American Infoage, LLC et al v. Regions Bank
Filing
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ORDER granting in part 15 --motion to dismiss; dismissing Count V; amendment of Count V due 4/4/2014. Signed by Judge Steven D. Merryday on 3/20/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMERICAN INFOAGE, LLC, et al.,
Plaintiffs,
v.
CASE NO.: 8:13-cv-1533-T-23TGW
REGIONS BANK,
Defendant.
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ORDER
This action results from the fallout of loans in 2005. The defendant moves
(Doc. 15) to dismiss the complaint, and Infoage and Sago respond (Doc. 17) in
opposition.
1. Count I: Fraud – Infoage
The defendant argues that Count I fails to state a claim because Count I fails to
allege with “the requisite specificity the time and place the purported representations
were allegedly made, as well as the specific content of each such representation, the
individual to whom such representations were made, and the manner in which such
representations were made.” (Doc. 15 at 6-7) In response, the plaintiffs explain:
Plaintiffs have alleged that the misrepresentations occurred during the
course of the discussions leading to the loans. (Amended Compl.
¶¶ 8-15). The Amended Complaint identifies the agent who made the
misrepresentations (Vogt), alleges the time frame of the discussions
(June through August 2005), identifies the places where the
discussions took place (at Plaintiffs’ offices in Tampa and at
AmSouth’s offices in Tampa), and quotes or paraphrases the
misrepresentations.
(Doc. 12 at 4) A careful review confirms that Count I “has given the defendant the
‘who, what, where, and when’ of the alleged fraud that took place.” Medalie v. FSC
Sec. Corp., 87 F. Supp. 2d 1295, 1307 (S.D. Fla. 2000) (Gold, J.).
The defendant argues (1) that “the three representations made by [the
defendant] were [not] false,” (2) that the three representations failed to mislead the
plaintiffs, and (3) that the plaintiffs’ parol evidence is inadmissible because the
evidence is not “clear, precise, and indubitable.” (Doc. 15 at 7, 9 (internal quotation
mark omitted)) However, each of the arguments presents factual matters that are
“better suited for resolution at a later stage in the litigation when the Court can
properly consider additional matters outside of the pleadings.” Cantiere Nautico
Cranchi, S.p.A. v. Luxury Marine Grp., LLC, 2009 WL 3538722 (S.D. Fla. Oct. 28,
2009) (Dimitrouleas, J.).
Finally, the defendant argues that – according to Ungerleider v. Gordon, 214
F.3d 1279, 1284 (11th Cir. 2000) – the plaintiffs’ parol evidence is inadmissible. “In
sum,” Ungerleider holds, “the inducement exception [to the parol evidence rule]
permits parol evidence of a contemporaneous oral agreement to ‘vary, change, or
reform’ a written instrument . . . but not to directly contradict it.” (citation omitted).
The defendant never argues that the misrepresentations cited by the plaintiffs
“directly contradict” the written agreements. To the contrary, the defendant
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contends that the representations are consistent with the contracts. Accordingly, the
defendant fails to show that the parol evidence rule preemptively excludes the oral
representations.
2. Count II: Negligent Misrepresentation – Infoage
Citing Rose v. ADT Security Services, Inc., 989 So. 2d 1244 (Fla. 1st DCA 2008),
the defendant argues that Infoage failed to “support [] its allegation that it ‘justifiably
relied’” on the defendant’s representations. (Doc. 15 at 10) However, “[t]he main
case upon which Defendant relies . . . is inapposite because it was decided at the
summary judgment stage.” Fojtasek v. NCL (Bahamas) Ltd., 613 F. Supp. 2d 1351,
1355 (S.D. Fla. 2009) (Ungaro, J.); see also Great Florida Bank v. Countrywide Home
Loans, Inc., 2010 WL 4024892 (S.D. Fla. Oct. 13, 2010) (Huck, J.) (“Given these
competing claims, the Court cannot dispose of this aspect of reliance on a motion to
dismiss.”); Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2010 WL 4624274 (S.D. Fla.
Nov. 4, 2010) (Seitz, J.) (“Whether that reliance was truly justified is a matter for
summary judgment or trial, not a motion to dismiss.”); Maloul v. Berkowitz, 2008 WL
2876532, at *2 (S.D.N.Y. July 23, 2008) (Sand, J.) (stating that reasonable reliance
“is intensely fact-specific and generally considered inappropriate for determination
on a motion to dismiss”).
