SEMINOLE MASONRY, LLC v. Hodges et al

Filing 37

ORDER denying 25 Motion to Dismiss Signed by Judge Robert N. Scola, Jr on 7/25/2018. See attached document for full details. (vmz) Modified ruling per attached pdf on 7/19/2018 (wc).

United States District Court
for the
Southern District of Florida
Seminole Masonry, LLC, Plaintiff,
v.
James H. Hodges and others,
Defendants.

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)
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) Civil Action No. 18-60368-Civ-Scola
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)

Order on Motion to Dismiss
This matter is before the Court upon the Defendants’ motion to dismiss
(ECF No. 25). The Plaintiff Seminole Masonry filed a response (ECF No. 29),
and the Defendants filed a reply (ECF No. 32). The Court has reviewed the
motion, all supporting and opposing materials, the record in this case and the
applicable law, and is otherwise fully advised. For the reasons set forth below,
the Court denies the motion to dismiss (ECF No. 25).
1. Background
This case arises in the context of the sale of a business. Seminole
Masonry, the buyer, and the Defendants, who include the seller, owners, and
key persons related to the business, entered an Asset Purchase Agreement
(“APA”) with respect to the sale of certain assets of a masonry business located
in Sanford, Florida. In connection with the sale, the Defendants made certain
representations and warranties regarding various aspects of the masonry
business, and the APA contains a mutual indemnification provision requiring
payment by one party to the other in the event that losses occur as a result of
the breach or failure of any covenant or agreement made in the APA.
In this case, the Plaintiff alleges numerous losses arising from the
Defendants’ breaches of warranties made in the APA, and pursuant to which
the Plaintiff made a demand for indemnification with which the Defendants did
not comply. In addition, the Plaintiff alleges that the Defendants concealed
material information in connection with the sale. As a result, the Plaintiff
asserts numerous claims for breach of the APA (Counts 1-12) and a claim for
fraud in the inducement (Count 13). The Defendants seek dismissal of all
claims under Rule 12(b)(6), or a more definite statement under Rule 12(e).
2. Legal Standard
When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the

complaint’s allegations as true, construing them in the light most favorable to
the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading need only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-has-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A
plaintiff must articulate “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
3. Analysis
The Defendants’ arguments for dismissal lack merit, principally because
they constitute denials of the factual allegations in the complaint or involve
questions of fact not suitable for disposition upon a motion to dismiss.
Moreover, the Defendants fail to cite legal authority in support of their
arguments.1 “On a Rule 12(b)(6) motion to dismiss, ‘[t]he moving party bears
the burden to show that the complaint should be dismissed.’” Sprint Sols., Inc.
v. Fils-Amie, 44 F. Supp. 3d 1224, 1228 (S.D. Fla. 2014) (Cohn, J.) (quoting
Mendez-Arriola v. White Wilson Med. Ctr. PA, No. 09-495, 2010 WL 3385356, at
*3 (N.D. Fla. Aug. 25, 2010)). “The movant must support its arguments for
dismissal with citations to legal authority.” Id. (citing S.D. Fla. L.R. 7.1(a)(1)).
“Where a defendant seeking dismissal of a complaint under Rule 12(b)(6) does
not provide legal authority in support of its arguments, it has failed to satisfy
its burden of establishing its entitlement to dismissal.” Id. (citing Super. Energy
Servs., LLC v. Boconco, Inc., No. 09-0321, 2010 WL 1267173, at *5-6 (S.D. Ala.
Mar. 26, 2010) and United States v. Vernon, 108 F.R.D. 741, 742 (S.D. Fla.
1986) (Scott, J.)). Accordingly, the Defendants’ motion is due to be denied.
In addition, the Defendants are not entitled to a more definite statement,
as it is evident that the basis for the request is that they would like more
information than what the complaint’s allegations provide. However, “[a] motion
for a more definite statement is intended to provide a remedy for an
unintelligible pleading, rather than a vehicle for obtaining greater detail.” Euro
In fact, the only argument supported by citation to legal authority is the argument
that the claim for fraud in the inducement should be dismissed based upon the
economic loss doctrine, in support of which the Defendants cite Tiara Condominium
Assocation v. March & McLennan Companies, 714 F.3d 1253, 1257 (11th Cir. 2013).
However, the Defendants appear to have abandoned this argument in their reply, and
in any event the argument fails, because as the Eleventh Circuit recognized in Tiara,
the Florida Supreme Court has limited the application of the economic loss rule to
products liability cases. See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos., 110
So. 3d 399, 407) (Fla. 2013).
1

RSCG Direct Resp., LLC v. Green Bullion Fin. Servs., 872 F. Supp. 2d 1353,
1358 (S.D. Fla. 2012) (Cohn, J.). The Defendants may seek further information
regarding the Plaintiff’s claims in discovery.
4. Conclusion
Accordingly, the Defendants’ motion to dismiss (ECF No. 25) is denied.
Done and ordered at Miami, Florida on July 19, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge