MENDEZ-ARRIOLA v. WHITE-WILSON MEDICAL CENTER, P. A. et al

Filing 116

ORDER re 102 MOTION to Dismiss Third Amended Complaint in Part filed by ALAN L GIESEMAN,WW REAL ESTATE LLC, WHITE WILSON PROPERTIES PARTNERSHIP, WHITE WILSON MEDICAL CENTER PA,DOUGLAS W RIGBY. Motion is GRANTED with res pect to Counts XI, XII, XIII, XVI, and XVII, all of which are dismissed WITH PREJUDICE, and DENIED with respect to Counts XIV and XV. The stay is hereby lifted and the parties shall confer, as required by Rule 26(f), and submit a joint report within fourteen (14) days of the date of this order.( Rule 26 Meeting Report due by 8/12/2011). Signed by CHIEF JUDGE M CASEY RODGERS on 7/29/2011. (mjm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

DANAE MENDEZ-ARRIOLA, M.D.
Plaintiff,
v.

Case No. 3:09cv495/MCR/EMT

WHITE WILSON MEDICAL CENTER
PA, et al.,
Defendants.
_______________________________/
ORDER
The plaintiff, Danae Mendez-Arriola, M.D., has sued White Wilson Medical Center,
P.A. (“Clinic”); White Wilson Properties Partnership (“WWP”); WW Real Estate, LLC
(“WWRE”); Douglas W. Rigby, M.D.; and Alan L. Gieseman for disability discrimination,
sex discrimination, and retaliation under both federal and state law and handicap
discrimination, breach of contract, breach of implied covenant of good faith and fair
dealing, and breach of fiduciary duty under state law in connection with her removal as a
shareholder/employee of the Clinic and a partner/investor in WWP.1 Pending before the
court is Defendants’ Partial Motion to Dismiss Third Amended Complaint (“Complaint”)
(doc. 102), to which the plaintiff has responded in opposition (doc. 111). For the reasons
set forth below, the court finds that the defendants’ motion should be granted in part and
denied in part.

1

Specifically, the plaintiff has sued the defendants for disability discrim ination and retaliation under
the Am ericans with Disabilities Act, 42 U.S.C. § 12101, et seq.; handicap discrim ination and retaliation under
the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. § 760.10, et seq.; and sex discrim ination and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the FCRA. The
plaintiff’s rem aining claim s, including her claim s for breach of contract, breach of the im plied covenant of good
faith and fair dealing, and breach of fiduciary duty, are asserted under Florida’s com m on law.
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BACKGROUND2
The Clinic, a Florida corporation located in Fort Walton Beach, Florida, hired the
plaintiff as a radiologist in 1997. At all times pertinent to the plaintiff’s Complaint, Rigby
was the president and director of the Clinic and Gieseman was its chief executive officer.
In 1999, the plaintiff became a shareholder of the Clinic and, on July 31, 2000, she and the
Clinic entered into a Shareholder Employment Agreement (“Clinic agreement”). WWP is
a Florida partnership that owned the real property on which the Clinic operated its
business. Subsequent to becoming a partner in the Clinic, the plaintiff became a partner
in WWP and, in connection therewith, signed a promissory note for $50,000 plus 8%
interest, payable to WWP in one hundred twenty consecutive monthly installments of
$606.64, and agreed to assume her pro rata share of WWP’s obligations. According to the
promissory note, the plaintiff’s equity interest in WWP would vest after ten years of service
as a partner and upon payment in full of the note. The promissory note also provided that
termination from the Clinic, for any reason or no reason at all, would constitute withdrawal
from WWP and that if termination occurred before the plaintiff fully vested in WWP, the
plaintiff would receive only a refund of the principal she had paid on the note.
At some point after the plaintiff became a partner in WWP, the common leadership
of the Clinic and WWP, including Rigby and Gieseman, decided to reorganize the entities.3
It was contemplated that, as part of the reorganization, WWP would sell its property to
WWRE and that a new entity, White Wilson Association, PA (“WWA”), would be formed
to act as a holding company for the Clinic and WWRE, with Rigby to serve as its
president.4

In order to implement the UCP, the WWP partnership agreement was

2

W hen considering a Rule 12(b)(6) m otion, the court m ust “take the factual allegations in the
com plaint as true and construe them in the light m ost favorable to the plaintiff,” which the court has done here.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
3

The com plaint is unclear as to precisely when this occurred, but states that the reorganization effort
was referred to as the “Uniform Com prehensive Plan” or “UCP.”
4

