B & E Gibson Enterprises Inc. v. Darngavil Enterprises LLC et al

Filing 10

ORDER granting in part and denying in part 4 Motion to dismiss; granting in part and denying in part 5 Motion to dismiss. Defendants' Motions will be DENIED with respect to Counts IV, V, VI, VII, VIII, and IX; Count XII is DISSMISSED WITH PREJUDICE; Counts I, II, III, X, XI are DISMISSED WITHOUT PREJUDICE. Signed by Judge Gregory A. Presnell on 1/7/2013. (NWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
B & E GIBSON ENTERPRISES INC.,
Plaintiff,
v.

Case No: 6:12-cv-1865-Orl-31GJK

DARNGAVIL ENTERPRISES LLC,
JACQUELINE BERGEN and PETER C.
BERGEN,
Defendants.

ORDER
This cause comes before the Court on two Motions to Dismiss (Docs. 4 & 5) filed by
Defendants Darngavil Enterprises LLC (“Darngavil”), and Jacqueline Bergen and Peter C. Bergen.
Plaintiff has not filed a response.
I.

Background
This breach of contract case arises out of a lease agreement (the “Lease”) between

Plaintiff, B & E Gibson Enterprises, LLC (“B&E”), the owner of a “2011 Freightliner Cascadia
Tractor Unit” and a “2005 53’ Utility Trailer” (the “Equipment”) and Darngavil, an “authorized
motor carrier.” Under the terms of the Lease, B&E ‘leased’ the Equipment to Darngavil who
“assume[d] complete responsibility for the operation of [the Equipment].” (Doc. 2 at 3).
According to the Complaint, one of Darngavil’s obligations under the Lease was to “investigate
and scrutinize the drivers of B&E’s Equipment, by conducting ‘driver motor vehicle checks.’ ”
(Doc. 2 at 2).

In November 2011, one of B&E’s trailers was involved in an accident resulting in severe
damage to the trailer. B&E further alleges that Darngavil failed to conduct reasonable
investigations into the two drivers who operated the Equipment—both of whom were allegedly
under the influence of illegal drugs. B&E terminated the Lease on April 24, 2012 and filed this
suit on November 2, 2012; it was removed to this Court on December 13, 2012.
The Complaint asserts twelve causes of action against three Defendants, Darngavil, and
two of its officers, Jacqueline and Peter Bergen (the “Bergens”). The various Counts are as
follows: breach of contract against Darngavil (Count I, IV, VI); violation of the Truth in Leasing
Act, 49 U.S.C. § 14102 and 14704 et seq (Counts II, III, V, VII); fraud in the inducement against
the Bergens (Count VIII); civil conspiracy against the Bergens (Count IX); breach of fiduciary
duty by Darngavil (Count X); unjust enrichment against Darngavil (Count XI); and “against [the
Bergens] as the alter ego or Darngavil” (Count XII). Defendants now move to dismiss each Count;
Plaintiff has not responded.
II.

Standard
In ruling on a motion to dismiss, the Court must view the complaint in the light most

favorable to the Plaintiff, see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th
Cir. 1994), and must limit its consideration to the pleadings and any exhibits attached thereto.
Fed. R. Civ. P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.
1993). The Court will liberally construe the complaint’s allegations in the Plaintiff’s favor.
Jenkins v. McKeithen, 395 U.S. 411,421 (1969).

However, “conclusory allegations,

unwarranted factual deductions or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

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In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), “courts must be mindful that the Federal Rules require only that the complaint
contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ”
U.S. v. Baxter Intern., Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing Fed. R. Civ. P. 8(a)).
This is a liberal pleading requirement, one that does not require a plaintiff to plead with
particularity every element of a cause of action. Roe v. Aware Woman Ctr.for Choice, Inc.,
253 F.3d 678, 683 (11th Cir. 2001). However, a plaintiff’s obligation to provide the grounds
for his or her entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 554-555 (2007). The complaint’s factual allegations “must be enough to raise a right
to relief above the speculative level,” Id. at 555, and cross “the line from conceivable to
plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950-1951 (2009).
III.

Discussion
A. Darngavil’s Motion to Dismiss
The majority of Plaintiff’s claims arise out of the alleged breach of the Lease and violation

of 49 U.S.C. § 14102 and 14704 et seq. Counts X and XI stand out, however, as clearly deficient
and will be dismissed. Count X attempts to recast a breach of contract claim as a breach of
fiduciary duty by stating that the parties “shared a relationship whereby B&E reposed trust and
confidence in Darngavil. Specifically, . . . that Darngavil would properly investigate and scrutinize
[the drivers].” (Doc. 2 at 13). There is a difference, however, between contractual duties of the
kind alleged here, and fiduciary duties. See Larson v. Correct Craft, Inc., 537 F. Supp. 2d 1264,
1269 (M.D. Fla. 2008) (for a fiduciary relationship to exist under Florida law “there must be
substantial evidence showing some dependency by one party and some undertaking by the other

