SEMINOLE MASONRY, LLC v. Hodges et al
Filing
88
Omnibus Order Granting Motions to Dismiss. Seminole Masonry shall answer all remaining counterclaims by March 5, 2019. Signed by Judge Robert N. Scola, Jr. See attached document for full details. (zlz)
United States District Court
for the
Southern District of Florida
Seminole Masonry, LLC, Plaintiff,
)
)
v.
)
)
James H. Hodges and others,
)
Defendants.
)
)
Haven Holdings of Central Florida,
) Civil Action No. 18-60368-Civ-Scola
LLC, and others, Counter-Plaintiffs
)
)
v.
)
)
Seminole Masonry, LLC, and others, )
Counter-Defendants.
)
Opinion Order on Motions to Dismiss
This matter is before the Court on three motions to dismiss filed by
Counter-Defendants Seminole Masonry, LLC (“Seminole Masonry”) (ECF No.
52), Quantum Construction, LLC and Quantum Ventures of Michigan, LLC
(collectively, “Quantum”) (ECF No. 68), and Dean Locke (“Locke”) (ECF No. 69).
The Court has reviewed the motions, 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 grants all three motions (ECF Nos.
52, 68, 69), as follows.
1. Factual Background
This case arises in the context of the sale of a business. Seminole
Masonry, the buyer, and the Defendants, who include the seller (Haven
Holdings of Central Florida, LLC, “Haven”) and owners and other key persons
related to the business (collectively, “Hodges”), 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 if losses
occur because of the breach or failure of any covenant or agreement made in
the APA.
Two other contracts are relevant to the motions. First, by separate
transaction, Seminole Masonry agreed to lease certain real property (the
“Subject Property”) in Sanford, Florida (the “Lease Agreement,” ECF No. 41-4).
Seminole Land Management, LLC (“SLM”) was the lessor under the Lease
Agreement.
The second contract was an employment agreement between defendant
James H. Hodges (“James”) and Seminole Masonry. (the “Employment
Agreement,” ECF No. 41-6.) James was the former principal of Seminole
Masonry, and the Employment Agreement generally extended his employment
with the company for three-months post-closing on the APA.
2. Procedural History
Seminole Masonry brought this suit seeking recovery for losses arising
from the Defendants’ alleged 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. (ECF No. 1.) 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 sought dismissal of all claims, and the Court denied that motion.
(ECF No. 37.)
Then, the Defendants and SLM (collectively, the “Counter-Plaintiffs”)
answered the Complaint and filed fifteen counterclaims and third-party claims
against Seminole Masonry and third-parties Quantum, Locke and Bright House
Networks, LLC (“Bright House”). (ECF No. 41.) The Quantum entities are parent
companies of Seminole Masonry. Locke is the CEO and president of Seminole
Masonry. Bright House is a contractor employed by Seminole Masonry to make
certain alterations to the Subject Property. Bright House answered the single
trespass claim asserted against it. (ECF No. 67.) Quantum, Locke and Seminole
Masonry separately moved to dismiss. (ECF Nos. 52, 68, 69.) A summary of
those motions follows.
A. Quantum
Quantum is not a named defendant to any of the counterclaims but is
nonetheless a named party to this suit. Through its motion, Quantum argues:
(1) that it lacks fair notice of the claims asserted against it (ECF No. 68 at pp.
7-8); and (2) to the extent that Counts I and XIV are asserted against
Quantum, those counts should be dismissed as Quantum was not a party to
the APA and those counts otherwise fail to state claims for relief against
Quantum (id. at pp. 9-13).
B. Locke
Three claims are asserted against Locke as president and CEO of
Seminole Masonry: fraud in the inducement for the APA (Count V, ECF No. 41
at pp. 35-37); tortious interference with a business relationship (Count IX, id.
at p. 41); and violations of Florida’s Deceptive and Unfair Trade Practices Act
(“FDUTPA”) (Count XI, id. at pp. 43-44). The Counter-Plaintiffs voluntarily
dismissed without prejudice Count XI. (ECF No. 62.)