3. Count III-IV: Breachs of Contract – Infoage
The defendant argues that neither Count III nor Count IV states a breach of
contract claim. The defendant states that Infoage failed to allege the existence of a
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valid contract. However, the complaint pleads the contracts, and the contracts are
attached to the complaint. (Docs. 11 ¶¶ 17-18, 60-62, 65-67 and 11-3 to -5)
The defendant argues that Infoage failed to allege a breach. However, the
complaint identifies the breached clauses of the contracts. (Doc. 11 ¶ 25)
Nonetheless, as an affirmative defense, the defendant argues that a separate contract
justifies the defendant’s breach. However, the complaint fails to “affirmatively and
clearly show[] the conclusive applicability of the defense.” Reisman v. Gen. Motors
Corp., 845 F.2d 289, 291 (11th Cir. 1988) (quoting Evans v. Parker, 440 So. 2d 640,
641 (Fla. 1st DCA 1983)). Accordingly, the defendant’s argument is best left
unresolved on a motion to dismiss.
4. Count V: Breach of Contract – Sago
The defendant argues that “Sago has failed to adequately plead [Count V]
under Rule 8(a)’s notice pleading standard.” (Doc. 15 at 12) In full, Count V states:
70. Regions breached the Equipment Renewal Note by overcharging
Sago the Equipment Loan Overcharges.
71. Sago has been damaged in consequence of Regions’ breach.
72. Sago performed all of its obligations under the Equipment
Renewal Note.
WHEREFORE, Sago demands judgment for damages against
Regions plus interest, court costs and attorney fees.
(Doc. 11 at 13) The general allegations incorporated through paragraph 70
contribute little more detail. In the only relevant section, the general allegations
state, “Once it began to analyze the Infoage Loans and Sago Equipment Loan, Sago
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realized that Regions had overcharged monthly interest on the Sago Equipment Loan
by $54,557.87. The Equipment Loan Overcharges occurred because Regions was
auto-debiting funds from Sago’s bank account without notice to Sago.” (Doc. 11 at
9) The allegations fail to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
5. Count VI: Unjust Enrichment – Infoage
The defendant argues that Infoage may not assert an unjust enrichment
because the claim is precluded by an express contract between the parties. Infoage
correctly explains that Infoage can assert an unjust enrichment claim in the
alternative and that the defendant’s argument is premature. Intercoastal Realty, Inc. v.
Tracy, 706 F. Supp. 2d 1325, 1332 (S.D. Fla. 2010) (Cohn, J.) (“Indeed, nothing
prevents Plaintiff from pursuing alternative claims of breach of contract and unjust
enrichment in separate counts.”); Abels v. JPMorgan Chase Bank, N.A., 678 F. Supp. 2d
1273, 1279 (S.D. Fla. 2009) (King, J.) (“[I]t would be premature to dismiss the unjust
enrichment count simply because an express contract exists.”).
6. Counts VII and VIII: Breaches of Good Faith and Fair Dealing – Infoage
The defendant argues that – by failing to state a claim for breach of contract in
Counts III and IV – Infoage fails to state a claim for breach of good faith and fair
dealing. See Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1152
(11th Cir. 2005) (“[A] claim for a breach of the implied covenant of good faith and
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fair dealing cannot be maintained under Florida law in the absence of a breach of an
express term of a contract.”). However, as discussed above, Infoage states in Counts
III and IV claims for breach of contract.
The defendant argues that Counts VII and VIII assert damages that are not
“separate and distinct.” However, the defendant fails to explain why Infoage cannot
allege identical damages in separate counts. Although “double recovery based on the
same . . . damages is prohibited,” Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc.,
889 So. 2d 180, 199 (Fla. 2d DCA 2004), Infoage may allege the same damages in
seperate counts. C.f. Brenner v. Miller, 2009 WL 1393420 (S.D. Fla. May 18, 2009)
(“[U]nder New York law, a breach of contract and malpractice claims are duplicative
if both arise from the same facts and give rise to the same damages. There appears to
be no similar holding under Florida law.”).
7. Attorney’s Fees
The defendant argues that the plaintiffs are not entitled to attorney’s fees
because the complaint fails to state the legal basis for the award of attorney’s fees.
However, the plaintiffs correctly cite the loan documents that are attached to the
complaint, and the documents permit the collection of attorney’s fees. See also
Florida Statutes § 57.105(5) (“If a contract contains a provision allowing attorney’s
fees to a party . . . , the court may also allow reasonable attorney’s fees to the other
party . . . .”).
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CONCLUSION
The defendant’s motion (Doc. 15) to dismiss is GRANTED IN PART.
Count V is DISMISSED. No later than APRIL 4, 2014, the plaintiffs may amend
Count V.
ORDERED in Tampa, Florida, on March 20, 2014.
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