Raimbeault et al v. Accurate Machine & Tool LLC et al

Filing 86

ORDER granting in part and denying in part 66 Motion to Dismiss for Failure to State a Claim( Amended Pleadings due by 10/15/2014.); granting in part and denying in part 73 Motion to Dismiss. Signed by Judge Beth Bloom on 9/30/2014. (tpl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CIV-20136-BLOOM/Valle

SEAN RAIMBEAULT and
LORI-ANN RAIMBEAULT,
Plaintiffs,
vs.
ACCURATE MACHINE & TOOL, LLC,
SUNBELT DIVERSIFIED ENTERPRISES,
LLC, 1848 CAPITAL PARTNERS LLC,
JAMES TOLZIEN, JOSEPH E. DAGROSA,
JR., DAVID NEITHARDT, JAMES WILDER
a/k/a JIMMIE WILDER AND JOHN SICILIAN,
Defendants.
____________________________________/
ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS
THIS CAUSE came before the Court on the Motions to Dismiss Plaintiffs Sean
Raimbeault and Lori-Ann Raimbeault’s (“Plaintiffs”) First Amended Complaint, ECF No. [45],
filed by Defendants 1848 Capital Partners LLC (“1848 Capital”), Joseph E. DaGrosa, Jr., David
Neithardt and John Sicilian (the “1848 Defendants” and the “1848 Motion”, ECF No. [66]) and
Defendants James Tolzien and James Wilder, ECF No. [73] (together with the 1848 Motion, the
“Motions”). The Court has reviewed the Motions, all supporting and opposing filings, oral
argument presented at the September 29, 2014 hearing, the record in this case, and is otherwise
fully advised in the premises. For the reasons set forth below, the Court in part grants and in part
denies the Motions.

CASE NO. 14-CIV-20136-BLOOM/Valle
I. PROCEDURAL BACKGROUND
Plaintiffs filed their original Complaint on April 24, 2013 in the Circuit Court of
Dorchester County, South Carolina, captioned Raimbeault v. Accurate Machine & Tool, LLC, et
al., Case No. 2013-CP-18-76, asserting claims based on fraud, constructive fraud, unjust
enrichment, violation of the South Carolina Unfair Trade Practices Act, S.C. Code § 39-5-10 et.
seq., and breach of contract against Defendants Accurate Machine & Tool, LLC (“Accurate”)
and Sunbelt Diversified Enterprises, LLC (“Sunbelt”). See ECF No. [1]. On June 21, 2013,
Accurate and Sunbelt removed the action to the District Court for the District of South Carolina.
Id. Accurate and Sunbelt then filed a motion to transfer venue to the Southern District of Florida
on the basis of a choice of law and forum selection clause in an Asset Purchase Agreement (the
“APA”) dated as of September 15, 2012, entered into between Plaintiffs and Accurate and
subject of several of the claims asserted by Plaintiffs. See ECF No. [6]. After staying that motion
pending resolution by the Supreme Court of Atlantic Marine Const. Co. v. U.S. Dist. Court for
W. Dist. of Tex., 134 S. Ct. 568 (2013), and following Plaintiffs’ consent to transfer venue in
exchange for the defendants’ consent to amendment of the complaint, on January 13, 2014, the
District Court for the District of South Carolina transferred the action to this Court. See ECF No.
[15]. Plaintiffs filed their First Amended Complaint on June 18, 2014, through which they added
1848 Capital, Tolzien, DaGrosa, Jr., Neithardt, Wilder and Sicilian (the “Moving Defendants”)
as Defendants. See ECF No. [45].
Plaintiffs assert the following claims in the First Amended Complaint:

(i) civil

conspiracy to commit fraud, against Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, DaGrosa,
Neithardt and Sicilian; (ii) damages based on non-payment owed under a note, against Accurate;
(iii) damages based on non-payment owed under a guarantee, against Sunbelt; (iv) alter ego,

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against 1848 Capital; (v) fraud, against Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder,
DaGrosa, Neithardt and Sicilian; (vi) constructive fraud, against Accurate, Sunbelt, 1848 Capital,
Tolzien, Wilder, DaGrosa, Neithardt and Sicilian; (vii) unjust enrichment, against Accurate,
Sunbelt and 1848 Capital; (viii) violation of the Florida Unfair and Deceptive Trade Practice
Act, Fla. Stat. § 501.201 et. seq. (“FUDTPA”), by Accurate, Sunbelt, 1848 Capital, Tolzien,
Wilder, DaGrosa, Neithardt and Sicilian; and (ix) breach of contract as to a consulting
agreement, against Accurate. See ECF No. [45].
The Moving Defendants filed the instant Motions to Dismiss the First Amended
Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim. Plaintiffs timely
responded, ECF Nos. [76], [80], and the Moving Defendants timely replied, ECF Nos. [64], [82].
In addition, the parties appeared before the Court for oral arguments on September 29, 2014.
ECF No. [84].
II. RELEVANT FACTS AS ALLEGED
This suit arises from a transaction in September 2012 through which Plaintiffs sold
business assets to Accurate. Plaintiffs allege that the Defendants together conspired to defraud
Plaintiffs and obtain possession of those business assets. See Am. Compl. ¶ 18.
A.

The Laurentec Transaction

WDCI, LLC f/k/a Laurentec, LLC (“Laurentec”) is a limited liability company organized
and existing under the laws of the State of South Carolina. Id. ¶ 19. Plaintiffs, both citizens and
residents of South Carolina, were the sole shareholders of Laurentec. Id. ¶ 20. Laurentec was
engaged in the production, fabrication, machining, subcontracting and sale of industrial and
military defense parts on a contract basis. Id. ¶ 21.