The plaintiff states in her com plaint that she received a num ber of docum ents in connection with the
reorganization and that such docum ents, as well as a num ber of others, were attached as exhibits. There are
no exhibits attached to the plaintiff’s third am ended com plaint, however, and it does not appear that
docum ents pertaining to the reorganization were attached to any of the plaintiff’s previously-filed com plaints.
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amended, effective January 1, 2007. The amended agreement provided for the sale of
WWP’s real estate assets to WWRE and for the maintenance of capital accounts for each
partner, with the partnership’s net profits or losses to be allocated among all of the partners
for income tax purposes in proportion to the number of shares each partner owned,
whether vested or not. To avoid non-vesting partners having to pay income tax on
proceeds they would not actually receive, the amended agreement provided for an annual
payment to non-vested partners in an amount sufficient to cover the maximum tax liability
on the net income allocated to the partner for that year. In the event of a withdrawal from
the partnership, a non-vested partner’s capital account, whether positive or negative, would
be eliminated and the partner would receive only “a lump sum cash amount equal to the
Partner’s Buy-In Amount for Non-Vested Shares then held.”5 Like the promissory note, the
amended agreement further provided that when a non-vested partner ceased to be a
shareholder in the Clinic, the partner also ceased to be a partner in WWP.
According to the Complaint, at some point in 2007, work conditions at the Clinic
began to worsen for the plaintiff. A number of radiologists left the Clinic, leaving the
plaintiff with an increased workload. The Clinic attempted to force the plaintiff to outsource
the more lucrative radiology work and, when she refused, imposed a 24-hour turnaround
on her work. The Clinic ignored the plaintiff’s repeated requests for assistance and
lowered her compensation by changing compensation formulas and double-charging her
for transcription costs. When the plaintiff continued to complain and request assistance,
she was subjected to abuse and unfair criticism, which she contends was based, at least
in part, on her gender and perceived disability. Moreover, although the plaintiff was the
senior member of the Clinic’s radiology department, the Clinic denied her request to
become director of the department and instead hired a male radiologist to fill the position.
And when the plaintiff ran for election to the Clinic’s board of directors, hoping to become
its first female member, the all-male board rejected her.

5

According to the plaintiff’s com plaint, “Buy-In Am ount for Non-Vested Shares” was defined in the
am ended partnership agreem ent as the principal am ount paid by a partner for the partner’s then non-vested
shares.
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On May 29, 2008, the Clinic’s Board of Directors (“Board”) advised the plaintiff that
it had voted to summarily suspend her privileges based on the recommendation of the
Clinic’s risk management committee. The same day, the Clinic informed the plaintiff that
her suspension would last for ninety days and was based on errors in twenty-five of her
patient files. According to the plaintiff, none of the identified errors affected the quality of
medical care delivered to the patients or brought disrepute to the Clinic. On June 4, 2008,
the plaintiff wrote to the Clinic, expressing her belief that the suspension was an improper
attempt to replace her with a younger male doctor and prevent her from vesting in WWP.
The plaintiff requested a hearing pursuant to the Clinic’s bylaws, which the Clinic failed to
provide. Instead, on June 5, 2008, the Board affirmed the plaintiff’s suspension with a
memorandum stating that she would be suspended for at least ninety days, would be
required to seek additional education and a psychological evaluation, and her return to
work would be conditioned on parameters outlined by the Clinic. On June 6, 2008, the
Clinic’s medical director and another shareholder met with the plaintiff, telling her she was
a “bad citizen” of the Clinic and a “liability,” she should return to work only after she
“healed,” and she would be required to undergo a psychological evaluation by a doctor of
the Clinic’s choosing before returning to work.6 They also gave the plaintiff a document
entitled “Citizenship Issues” which criticized the plaintiff’s work style. According to the
plaintiff, however, she was the only female in the radiology department and did not work
differently than any male working in her area.
On June 27, 2008, the Clinic responded to the plaintiff’s June 4, 2008, letter,
advising the plaintiff that the Board had affirmed her suspension based on the
recommendation of the risk management committee and reiterating the matters set forth
in the June 5 memorandum and June 6 meeting. The Clinic also denied the plaintiff’s July
4, 2008, written request for an evidentiary hearing, stating that her letter had raised no
material factual disputes and that her suspension was in accord with the Clinic’s bylaws.
The plaintiff informed the Clinic, through her counsel, that she believed the Clinic was
violating the Americans with Disabilities Act (ADA), Title VII of the 1964 Civil Rights Act,

6

The com plaint does not identify the Clinic’s m edical director or the shareholder by nam e.

