Hebert v. The Middleby Marshall Holdings, LLC
Filing
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ORDER granting 17 Motion to Dismiss. Plaintiff shall file a Second Amended Complaint on or before August 23, 2013. See Order for details. Signed by Judge James I. Cohn on 8/13/2013. (ams)
Hebert v. The Middleby Marshall Holdings, LLC
Doc. 25
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-61076-CIV-COHN/SELTZER
JEAN HEBERT,
Plaintiff,
v.
THE MIDDLEBY MARSHALL
HOLDINGS, LLC, d/b/a DOYON/NU-VU,
and MIDDLEBY CORPORATION, d/b/a
DOYON EQUIPMENT,
Defendants.
_____________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint with Prejudice and Alternative Motion for More Definite Statement
[DE 17]. The Court has considered the motion, Plaintiff’s response [DE 20],
Defendants’ reply [DE 23], the record in this case, and is otherwise fully advised in the
premises.
I. BACKGROUND
According to the Amended Complaint [DE 15], Plaintiff Jean Hebert is “a resident
of Broward County, Florida,” while Defendants The Middleby Marshall Holdings, LLC,
d/b/a Doyon Nu-Vu, and Middleby Corporation, d/b/a Doyon Equipment “are either
Michigan entities or maintain their home office in the city of Menominee, Michigan.”
DE 15 ¶¶ 1,3. Defendants are in the business of providing and selling bakery
equipment. Id. ¶ 4. Plaintiff alleges that he was employed by Defendants as a
salesman in South America and the southeastern United States. Id. ¶ 5. On or about
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April 29, 2003, the parties entered into a written contract – attached to the Amended
Complaint (see DE 15-1) – that outlined Plaintiff’s salary-plus-commission
compensation structure. Id. ¶ 6. On or about July 10, 2012, Defendants allegedly
discharged Plaintiff from employment. Id. ¶ 9. Plaintiff claims that, while he has fully
performed under the contract, Defendants have breached the contract by failing to pay
Plaintiff compensation owed to him. Id. ¶¶ 8, 10. Plaintiff further asserts that, “due to
the proximate result of the wrongful discharge,” he has suffered more than $75,000.00
in damages. Id. ¶ 11.
On January 15, 2013, Plaintiff filed this action in the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County, Florida. See DE 1 at 1, 6.
Plaintiff served Defendants on April 11, 2013, and Defendants removed the action to
this Court on May 10, 2013. Id. at 1-2. On May 20, 2013, Defendants filed their first
Motion to Dismiss Plaintiff’s Complaint, with Prejudice, and Alternative Motion for More
Definite Statement [DE 7] (“First Motion to Dismiss”). Plaintiff failed to timely respond to
the First Motion to Dismiss, and the Court issued an Order to Show Cause re: Motion to
Dismiss [DE 10] (“Order to Show Cause”). When Plaintiff failed to respond to the Order
to Show Cause, the Court granted the First Motion to Dismiss, dismissing the Complaint
without prejudice and giving Plaintiff until June 19, 2013 to file an Amended Complaint.
See DE 14. On June 17, 2013, Plaintiff filed an Amended Complaint, bringing claims
for “Damages” (Count I), and “Accounting” (Count II). In the instant motion, Defendants
move to dismiss both counts for failure to state a claim, and alternatively move for a
more definite statement. Plaintiff opposes the motion.
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II. MOTION TO DISMISS STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss lies for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ in order to give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2);
and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “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 ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citations omitted). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
At this stage in the litigation, the Court must consider the factual allegations in
the complaint as true, and accept all reasonable inferences therefrom. Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Nevertheless, the Court
may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” Marshall Cnty.
Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
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III. ANALYSIS
As noted above, Defendants seek dismissal of both counts of the Amended
Complaint pursuant to Rule 12(b)(6). However, before proceeding to the merits, the
Court must confirm that it has subject-matter jurisdiction over this action.
A. Subject-Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and may only hear cases that
the Constitution and Congress have empowered them to resolve. See 13 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3522 (2d
ed. 1984 & Supp. 2008). Federal subject-matter jurisdiction exists only when a
controversy involves a question of federal law or diversity of citizenship between the
parties. See 28 U.S.C. §§ 1331-1332. Here, while the Amended Complaint does not
specifically plead the Court’s jurisdiction, it appears that Plaintiff purports to bring this
action in diversity. Diversity jurisdiction may be invoked if the parties are citizens of
different states and at least $75,000.00 is in controversy. See 28 U.S.C. § 1332(a).