Locke moves to dismiss Counts V and IX, arguing: (1) that the APA
expressly contradicts Locke’s alleged misrepresentations and therefore cannot
support a claim for fraudulent inducement (ECF No. 69 at pp. 7-11); (2) that
the APA’s merger clause precludes the Counter-Plaintiffs from asserting Count
V based on precontractual representations (id. at pp. 11-13); (3) that Locke’s
opinions are not actionable in a claim for fraudulent inducement (id. at pp. 1314); (4) that Count V fails Rule 9(b)’s heightened pleading standard for claims
sounding in fraud (id. at pp. 15-16); (5) that Locke could not have tortuously
interfered with a contract to which he was a party, requiring dismissal of Count
IX (id. at pp. 16-18); and (6) that, in the alternative, the request for attorneys’
fees under Counts V and IX should be stricken (id. at p. 18).
C. Seminole Masonry
The following counterclaims are asserted against Seminole Masonry: (1)
breach of the APA (Count I, ECF No. 41 at p. 28); unjust enrichment (Count II,
id. at p. 30); violations of FDUTPA (Counts III and X, id. at pp. 32, 42);
injunctive relief (Count IV, id. at p. 33); breach of the Lease Agreement (Count
VIII, id. at p. 39); and breach of Employment Agreement (Count XIII, id. at p.
46).
Seminole Masonry moved to dismiss Counts I, III, IV, X, XIV and XV.
(ECF No. 52.) Thereafter, Havens voluntarily dismissed Counts III and X
without prejudice, mooting all arguments directed at those claims. (ECF No.
59.) Thus, Seminole Masonry’s remaining arguments for dismissal are: (1)
counter-plaintiff SLM lacks standing to assert Counts I, XIV and XV (ECF No.
52 at pp. 6-7); and (2) Count IV, the stand-alone claim for injunctive relief, is
insufficiently pled (id. at pp. 16-17).
3.
Motion to Dismiss 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 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).
When considering a motion to dismiss, in addition to the allegations in
the complaint, the district court also considers “the facts derived from a
complaint’s exhibits as part of the plaintiff’s basic factual averments,” and
where those exhibits contradict the complaint’s allegations, the exhibits
control. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013); see also
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205 (11th Cir. 2007) (“when the
exhibits contradict the general and conclusory allegations of the pleading, the
exhibits govern.”).
4. Analysis
The Court will separately analyze the arguments for dismissal raised by
each party.
A. Quantum
Although it is unclear from the counterclaim, in opposition to Quantum’s
motion, the Counter-Plaintiffs identify two counts that are asserted against
Quantum: Count XIV for rescission of the APA and Count XV for reformation
of the APA. Quantum argues that both claims should be dismissed because it
was not a party to the APA. The Court agrees.
i. Rescission
The “first requirement of a suit for rescission under Florida law” is that
the “parties to the lawsuit lie in contractual privity.” Thompkins v. Lil’ Joe
Records, Inc., 476 F.3d 1294, 1315 (11th Cir. 2007). “Privity of contract is that
connection or relationship which exists between two or more contracting
parties.” Bland v. Freightliner LLC, 206 F. Supp. 2d 1202, 1207 (M.D. Fla.
2002). “A plaintiff cannot bring a rescission claim against someone not a party
to the contract.” Crystal Entm’t & Filmworks, Inc. v. Jurado, No. 08-60125,
2009 WL 1098463, at *3 (S.D. Fla. Apr. 22, 2009) (Cooke, J.).
Count XIV “is an action for rescission of the APA.” (ECF No. 41 at ¶ 165.)
Quantum is not a party to the APA, meaning Quantum and the CounterPlaintiffs do not “lie in contractual privity.” Thompkins, 476 F.3d at 1315; (ECF
No. 41-1 (APA, filed as an attachment to the counterclaim).) Thus, the “first
requirement of a suit for rescission under Florida law” is not met. Thompkins,
476 F.3d at 1315. No amended pleading can change that fact and Count XIV is
therefore dismissed with prejudice as to Quantum only.
ii.
Reformation
The reformation claim is dismissed against Quantum for a similar
reason. “To state a cause of action for reformation under Florida law, the
complaint must allege that a contract fails to express the agreement of the
parties as a result of (1) a mutual mistake or (2) a unilateral mistake by one
party coupled with the inequitable conduct of the other party.” Barber v. Am.’s
Wholesale Lender, 542 F. App’x 832, 838 (11th Cir. 2013) (citing Romo v.
