Merlin Petroleum Company, Inc. v. Sarabia et al

Filing 13

ORDER: Defendants' Motion to Dismiss Plaintiff's Complaint 11 is granted in part and denied in part. Count I of the complaint is not dismissed. Counts II and III of the complaint are dismissed without prejudice to Plaintiff to file an amended complaint within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr on 6/3/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MERLIN PETROLEUM COMPANY, INC.,
Plaintiff,
v.

CASE NO: 8:16-CV-1000-T-30TBM

PEDRO JAVIER SARABIA and
CARLA CARLINA RAMIREZ EDWARDS,
Defendants.
____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss Plaintiff’s
Complaint (Dkt. 11) and Plaintiff’s Response in Opposition (Dkt. 12). The Court, upon
review of the motion, response, and being otherwise advised in the premises, concludes that
the motion should be granted in part and denied in part.
BACKGROUND
This case relates to a past debt that Defendants purportedly owe to Plaintiff. The
claims are grounded in breach of contract and fraudulent inducement. Specifically, on
November 9, 2011, Defendant Pedro Javier Sarabia agreed in writing to repay an existing
debt that he acknowledged he owed to Plaintiff Merlin Petroleum Company, Inc., in the
amount of $1,772.867.65. Under the terms of the written agreement, attached as Exhibit 1
to the complaint, the debt would be repaid from funds generated from four specific sources:
proceeds from the sale of two properties; proceeds from an insurance claim; and proceeds

related to the operation of a “future business.” In early 2016, Plaintiff learned that
Defendants sold one of the referenced properties and made approximately $700,000.
Defendants failed to provide Plaintiff any funds from the proceeds in violation of the
agreement. Defendants also did not make any payments under the agreement related to the
other referenced sources. Defendants subsequently made a “limited payment” to Plaintiff,
but not according to the agreement terms. The current balance of the debt is $1,568,407.41.
Defendants now move to dismiss the complaint for failure to state a claim under Fed.
R. Civ. P. 12(b)(6) and for failure to allege fraud with particularity under Fed. R. Civ. P.
9(b).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim upon which relief can be granted. When reviewing a motion to
dismiss, a court must accept all factual allegations contained in the complaint as true, and
view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007).

However, unlike factual allegations, conclusions in a pleading “are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). On the
contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed,
“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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With respect to claims alleging fraud, Rule 9(b) directs: “In alleging fraud or mistake,
a party must state with particularity the circumstances constituting fraud or mistake.”
DISCUSSION
I.

Breach of Contract
A breach of contract claim under Florida law requires three elements: (1) a valid

contract; (2) a material breach of the contract; (3) and damages as a result of the breach. See
Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008). Plaintiff alleges
facts in support of each element. Plaintiff identifies the contract, i.e., the written agreement
attached to the complaint, and alleges that Defendants have breached the terms of the
contract through their failure to pay Plaintiff the money associated with their past debt from
the agreed upon funding sources. As a result, Plaintiff has been damaged.
Defendants argue that the breach of contract claim is insufficient because the alleged
contract lacks consideration. But this argument fails at this stage because Plaintiff alleges
that the contract relates to past debt; in other words, the consideration is Plaintiff’s
compromise to refrain from pursuing litigation against Defendants for the past debt they owe,
and to afford Defendants another opportunity to repay the debt. Discovery may reveal that
this alleged consideration is inadequate. But the Court must assume the truth of the
allegations at the motion to dismiss stage. And the written agreement specifically references
the past debt owed to Plaintiff in the amount of $1,772,867.65.
Defendants also argue that Mrs. Sarabia did not sign the agreement and therefore
cannot be liable for any breach. At this stage, Plaintiff has alleged adequate facts suggesting

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that Mr. Sarabia executed the agreement on her behalf. The language of the agreement
supports Plaintiff’s position because it references personal property owned jointly by Mr. and
Mrs. Sarabia. Moreover, the complaint alleges that Mrs. Sarabia attended multiple meetings
as part of the negotiation process and represented that she was an owner of the personal
assets referenced in the agreement. Accordingly, at this stage, the Court declines to dismiss
Mrs. Sarabia.
Defendants’ final argument in favor of dismissal, that the written agreement
contradicts the complaint’s allegations, is without merit. A review of the complaint and the
attached written agreement reveals no material contradictions.
In sum, Defendants’ motion to dismiss is denied with respect to the breach of contract
claim.
II.

Fraud Claims
Defendants assert that Plaintiff has not pled its fraud claims with sufficient

particularity under Rule 9(b).1 To satisfy Rule 9(b)’s “particularity” standard, the Eleventh
Circuit has stated that a complaint must “identify (1) the precise statements, documents or
misrepresentations made; (2) the time and place of and persons responsible for the statement;
(3) the content and manner in which the statements misled the plaintiff; and (4) what the
Defendants gain[ed] by the alleged fraud.” W. Coast Roofing & Waterproofing, Inc. v. Johns
1

Defendants also argue that the fraudulent inducement claim is barred under Florida’s
economic loss rule. Florida law makes clear that the economic loss rule is inapplicable here.
See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla.
2013) (limiting the application of the economic loss rule to products liability cases).
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Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (citing Ambrosia Coal & Const. Co. v.
Pages Morales, 482 F.3d 1309, 1316-17 (11th Cir. 2007)).
The Court agrees that the fraud claims fail to meet the “particularity” standard.
Plaintiff does not point to any specific misrepresentations made to induce Plaintiff to enter
into the agreement. Nor does Plaintiff allege any other specific facts, like the time and place
of the alleged fraudulent statements and the content and manner in which the statements
misled Plaintiff. These claims are woefully deficient under Rule 9(b). Accordingly,
Defendants’ motion to dismiss is granted without prejudice to Plaintiff to amend these claims
to allege the requisite particularity. Notably, although the economic loss rule is inapplicable,
Plaintiff still must allege fraudulent conduct independent of the breach of contract.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’ Motion to Dismiss Plaintiff’s Complaint (Dkt. 11) is granted in
part and denied in part.

2.

Count I of the complaint is not dismissed. Counts II and III of the complaint
are dismissed without prejudice to Plaintiff to file an amended complaint
within fourteen (14) days of this Order.

DONE and ORDERED in Tampa, Florida on June 3, 2016.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2016\16-cv-1000 mtd 11 grant in part.wpd

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