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Accurate and Sunbelt are both Florida LLCs, with Accurate’s principal place of business
in Raleigh, North Carolina, and Sunbelt’s in Miami, Florida. Id. ¶¶ 2-3. 1848 Capital, a
Delaware LLC with its principal place of business in Miami, Florida, is an equity owner of,
partner in, and creditor of Sunbelt and Accurate. Id. ¶¶ 5-6. The remaining Defendants are
principals and/or officers of the corporate Defendants. Id. ¶¶ 10-15. Tolzien is the CEO, a board
member and a partner of Sunbelt. Id. ¶ 10. Wilder is the CEO, a board member and a partner of
Accurate. Id. ¶ 11. Sicilian, DaGrosa, Jr. and Neithardt are the three principles, partners, board
members and co-founders of 1848 Capital. Id. ¶¶ 12-15.
In July 2012, Sunbelt approached Plaintiffs regarding acquiring Laurentec on behalf of
1848 Capital. Id. ¶ 22. Wilder, Tolzien and Sicilian were involved in negotiations between the
parties regarding potential business opportunities. Id. ¶¶ 25-27. Sunbelt and Plaintiffs ultimately
executed a Letter of Intent, ECF No. [45-1] (“Letter of Intent”), in August 2012 providing for the
acquisition of Laurentec’s assets by Sunbelt for a purchase price of $2.1 million. Am. Compl. ¶
27, 30; Ltr. of Intent at 2. Tolzien, Wilder, Sicilian, DaGrosa and Neithardt were all involved in
the Letter of Intent and subsequent negotiations for sale. Am. Compl. ¶¶ 29, 50. The total
consideration was to include a $700,000 cash component, a three-year $650,000 promissory note
issued by Sunbelt (and containing specific payment provisions), and a commission arrangement
giving Plaintiffs 5% of sales made to certain existing customers up to $750,000. Ltr. of Intent at
2. As inducement for Plaintiffs to accept deferred consideration, Plaintiffs would be provided a
security interest in the purchased equipment expiring upon Plaintiffs’ collection of $1 million in
total consideration. Id.
In September 2012, Sunbelt, through Tolzien, informed Plaintiffs that the proposed
transaction would require the approval of Chatham Capital Management III, LLC (“Chatham”),

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whom Tolzien described as Sunbelt and Accurate’s unrelated third-party senior lender. Am.
Compl. ¶ 36. Sunbelt represented that Chatham and/or 1848 Capital refused to allow Plaintiffs
to retain a security interest in Laurentec’s equipment. Id. ¶ 38. The transaction was modified by
the Defendants to substitute Accurate as the purchaser, and Defendants convinced Plaintiffs to
accept, in lieu of a security interest, an unconditional and irrevocable guarantee from Sunbelt.
Id.
The Letter of Intent expired by its own terms on September 15, 2012. Am Comp. ¶ 40.
To prove their good faith intent to move forward with the transaction, Accurate, through Wilder
and on Tolzien’s instruction, wired Plaintiffs $35,000 as a “no strings attached deposit” later in
September 2012. Id. ¶¶ 40-41. On or about November 20, 2012, Accurate as buyer, Laurentec
as seller and Plaintiffs as Laurentec’s shareholders executed the APA, pursuant to which
significantly all of Laurentec’s assets were sold to Accurate. Id. ¶ 49; APA, ECF No. [45-2] at 1.
Accurate paid $700,000 of the $2.1 million purchase price at closing, with the remaining portion
of the purchase price financed by a promissory note in the principal amount of $650,000 issued
by Accurate to Plaintiffs (the “Accurate Note”, ECF No. [45-3]). Am. Compl. ¶ 52; APA Art. II.
As additional consideration, Accurate provided Plaintiff Sean Raimbeault with a consulting and
commission agreement providing for total payments up to $750,000 (the “Consulting
Agreement”, ECF No. [45-6]). Id. Concurrent with the APA, Sunbelt executed a guarantee in
favor of Plaintiffs for $300,000 in principal payments under the Accurate Note (the “Sunbelt
Guarantee”, ECF No. [45-4]). Am. Compl. ¶ 53. Also in connection with the APA, Plaintiffs,
Accurate and Chatham entered into a subordination and intercreditor agreement (the
“Intercreditor Agreement”, ECF No. [45-5]). Id. ¶ 55. Plaintiffs allege that Sicilian, DaGrosa,
Jr. and Neithardt all personally reviewed and approved the Laurentec transaction. Id. ¶ 32.

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B.

Defendants’ Senior Indebtedness

According to the First Amended Complaint, 1848 Capital, Sunbelt and their owned or
controlled companies, including Accurate, are all borrowers, debtors, guarantors or credit parties
under various agreements with Chatham. Id. ¶ 34. Chatham is a lender to the corporate
Defendants under the terms of a senior credit agreement, dated July 15, 2008 (the “Senior Credit
Agreement”), pursuant to which it made loans or other financial accommodations to Accurate
and its related entities. Id. ¶ 35; see ECF No. [45-5] at 1.
The corporate Defendants defaulted on certain obligations owed to Chatham on July 31,
2008, had been in continuous default on their senior credit facility with Chatham for the four
years previous to the Laurentec transaction, and were generally unable to perform under their
credit or debt obligations. Id. ¶¶ 42, 68. Plaintiffs allege that all of the Defendants, including the
individual principals involved in the transaction, knew that the Senior Credit Agreement was in
default. Id. ¶ 61. Despite this, Plaintiffs allege that Defendants represented to them that 1848
Capital, Sunbelt and Accurate were in good standing and performing on their obligations to
Chatham and had sufficient capital to undertake the Laurentec transaction. Id. ¶¶ 46, 60. Rather,
Plaintiffs allege that both Chatham and 1848 Capital provided Accurate with funding for the
APA transaction, and that Defendants were in negotiations with Chatham to modify their debt
obligations and cure their defaults while negotiating the Laurentec transaction. Id. ¶¶ 51, 44. In
fact, Plaintiffs allege that on the same day the APA was signed, Chatham, Sunbelt and Accurate
purportedly entered into a loan modification agreement curing the Defendants’ default, for the
sole purpose of closing the Laurentec transaction. Id. ¶¶ 63-64. Defendants never informed
Plaintiffs of their ongoing and developing defaults during negotiations towards, and the closing
of, the Laurentec transaction. Id. ¶ 43.

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C.

Defendants’ Default and Non-Payment

On December 3, 2012, eleven days after closing the Laurentec transaction, Sunbelt,
Accurate and a set of related borrowers “synchronously” defaulted on their obligations under the
Senior Credit Agreement by, among other defaults, failing to make a collective payment of
roughly $73,000 to Chatham. Id. ¶ 65.
At the time of the corporate Defendants’ default on the Chatham facility, Plaintiffs
remained in physical possession of the equipment sold under the APA. Id. ¶ 72. Defendants did
not inform Plaintiffs of that default. Id. ¶ 73. Despite being prohibited from doing so under the
Intercreditor Agreement due to its default on its senior debt with Chatham, Accurate tendered its
first payment due under the Accurate Note on January 1, 2013. Id. ¶ 74. Between that first
payment and the due date of the second payment, Accurate obtained physical possession of the
purchase equipment. Id. ¶ 75. Accurate refused to make any further payments under the
Accurate Note. Id. ¶ 76. Sunbelt has refused to perform under the Sunbelt Guarantee and pay
the amounts due and owing under the Accurate Note. Id. ¶ 107. Plaintiffs also allege that
despite services provided by them to Accurate to assist in its business development, Defendants
have failed to honor the Consulting Agreement by failing to pay commissions and failing to
respond to customer proposals. Id. ¶¶ 156, 162.
D.

