MARINE SOLUTIONS LLC et al v. GULF COAST AGGREGATES LLC et al

Filing 20

ORDER DISMISSING THE COMPLAINT IN PART RE 12 . Signed by JUDGE ROBERT L HINKLE on 1/6/17. (sms)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MARINE SOLUTIONS, L.L.C.,
and LAURA MILLER,
Plaintiffs,
v.

CASE NO. 4:16cv482-RH/CAS

GULF COAST AGGREGATES, L.L.C.,
etc., et al.,
Defendants.
_________________________________________/
ORDER DISMISSING THE COMPLAINT IN PART
This case arises from an alleged breach of contract. The complaint includes a
breach-of-contract count and five additional counts. The defendants have moved to
dismiss each of the five additional counts for failure to state a claim on which relief
can be granted. This order grants the motion in part.
I
To survive a motion to dismiss for failure to state a claim, a plaintiff must
plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). For purposes of a motion to dismiss, the complaint’s factual

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allegations, though not its legal conclusions, must be accepted as true. Id.; see also
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A motion to dismiss is not the vehicle by which the truth of a plaintiff’s
factual allegations should be judged. Instead, it remains true, after Twombly and
Iqbal as before, that “federal courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious claims sooner rather than
later.” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168-69 (1993).
II
The complaint alleges these facts. The defendant Gulf Coast Aggregates,
L.L.C. (“Aggregates”) had a supply of oyster shells. The plaintiff Marine
Solutions, L.L.C. (“Marine”) had expertise and contacts useful in marketing the
oyster shells. Aggregates and Marine entered into a written contract under which
Marine would market the shells in exchange for a 6% commission. When one of
Marine’s two principals died, Aggregates started selling its shells on its own and
stopped paying Marine’s commissions.
These allegations give rise to a straightforward breach-of-contract claim by
Marine against Aggregates. The complaint asserts such a claim in count 1.
Aggregates has not moved to dismiss that count and would have no basis for doing
so.

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The complaint includes five more counts, none as straightforward as count 1.
III
In count 2, both Marine and its surviving principal, Laura Miller, assert
claims against Aggregates for unjust enrichment. The existence of an express
contract defeats a claim for unjust enrichment. See, e.g., Degirmenci v. Sapphire—
Fort Lauderdale, LLLP, 693 F. Supp. 2d 1325, 1347 (S.D. Fla. 2010). But a
plaintiff may plead in the alternative. See Fed. R. Civ. P. 8(d)(2). Aggregates has
not admitted either the validity of the contract or its application to all the sales at
issue. Marine has adequately stated a claim for unjust enrichment. See, e.g.,
Immediate Capital Grp., Inc. v. Spongetech Delivery Sys., Inc., No. 10-60059-CIV,
2010 WL 1644952, at *3 (S.D. Fla. Apr. 22, 2010) (setting out the elements of an
unjust-enrichment claim).
The same is not true, however, for Ms. Miller. She has not alleged facts
indicating she acted individually rather than only on behalf of Marine. Any right to
recover belongs only to Marine. See, e.g., James Talcott, Inc. v. McDowell, 148 So.
2d 36, 37 (Fla. 3d DCA 1962) (“As a general rule, an action to enforce corporate
rights or to redress injuries to the corporation cannot be maintained by a
stockholder in his own name or in the name of the corporation, but must be
brought by, and in the name of the corporation itself.”). Ms. Miller’s individual
claim in count 2—and her other claims as set out below—will be dismissed.

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IV
In count 3, Marine alleges it entered into a joint venture with Aggregates,
that Aggregates owed Marine a fiduciary duty, and that, in breach of that duty,
Aggregates usurped a business opportunity—the sale of oyster shells—that
belonged to the joint venture.
The claim fails because Marine has not alleged facts—as distinguished from
bald conclusions—that would support a finding that Aggregates owed Marine a
fiduciary duty or that this was a joint venture. The contract itself, which is attached
to the complaint, is to the contrary. The contract says each party is “independent,”
that each party is “solely responsible for its own activities and operations,” and that
neither the agreement nor any course of dealings “has created a partnership, joint
venture or other sharing arrangement” between the parties. ECF No. 1-4 at 4.
Even on a motion to dismiss, the contract may properly be considered. See,
e.g., Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (“It is the law in
this Circuit that when the exhibits contradict the general and conclusory allegations
of the pleading, the exhibits govern.”) (omitting quotation marks and citations).
And “where the parties to a contract have clearly agreed that they would remain
independent business entities and were not joint venturers or partners, no joint
venture or partnership is created as between those parties.” Metric Eng’g, Inc. v.

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Gonzalez, 707 So. 2d 354, 355 (Fla. 3d DCA 1998) (citing Anthony Distribs., Inc.
v. Miller Brewing Co., 882 F. Supp. 1024, 1031 (M.D. Fla. 1995)).
So at least at the outset, Marine and Aggregates did not have a joint venture.
This of course does not mean they could not later change their minds and enter into
a joint venture, but Marine has not alleged facts suggesting they did so. Count 3
fails to state a claim on which relief can be granted.
V
In count 4, Marine seeks to impose a constructive trust on Aggregates’ sales
proceeds. To the extent based on the assertion that there was a joint venture or that
Aggregates usurped Marine’s business opportunity, the claim is unfounded. But
Marine also claims entitlement to a commission on Aggregates’ sales. At least one
court has recognized a constructive trust in the portion of sale proceeds properly
payable as a commission. See In re Rama Grp. of Cos., No. 01-CV-0424E9(SR),
2002 WL 1012974, *2 (S.D.N.Y. May 6, 2002). This count states a claim on which
relief can be granted, but only against Aggregates and only for the portion of any
sale that Marine asserts was properly payable as a commission.
VI
In count 5, Marine and Ms. Miller assert a claim against Aggregates and two
of its managing members, George D. Slisher and Stephen C. Addington, for
constructive fraud. Under Florida law, “Constructive fraud occurs when a duty

