Final Expense Direct v. Python Leads, LLC et al

Filing 38

ORDER granting in part and denying in part 36 partially unopposed Motion to Dismiss or Strike Defendants' Counterclaims. Signed by Judge William F. Jung on 3/26/2024. (LG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FINAL EXPENSE DIRECT,
Plaintiff,
v.

Case No. 8:23-cv-2093-WFJ-AAS

PYTHON LEADS, LLC; JACQUELYN
LEAH LEVIN; and DAVID LEVIN,
Defendants.
_____________________________________/
ORDER
Before the Court is Final Expense Direct’s (“Plaintiff”) partially unopposed
Motion to Dismiss or Strike Python Leads, LLC (“Python”), Jacquelyn Leah
Levin, and David Levin’s (collectively, “Defendants”) Counterclaims (Dkt. 36).
Defendants have responded (Dkt. 37). Upon careful consideration, the Court
grants-in-part and denies-in-part Plaintiff’s Motion
BACKGROUND1
On December 11, 2023, Plaintiff filed an eleven count Amended Complaint
alleging: Count I—breach of contract against Python; Count II—breach of contract
against Ms. Levin; Count III—breach of implied-in-fact contract against Python
and Ms. Levin; Count IV—promissory estoppel against Python and Ms. Levin;
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A full account of the alleged facts leading up to this lawsuit can be found in the Court’s Order
denying Defendants’ Motion to Dismiss. See Dkt. 34 at 1–7.

Count V—quantum meruit against Python and Ms. Levin; Count VI—violation of
the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§
501.201–501.203 against all Defendants; Count VII—fraud in the inducement
against all Defendants; Count VIII—negligent supervision against Python and Ms.
Levin; Count IX—fraudulent misrepresentation against all Defendants; Count X—
negligent misrepresentation against all Defendants; and Count XI—civil
conspiracy against all Defendants. Dkt. 25 at 19–46. Defendants moved to dismiss,
Dkt. 29, but Plaintiff’s Amended Complaint survived in its entirety, Dkt. 34.
Defendants consequently filed an Answer. Dkt. 35.
Beyond general denials, Defendants’ Answer contains three counterclaims:
Counterclaim I—breach of contract; Counterclaim II—unjust enrichment (in the
alternative); and Counterclaim III—account stated (in the alternative). Id. at 24–27.
With respect to Counterclaim I, Python requests “an award of damages in excess of
$3,400, plus attorneys’ fees, interests and costs.” Id. at 25. Python also generally
requests, in Defendants’ Prayer for Relief, damages for harm “to [Python’s]
reputation and loss of customers, interest, and [Python’s] reasonable attorneys’
fees and costs incurred and to be incurred by Python in connection with the
enforcement of the [subject contract].” Id. at 27.
On March 11, 2024, Plaintiff filed the instant Motion. Dkt. 36. Plaintiff
argues that attorneys’ fees are not available for any of Defendants’ counterclaims
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and that Defendants are similarly unable to recover any damages for reputational
harm or loss of customers. Id. at 4–7. Defendants agree that they cannot recover
attorneys’ fees but contend that they may be entitled to reputational damages or
damages related to the loss of customers. Dkt. 37 at 4.
LEGAL STANDARDS
I.

Federal Rule of Civil Procedure 12(b)(6)

A complaint withstands dismissal under Federal Rule of Civil Procedure
12(b)(6) if the alleged facts state a claim for relief that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This standard does not require detailed factual allegations
but demands more than an unadorned accusation. Id. All facts are accepted as true
and viewed in the light most favorable to the plaintiff. Pielage v. McConnell, 516
F.3d 1282, 1284 (11th Cir. 2008).
II.

Federal Rule of Civil Procedure 12(f)

Under Federal Rule of Civil Procedure 12(f), a “court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” “Motions to strike on the grounds of insufficiency,
immateriality, irrelevancy, and redundancy are not favored, often being considered
‘time wasters’, and will usually be denied unless the matter sought to be omitted
has no possible relationship to the controversy, may confuse the issues, or
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otherwise prejudice a party.” Italiano v. Jones Chemicals, Inc., 908 F. Supp. 904,
907 (M.D. Fla. 1995) (collecting cases).
DISCUSSION
Because Defendants agree that they have no entitlement to attorneys’ fees,
Dkt. 37 at 3, the only issue to consider is whether it would be appropriate to
dismiss or strike Defendants’ request for damages related to reputational harm and
loss of customers.2 Plaintiff maintains that such damages are unrecoverable on the
facts alleged. Dkt. 36 at 5–7. Defendants argue to the contrary. Dkt. 37 at 4.
The Court agrees with Plaintiff. “Damages cannot be based on speculation,
conjecture, or guesswork.” Swindell v. Crowson, 712 So. 2d 1162, 1164 (Fla. 2nd
DCA 1998). Further, “Florida follows the general rule that to be recoverable,
damages for breach of contract ‘must arise naturally from the breach, or have been
in the contemplation of both parties at the time they made the contract, as the
probable result of a breach.’” T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520,
1531 n.11 (11th Cir. 1985) (quoting Hobbley v. Sears, Roebuck & Co., 450 So. 2d
332, 333 (Fla. 1st DCA 1984)). Here, Defendants’ counterclaims allege no facts
which even suggest that Python may have suffered reputational harm or a loss of
customers from Plaintiff’s alleged failure to make full payment under the subject
“In general, the recovery of attorney's fees as damages or costs by the prevailing party to an
action is allowed only when provided for by statute or contract, or when a fund has been created
and brought into court.” Italiano, 908 F. Supp. at 907 (collecting cases). There is no contract or
statute that allows Defendants to recover attorneys’ fees in this lawsuit.
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contract. See generally Dkt. 35 at 23–27; Dkt. 37 at 4. It follows that these
damages have no apparent relationship with Defendants’ counterclaims. They may
be stricken. See Italiano, 908 F. Supp. at 907.
CONCLUSION
Accordingly, it is hereby ORDERED and ADJUDGED:
(1) Plaintiff’s Motion (Dkt. 36) is GRANTED-IN-PART and DENIEDIN-PART.
(2) Defendants’ requests for attorneys’ fees, damages related to reputational
loss, and damages related to loss of customers are stricken.
(3) Defendants may replead their counterclaims if they wish to incorporate
factual allegations that may render relevant such requests.
(4) The Court declines to dismiss any of Defendants’ counterclaims under
Rule 12(b)(6).
DONE AND ORDERED at Tampa, Florida, on March 26, 2024.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record

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