Plaintiffs’ General Allegations

Plaintiffs allege that Defendants conspired to structure the Laurentec transaction as a sale
to Accurate, rather than to Sunbelt, knowing Accurate had been in default with Chatham for
years, and to have Plaintiffs accept a worthless guarantee from Sunbelt, instead of a security
deposit in the purchase assets, all in order to defraud Plaintiffs. Id. ¶¶ 45-46. As part of that
scheme to defraud Plaintiffs, the corporate and individual Defendants persuaded Plaintiffs to

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execute the Intercreditor Agreement and hid Accurate and Sunbelt’s continuing and developing
defaults and inability to perform under their senior obligations to Chatham. Id. ¶¶ 46, 56, 62, 68,
70. “Plaintiffs would not have agreed to finance the purchase of Laurentec’s assets had they
known that they would have no effective ability to enforce the agreements” due to Accurate and
Sunbelt default and operation of the Intercreditor Agreement. Id. ¶¶ 46, 70. Plaintiffs further
contend that Defendants conspired to intentionally default on their credit facility (despite having
adequate liquidity to avoid default) to avoid paying Plaintiffs. Id. ¶¶ 66-67. Finally, they allege
that Defendants had Accurate make the first and only payment to Plaintiffs under the Accurate
Note, with the intention to refuse to make any future payments under the Note, in order to secure
Plaintiffs’ physical release of the purchase assets. Id. ¶¶ 76-78.
IV. DISCUSSION
The Moving Defendants argue that Plaintiffs have failed to state a claim against them,
mandating dismissal pursuant to Rule 12(b)(6). In addition to challenging the sufficiency of
Plaintiffs’ pleading with respect to certain claims, the Moving Defendants contend that the First
Amended Complaint fails to satisfy the pleading requirements of Rule 9(b), which requires a
party to state allegations of fraud with particularity. The 1848 Defendants further argue that
dismissal is warranted here under the first-filed doctrine.
A.

The First-Filed Doctrine

Because the first-filed doctrine involves a court’s exercise of jurisdiction, the Court will
address it first. The first-filed rule provides that, “[w]here two actions involving overlapping
issues and parties are pending in two federal courts, there is a strong presumption across the
federal circuits that favors the forum of the first-filed suit under the first-filed rule.” See Manuel
v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005); Merrill Lynch, Pierce, Fenner &

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Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982) (“In [the] absence of compelling
circumstances, the court initially seized of a controversy should be the one to decide the case.”).
“The first-filed rule is premised on judicial economy, comity amongst the district courts, and the
desire to avoid potentially conflicting rulings.” Nebula Glass Int’l, Inc. v. Budnick Converting,
Inc., 2010 WL 473330 (S.D. Fla. Feb. 5, 2010). Where the first-filed rule applies, the “secondfiled” court will generally decline to exercise jurisdiction.
The 1848 Defendants contend that that an action initiated by 1848 Capital in the District
of South Carolina, styled 1848 Capital Partners, LLC v. Sean Raimbeault, Lori-Ann Aaimbeault
and WDCI, LLC f/k/a Laurentec, LLC, Case No. 14-2212 (the “South Carolina Action”), is the
first-filed case regarding the parties and claims at issue in this action. They ask the Court to
decline jurisdiction under the first-filed rule. The 1848 Defendants’ request appears to result
from gamesmanship and, in any event, misapplies the first-filed doctrine.
As detailed above, Plaintiffs filed suit in South Carolina state court in April, 2013. The
original complaint stated claims against only Accurate and Sunbelt. In June, 2013, the action
was removed to federal court in South Carolina and then transferred to this Court in January,
2014 at the request of Defendants Accurate and Sunbelt. The transferring court noted that, as
part of the resolution of the defendants’ motion to transfer venue, Accurate and Sunbelt
consented to the amendment of Plaintiffs’ complaint, and ordered that Accurate and Sunbelt
execute a consent order to that effect upon transfer of venue. See ECF No. [15]. Plaintiffs
represent that, in May, 2014, counsel for Plaintiffs sent counsel for Defendants Accurate and
Sunbelt a proposed draft of their amended complaint, which named 1848 Capital as a defendant.1

1

At the September 29 hearing, the 1848 Defendants conceded that 1848 Capital received the draft amended
complaint or the information contained therein, and implied that they initiated the South Carolina Action in partial
response to Plaintiffs’ aim to sue 1848 Capital. They maintain that Plaintiffs threatened to add 1848 Capital to this
action for settlement negotiation leverage, and rather than sit idly by, they sued on their own. That may have

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ECF No. 76 at 16. 1848 Capital initiated the South Carolina Action on June 6, 2014. Plaintiffs
filed their First Amended Complaint, which added 1848 Capital and the individual defendants,
on June 18, 2014.
The proper focus of the first-filed doctrine is the suit or controversy, not the parties to the
action. See, e.g., Manuel, 430 F.3d at 1135 (favoring forum of “first-filed suit”); Collegiate
Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013) (prioritizing
“court initially seized of the controversy”). Courts have therefore held that how or when
particular defendants are added to the action is irrelevant to the first-filed analysis.

See

Intersearch Worldwide, Ltd. v. Intersearch Grp., Inc., 544 F. Supp. 2d 949, 958 (N.D. Cal. 2008)
(“[F]or purposes of analyzing chronology, it is irrelevant when or how [litigant] added parties to
the [action].”); Time Warner Cable, Inc. v. USA Video Tech. Corp., 520 F. Supp. 2d 579, 585 n.
48 (D .Del. 2007) (“when investigating a first-filed issue, relation back analysis is unnecessary,
because” the focus is on the original complaint, not any amended complaints); Schering Corp. v.
Amgen Inc., 969 F. Supp. 258, 265-68 (D. Del. 1997) (in a first-to-file analysis, the focus is on
the subject-matter jurisdiction, not the parties’ status or presence); Advanta Corp. v. Visa U.S.A.,
Inc., CIV.A. 96-7940, 1997 WL 88906, at *3 (E.D. Pa. Feb. 19, 1997) (“The first-filed rule turns
on which court first obtains possession of the subject of the dispute, not the parties of the
dispute.”). Plaintiffs’ action was initiated in state court and removed to federal court over a year
before the South Carolina action began. The First Amended Complaint did not substantially
alter the nature of the controversy. That the 1848 Defendants were added to the action after 1848
Capital brought suit in South Carolina is irrelevant. This action is the first-filed.

happened. However, it does not alter the first-filed analysis here. In fact, it supports the notion that all of the claims
between these parties belong in this action.