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and the Florida Civil Rights Act by requiring her to undergo a psychological evaluation,
without any basis, before allowing her to return to work.7 The plaintiff was subsequently
terminated.8 On December 8, 2008, WWP sent the plaintiff a check for $28,300.45, which
was the amount she had paid into WWP.9 The plaintiff never cashed the check. The Clinic
sent her another check on October 27, 2009 – this time for $40,000 – which the Clinic
described as payment for the redemption of her shareholder interest in the Clinic.10 The
plaintiff complains that she was never compensated for the period of time she was on
unpaid suspension and lost the true value her equity interest in the Clinic, WWP, and
WWRE.11
At some point before the plaintiff was terminated, the Clinic hired a male radiologist
who had previously worked part-time at the Clinic and made him a partner without requiring
him to work for two years as an associate, as allegedly was required of female radiologists.
The plaintiff claims that most of the harms outlined above, including her termination, took
place soon after the male radiologist was hired and that the Clinic hired him with the
intention of replacing her, at least in part because of her gender. On November 24, 2008,
the plaintiff filed a charge of discrimination with the EEOC based on disability
discrimination, sex discrimination, and retaliation. The EEOC issued its notice of right to
sue on or about August 9, 2009, and this lawsuit ensued.

7

The com plaint is unclear as to the date of plaintiff’s counsel’s correspondence.

8

Although there is som e inconsistency in the plaintiff’s com plaint regarding the date of her
term ination, it appears that she was term inated on October 16, 2008.
9

There was a notation on the check stub that paym ent was for “Payout to partner exiting partnership
(reim burse 100% of principal buy-in).”
10

Although the Clinic did not explain how it arrived at the am ount, according to the Bylaws, a
term inated physician is entitled to a payout based on a percentage of the gross am ount of m oney actually
collected during the six m onth period following the physician’s term ination.
11

On May 1, 2007, the plaintiff received a financial statem ent from Giesem an indicating that her preclosing interest in W W P was valued at $686,297.95 and that, of that am ount, she would receive a cash
distribution of $70,034.12 to pay her 2007 taxes, leaving a rem aining interest in W W P of $616,263.83. The
plaintiff also was advised, in connection with the reorganization, that if she were to “cash out early,” her benefit
under the proposed UCP would be $401,609.57, but if she were to rem ain until retirem ent, she would receive
an estim ated $1,165,461.63.
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In response to the plaintiff’s initial complaint, the defendants filed a motion for more
definite statement, arguing that the complaint constituted a “shotgun” pleading to which it
was difficult to respond (doc. 25).12 The court granted the defendants’ motion (doc. 32),
and the plaintiff filed an amended complaint (doc. 37) on February 4, 2010. In response
to the plaintiff’s amended complaint, the defendants filed another motion for more definite
statement or, in the alternative, to dismiss certain counts of her complaint for failure to
state a claim upon which relief can be granted and for more definite statement as to the
remaining counts (doc. 52). The court granted the defendants’ motion in part and denied
it in part (doc. 90). Specifically, the court denied the defendants’ motion for more definite
statement and to dismiss the plaintiff’s claims for disability discrimination, sex
discrimination and retaliation, and breach of contract against the Clinic; granted the
defendants’ motion to dismiss the plaintiff’s claim for handicap discrimination; and granted
the defendants’ motion to dismiss – with leave to amend – the plaintiff’s claims for breach
of the WWP partnership agreement, breach of the implied covenant of good faith and fair
dealing, breach of fiduciary duty, and declaratory relief. The plaintiff filed a second and
then a third amended complaint, in response to which the defendants have moved to
dismiss each of the claims previously dismissed with leave to amend.13 For the reasons
set forth below, the court finds that the defendants’ motion should be granted in part and
denied in part.
DISCUSSION
A.

