Amended Counterclaims and by

Third-Party Defendants Amanda Piersing and Bodie Bracken and Memorandum of Law
(Doc. 90) is DENIED.
2.

Third-Party Defendants Amanda Piersing and Bodie Bracken shall respond

to the Third-Party Complaint (Doc. 87) in accordance with the requirements of Rule 12,
Federal Rules of Civil Procedure.
DONE AND ORDERED in Jacksonville, Florida on February 27, 2020.

lc23
Copies to:
Counsel of Record

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