Amedex Ins. Co., 930 So. 2d 643, 649 (Fla. 3d DCA 2006)).
Neither party identified any authority to support a claim for reformation
against a non-party to the subject contract. And the Court is at a loss for how a
judgment for the Counter-Plaintiffs against Quantum for reformation of the
APA would provide meaningful relief, where Quantum is neither party to nor
bound by that agreement. Put differently, a judgment against Quantum on the
reformation claim would not redress any injury to the Counter-Plaintiffs. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998) (to satisfy
Article III’s standing requirement, “there must be redressability—a likelihood
that the requested relief will redress the alleged injury”). As a result, the
Counter-Plaintiffs lack Article III standing to pursue reformation of the APA
against Quantum, and the Court dismisses Count XV without prejudice as to
Quantum only. DiMaio v. Democratic Nat. Committee, 520 F.3d 1299, 1303
(11th Cir. 2008) (noting that dismissal without prejudice is required if the
dismissal is on standing grounds).
B. Locke
In his motion, Locke argues that both Count V for fraudulent
inducement and Count IX for tortious interference should be dismissed with
prejudice. The Court will address each argument in turn.
i. Fraudulent Inducement
The fraudulent inducement claim is premised on Locke’s alleged (1) false
assurances to Hodges “that the disputes the two sides had experienced would
not continue after closing” on the APA, (2) misrepresentations about the
structure of the APA transaction, and (3) false promises to James of
“employment after the close of the transaction.” (ECF No. 41 at ¶¶ 105-09.)
Essentially, the Counter-Plaintiffs’ fraud theory is that various pre-contractual
statements by Locke, later incorporated into the APA and Employment
Agreement, were misrepresentations because Locke ultimately failed to perform
as those contracts required.
Locke seeks dismissal of Count V, arguing that each of the purported
misrepresentations are expressly contradicted by the terms of the APA and
Employment Agreement and, thus, not actionable under Florida law. (ECF No.
69 at pp. 7-11.) In response, the Counter-Plaintiffs agree that the subject
representations were “included” and “contained” within the APA and
Employment Agreement. (See ECF No. 74 at pp. 8-10). But the CounterPlaintiffs argue that that fact is immaterial, and those representations were
fraudulent because Locke allegedly failed to uphold his end of the bargains.
(Id.) In reply, Locke argues that the appropriate form of relief for the allegations
of Count V is a claim for breach of contract, not fraudulent inducement. (ECF
No. 78 at p. 4.) The Court agrees with Locke.
“It is well settled in Florida that, where alleged misrepresentations relate
to matters already covered in a written contract, such representations are not
actionable in fraud.” Peebles v. Puig, 223 So. 3d 1065, 1068 (Fla. 3d DCA 2017)
(citing La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 712–13 (Fla.
5th DCA 1998) (explaining the difference between fraud in the inducement and
fraud in the performance, the latter not constituting a separate cause of action
from that of a concurrent breach of contract action)). This “legal principle[ is]
rooted in the notion that, when a contract is breached, the parameters of a
plaintiff's claim are defined by contract law, rather than by tort law.” Id.
Cutting through the obfuscation, the Counter-Plaintiffs’ arguments in
opposition establish precisely why Count V fails to state a claim. The CounterPlaintiffs concede that each of the alleged misrepresentations by Locke are
“included” and “contained” in the APA and Employment Agreement. (ECF No.