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Further, given the interrelationship between Accurate, Sunbelt and 1848 Capital, and the
timing of 1848 Capital’s complaint on the heels of Plaintiffs’ notice of their Amended
Complaint, the Court cannot escape the inference that 1848 Capital instituted the South Carolina
action to somehow undermine the prosecution of this action. Courts are loathe to reward such
self-serving manipulation of the first-filed rule. See Collegiate Licensing, 713 F.3d at 79 (“The
anticipatory suit exception to the first-filed rule applies when one party, on notice of a potential
lawsuit, files a declaratory judgment action in its home forum.”). Were the first-filed rule
applicable here, and it is not, the Court would be disinclined to enforce it under the
circumstances.
Because the instant action was filed first, Defendants’ request in the 1848 Motion to
dismiss based on the first-filed doctrine is denied.
B.

Standard for Dismissal for Failure to State a Claim

A pleading in a civil action must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”).

Nor can a complaint rest on “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a

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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.’” Id. (quoting Twombly, 550 U.S. at 570); see also
Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.
2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D.
Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the
non-moving party, and all facts alleged by the non-moving party are accepted as true.” ); Iqbal,
556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir.
2005) (“[A] document outside the four corners of the complaint may still be considered if it is
central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all
allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal
pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Magluta v.
Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).

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C.

Plaintiffs’ FUDTPA Claim

Tolzien and Wilder highlight a recent decision interpreting FDUTPA, Carrol v. Lowes
Home Centers, Inc., 2014 WL 1928669 (S.D. Fla. May 6, 2014), which clarified that only
“consumers” who engage in the “purchase of goods and services” are “persons” with standing to
pursue a FUDTPA claim under Fla. Stat. § 501.201. Id. at *3. In light of Carrol, Plaintiffs have
withdrawn their FDUPTA claim (Count Eight of the First Amended Complaint) without
prejudice to refile that claim. See ECF No. [80] at 2. Because Plaintiffs have nowhere alleged
that they engaged in the purchase of goods or services from any Defendant, their FDUPTA claim
will be dismissed with prejudice for failure to state a claim, pursuant to Rule 12(b)(6). See Hall
v. United Ins. Co. of Amer., 367 F.3d 1255, 1263 (11th Cir. 2004) (“denial of leave to amend is
justified by futility when the complaint as amended is still subject to dismissal”); Christman v.
Walsh, 416 Fed. App’x 841, 844 (11th Cir. 2011) (“A district court may deny leave to amend a
complaint if it concludes that the proposed amendment would be futile, meaning that the
amended complaint would not survive a motion to dismiss.”); Milani v. OneWest Bank FSB, 491
Fed. App’x 977, 980-81 (11th Cir. 2012) (finding that “it was no[t] error for the district court to
deny plaintiff leave to his complaint where any amendment would be futile”); Smith v.
Residential Capital, LLC, 2014 WL 1767821, at *4 (N.D. Ga. May 2, 2014) (dismissing with
prejudice where amendment would be futile); Marshall v. Aryan Unlimited Staffing Solution,
2013 WL 4759050, at *3 (S.D. Fla. Sept. 3, 2013) (same).
D.

Plaintiffs’ Claim for Constructive Fraud

At the September 29 hearing, Plaintiffs conceded that the clear contractual language in
the APA defining the relationship between the Laurentec transaction parties as arm’s-length
“moots” their constructive fraud claim. That claim will accordingly be dismissed with prejudice.

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Florida law is clear that some fiduciary relationship is required in order to state a claim
for constructive fraud. See Servicios De Almacen Fiscal Zona Franca Y Mandatos S.A. v. Ryder
Int’l, Inc., 264 Fed. App’x 878, 881 (11th Cir. 2008) (citing Taylor Woodrow Homes Fla., Inc. v.
4/46-A Corp., 850 So. 2d 536, 540 (Fla. 5th DCA 2003) (first requirement for constructive fraud
claim is the existence of a fiduciary relationship); Levy v. Levy, 862 So. 2d 48, 53 (Fla. 3rd DCA
2003) (“Constructive fraud occurs when a duty under a confidential or fiduciary relationship has
been abused. . . .”); and Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 422 (Fla. 1929) (“[I]t is
essential that the confidential relationship be established before a constructive trust will be
raised.”)). Plaintiffs have not alleged that any fiduciary relationship existed between them and
Defendants by virtue of the Laurentec transaction. Nor could they. See Life Receivables Ireland
Ltd. v. Babcock & Brown Inv. Mgmt. Partners LP, 478 Fed. App’x 658, 660 (11th Cir. 2012)
(arm’s-length buyer-seller relationship is not itself a fiduciary relationship); United States v.
Stephen, 440 Fed. App’x 824, 829 (11th Cir. 2011) (same). As they themselves admit, the
transaction documents expressly provide that the APA resulted from an arm’s-length negotiation,
that the parties relied solely and completely on their own judgment in executing the APA, and
that no party was acting under duress, whether economic or physical, in executing the APA. See
APA § 10.8.
Plaintiffs note in their Response that “[w]here, as here, there is not an express fiduciary
relationship, one may be implied in law based on the specific factual situation surrounding the
transaction and the relationship of the parties.” Crusselle v. Mong, 59 So. 3d 1178, 1181 (Fla.
5th DCA 2011). “The indispensable condition of an implied fiduciary relationship is ‘some
degree of dependency on one side and some degree of undertaking on the other side to advise,
counsel, and protect the weaker party.’” Thunder Marine, Inc. v. Brunswick Corp., 277 Fed.

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App’x 910, 913 (11th Cir. 2008) (quoting Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So. 2d
1063, 1065 (Fla. 3d DCA 1993); see also Crusselle, 59 So. 3d at 1181 (“An implied fiduciary
relationship will lie when there is a degree of dependency on one side and an undertaking on the
other side to protect and/or benefit the dependent party.”) (citing Masztal v. City of Miami, 971
So. 2d 803, 809 (Fla. 3d DCA 2007)).

Plaintiffs do allege that they relied on certain

representations by Plaintiffs in engaging in the Laurentec transaction – e.g., that the corporate
Defendants were not in default on their senior loans. But this falls short of the dependency by
Plaintiffs on Defendants, or an undertaking by Defendants to protect/benefit Plaintiffs, necessary
to imply a fiduciary relationship. Plaintiffs’ claim for constructive fraud, therefore, fails.
E.