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party to advise, counsel, and protect the weaker party.”) vacated and remanded on other grounds,
569 F.3d 1319 (Fed. Cir. 2009); Cripe v. Atlantic First Nat. Bank, 422 So.2d 820 (Fla.1982).1
Thus, Count X will be dismissed because there are no allegations supporting a claim for breach of
fiduciary duty.
This is a suit based on an express contract, the existence of which is not disputed. For that
reason, Count XI for unjust enrichment will be dismissed as well. Shibata v. Lim, 133 F. Supp. 2d
1311, 1316-17 (M.D. Fla. 2000).
Counts I, II, and III allege that Darngavil breached the Lease, and violated the Truth in
Leasing Act, by failing to conduct a drug test on two of the drivers. According to the express
terms of the Lease however, Darngavil was required only to “pre-approve” drivers “in regard to
State and Federal laws and driver motor vehicle record checks.” (Doc. 2-1 at 1). The Complaint
appears to reference 49 C.F.R. § 382.105, which requires that “[e]ach employer ensure that all
alcohol or controlled substance testing conducted under this part complies with the procedures set
forth in part 40 of this title.” 49 C.F.R. § 382.105 (emphasis added). According to the Lease,
however, B&E was the ‘employer’ of the drivers. (See Doc. 2-1 at 1; and ¶ 6). Further, although
the first paragraph of the lease states that Darngavil will pre-approve all drivers in regard to state
and federal law, the same paragraph also states that B&E “will provide drivers fully qualified
under all applicable federal and state laws . . . .” Confronted with this contradictory language, the
vague allegations in the Complaint, and lacking a response from the Plaintiff, Counts I, II, and III
will be dismissed without prejudice.
1

See also Lanz v. Resolution Trust Corp., 764 F. Supp. 176, 179 (S.D. Fla. 1991) (“In an
arms-length transaction however, there is no duty imposed on either party to act for the benefit or
protection of the other party, or to disclose facts that the other party could, by its own due
diligence have discovered. The fact that one party places trust or confidence in the other does not
create a confidential relationship in the absence of some recognition, acceptance or undertaking of
the duties of a fiduciary on the part of the other party.” (citations omitted)).

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Counts IV and V assert claims for breaching the Lease, and for violation of the Truth in
Leasing Act, for failing to provide “accounting of charge backs.” The Complaint alleges that
“B&E requested, on multiple occasions, ‘all documents necessary to determine the validity of all
items charged back against compensation due.’ These requests were made on at least November
13, 2011; January 29, 2012; and April 14, 2012.” (Doc. 2 at 8). Plaintiff further claims that “[a]s a
direct and proximate result of Darngavil’s breach of the Lease, B&E suffered damages.” (Doc. 2 at
8, 9). This is sufficient to survive a motion to dismiss. Since the allegations in the Complaint, and
Defendant’s arguments, are virtually identical with respect to Counts VI and VII—for failure to
make timely payments—Defendant’s Motion will be denied with respect to those Counts as well.
B. The Bergens’ Motion to Dismiss
Plaintiff asserts three causes of action against the Bergens. Federal courts do not recognize
a cause of action for “alter ego” as Plaintiff attempts to claim in Count XII. Fed.R.Civ.P. 10(b)
(“[E]ach claim founded on a separate transaction or occurrence ... must be stated in a separate
count.”); see also Oginsky v. Paragon Properties of Costa Rica LLC, 784 F. Supp. 2d 1353, 1373
(S.D. Fla. 2011). To the extent Plaintiff seeks to impose liability on the Bergens under an alter ego
theory, it must plead such allegations in the body of the Complaint. Count XII will be dismissed
with prejudice.
Next, Plaintiff claims that it was fraudulently induced by the Bergens’ representation that it
would earn certain profits if it entered into the lease. Defendant argues that this claim is barred by
the economic loss rule. Under Florida law, however, the economic loss rule applies only to parties
in contractual privity. Since there is no contractual privity between Plaintiff and the Bergens, the
economic loss rule does not apply. See Luigino's Int'l, Inc. v. Miller, 311 F. App'x 289, 293 (11th
Cir. 2009); Advisor's Capital Investments Inc., v. Cumberland Cas. & Sur. Co., No. 8:05-CV-404-

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T-23MAP, 2007 WL 220189, at *2 n. 5 (M.D.Fla. Jan.26, 2007) (economic loss rule does not bar
claims of fraudulent inducement and negligent misrepresentation because plaintiffs and defendants
were not in contractual privity); McLeod v. Barber, 764 So.2d 790, 792 (Fla. 5th DCA 2000)
(“[T]he law is clear that the economic loss doctrine does not apply to tort claims where there is no
contractual relationship between the parties.”). Therefore, Defendant’s Motion will be denied with
respect to Count VIII.
Defendant’s Motion will also be denied with respect to the related civil conspiracy claim in
Count IX. The allegations are sufficient to satisfy the heightened pleading requirements in Fed. R.
Civ. P. 9.
It is therefore,
ORDERED that Defendants’ Motions will be GRANTED IN PART AND DENIED IN
PART as follows,
1.

Defendants’ Motions will be DENIED with respect to Counts IV, V, VI, VII, VIII,
and IX;

2. Count XII is DISSMISSED WITH PREJUDICE;
3. Counts I, II, III, X, XI are DISMISSED WITHOUT PREJUDICE.
DONE and ORDERED in Orlando, Florida on January 7, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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