74 at p. 8 (arguing that Locke’s “misrepresentations regarding the APA were
include within the writing”), p. 9 (“Locke’s misrepresentations appear within
the APA documents”), p. 10 (“[l]ike the other misrepresentations,” the
employment representations were also “contained in a subsequent writing” (i.e.
the Employment Agreement).). But those “representations” are not facts and,
indeed, are only “misrepresentations” because of Locke’s allegedly deficient
performance under the APA and Employment Agreement. (See id. at p. 8-11
(arguing that various breaches of the APA and Employment agreement
rendered contrary pre-contractual statements misrepresentations).) Thus,
Count V is an improper claim of fraud in the performance—not the
inducement—of those agreements. See La Pesca Grande Charters, 704 So. 2d at
712-14 (“If there is no fraud inducing someone to enter into a contract, but the
contract is breached, the cause of action sounds in contract.”). And because a
“mere promise not performed” cannot “form the predicate for actionable fraud,”
Biscayne Inv. Grp., 903 So. 2d at 255, Count V fails to state a claim and is
dismissed with prejudice.
ii. Tortious Interference
In Count IX, SLM asserts a counterclaim against Locke, individually, for
tortious interference with a business relationship. (ECF No. 41 at p. 41.) This
claim arises out of an alleged breach of the Lease Agreement, through which
SLM agreed to lease the Subject Property to Seminole Masonry. (Id.) SLM
claims Locke, who is Seminole Masonry’s president and CEO, intentionally and
tortuously interfered with the Lease Agreement by permitting structural
alterations to the Subject Property over SLM’s objection. (Id.)
Locke moves to dismiss this count, arguing a cause of action for tortious
interference cannot lie “against one who is party to the contractual relationship
upon which the claim is based.” (ECF No. 69 at pp. 16-18.) And because this
rule extends to employees of Seminole Masonry, like Locke, Count IX fails to
state a claim and requires dismissal. (Id.) In opposition, SLM argues that
Locke’s actions were made with ulterior motives and not in the best interest of
Seminole Masonry, and therefore may support a claim for tortious interference
under Florida law. (ECF No. 74 at pp. 17-18.)
“The elements of tortious interference with a business relationship are
‘(1) the existence of a business relationship; (2) knowledge of the relationship
on the part of the defendants; (3) an intentional and unjustified interference
with the relationship by the defendant; and (4) damage to the plaintiff as a
result of the breach of the relationship.’” Ethan Allen, Inc. v. Georgetown Manor,
Inc., 647 So. 2d 812, 814 (Fla. 1994) (alterations omitted; quoting Tamiami
Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985)).
In such a claim, the “interfering defendant must be a third party, a
stranger to the business relationship.” Ernie Haire Ford, Inc. v. Ford Motor Co.,
260 F.3d 1285, 1294 (11th Cir. 2001) (quoting Salit v. Ruden, McClosky, Smith,
Schuster & Russell, P.A., 742 So.2d 381, 386 (Fla. 4th DCA 1999)). So “a claim
for tortious interference with contract cannot lie where the alleged interference
is directed at a business relationship to which the defendant is a party.” Id.
(citing Genet Co. v. Anheuser–Busch, Inc., 498 So. 2d 683, 684 (Fla. 3d DCA
1986); Ethyl v. Balter, 386 So. 2d 1220, 1225 (Fla. 3d DCA 1980)). This rule
extends to agents, employees and officers of corporate parties, so long as that
person’s allegedly tortious conduct was not “outside the scope of his
employment or against the best interests of his corporation.” SIG, Inc. v. AT&T
Digital Life, Inc., 971 F. Supp. 2d 1178, 1199 (S.D. Fla. 2013) (Rosenbaum, J.)
(“an agent of a corporate party to the business relationship cannot be held
liable for tortious interference if he was acting within his capacity and scope as
an agent of the corporation”).
Locke’s argument is well taken. As the alleged “president and CEO” of
Seminole Masonry, (ECF No. 41 at ¶ 13), Locke’s liability for tortious
interference with the Lease Agreement is limited to conduct taken by him
“outside the scope of his employment or against the best interests of” Seminole
Masonry. SIG, Inc., 971 F. Supp. 2d at 1199. SML claims that Locke acted
tortuously by permitting structural alterations to the Subject Property, despite
SML’s protests otherwise. (ECF No. 41 at ¶ 133; ECF No. 74 at p. 18.) But, at
most, this allegation infers that Locke acted against SML’s best interests—not
those of Seminole Masonry, his employer. And any suggestion that Locke acted
outside his authority with Seminole Masonry is implausible, given that SML is
actually suing Seminole Masonry for breach of the Lease Agreement based on
Locke’s conduct. (See ECF No. 41 at ¶¶ 127(b), (c), (f)); Cox v. CSX Intermodal,
Inc., 732 So. 2d 1092, 1099 (Fla. 1st DCA 1999) (noting that “corporate
entities” must “act through individuals,” and rejecting tortious interference
claim against corporate defendant’s officer where plaintiff’s “breach of contract
claims against [defendant] are expressly based on their allegation that [the
officer] was acting as a [defendant] employee”). Thus, SML fails to state a claim
for tortious interference against Locke.