Plaintiffs’ Alter Ego Claim

Plaintiff has asserted a separate claim for “alter ego” in order to render 1848 Capital
directly liable for the actions of Accurate and Sunbelt. Both Plaintiffs and the 1848 Defendants
appear to conflate “alter ego” with “veil piercing.” Under Florida law, at least, alter ego (i.e.,
domination and control) is but one element of the veil piercing doctrine. See Seminole Boatyard,
Inc. v. Christoph, 715 So. 2d 987, 990 (Fla. 4th DCA 1998) (“Three factors must be proven by a
preponderance of the evidence: (1) the shareholder dominated and controlled the corporation to
such an extent that the corporation’s independent existence, was in fact non-existent and the
shareholders were in fact alter egos of the corporation; (2) the corporate form must have been
used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the
corporate form caused injury to the claimant.”). Perhaps more importantly, while the parties
have replicated Florida’s veil piercing standard, the law of the corporate Defendants’
domicile/incorporation may govern the alter ego issue. Compare United States v. Clinical
Leasing Serv., Inc., 982 F.2d 900, 902 n.5 (5th Cir. 1992) (applying Louisiana law rather than the

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CASE NO. 14-CIV-20136-BLOOM/Valle
law of Delaware, the state of incorporation, to decide an alter ego claim) with Fletcher v. Atex,
Inc., 68 F.3d 1451, 1456-57 (2d Cir. 1995) (relying on New York choice of law principles to
decide an alter ego claim under Delaware law as the state of incorporation). See also Aldana v.
Fresh Del Monte Produce, Inc., 2007 WL 7143959, at *6 (S.D. Fla. Aug. 30, 2007) (federal
court could apply state alter ego doctrine to determine federal issue of personal jurisdiction).
Delaware law, for example (1848 Capital being a Delaware company), may prove considerably
more strict than Florida law on protecting the sanctity of the corporate form. See, e.g., Winner
Acceptance Corp. v. Return on Capital Corp., 2008 WL 5352063, at *5 (Del. Ch. Dec. 23, 2008)
(disregarding the corporate form only in the “exceptional case” and after “a fact intensive
inquiry”).
Happily, the Court does not need to undertake a choice-of-law analysis at this stage in the
litigation. “Florida courts permit alter ego allegations to be pled as a distinct cause of action.”
Oginsky v. Paragon Props. of Costa Rica LLC, 784 F. Supp. 2d 1353, 1373 (S.D. Fla. 2011)
(citing Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 740 (Fla. 5th DCA 2000)); see also
Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1117 (Fla. 1984) (“allegations of mere
instrumentality and improper conduct clearly state a cause of action”). However, federal courts
generally find that “[a]lter ego is not a separate cause of action for which relief can be granted;
rather, . . . alter ego serves as a theory to impose liability on an individual for the acts of a
corporate entity.” Tara Prods., Inc. v. Hollywood Gadgets, Inc., 2010 WL 1531489, at *9 (S.D.
Fla. April 16, 2010) (dismissing alter ego count with prejudice and requiring plaintiff to re-plead
allegations regarding alter ego in the body of the complaint); see Peacock v. Thomas, 516 U.S.
349, 354 (1996) (veil piercing “is not itself an independent[] cause of action, but rather is a
means of imposing liability on an underlying cause of action.”); Sheppard v. Jodice, 2007 WL

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CASE NO. 14-CIV-20136-BLOOM/Valle
2225804 (N.D. Ga. July 30, 2007) (Alter ego as a theory or doctrine, “like respondeat superior or
agency, is a means by which one entity may be held liable for the actions of another. It does not,
however, provide a cause of action in and of itself for the award of damages.”); Swift v. Pandey,
2013 WL 6054853 (D.N.J. Nov. 13, 2013) (alter ego is an “equitable remedy through which a
court may impose liability on an individual or entity normally subject to the limited liability
protections of the corporate form”).
Plaintiffs’ alter ego claim will therefore be dismissed with prejudice, but Plaintiffs will be
permitted to employ the doctrines of alter ego or veil piercing to assert liability against 1848
Capital with respect to the remainder of their claims, as relevant.2 See Oginsky, 784 F. Supp. 2d
at 1373 (dismissing alter ego claim with prejudice, but permitting plaintiff to plead allegations
related to alter ego claim as to other claims).
F.

Plaintiffs’ Claim for Unjust Enrichment

The 1848 Defendants argue that Plaintiffs have failed to state a claim for unjust
enrichment.

“The elements of an unjust enrichment claim are a benefit conferred upon a

defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s
acceptance and retention of the benefit under circumstances that make it inequitable for him to
retain it without paying the value thereof.” Florida Power Corp. v. City of Winter Park, 887 So.
2d 1237, 1242 n.4 (Fla. 2004) (quoting Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668
So.2d 205, 207 (Fla. 2d DCA 1995)).
The 1848 Defendants cite authority requiring the “direct” conferral of a benefit to
establish unjust enrichment. See Peoples Nat. Bank of Commerce v. First Union Nat. Bank of
2

The Court notes that, substantively, Plaintiffs have alleged that 1848 Capital exerted domination and
control over Sunbelt and Accurate, see Am. Compl. ¶¶ 7-8, 50, 111 (“1848 Capital describes itself as ‘ultimately
financially responsible for both Accurate and Sunbelt.’”), and have alleged that Defendants’ corporate structure was
used to perpetuate a fraud (e.g., substituting Accurate for Sunbelt and masking 1848 Capital as the true beneficiary
of the transaction).

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CASE NO. 14-CIV-20136-BLOOM/Valle
Fla., N.A., 667 So. 2d 876, 879 (Fla. 3d DCA 1996). They argue that 1848 Capital was not
“directly” benefited by the Laurentec transaction, requiring dismissal of the unjust enrichment
claim. Plaintiffs, in response, cite In re Processed Egg Products Antitrust Litig., 851 F. Supp. 2d
867 (E.D. Pa. 2012), in which the court closely analyzed Florida law and concluded that “Florida
law allows unjust enrichment claims to arise from the conferral of an indirect benefit.” Id. at
928-29 (citing Shands Teaching Hospital and Clinics, Inc. v. Beech Street Corp., 899 So.2d
1222, 1227-28 (Fla. 1st DCA 2005); Coffee Pot Plaza Partnership v. Arrow Air Conditioning
and Refrigeration, Inc., 412 So.2d 883, 884 (Fla. 2d DCA 1982); and Commerce P’ship 8098 LP
v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997)). Because Plaintiffs’ unjust
enrichment claim survives under either interpretation of Florida law, the Court need not reach
that issue.
First, Plaintiffs specifically allege that the Defendants undertook the Laurentec
transaction on behalf of 1848 Capital.

That is, they allege conferral of a direct benefit.

Moreover, Plaintiffs have described Accurate and Sunbelt as the alter egos of 1848 Capital.
While their separate alter ego claim does not survive, that theory does. As such, Plaintiffs have
additionally alleged a direct benefit conferred on 1848 Capital through its alter egos. Dismissal
of Plaintiffs’ unjust enrichment claim is, therefore, unwarranted.
G.