Standard of Review
A motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks

dismissal of the complaint for failure to state a claim on which relief can be granted.
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief;” detailed allegations are not required.
12

Am ong other things, the defendants cited to the plaintiff’s reincorporation of 106 paragraphs of
general allegations” in each of the eighteen counts in her com plaint.
13

After the court dism issed certain counts of her first am ended com plaint, the plaintiff filed a second
am ended com plaint. According to the defendants, there were certain errors in the num bering of the
paragraphs in the plaintiff’s second am ended com plaint, as a result of which the plaintiff filed a third am ended
com plaint.
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See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). As noted, when considering a Rule
12(b)(6) motion, the court accepts all factual allegations of the complaint as true and
construes them in the light most favorable to the plaintiff. Pielage, 516 F.3d at 1284. The
motion is properly denied if the complaint “contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This “plausibility
standard” requires a showing of “more than a sheer possibility” that the defendant is liable
on the claim. Id. The allegations of the complaint must set forth enough facts “to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the
complaint must contain sufficient factual matter, accepted as true, to permit a court “to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949. However, the court need not credit “[t]hreadbare recitals” of the
legal elements of a claim unsupported by plausible factual allegations because “the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. When deciding a motion to dismiss, “the court limits
its consideration to the pleadings and exhibits attached thereto” and incorporated into the
complaint by reference. Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342,
1352 n.7 (11th Cir. 2006) (internal marks omitted); Long v. Murray, No 6:09-cv-1320, 2009
WL 4042961, at *1 (M.D. Fla. 2009) (slip op.).
B.

Plaintiff’s Claims
Breach of the WWP Partnership Agreement
In her first amended complaint, the plaintiff alleged that WWP and Rigby breached

the WWP partnership agreement by expelling her. Relying on the promissory note, the
defendants argued that the plaintiff’s breach of contract claim against WWP and Rigby
should be dismissed because the plaintiff’s termination from the Clinic constituted a
withdrawal from WWP, as a result of which the plaintiff was entitled to receive only a
refund of her principal contribution. In response, the plaintiff argued that the provisions of
the promissory note allowing for her expulsion were invalid and/or unenforceable or, in the
alternative, that her removal from WWP nevertheless constituted a breach of the

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partnership agreement because she was wrongfully terminated from the Clinic. The
plaintiff also claimed that WWP treated her as if she were fully vested at the time of the
sale of real property from WWP to WWRE because it provided her with a written statement
confirming the value of her proportionate interest, offered her the option to cash out as
early as 2006, and paid her an amount sufficient to cover her expected capital gains tax,
rendering her expulsion from WWP wrongful. The court found that the plaintiff’s complaint
offered no factual support for the proposition that the terms of the promissory note were
unenforceable or that her removal from WWP constituted a breach of the WWP
partnership agreement. The court also found the plaintiff’s allegations regarding early
vesting insufficient to state a claim for breach of the WWP partnership agreement,
particularly considering that the plaintiff failed to identify any provision in the partnership
agreement WWP and Rigby allegedly breached. The court thus dismissed the plaintiff’s
claim with leave to amend.
In her third amended complaint, the plaintiff alleges additional facts, primarily
regarding the promissory note and restructuring of the entities, and complains that, upon
her termination from the Clinic and expulsion from WWP, she received only a return of her
principal payments, with no interest or equity accumulation, and did not receive her
allocated share of the distribution of the property or a distribution equal to the amount that
should have been reflected in her capital account. Although the plaintiff has alleged
numerous additional facts and cited various provisions of the promissory note, amended
partnership agreement, and documents she allegedly received as part of the UCP
informational packet, she has not identified a single provision of the amended partnership
agreement she contends WWP and Rigby breached. To the contrary, according to the
plaintiff’s own allegations, the termination of her employment with the Clinic constituted a
withdrawal from WWP, as a result of which she was entitled only to a refund of her
principal buy-in amount, which she admittedly received. Moreover, the plaintiff has
provided no support for her position that the promissory note was unenforceable or that the
defendants’ treating her as if she was fully vested somehow constituted a breach of the

