Clipper Marine LTD v. Marlow-Hunter, LLC
ORDER: Defendant Marlow-Hunter, LLC's Motion to Dismiss Count VI of Third Amended Complaint or, Alternatively, to Require Plaintiff to Post a Bond 42 is DENIED. Defendant has until and including December 30, 2014, to file its Amended Answer to Plaintiff's Third Amended Complaint, which includes its answer to Count VI. Signed by Judge Virginia M. Hernandez Covington on 12/16/2014. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CLIPPER MARINE, LTD.,
Case No. 8:14-cv-1559-T-33TGW
This matter comes before the Court pursuant to Defendant
Marlow-Hunter, LLC’s Motion to Dismiss Count VI of Third
Amended Complaint or, Alternatively, to Require Plaintiff to
Post a Bond (Doc. # 42), filed on November 25, 2014. Plaintiff
Clipper Marine, Ltd. filed a response in opposition to the
Motion on December 12, 2014. (Doc. # 43). For the reasons
that follow, Marlow-Hunter’s Motion is denied.
Clipper Marine – “a yacht broker/dealer engaged in the
business of brokering and resale of yachts” - is a foreign
company with its principal place of business located in
Southampton, United Kingdom. (Doc. # 40 at ¶¶ 1, 5). MarlowHunter – “a manufacturer of pleasure sailing vessels” - is a
Florida Limited Liability Company with its principal place of
business located in Palmetto, Florida. (Id. at ¶¶ 2, 6).
According to Marlow-Hunter’s Articles of Organization, its
sole member is David E. Marlow, who is a citizen and resident
of the state of Florida. (Id. at ¶ 2).
In August of 2013, Clipper Marine purchased a Legend 40’
sailing yacht manufactured and warranted by Marlow-Hunter.
(Id. at ¶ 7).
Upon receipt of the vessel from [Marlow-Hunter],
Clipper [Marine] identified defects which rendered
it unseaworthy and unfit for resale. Clipper
[Marine] notified [Marlow-Hunter] of the defects
and made repeated and numerous demands for [MarlowHunter] to cure them in order to make the vessel
seaworthy and fit for resale. [Marlow-Hunter]
failed to undertake efforts to cure the defects and
ignored Clipper [Marine’s] repeated and numerous
demands for it to accept a return of the vessel in
exchange for a refund of the purchase price.
(Id. at ¶ 8).
As a result of Marlow-Hunter’s “refusal to correct the
defects or accept a return of the vessel,” Clipper Marine
submits that it has “suffered damages in the amount of the
purchase price of the vessel, incidental and consequential
damages associated with the storage and maintenance of the
vessel; and interest through the date of the judgment, costs,
and attorney’s fees.” (Id. at ¶ 9).
Clipper Marine initiated this action on June 27, 2014
(Doc. # 1), and filed the operative complaint on November 17,
2014, setting forth the following counts:
Count I: Breach of Express Warranties Under the
Florida UCC (Fla. Stat. § 672.313),
Merchantability Under the Florida UCC (Fla. Stat.
Count III: Breach of Implied Warranty of Fitness
for a Particular Purpose Under the Florida UCC
(Fla. Stat. § 672.315),
Count IV: Revocation of Acceptance
Florida UCC (Fla. Stat. § 672.608),
Count V: Breach of Contract, and
Count VI: Violation of the Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat. § 501.201,
(See Doc. # 40). Thereafter, Marlow-Hunter filed the present
Motion on November 25, 2014, seeking dismissal of Count VI
or, alternatively, to require Clipper Marine to post a bond
pursuant to Fla. Stat. § 501.211. (See Doc. # 42). Clipper
Marine filed a response in opposition to the Motion on
December 12, 2014. (Doc. # 43). The Court has reviewed the
Motion and the response thereto and is otherwise fully advised
in the premises.
II. Legal Standard
On a Fed. R. Civ. P. 12(b)(6) motion to dismiss for
failure to state a claim, this Court accepts as true all the
allegations in the complaint and construes them in the light
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
inferences from the allegations in the complaint.
v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, 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. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)(internal
Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
A. Count VI - Florida Deceptive
Practices Act (FDUTPA)
In the present Motion, Marlow-Hunter seeks dismissal of
Count VI as (1) Clipper Marine’s allegations are a recasting
of the same allegations that are contained in Counts I, II
and III of the Third Amended Complaint, (2) Clipper Marine
has failed to allege significant deception or malice on the
part of Marlow-Hunter, and (3) Clipper-Marine is not an instate consumer. (See Doc. # 42).
The Court will address each
contention in turn.