Plaintiffs’ Claims for Fraud and Civil Conspiracy

The Moving Defendants further challenge the sufficiency of Plaintiffs’ fraud-based
claims under Fed. R. Civ. P. 9(b).

They argue that Plaintiffs have failed to plead with

particularity in that the First Amended Complaint does not contain specific allegations as to any
of the separate Defendants, but rather, improperly “lumps together” the several Defendants in the

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CASE NO. 14-CIV-20136-BLOOM/Valle
same allegations and claims. They further argue that Plaintiffs fail to plead each of the fraudbased claims themselves with the requisite specificity.
1.

Rule 9(b) Heightened Pleading Standard

In addition to the Rule 8(a) plausibility pleading requirement, Rule 9(b) imposes a
heightened pleading standard for claims sounding in fraud: “In alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b). Rule 9(b) thus forces a plaintiff to “offer more than mere conjecture,” U.S. ex rel. Clausen
v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1313 (11th Cir. 2002), and “requires that a
complaint plead facts giving rise to an inference of fraud.” W. Coast Roofing & Waterproofing,
Inc. v. Johns Manville, Inc., 287 Fed. App’x 81, 86 (11th Cir. 2008). “Rule 9(b) is satisfied if the
complaint sets forth (1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and place of each such statement
and the person responsible for making (or, in the case of omissions, not making) same, and (3)
the content of such statements and the manner in which they misled the plaintiff, and (4) what
the defendants obtained as a consequence of the fraud.” Clausen, 290 F.3d at 1310 (quoting
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)); see also Garfield v. NDC
Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (Rule 9(b) requires that the complaint state
the “who, what, when where, and how” of the alleged misconduct). However, “Rule 9(b) must
be read in conjunction with Rule 8(a), which requires a plaintiff to plead only a short, plain
statement of the grounds upon which he is entitled to relief.” Brooks v. Blue Cross & Blue
Shield of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997).
The purpose of the Rule 9(b) particularity requirement is to “alert[] defendants to the
precise misconduct with which they are charged and protect[] defendants against spurious

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CASE NO. 14-CIV-20136-BLOOM/Valle
charges of immoral and fraudulent behavior.” Zeimba, 256 F.3d at 1202 (internal quotations
omitted). “Essentially, the requirements of Rule 9(b) are satisfied if the complaint provides a
reasonable delineation of the underlying acts and transactions allegedly constituting the fraud
such that the defendants have fair notice of the nature of plaintiff’s claim and the grounds upon
which it is based.” U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1033
(S.D. Fla. 2007) (quotations omitted); see also Wagner v. First Horizon Pharm. Corp., 464 F.3d
1273, 1277 (11th Cir. 2006) (“The rule ensures that the defendant has sufficient information to
formulate a defense by putting it on notice of the conduct complained of . . . .”) (quotations
omitted).
“[I]n a case involving multiple defendants, the complaint should inform each defendant
of the nature of his alleged participation in the fraud.” Brooks, 116 F.3d at 1381 (quotations
omitted). Rule 9(b) therefore requires a plaintiff to notify each defendant of its role in the
alleged fraud and prevents a plaintiff from merely “lumping together” multiple defendants. Id.;
W. Coast Roofing, 287 Fed. App’x at 86 (“generalized allegations ‘lumping’ multiple defendants
together are insufficient”).
2.

Plaintiffs’ Fraud-Based Claims Generally Satisfy Rule 9(b)

With respect to the broad allegations of fraud and civil conspiracy, Plaintiffs’ First
Amended Complaint satisfies the Rule 9(b) pleading standard.3 As detailed above, the complaint
sets out a sufficiently narrow timeline, including specific events, documents and places, in which
the alleged fraud took place. See Galstaldi v. Sunvest Communities USA, LLC, 637 F. Supp. 2d
3

“[A] claim for unjust enrichment is subject to Rule 9(b) only if it is ‘premised on fraud.’” United States v.
Gericare Med. Supply Inc., 2000 WL 33156443, at *10 (S.D. Ala. Dec. 11, 2000) (citations omitted). On the face of
their complaint, Plaintiffs do not premise their separate unjust enrichment claim itself on fraud, but rather on nonpayment of the Accurate Note. Rule 9(b) is therefore inapplicable. In any event, the complaint clearly alleges that
“Accurate, Sunbelt, and 1848 Capital enjoyed and realized the benefits of Laurentec’s assets by retaining and
utilizing them in the operation of their business.” Am. Compl. ¶ 140. Given the alleged interrelationship between
the corporate Defendants, that would be sufficiently specific to satisfy Rule 9. (Plaintiffs did not subject the
individual Defendants to their unjust enrichment claim.)

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CASE NO. 14-CIV-20136-BLOOM/Valle
1045, 1058-59 (S.D. Fla. 2009) (“Plaintiffs are not expected to specify the exact time and the
particular place of each factual omission or misrepresentation, but they must provide a
sufficiently narrow time frame from which defendants could derive notice as to when the
misrepresentations were made.”); Medalie v. FSC Sec. Corp., 87 F. Supp. 2d 1295, 1307 (S.D.
Fla. 2000) (six-month timeframe was sufficiently narrow and general location of fraud was
sufficiently specific). Further, the Complaint describes, with particularity, Plaintiffs’ theory of
Defendants fraudulent misconduct: restructuring the Laurentec transaction to substitute Accurate
for Sunbelt with knowledge that Accurate had been in default on its senior indebtedness and
could not make good on the Accurate Note; convincing Plaintiffs to accept the Sunbelt
Guarantee instead of a security interest in the purchase assets also knowing that Sunbelt, due to
its default, could not honor the Guarantee; hiding Accurate and Sunbelt’s defaults and inability
to satisfy their obligations; intentionally defaulting on their senior facility (despite having
adequate liquidity to avoid default) in order to avoid paying Plaintiffs; and engineering
Plaintiffs’ release of the physical assets with the intention to refuse to make any future payments
under the Sunbelt Note.
Further, Plaintiffs have sufficiently alleged that all of the named Defendants knew about
and participated in the fraudulent scheme. The Complaint clearly states a claim for fraud on the
part of Accurate and Sunbelt. At the intersection of Florida civil conspiracy law and Rule 9(b),
“[s]o long as a valid tort claim is alleged to have been committed, and the named Defendants are
alleged to have conspired with the primary tortfeasor, the civil conspiracy claim may proceed.”
Liva v. Mendolia, 2014 WL 2118814, at *4 (S.D. Fla. May 21, 2014). Therefore, generally,
Plaintiffs’ claims for fraud and civil conspiracy are plead with the requisite particularity.

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CASE NO. 14-CIV-20136-BLOOM/Valle
3.