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under a confidential or fiduciary relationship has been abused or where an
unconscionable advantage has been taken.” Levy v. Levy, 862 So. 2d 48, 53 (Fla.
3d DCA 2003). “Constructive fraud may be based on a misrepresentation or
concealment, or the fraud may consist of taking an improper advantage of the
fiduciary relationship at the expense of the confiding party.” Id. (citing Beers v.
Beers, 724 So. 2d 109, 116 (Fla. 5th DCA 1998)).
The complaint alleges that Marine’s other principal, Edwin Reardon, needed
surgery. He was expected to survive the surgery but did not. Before the surgery,
“the defendants”—apparently a reference to Mr. Slisher and Mr. Addington acting
on behalf of Aggregates—promised that they would pay Marine the agreed
percentage and protect Marine regardless of Mr. Reardon’s individual contribution
to the project. The complaint alleges that after Mr. Reardon died, the defendants
did not fulfill their promise but instead entered transactions without notifying
Marine and did not pay Marine’s commissions.
These allegations are insufficient to state a claim for constructive fraud. In
substance, the complaint alleges only that the defendants promised that Aggregates
would continue to perform its preexisting obligations under the contract, with or
without Mr. Reardon’s participation. The complaint does not allege that the
defendants expected Mr. Reardon to die or to be unable to continue. The complaint
does not allege that when the defendants promised to carry on, they had the present

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intention not to do so. The complaint does not allege that the parties agreed to
modify the existing contract. Quite the contrary—the allegation is that the parties
agreed to keep going without change.
In sum, the complaint does not allege that the statements to Mr. Reardon
were misrepresentations or concealed anything at that time, nor does the complaint
allege that the defendants made the statements intending to take improper
advantage of Marine or Ms. Miller. The complaint does allege that when
circumstances changed—when Mr. Reardon unexpectedly died—Aggregates
changed course. If that was a breach of contract, Marine will recover in count 1. If
the contract did not extend to some or all of the transactions at issue but the
circumstances entitle Marine to payment, Marine will recover in count 2. But the
complaint does not state a claim for constructive fraud on which relief can be
granted.
VII
In count 6, Marine and Ms. Miller assert claims against Aggregates, Mr.
Slisher, and Mr. Addington for negligence. “Under Florida law, ‘[t]o maintain an
action for negligence, a plaintiff must establish that the defendant owed a duty, that
the defendant breached that duty, and that this breach caused the plaintiff
damages.’ ” Chang v. JPMorgan Chase Bank, N.A., No. 15-13636, slip op. at 9-10
(11th Cir. Jan. 6, 2017) (quoting Fla. Dep’t of Corrs. v. Abril, 969 So. 2d 201, 204

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(Fla. 2007)). The most common instances in which a defendant owes a duty can be
divided into two categories. First, a defendant ordinarily has a duty to use
reasonable care to avoid causing bodily injury or property damage to another,
subject to the limitations of the “impact rule.” See, e.g., Willis v. Gami Golden
Glades, LLC., 967 So. 2d 846, 850 (Fla. 2007). Second, a professional has a duty
to a client to meet the standard of care in that profession. Chang recognized a
negligence claim as an add-on to a claim for breach of fiduciary duty, but that does
not help Marine, because, as set out above, Aggregates did not owe Marine a
fiduciary duty.
A party to a contract owes a contractual duty to the other party to the
contract—but not a separate duty of reasonable care. Negligent breach of contract
is not a cause of action.
As one Florida court put it, “It is well established that breach of contractual
terms may not form the basis for a claim in tort.” Ginsberg v. Lennar Florida
Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994), disagreed with on other
grounds, Condo. Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp.,
137 So. 3d 396 (Fla. 4th DCA 2014). That statement may go too far—the same
conduct can sometimes constitute both a breach of contract and a tort. But in the
absence of a bodily injury, property damage, or a professional or fiduciary duty, a
contracting party ordinarily owes the other contracting party no duty of reasonable

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care separate and apart from the duties created by the contract. And even more
clearly, an employee of a contracting party owes the other contracting party no
duty of reasonable care separate and apart from his employer’s duties under the
contract.
To be sure, the plaintiffs assert that the defendants made promises to Mr.
Reardon and that those promises are actionable. Promises of that kind could give
rise to a fraud or promissory-estoppel claim, but only on a showing of facts well
beyond those alleged here. Count 6 fails to state a claim on which relief can be
granted.
VIII
For these reasons,
IT IS ORDERED:
1. The motion to dismiss, ECF No. 12, is granted in part and denied in part.
2. Counts 3, 5, and 6 are dismissed. All of Ms. Miller’s claims are dismissed.
All claims against Mr. Slisher and Mr. Addington are dismissed. Marine’s claims
against Aggregates as set out in counts 1, 2, and 4 remain pending.
3. I do not direct the entry of judgment under Federal Rule of Civil
Procedure 54(b).
SO ORDERED on January 6, 2017.
s/Robert L. Hinkle
United States District Judge
Case No. 4:16cv482-RH/CAS