1. Recasting of Counts I, II, and III
According to Marlow-Hunter, “Clipper Marine’s FDUTPA
claim is based upon the same alleged conduct that forms the
basis for the warranty claims that are addressed in Counts I,
II, and III of the Third Amended Complaint.” (Id. at 6). While
Clipper Marine’s FDUTPA claim sets forth similar allegations
as provided in Counts I – III, the Court sees no reason, at
this juncture, why Clipper Marine should not be allowed to
plead in the alternative.
2. Deceptive Act or Unfair Practice
Next, Marlow-Hunter suggests that Clipper Marine failed
to state a claim under FDUTPA. (Id. at 12). To state a claim
under FDUTPA, a plaintiff must demonstrate: (1) a deceptive
act or unfair practice, (2) causation, and (3) actual damages.
Hetrick v. Ideal Image Dev. Corp., 758 F. Supp. 2d 1220, 1229
(M.D. Fla. 2010).
Marlow-Hunter contends that Clipper Marine has failed to
“allege significant deception or malice on the part of MarlowHunter.” (Doc. # 42 at 5). Instead, Marlow-Hunter argues that
Clipper Marine has alleged a breach of warranty under the
guise of FDUTPA and has not asserted any allegations that
demonstrate probable or significant deception or malice. (Id.
at 5-6)(citing Willard v. Home Depot, U.S.A., Inc., No. 5:09CV-110/RS-MD, 2009 WL 1884395 (N.D. Fla. June 29, 2009);
Joyeria Paris SRL v. Gus & Eric Custom Servs., No. 13-22214CIV, 2013 WL 6633175 (S.D. Fla. Dec. 17, 2013)).
In response, Clipper Marine submits that it has alleged
unfair and deceptive actions on the part of Marlow-Hunter in
connection with the purchase of the subject vessel and does
not merely “recast” or reiterate the allegations of its breach
of warranty claims in Counts I – III. (Doc. # 43 at 6).
Specifically, in the Third Amended Complaint, Clipper Marine
alleges that Marlow-Hunter made representations to Clipper
Marine, apart from any warranty, that it would be delivering
a vessel in good condition. (Id.). However, despite these
assurances, “[Marlow-Hunter] delivered a vessel with numerous
defects that rendered the vessel unseaworthy and unfit for
resale by [Clipper Marine].” (Id.).
Furthermore, Clipper Marine avers that Marlow-Hunter
“represented to [Clipper Marine] that the defects would be
cured but never followed up on these representations despite
[Clipper Marine’s] numerous requests for [Marlow-Hunter] to
repair the vessel.” (Id.). “[Marlow-Hunter] then represented
it would arrange for the re-purchase of the vessel by another
dealer, which sold vessels manufactured by [Marlow-Hunter];
however, [Marlow Hunter] failed to do so and failed to answer
unconscionable, deceptive, or unfair acts or practices in the
conduct of any trade or commerce, courts have regarded the
concept as extremely broad.” MJS Music Publ'n, LLC v. Hal
Leonard Corp., No. 8:06–cv–488–T30EAJ, 2006 WL 1208015, *2
(M.D. Fla. May 4, 2006)(internal quotation marks omitted).
Whether particular conduct constitutes an unfair or deceptive
trade practice is a question of fact. Siever v. BWGaskets,
Inc., 669 F. Supp. 2d 1286, 1292-93 (M.D. Fla. 2009).
In order for this Court to make a determination as to
whether there was a deceptive act or unfair practice, the
Court would be required to look outside the four corners of
the Third Amended Complaint, which this Court declines to do
at this time. Such a determination is better suited for the
summary judgment stage. The Court will make its determination
on Clipper Marine’s FDUTPA claim - in its entirety – when it
complaint. Therefore, Marlow-Hunter’s Motion is denied.
3. Whether FDUPTA Applies as Clipper Marine is Not
an In-State Consumer
Marlow-Hunter contends that Count VI should be dismissed
because Clipper Marine is not an in-state consumer. (Doc. #
42 at 8)(citing OCE Printing Sys. USA, Inc. v. Mailers Data
Servs., Inc., 760 So. 2d 1037 (Fla. 2nd DCA 2000); Coastal
Physician Servs. of Broward Cnty. v. Ortiz, 764 So. 2d 7, 8
Complaint asserts that Clipper Marine is a foreign company
with its principal place of business located in Southampton,
United Kingdom. (Id.). Furthermore, Clipper Marine admitted
that the Legend 40 was received by Clipper Marine in the
United Kingdom. (Id.).
However, in response, Clipper Marine argues that “FDUTPA
between Florida corporations and non-resident consumers.”
(Doc. # 43 at 9)(citing Millennium Commc’ns & Fulfillment,
Inc. v. Office of Attorney Gen., 761 So. 2d 1256, 1260-61
(Fla. 3rd DCA 2000)).
“[T]here are no geographical or residential restrictions
contained in the express language of section 501.202 [of the
FDUPTA].” Millennium Commc'n Q & Fulfillment, Inc., 761 So.