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WWP partnership agreement.14 The court thus finds that the plaintiff has again failed to
state a claim for breach of contract against WWP and Rigby and that such claim should
be dismissed with prejudice.
Breach of the Implied Covenant of Good Faith and Fair Dealing
In addition to her breach of contract claim, the plaintiff has asserted claims against
Rigby, WWP, and the Clinic for breach of the implied covenant of good faith and fair
dealing. As set forth in the court’s previous order, under Florida law, every contract
contains an implied covenant of good faith and fair dealing designed to protect the parties’
reasonable expectations. See Centurion Air Cargo, Inc. v. United Parcel Service, Co., 420
F.3d 1146, 1151 (11th Cir. 2005). “A breach of the implied covenant of good faith and fair
dealing is not an independent cause of action, but attaches to the performance of a
specific contractual obligation.” Id. A breach of the implied covenant claim may be
dismissed as redundant if the conduct violating the implied covenant is duplicative of the
breach of contract claim. See Merill Lynch Bus. Fin. Servs., Inc. v. Performance Mach.
Sys. U.S.A., Inc., 2005 WL 975773, at *11 (S.D. Fla. Mar. 4, 2005). Accordingly, this court
has held that, “in order to state a claim for breach of the implied covenant of good faith and
fair dealing, [p]laintiffs must identify the specific contract term(s) giving rise to the implied
duty of good faith and also allege how [d]efendants breached their implied duty, alleging
facts different from those giving rise to the breach of contract claim.” See Stallworth v.
Hartford Ins. Co., 2006 WL 2711597, at *6 (N.D. Fla. Sept. 19, 2006).
With respect to the plaintiff’s first amended complaint, the defendants argued that
the plaintiff failed to identify specific contract terms or allege facts in support of her claims
for breach of the implied covenant of good faith and fair dealing different from those
alleged in support of her breach of contract claims and that her claims for breach of the
implied covenant of good faith and fair dealing therefore should be dismissed. The court
agreed, finding that the plaintiff’s claim for breach of the implied covenant of good faith and
fair dealing against WWP and Rigby was based on her alleged wrongful expulsion from
14

In fact, in her com plaint, the plaintiff references a docum ent she received in connection with the
reorganization that reiterated the fact that she would earn the vested value of her partnership shares only if
she continued as a partner until her vested date.
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WWP, which also served as the basis for her breach of contract claim against WWP and
Rigby, and that her claim against the Clinic for breach of the implied covenant of good faith
and fair dealing was based on her alleged wrongful termination and removal as a
shareholder, which were the same allegations giving rise to her breach of contract claim
against the Clinic. The court further found that the plaintiff failed to identify specific terms
in the Clinic agreement or WWP partnership agreement giving rise to the implied covenant
of good faith and fair dealing and thus dismissed both counts with leave to amend.
In an effort to cure the deficiencies noted in her first amended complaint, the plaintiff
relies in her third amended complaint on the provisions of the promissory note regarding
vesting in equity and the effects of termination from the Clinic and alleges that WWP and
Rigby had an implied duty to deal fairly with her as a partner in WWP and breached that
duty by “us[ing] their capacity to have [her] terminated and removed as an
employee/shareholder of the Clinic and partner in White Wilson Properties Partnership in
order to prevent her from vesting in equity in the White Wilson Properties Partnership.”
The court finds the plaintiff’s allegations sufficient to state a claim for breach of the implied
covenant of good faith and fair dealing against WWP and Rigby and that the defendants’
motion to dismiss such claim should be denied.15
In support of her claim against the Clinic for breach of the implied covenant of good
faith and fair dealing, the plaintiff points to the provisions of the Clinic agreement stating
that a physician must remain an employee of the Clinic in order to remain a shareholder
and that when a non-vested partner in WWP ceases to be a shareholder in the Clinic, she
also ceases to be a partner in WWP and alleges that the Clinic terminated her employment
so that she would no longer be a shareholder and would forfeit her interest in WWP. As
the court found with regard to her first amended complaint, the plaintiff’s claim against the
Clinic for breach of the implied covenant of good faith and fair dealing is based on her

15

The court would note that, because it has found that the plaintiff’s breach of contract claim against
W W P and Rigby should be dism issed, the plaintiff’s claim against Rigby and W W P for breach of the im plied
covenant of good faith and fair dealing is no longer duplicative of any other claim asserted in her com plaint.
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alleged wrongful termination.16 As a result, the claim is duplicative of her breach of
contract claim and should be dismissed with prejudice.
Breach of Fiduciary Duty by Rigby and Gieseman with Respect to the Clinic
The plaintiff alleged in her first amended complaint that Rigby and Gieseman, in
their capacities as officers of the Clinic, owed fiduciary duties to her and breached those
duties. The defendants argued that Rigby and Gieseman owed fiduciary duties to the
plaintiff only in her capacity as a shareholder of the Clinic, not as an employee, and that
the plaintiff’s claim for breach of fiduciary duty should be dismissed because it focused on
her termination as an employee of the Clinic. See Orlinsky v. Patraka, 971 So. 2d 796,
802 (Fla. 3d DCA 2007) (“Fiduciary duties are not implicated when the issue involves the
right of the minority stockholder qua employee under an employment contract”) (citations
omitted). The court agreed with the defendants and dismissed the plaintiff’s claim. In her
third amended complaint, the plaintiff has added allegations regarding Rigby’s and
Gieseman’s wrongful use of their positions as officers of the Clinic to terminate her
employment, thereby removing her as a shareholder in the clinic, which the plaintiff claims
constitutes a breach of the duties of loyalty and due care.