The Amended Complaint states that Defendants are Michigan entities, that Plaintiff is a
“resident” of Florida, and that more than $75,000.00 is in controversy. See DE 15 ¶¶ 1,
3, 11; see also DE 1 at 4 (stating that Plaintiff’s maximum salary plus commissions was
$172,000.00 per year). However, there are no allegations as to Plaintiff’s citizenship.
See DE 15 ¶ 1. For purposes of diversity, citizenship depends on domicile, not
residence. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). Thus, “a mere averment
of residence in a particular state is not an averment of citizenship in that state for the
purposes of [establishing] jurisdiction.” Steigleder v. McQuesten, 198 U.S. 141, 143
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(1905). Here, the Amended Complaint does not allege Plaintiff’s citizenship or
domicile, or any facts which, if true, would be conclusive of citizenship. Accordingly, the
Amended Complaint is subject to dismissal. Nonetheless, the Court will address the
parties’ remaining arguments to guide the parties’ preparation of prospective pleadings.
B. Count I
It is not entirely clear which cause or causes of action Plaintiff is bringing in
Count I, titled “Damages.” Damages are a form of relief rather than a cause of action.
On this basis alone, Count I fails to meet the pleading standards of Rule 8.
From the allegations, it appears that Plaintiff is attempting to bring a claim for
breach of contract.1 Defendants assert that, if Plaintiff is claiming breach of contract, he
fails to allege sufficient facts to support this claim. The Court agrees. In Florida, “[t]he
elements of a breach of contract action are: (1) a valid contract; (2) a material breach;
and (3) damages.” Vozzcom, Inc. v. Beazley Ins. Co., 666 F. Supp. 2d 1321, 1327
(S.D. Fla. 2009) (citing Brooks Tropicals, Inc. v. Acosta, 959 So. 2d 288, 292 (Fla. 3d
DCA 2007)). Moreover, to sustain a breach of contract claim, the plaintiff must specify
which provision of the contract has been breached. Gentry v. Harborage CottagesStuart, LLLP, No. 08-14020-CIV-MOORE/LYNCH, 2008 U.S. Dist. LEXIS 32663, at *910 (S.D. Fla. Apr. 21, 2008) (citing Henrion v. New Era Realty IV, Inc., 586 So. 2d 1295,
1297 (Fla. 4th DCA 1991)). Here, Plaintiff’s only allegation with regard to Defendants’
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At the end of Count I, Plaintiff refers to his termination as a “wrongful
discharge.” DE 15 ¶ 11. Defendants assert that Plaintiff was an at-will employee, and
that an at-will employee may not bring a claim for wrongful discharge under Florida law.
Plaintiff does not address this issue in his response. Because it is not clear that Plaintiff
was attempting to bring a wrongful discharge action, the Court will not address the
prospects of such an action at this time.
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breach of the employment contract is that “Defendants have failed to pay Plaintiff as
required under the contract.” DE 15 ¶ 10. The Amended Complaint does not state
which provision of the contract Defendants breached. Moreover, while Plaintiff claims
that he was employed with Defendants for more than nine years, he does not allege
when the breach occurred, or for what activities Plaintiff is owed compensation.
Without such basic factual allegations, Count I does not give Defendants fair notice of
what the claim is and the grounds upon which it rests. However, because these defects
may be curable, Count I will be dismissed without prejudice.
C. Count II
In Count II, Plaintiff seeks an accounting, alleging that he needs information
regarding Defendants’ sales in South America and the southeastern United States in
order to calculate the commissions and compensation that Defendants owe to Plaintiff.
DE 15 ¶¶ 14-15. Defendants move to dismiss Count II for failure to state a claim.
“Under Florida law, a party seeking an equitable accounting must show the existence of
a fiduciary relationship or a complex transaction and must demonstrate that the remedy
at law is inadequate.” Kee v. Nat’l Reserve Life Ins. Co., 918 F.2d 1538, 1540 (11th
Cir. 1990) (citing, e.g., F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d
DCA 1962)). Here, Defendants assert that Plaintiff has failed to sufficiently allege that
he had a fiduciary relationship with Defendants, that the transactions at issue are
complex, or that his legal remedy is inadequate. The Court agrees.
1. No fiduciary relationship.
First, Plaintiff fails to allege the existence of a fiduciary relationship. To establish
a fiduciary relationship, “‘a party must allege some degree of dependency on one side
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and some degree of undertaking on the other side to advise, counsel, and protect the
weaker party.’” Orlinksy v. Patraka, 971 So. 2d 796, 800 (Fla. 3d DCA 2007) (quoting
Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So. 2d 1063, 1065 (Fla. 3d DCA 1993)).