2d at 1262. Indeed, the Act is intended “[t]o protect the
consuming public and legitimate enterprises from those who
engage in unfair methods of competition, or unconscionable,
deceptive, or unfair acts or practices in the conduct of any
trade or commerce.” Id.; Fla. Stat. § 501.202 (emphasis
added). The term “trade or commerce” is defined as “the
distributing, whether by sale . . . or otherwise, of any good
. . . wherever situated.” Fla. Stat. § 501.203 (emphasis
added). Thus, nothing on the face of the statute precludes
its applicability to Clipper Marine simply because evidence
shows events concerning the sale of the relevant vessel
occurred outside of Florida. See Barnext Offshore, Ltd. v.
Ferretti Grp. USA, Inc., No. 10-23869-CIV, 2012 WL 1570057,
*5-6 (S.D. Fla. May 2, 2012)(finding that plaintiff, a foreign
corporation, could bring a FDUTPA claim against defendants,
which include domestic corporations and foreign entities,
based on plaintiff’s allegation that the vessel was sold in
occurred, the Court would need the benefit of discovery.
Therefore, the applicability of FDUTPA in this action as
Clipper Marine is admittedly not an in-state consumer, would
be better suited for summary judgment. Therefore, MarlowHunter’s Motion is denied on this ground.
B. Whether Clipper Marine Should be Required to Post a
Bond on its FDUPTA Claim
Marine be required to post a bond, pursuant to Fla. Stat §
501.211, in order to maintain its FDUPTA claim. (Doc. # 42 at
10). Fla. Stat. § 501.211, states in relevant part:
In any action brought under this section, upon
motion of the party against whom such action is
filed alleging that the action is frivolous,
without legal or factual merit, or brought for the
purpose of harassment, the court may, after hearing
evidence as to the necessity therefor, require the
party instituting the action to post a bond in the
amount which the court finds reasonable to
indemnify the defendant for any damages incurred,
subsection shall not apply to any action initiated
by the enforcing authority.
Fla. Stat. § 501.211 (3).
Marlow-Hunter argues that “[t]he FDUPTA claim alleged by
Clipper Marine is without legal or factual merit, and is
brought for the purpose of harassment.”
(Doc. # 42 at 10).
Specifically, Marlow-Hunter contends that the FDUTPA claim
ostensibly forms the basis for the breach of warranty claims
and the FDUTPA claim was brought by Clipper Marine to make a
claim for attorney’s fees.” (Id.). Furthermore, as argued
above, Marlow-Hunter provides that “at best, Clipper Marine’s
case is a claim for an alleged breach of warranty.
no valid basis upon which to claim that Marlow-Hunter engaged
in significant deception of malice in violation of FDUTPA.”
(Id. at 11).
“The purpose of requiring a bond is to provide defendants
an opportunity for redress for harassment rather than to
discourage plaintiffs from seeking access to the courts.”
Hamilton v. Palm Chevrolet-Oldsmobile, Inc., 366 So. 2d 1233,
1234-35 (Fla. 2nd DCA 1979).
To that end, “[i]t is not every
plaintiff who can be required to post a bond; only those
plaintiffs whose suits appear to be without merit are subject
to the requirement.” Id.
Clipper Marine argues that Marlow-Hunter “advances no
evidence that [Clipper Marine’s] FDUTPA claim is without
merit. Rather, [Marlow-Hunter] reiterates its Rule 12(b)(6)
argument that [Clipper Marine] fails to allege conduct on the
part of [Marlow-Hunter] falling under the protections of the
# 43 at 11). In doing so, Clipper Marine
contends that Marlow-Hunter “ignores the substances of the
Furthermore, Clipper Marine provides that it did not bring
its FDUTPA claim for purposes of harassing Marlow-Hunter.
(Id. at 12). Instead, under Fed. R. Civ. P. 8(d)(2), Clipper
Hunter’s alternative request to require Clipper Marine to
post a bond for its FDUTPA claim. It is not apparent to this
Court that Clipper Marine’s FDUPTA claim lacks merit and was
Rather, this Court determines that Clipper Marine, within its
right, alleged its FDUPTA claim as an alternative theory of
recovery. This Court will address the viability of Clipper
Marine’s FDUTPA claim at the proper stage of the proceeding,
but at this time, the Court finds it inappropriate – under
the standard set forth in Fla. Stat. § 501.211 - to require
Clipper Marine to post a bond.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant Marlow-Hunter, LLC’s Motion to Dismiss Count
VI of Third Amended Complaint or, Alternatively, to
Require Plaintiff to Post a Bond (Doc. # 42) is DENIED.
Defendant has until and including December 30, 2014, to
file its Amended Answer to Plaintiff’s Third Amended
Complaint, which includes its answer to Count VI.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of December, 2014.
Copies: All Counsel of Record
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