Despite the additional

allegations, the plaintiff’s claim remains based on her alleged wrongful termination from the
Clinic and thus must be dismissed with prejudice. See id.
Breach of Fiduciary Duty by Rigby with Respect to WWP
The plaintiff also has asserted a claim for breach of fiduciary duty against Rigby, in
his capacity as a partner in WWP. The defendants argued that the claim set forth in the
plaintiff’s first amended complaint failed to meet the Iqbal standard, and the court agreed.
The plaintiff now alleges that Rigby used his position as the president and director of the
Clinic to wrongfully remove her as an employee/shareholder of the Clinic in order to cause
her expulsion from WWP in breach of the duties of loyalty and due care. The court finds
that the plaintiff has pled facts sufficient to state a claim for breach of fiduciary duty against
16

Although the plaintiff argues that her breach of contract claim against the Clinic is based on the
Clinic’s failure to abide by the term ination procedures set forth in the Clinic agreem ent and bylaws, the plaintiff
also alleges that she was wrongfully term inated. Indeed, in paragraph 232 of her third am ended com plaint,
the plaintiff alleges that “the Clinic had no cause to suspend and then term inate Dr. Mendez as an em ployee
and rem ove her as a shareholder, and such actions breached the Shareholder Em ploym ent Agreem ent.”
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Rigby, in his capacity as a partner of WWP, and that the defendants’ motion to dismiss
such claim should be denied.
Declaratory Judgment Claims
As with her other claims, the plaintiff has re-asserted in her third amended complaint
claims for a declaratory judgment regarding the parties’ rights and obligations under the
Clinic agreement and WWP partnership agreement. As set forth in the court’s order on the
defendants’ previous motion to dismiss, “[t]he Declaratory Judgment Act provides that a
court may declare the rights and other legal relations of any interested party, not that it
must do so.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (internal
marks and citation omitted). Indeed, the Act is “an enabling Act, which confers discretion
on the courts rather than an absolute right on the litigant.” Wilton v. Seven Falls Co., 515
U.S. 277, 287 (1995); see also Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328,
1330 (11th Cir. 2005). The purpose of the act is to provide relief from uncertainty with
respect to rights and other legal relations. See Eisenberg v. Std. Ins. Co., 2009 WL
3667086, at *2 (M.D. Fla. Oct. 26, 2009). A determination of “whether a contract was
adequately performed is unrelated to the purpose behind the Declaratory Judgment Act.”
Id.; see also Amerisure Mut. Ins. Co. v. Maschmeyer Landscapers, Inc., 2007 WL
2811080, *2 (E.D. Mo. 2007). The court found that the declaratory judgment claims set
forth in the plaintiff’s first amended complaint were, at least to some extent, redundant of
her breach of contract claims and that, although she described her request as one for a
declaration of the parties’ rights under the contracts, she effectively sought a declaration
of breach and her damages. To that extent, the court concluded that declaratory relief was
inappropriate. However, the court noted that the plaintiff also argued that, even if the court
were to find no breach of the Clinic agreement or WWP partnership agreement, she would
be entitled to a determination of her equitable interest in each entity, entitlement to profits,
and valuation of amounts returned to her. To that extent, the court found that the plaintiff’s
declaratory judgment claims were not subsumed in her contract claims and dismissed them
with leave to amend. Notably, however, the court advised the plaintiff that, in amending
her complaint, she should specify, as to the Clinic, WWP, and WWRE, the factual bases
for her claims to an equitable interest, share of the profits, and any other amount to be
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returned to her in the event the court finds no breach of either agreement. Despite the
court’s guidance and admonition regarding dismissal, the plaintiff has failed to specify in
her third amended complaint any factual basis for such claims. As a result, the plaintiff’s
claims for a declaratory judgment against the Clinic, WWP, and WWRE will be dismissed
with prejudice.
CONCLUSION
In conclusion, the defendants’ motion to dismiss the plaintiff’s third amended
complaint (doc. 102) is GRANTED with respect to Counts XI, XII, XIII, XVI, and XVII of the
plaintiff’s third amended complaint, all of which are dismissed WITH PREJUDICE, and
DENIED with respect to Counts XIV and XV. The stay is hereby lifted and the parties shall
confer, as required by Rule 26(f), and submit a joint report within fourteen (14) days of the
date of this order.
DONE and ORDERED this 29th day of July, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:09cv495/MCR/EMT