Plaintiff’s Fraud-Based Claims Are Pled With The Requisite
Specificity Only As To Certain Defendants

However, Plaintiffs have failed to satisfy the Rule 9(b) particularity requirement with
respect to all of the named Defendants. The First Amended Complaint does not merely “lump
together” the separate corporate entities and individuals as one amorphous defendant. And Rule
9(b) does not require that a Plaintiff copy and paste the same language applicable to separate
defendants into dozens of separate paragraphs. See Nat’l Numismatic Certification, LLC. v.
eBay, Inc., 2008 WL 2704404, at *16 (M.D. Fla. July 8, 2008) (listing of multiple defendants
permitted “in the context of a narrative;” plaintiff need not simply “multiply the number of
paragraphs in the [c]omplaint”). But, in the context of the claims alleged by Plaintiffs here, it is
insufficient for the Complaint to simply allege, e.g., that “Sunbelt, 1848 Capital, and Accurate
and its respective agents, together with Messrs. Tolzien, Wilder, DaGrosa, Neithardt and Sicilian
[] represented to Plaintiffs that Accurate and Sunbelt were performing on their obligations under
the Chatham loan.” Am. Compl. ¶ 60.
With respect to 1848 Capital, the First Amended Complaint alleges that the Defendants
engaged in the Laurentec transaction on behalf of 1848 Capital; that 1848 Capital directed the
restructuring of the transaction; and that 1848 Capital, either through its subsidiaries or alter egos
Accurate and Sunbelt, perpetuated the alleged fraudulent conduct. The Complaint plainly alleges
that 1848 Capital was responsible for the fraudulent restructuring of the Laurentec transaction, to
Plaintiffs’ detriment. It further claims that 1848 Capital was the ultimate beneficiary of the
alleged fraud. Even without Plaintiffs’ ability to employ the alter ego doctrine (and certainly
with it), Rule 9(b) is clearly satisfied as to 1848 Capital.
Plaintiffs have also met the pleading requirement with respect to Defendants Tolzien and
Wilder. The First Amended Complaint specifically alleges that Tolzien was intimately involved
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CASE NO. 14-CIV-20136-BLOOM/Valle
in soliciting and directing the transaction. Tolzien allegedly met with Mr. Raimbeault; managed
the initial negotiations and Letter of Intent; communicated to Plaintiffs that 1848 Capital and
Sunbelt would be financing the transaction without other lenders (i.e., Chatham); contacted
Plaintiffs to inform them about Chatham’s newly required “sign off” on the transaction and that
their approval was a “simple formality;” subsequently stated to Plaintiffs that Chatham and/or
1848 Capital refused to allow Plaintiffs to take a security interest in the sale assets; and
ultimately convinced Plaintiffs to accept the Sunbelt guarantee instead. Plaintiffs further allege
that Wilder, to initiate the proposed transaction, visited Plaintiffs in South Carolina to discuss
purchasing Laurentec’s assets, and that Wilder wired Plaintiffs the $35,000 to keep the deal alive
after the Letter of Intent expired. This was, in addition to the less-specific allegations in the
Complaint as to Tolzien’s and Wilder’s representations to Plaintiffs that Accurate and Sunbelt
were performing on their senior debt despite knowing that they were, in fact, in default. The
First Amended Complaint fairly puts Tolzein and Wilder on notice, as point-people for the
Laurentec transaction, of Plaintiffs’ allegations of fraud and conspiracy.
Despite several times listing the Defendants together and describing many of their actions
identically, Plaintiffs have done enough here to meet the Rule 9(b) standard as to Defendants
1848 Capital, Tolzien and Wilder. See, e.g., Heater, 510 F. Supp. 2d at 1036 (S.D. Fla. 2007)
(Rule 9(b) satisfied despite defining all defendants together given day-to-day interrelationship
between multiple defendants as related to allegations); Court Appointed Receiver of Lancer
Offshore, Inc. v. Citco Grp. Ltd., 2008 WL 926512, at **5-7 (S.D. Fla. Mar. 31, 2008) (Rule 9(b)
satisfied, despite collective allegations against separate defendants and “minimal individualized
allegations,” against defendants as to whom complaint did assert specific facts and identify as
separate and independent entities); Associated Indus. Ins. Co. v. Advanced Mgmt. Servs., Inc.,

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CASE NO. 14-CIV-20136-BLOOM/Valle
2014 WL 1237685, at *7 (S.D. Fla. Mar. 26, 2014) (collective references to defendants and
allegations of fraud did not violate Rule 9(b) where complaint alleged sufficient facts and enough
specific allegations as to separate defendants); S.E.C. v. Levin, 2013 WL 5588224, at *7 (S.D.
Fla. Oct. 10, 2013) (complaint provided sufficient information as to separate defendants involved
in same alleged fraud).
However, the same is not true with respect to Defendants Sicilian, DaGrosa, Jr. and
Neithardt. In terms of those individual Defendants, aside for alleging their control over the
corporate Defendants and their actions, the First Amended Complaint alleges that Sicilian was
introduced to Mr. Raimbeault during initial negotiations; that Sicilian, DaGrosa, Jr. and
Neithardt were all involved in the Letter of Intent and subsequent negotiations which resulted in
the APA, Accurate Note and Sunbelt Guarantee; that Sicilian, DaGrosa, Jr. and Neithardt (listed
alongside all of the other Defendants) represented to Plaintiffs that Accurate and Sunbelt were
performing their obligations under the senior loan; that Sicilian, DaGrosa, Jr. and Neithardt
(listed alongside all of the other Defendants) all knew but did not disclose that the corporate
Defendants were in default; that Sicilian, DaGrosa, Jr. and Neithardt (listed alongside all of the
other Defendants) all knew, or had reason to know, that the Intercreditor Agreement would
preclude enforcement of Accurate and Sunbelt’s obligations to Plaintiffs; and that Sicilian,
DaGrosa, Jr. and Neithardt all personally reviewed and approved the Laurentec transaction.
However, and critically, Plaintiffs do not state what role they allege Sicilian, DaGrosa, Jr. and
Neithardt to have had in structuring the Laurentec transaction so as to defraud Plaintiffs, or
concretely what those Defendants represented to Plaintiffs, and when. In that regard, Plaintiffs
have not supplied as much specificity as should be readily available to them, based on their own
allegations.