No factual basis is presented by SML that suggests further amendments
could cure these pleading deficiencies, and the Court finds none through its
independent review of the record. Accordingly, Count IX is dismissed with
prejudice.
C. Seminole Masonry
Seminole Masonry raises two arguments for dismissal: (1) that SLM lacks
standing to sue under the APA in Counts I, XIV and XV; and (2) that Count IV,
the stand-alone claim for “injunctive relief,” is insufficiently pled. (ECF No. 52.)1
i. SLM’s Standing to Sue Under the APA
Through Counts I, XIV and XV, the Counter-Plaintiffs seek damages for
breach of the APA, and rescission and reformation of the APA. (ECF No. 41 at
pp. 30, 49, 50.) Seminole Masonry moves to dismiss these counts only to the
extent they are brought by SLM, arguing that SLM lacks standing to seek relief
under the APA as a non-party to that agreement. (ECF No. 52.) In opposition,
SLM does not dispute that it is not a signatory to the APA. Instead, SLM argues
Seminole Masonry’s dismissal arguments directed at the FDUTPA claims
(Counts III and X) are moot by Haven’s voluntary dismissal of those counts.
(ECF No. 59.)
1
that the APA is an “umbrella” agreement that encapsulates various other
ancillary agreements, including the Lease Agreement. And because SLM is a
party to the Lease Agreement, it claims to also be an imputed party to the APA
with enforcement rights. (ECF No. 60 at pp. 6-8.)
“As a non-party, to sue to enforce the [APA], [SLM] can only establish
standing if [it] was an intended third-party beneficiary” of that agreement.
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005). “Florida
courts have recognized three types of third party beneficiaries to a contract: (1)
donee beneficiaries; (2) creditor beneficiaries; and (3) incidental beneficiaries.”
Id. (quoting Int’l Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d
465, 471 (5th Cir. 1968)). The first two are “intended” beneficiaries with
enforceable rights under a contract. Id. Mere “incidental beneficiaries,”
however, have no such rights. Id. “The intent of the parties is the key to
determining whether a third party” is an intended or incidental beneficiary. Id.
The parties to the APA clearly intended no third-party rights. Indeed, the
APA was drafted “for the sole benefit of the Parties to this Agreement and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.” (ECF No. 60-1 at p.
48, § 11.12.) And the term “Parties” refers collectively to the signatories of the
APA: Seminole Masonry (f.k.a. New Seminole Masonry, LLC), Haven (f.k.a.
Seminole Masonry, LLC) and the Hodges. (Id. at pp. 1, 49.) SLM is neither a
signatory nor “Party” to the APA. (Id. at p. 1, 49.) Thus, the intent of the
contracting parties is clear: SLM is not an intended beneficiary to the APA and
lacks standing pursue remedies under that agreement.
SLM’s novel “umbrella” agreement argument is rejected. In its opposition
brief, SLM claims that an unpublished opinion of Judge Moore supports its
standing to enforce the APA due to SLM being party to the Lease Agreement, an
ancillary contract contemplated in the APA. (ECF No. 60 at pp. 6-8 (citing
Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 13-cv-20544KMM, D.E. 160 at pp. 9-11 (S.D. Fla. Jan. 12, 2017).) But the issues in
Architectural Ingenieria were materially different, as detailed in the earlier
Eleventh Circuit opinion in that case upon which Judge Moore based his
analysis. See Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 788
F.3d 1329, 1339-41 (11th Cir. 2015). There, the Eleventh Circuit addressed
whether amendments or agreements ancillary to an umbrella contract could be
enforced against a non-signatory that was also a party to the umbrella
contract. Put differently, the issue in that case was whether the defendant was
bound by ancillary agreements not executed by it. That is not the question
here. Rather, this Court is presented with the inverse: whether a non-party to
an umbrella contract has standing to enforce it. Architectural Ingenieria did not
decide that issue; thus, the traditional third-party beneficiary analysis governs.
