BCOM Investment Manager, LLLP et al v. Aylward et al

Filing 40

ORDER Requiring Amended Complaint. See Order for filing deadlines and other details. Defendants' Motion to Dismiss Plaintiffs' Complaint is denied as moot, and the motion hearing scheduled for 3/17/2015 is cancelled. Signed by Judge James I. Cohn on 3/13/2015. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-62181-CIV-COHN/SELTZER

BCOM INVESTMENT MANAGER, LLLP;
BCOM REAL ESTATE FUND, LLC
LIQUIDATING TRUST; and
MICHAEL BAUMANN,
Plaintiffs,
v.
PETER G. AYLWARD and STRATEGIC
PROPERTY ADVISERS, INC.,
Defendants.
___________________________________/
ORDER REQUIRING AMENDED COMPLAINT
THIS CAUSE is before the Court sua sponte. The Court previously set a hearing
on Defendants’ Motion to Dismiss Plaintiffs’ Complaint [DE 11] (“Motion”). But after
further reviewing the Complaint, the Motion, and all related filings, the Court will cancel
the hearing and order Plaintiffs to file an Amended Complaint as described below.
Plaintiffs, an investment trust and its managers, brought this action against
Defendants, which provide management and consulting services to investment funds.
See DE 2 (Compl.). In general, Plaintiffs’ Complaint alleges that Defendants breached
a settlement agreement in a prior federal action (the “Agreement”) by authorizing the
filing of a lawsuit in Delaware Chancery Court (the “Delaware Action”). According to
Plaintiffs, the Delaware Action has prevented them from completing a multi-milliondollar transaction with a third party, resulting in significant harm to Plaintiffs. The
Complaint pleads claims for breach of the Agreement and for tortious interference

with a business relationship or contract. Plaintiffs also seek a declaratory judgment
regarding Defendants’ alleged violation of the Agreement.
In particular, the Complaint details the background of Plaintiffs’ transaction with
the third party. See DE 2 at 4-8. The Complaint then turns to the earlier federal case,
the Agreement, and Defendants’ claimed violation of its terms. See id. at 8-15.
Plaintiffs broadly address the prior case and quote certain provisions of the Agreement.
But Plaintiffs fail to explain, in concrete terms, how Defendants violated the Agreement.
Nowhere do Plaintiffs discuss the specific nature of the claims in the prior action, the
substance of what the Agreement barred Defendants from doing in the future
(if anything), and how exactly Defendants’ involvement in the Delaware Action violated
the terms of the Agreement. Without these missing facts, Plaintiffs cannot plausibly
allege that Defendants breached any legal duties to them. See Fed. R. Civ. P. 8(a)(2)
(requiring a complaint to include “a short and plain statement of the claim showing that
the pleader is entitled to relief”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that in order to survive dismissal, a complaint must plead “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face’” (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Nor can the Court discern the precise
basis for Plaintiffs’ claims, much less evaluate the issues raised by Defendants’ Motion.
The Court will therefore require Plaintiffs to replead their Complaint, clearly identifying
the facts that support their claims.1 Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:

1

That Plaintiffs have attached some of the underlying case documents to their
Complaint does not change the Court’s analysis. It is Plaintiffs’ responsibility to plead
in their Complaint the facts that plausibly support the claims asserted.
2

1.

Plaintiffs’ Complaint [DE 2] is DISMISSED WITHOUT PREJUDICE;

2.

By April 3, 2015, Plaintiffs shall file an Amended Complaint in accordance with
this Order. To the extent appropriate, the Amended Complaint should also take
into account the issues raised in Defendants’ Motion to Dismiss Plaintiffs’
Complaint [DE 11];

3.

By April 24, 2015, Defendants shall respond to Plaintiffs’ Amended Complaint;

4.

Defendants’ Motion to Dismiss Plaintiffs’ Complaint [DE 11] is DENIED AS
MOOT; and

5.

The motion hearing scheduled for March 17, 2015, is CANCELLED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 13th day of March, 2015.

Copies provided to:
Counsel of record via CM/ECF

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