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CASE NO. 14-CIV-20136-BLOOM/Valle
As it currently stands, Plaintiffs’ Complaint, by lumping together the several Defendants
and by failing to adequately state the what, when and how as to Sicilian, DaGrosa, Jr. and
Neithardt, obscures the roles those Defendants individually played in the alleged fraud, and fails
to provide them fair notice of their alleged misconduct as required by Rule 9(b). See Great
Florida Bank v. Countrywide Home Loans, Inc., 2011 WL 382588, **3-4 (S.D. Fla. Feb. 3,
2011) (references to defendants plead “in a way that obscures the identity of the party or parties
that are alleged to have actually committed the fraudulent actions . . . [and] that makes it
impossible for Defendants to know which of the Defendants is alleged to have made the claimed
statements”); Joseph v. Bernstein, 2014 WL 4101392, at *6 (S.D. Fla. Aug. 19, 2014) (pleading
failed to state who, what, when, where and how of allegedly false statements); Cordova v.
Lehman Bros., 526 F. Supp. 2d 1305, 1313 (S.D. Fla. 2007) (combined defendants, rather than
identifying specific misrepresentations or stating how actions attributable to individual
defendant) aff’d in rel. part sub nom. Puterman v. Lehman Bros., 332 Fed. App’x 549 (11th Cir.
2009).
However, as noted above, conspiracy claims are not subject to the same level of scrutiny
under Rule 9(b) as are general fraud claims. “To satisfy the heightened pleading standard for
conspiracy claims, ‘[t]he plaintiff does not have to produce a smoking gun to establish the
understanding or willful participation required to show a conspiracy, but must show some
evidence of agreement between the defendants.’” Prestige Restaurants & Entm’t, Inc. v. Bayside
Seafood Rest., Inc., 2010 WL 680905, at *4 (S.D. Fla. Feb. 23, 2010) (quoting Albra v. City of
Fort Lauderdale, 232 Fed. App’x 885, 890-91 (11th Cir. 2007)); see also Liva v. Mendolia, 2014
WL 2118814 at *4. This comports with the less stringent application of the Rule 9(b) heightened
pleading standard “when specific factual information about the fraud is peculiarly within the

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CASE NO. 14-CIV-20136-BLOOM/Valle
defendant’s knowledge or control.”

Hill v. Morehouse Med. Associates, Inc., 2003 WL

22019936, at *3 (11th Cir. Aug. 15, 2003). The pleading standard must accommodate the reality
that conspiracies take place behind closed doors. Plaintiffs have properly stating a claim for
fraud and conspiracy against several of the Defendants. They have further alleged Sicilian,
DaGrosa, Jr. and Neithardt’s participation by conspiracy in that fraud. They have, therefore,
satisfied Rule 9(b)’s pleading standard with respect to their claim for civil conspiracy against all
Defendants.
V. CONCLUSION
The first-filed doctrine does not bar the Court’s consideration of this action. Taking the
facts as alleged in the First Amended Complaint as true, Plaintiffs have failed to state a claim for
violation of FUDTPA or constructive fraud, and their alter ego claim is not recognized as a
stand-alone claim. Those claims must therefore be dismissed pursuant to Rule 12(b). Plaintiffs
have properly stated a claim for unjust enrichment against the corporate Defendants. Plaintiffs
have pled their fraud-based claims with sufficient plausibility and with the required particularity,
with respect to Defendants 1848 Capital, Tolzien and Wilder. They have further plead their
claim for civil conspiracy with the requisite specificity against to Defendants Sicilian, DaGrosa,
Jr. and Neithardt. But they have failed to do so with respect to their fraud claim against
Defendants Sicilian, DaGrosa, Jr. and Neithardt. Plaintiffs will therefore be required to amend
their pleading to state that claim with respect to those Defendants with the requisite specificity.
See, e.g., F.D.I.C. v. Briscoe, 2012 WL 8302215, at *8 (N.D. Ga. Aug. 14, 2012) (where
defendants improperly lumped together, claims dismissed without prejudice and plaintiff granted
leave to replead, and collecting cases).

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CASE NO. 14-CIV-20136-BLOOM/Valle
Accordingly, it is hereby ORDERED AND ADJUDGED that
1.

The Motion to Dismiss filed by Defendants 1848 Capital Partners LLC
Joseph E. DaGrosa, Jr., David Neithardt and John Sicilian, ECF No. [66]
is hereby GRANTED IN PART and DENIED IN PART, as follows:
a.

Defendants’ motion to dismiss Plaintiffs Sean Raimbeault and
Lori-Ann Raimbeault’s First Amended Complaint, ECF No. [45]
based on the first-filed doctrine is DENIED.

b.

Defendants’ motion to dismiss Counts One, Five and Seven of
Plaintiffs Sean Raimbeault and Lori-Ann Raimbeault’s First
Amended Complaint, ECF No. [45] for failure to state a claim
with respect to 1848 Capital Partners LLC is DENIED.

c.

Defendants’ motion to dismiss Count One of Plaintiffs Sean
Raimbeault

and

Lori-Ann

Raimbeault’s

First

Amended

Complaint, ECF No. [45] for failure to state a claim with respect
to Joseph E. DaGrosa, Jr., David Neithardt and John Sicilian is
DENIED.
d.

Count Five of Plaintiffs Sean Raimbeault and Lori-Ann
Raimbeault’s First Amended Complaint, ECF No. [45] against
Joseph E. DaGrosa, Jr., David Neithardt and John Sicilian is
DISMISSED without prejudice, for failure to plead with
specificity as required by Fed. R. Civ. P. 9(b). Plaintiffs are
GRANTED leave to amend with respect to that claim by
October 15, 2014.

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CASE NO. 14-CIV-20136-BLOOM/Valle
e.

Count Four of Plaintiffs Sean Raimbeault and Lori-Ann
Raimbeault’s First Amended Complaint, ECF No. [45], is
DISMISSED with prejudice. Plaintiffs may employ the doctrines
of alter ego or veil piercing with respect to their other claims.

f.

Count Six of Plaintiffs Sean Raimbeault and Lori-Ann
Raimbeault’s First Amended Complaint, ECF No. [45], is
DISMISSED with prejudice.

2.

The Motion to Dismiss filed by Defendants James Tolzien and James
Wilder, ECF No. [73] is hereby GRANTED IN PART and DENIED IN
PART, as follows:
a.

Defendants’ motion to dismiss Counts One and Five of Plaintiffs
Sean Raimbeault and Lori-Ann Raimbeault’s First Amended
Complaint, ECF No. [45] for failure to state a claim is DENIED.

b.

Count Six of Plaintiffs Sean Raimbeault and Lori-Ann
Raimbeault’s First Amended Complaint, ECF No. [45], is
DISMISSED with prejudice.

c.

Count Eight of Plaintiffs Sean Raimbeault and Lori-Ann
Raimbeault’s First Amended Complaint, ECF No. [45], is
DISMISSED with prejudice.

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CASE NO. 14-CIV-20136-BLOOM/Valle
DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, this 30 day of
September, 2014.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

29