In any event, SLM’s argument is contrary to traditional principles of
contract interpretation. “Every provision in a contract should be given meaning
and effect.” Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d
938, 941 (Fla. 1979). In keeping with that principle, the Court must interpret
the APA in a way “which gives a reasonable meaning to all provisions” and does
not “leave[] a part useless or inexplicable.” Premier Ins. Co. v. Adams, 632 So.
2d 1054, 1057 (Fla. 5th DCA 1994); Viridis Corp. v. TCA Global Credit Master
Fund, LP, 721 F. App’x 865, 872 (11th Cir. 2018) (same). Finding SLM has
standing to enforce the APA would render meaningless section 11.12 and its
limitation of enforcement rights to “Parties to th[at] Agreement.” (ECF No. 60-1
at p. 48, § 11.12.) The Court declines to do so.
Accordingly, Counts I, XIV and XV are dismissed without prejudice to
the extent that those claims are brought by SLM. See Brown v. Gadsen
Regional Med. Center, LLC, 748 F. App’x 930, 933 (11th Cir. 2018) (“Because
Plaintiffs had no legally protected interest in the Provider Agreement, Plaintiffs
lacked standing to pursue a claim based on an alleged breach of that contract,”
and affirming dismissal without prejudice for lack of subject matter
jurisdiction); DiMaio, 520 F.3d at 1303.
ii. Injunctive Relief
Seminole Masonry seeks dismissal of Count IV, a claim for “Injunctive
Relief,” arguing that an injunction is a remedy not a stand-alone cause of
action. (ECF No. 52 at pp. 16-17.) The Counter-Plaintiffs defend this form of
pleading, arguing that Count IV is an alternate remedy for other legal and
equitable claims asserted by it. (ECF No. 60 at p. 9.)
“Any motion or suit for either a preliminary or permanent injunction
must be based upon a cause of action . . . . There is no such thing as a suit for
a traditional injunction in the abstract. For a traditional injunction to be even
theoretically available, a plaintiff must be able to articulate a basis for relief
that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6) (failure to state a
claim).” Alabama v. United States Army Corps of Engineers, 424 F.3d 1117,
1127 (11th Cir. 2005) (citing Klay v. United Healthgroup, Inc., 376 F.3d 1092,
1097 (11th Cir. 2004)); Fastway Moving & Storage, Inc. v. Ugarte, No. 1360832, 2013 WL 3927687, at *2 (S.D. Fla. Jul7 29, 2013) (Moreno, J.) (same).
“An injunction is a ‘remedy potentially available only after a plaintiff can make
a showing that some independent legal right is being infringed—if the plaintiff's
rights have not been violated, he is not entitled to any relief, injunctive or
otherwise.’” Alabama, 424 F.3d at 1127 (quoting Klay, 376 F.3d at 1098).
Count IV is insufficiently pled, as there are no allegations of an infringed
upon “independent legal right” that could serve as a basis for the injunctive
relief sought. Id. Generally alleging Seminole Masonry’s “egregious” “acts
identified in Counts I-III” does not satisfy this pleading requirement. (ECF No.
41 at ¶ 96.) Thus, Count IV is dismissed without prejudice.
5. Conclusion
In sum, the Court grants the Counter-Defendant’s motions to dismiss
(ECF Nos. 52, 68, 69), as follows:
•
Counts V and IX are dismissed with prejudice.
•
Count XIV is dismissed with prejudice only to the extent asserted
against Quantum Ventures of Michigan, LLC and Quantum
Construction, LLC.
•
Count XV is dismissed without prejudice only to the extent asserted
against Quantum Ventures of Michigan, LLC and Quantum
Construction, LLC.
•
Counts I, XIV and XV are dismissed without prejudice to the extent
they are asserted by Seminole Land Management LLC.
•
Count IV is dismissed without prejudice.
Done and ordered, in Chambers, at Miami, Florida on February 19,
2019.
________________________________
Robert N. Scola, Jr.
United States District Judge
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