Here, Plaintiff alleges that he had an employment relationship with Defendants.
However, an employment relationship does not necessarily create a fiduciary
relationship. See Orlinsky, 971 So. 2d at 802 (finding that plaintiff did not have a
fiduciary relationship with her employer because plaintiff was an at-will employee). The
determination of whether a fiduciary relationship exists is fact-specific, turning on
whether there is a relationship of trust and confidence between the parties that would
give rise to fiduciary duties. See Court Appointed Receiver of Lancer Offshore, Inc. v.
Citco Group, Ltd., No. 05-60080-CIV-MARRA/JOHNSON, 2008 U.S. Dist. LEXIS
25740, at *44 (S.D. Fla. Mar. 31, 2008). Here, the only facts that Plaintiff alleges about
his relationship with Defendants are that he was employed by them as a salesman from
2003 through 2012, and that he received commissions and other compensation for his
work. DE 15 ¶¶ 5, 6, 9. These facts, by themselves, are insufficient to establish a
fiduciary relationship.
Plaintiff cites to case law in which courts have found that a fiduciary relationship
existed between an employee and employer. See DE 20 at 5-6 (citing New World
Fashions, Inc. v. Lieberman, 429 So. 2d 1276 (Fla. 1st DCA 1983); Eye Care Int’l, Inc.
v. Underhill, 92 F. Supp. 2d 1310 (M.D. Fla. 2000)). However, in both of those cases,
the plaintiffs alleged additional facts, beyond the mere existence of an employment
relationship, that demonstrated an expectation of trust and confidence between the
parties. In New World Fashions, the defendant was the plaintiff’s sales representative
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and had access to the plaintiff’s secret information, including its client lists. See 429
So. 2d at 1276. The plaintiff alleged that the defendant attempted to steal its clients
while setting up a business that would directly compete with the plaintiff’s business.
Id. at 1276-77. On these facts, the court found that the plaintiff was entitled to an
accounting for lost profits. Id. at 1277. Likewise, in Eye Care Int’l, the employer alleged
that the sales representative had a contractual obligation to report and account for his
sales activities, thus creating a fiduciary relationship. 92 F. Supp. 2d at 1311. In the
instant case, the Amended Complaint contains no allegations that demonstrate that the
parties were in confidence with or dependent upon each other. Therefore, the Court
finds that Plaintiff has not alleged a fiduciary relationship.
2. No complex transactions
Second, there are no allegations that the transactions at issue are particularly
complex. Generally, a party seeking an accounting based on the complexity of the
transaction must show that the transactions “are so complicated that a jury would not be
able to ascertain damages and a remedy at law is inadequate.” Managed Care
Solutions, Inc. v. Essent Healthcare, Inc., 694 F. Supp. 2d 1275, 1281 (S.D. Fla. 2010).
Plaintiff alleges that he sold bakery equipment for Defendants, and that he was paid on
a salary-plus-commission basis. See DE 15 ¶ 5; DE 15-1 at 3-5. It appears that
Plaintiff’s commission was to be calculated in accordance with the chart contained on
page eight of the employment contract. DE 15-1 at 5. Thus, the Court finds no
indication in the Amended Complaint or the contract that calculating Plaintiff’s
compensation would be beyond the capacity of a jury.
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3. Adequate legal remedy
Third, Plaintiff fails to show that he has no adequate remedy at law. Plaintiff
argues that his legal remedy – a breach of contract action – will be frustrated if he
cannot access Defendants’ sales records. Without such documents, he asserts that he
will be unable to establish the amount of damages he is owed. Even so, Plaintiff does
not explain why he could not obtain the necessary documents through discovery in a
breach of contract action. Indeed, Plaintiff’s arguments on this issue are better suited
to a motion to compel, rather than an action for equitable accounting. See Zaki
Kulaibee Establishment v. Henry H. McFlicker, 788 F. Supp. 2d 1363, 1371 (S.D. Fla.
2011) (dismissing an action for accounting because plaintiff could obtain documents
needed to calculate damages through discovery). Accordingly, because Plaintiff has an
adequate legal remedy, Count II will be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED as follows:
1.
Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint with
Prejudice and Alternative Motion for More Definite Statement [DE 17] is
GRANTED;
2.
Count I is DISMISSED without prejudice;
3.
Count II is DISMISSED with prejudice; and
4.
Plaintiff shall file a Second Amended Complaint on or before August 23,
2013.
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DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 13th day of August, 2013.
Copies provided to:
Counsel of record via CM/ECF.
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