Salas, III v. Wellington Equine Associates et al

Filing 68

ORDER granting 33 Motion to Dismiss for Failure to State a Claim; granting 45 Motion to Dismiss for Failure to State a Claim; granting 46 Motion to Dismiss for Failure to State a Claim; granting 47 Motion to Dismiss for Failure to State a Claim; granting 48 Motion to Dismiss for Failure to State a Claim; granting 49 Motion to Dismiss for Failure to State a Claim. Amended Pleadings due by 4/6/2015. Signed by Judge Robin L. Rosenberg on 3/26/2015. (cgn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:14-CV-81483-ROSENBERG/BRANNON
CAMILO K SALAS, III,
Plaintiff,
v.
WELLINGTON EQUINE ASSOCIATES,
SCHACHTER 5320, L.L.C., SCHACHTER D.V.M.,
L.L.C., SCHACHTER MANAGEMENT, L.L.C.,
SCHACTER NOTES, L.L.C., KATHRYN B.
SCHACHTER, ALAN J. NIXON, D.V.M., CORNELL
UNIVERSITY, BEN L. SCHACHTER, D.V.M., and
BEN L. SCHACHTER, D.V.M., INC.,
Defendants.
__________________________________________/
OMNIBUS ORDER
This cause is before the Court on Defendant Schachter 5320, L.L.C.’s Motion to Dismiss
Complaint for Failure to State a Claim [DE 33], Defendant Kathryn B. Schachter’s Motion to
Dismiss Complaint for Failure to State a Claim [DE 45], Defendant Schachter, D.V.M., L.L.C.’s
Motion to Dismiss Complaint for Failure to State a Claim [DE 46], Defendant Schachter
Management, L.L.C.’s Motion to Dismiss Complaint for Failure to State a Claim [DE 47],
Defendant Schachter Notes, L.L.C.’s Motion to Dismiss Complaint for Failure to State a Claim
[DE 48], and Defendant Ben L. Schachter, D.V.M., Inc.’s Motion to Dismiss Complaint for
Failure to State a Claim [DE 49] (collectively “Motions”). The Motions have been fully briefed
by both sides. A hearing was held on the Motions on March 26, 2015. 1 The Court has reviewed
the documents in this case file and is otherwise fully advised in the premises.

1

Although this Order simply restates the comments made by the Court on the record, the Court’s oral ruling is
incorporated into this Order as well.

1

I.

BACKGROUND 2

Plaintiff, Camilo K. Salas, III, contacted Wellington Equine Associates (“WEA” 3 ) in
October of 2012 to discuss bringing his horse, a competitive “jumper horse,” to WEA for
treatment. Compl. ¶¶ 26–27. The horse required an annular ligament resection, which is a
surgical procedure that WEA’s website described as “minimally invasive.” Id. ¶ 26. After
speaking with Dr. Ben Schachter (“Dr. Schachter”), the founder and owner of WEA, Plaintiff
decided to ship his horse to WEA for the treatment. Id. ¶¶ 28–29. Once at WEA the horse
underwent the surgical procedure. See id. ¶¶ 35–37. As a result of the procedure, Plaintiff’s horse
developed laminitis. Id. ¶ 46. Dr. Schachter subsequently recommended that the horse be
euthanized. Id. ¶ 48. Plaintiff refused to euthanize the horse, which ultimately lived after
extensive treatment. Id. ¶¶ 48–49. However, the horse was no longer able to compete as a
jumper. Id. ¶ 49.
Plaintiff was dissatisfied with the services WEA and its staff rendered. Accordingly, he
has filed suit against WEA and its staff members/assisting physicians. Plaintiff has also sued a
number of corporate entities tied to WEA and the Schachter family. As relevant to the Motions
before the Court, Plaintiff alleges the following:
A.

Fraudulent Misrepresentation (Count V)

Count V alleges that Ben L. Schachter, D.V.M., Ben L. Schachter, D.V.M., Inc.
Wellington Equine Associates, Schachter 5320, L.L.C., Schachter D.V.M., L.L.C., Schachter
Management, L.L.C., Schachter Notes, L.L.C., and Kathryn B. Schachter “committed fraud by
misrepresenting the services they could reasonably provide.” Defendants Kathryn B. Schachter
2

Because the Court accepts all of the allegations in the Plaintiff’s Complaint as true for the purposes of the motion
to dismiss before the Court, the following background facts are taken from the Plaintiff’s Complaint. See Resnick v.
AvMed, Inc., 693 F.3d 1317, 1321 (11th Cir. 2012).
3
The Court generally uses the acronym “WEA” to refer to WEA and its staff. Where it is necessary to distinguish
between staff members and/or defendants, the Court has done so.

2

(“Mrs. Schachter”), Schachter D.V.M., L.L.C., Schachter Management, L.L.C., and Schachter
Notes, L.L.C. have moved to dismiss Count V. 4
i.

Mrs. Schachter

Mrs. Schachter worked for WEA as its Clinic Manager and Nurse Anesthetist prior to
February 11, 2014. Id. ¶¶ 12, 22. She participated in the surgery performed by WEA on
Plaintiff’s horse, assisting as the nurse anesthetist. Id. ¶¶ 35–36. During the surgery she told Dr.
Schachter and Dr. Nixon that “we have to speed it up,” and afterwards she remarked that “the
operation was too long.” Id. ¶¶ 36–37.
ii.

Schachter D.V.M., L.L.C., Schachter Management, L.L.C., and Schachter
Notes, L.L.C.

As for Defendants Schachter D.V.M., L.L.C., Schachter Management, L.L.C., and
Schachter Notes, L.L.C., there are no allegations that these defendants made any statements
relevant to the instant action, let alone false ones. Plaintiff admitted this at the hearing.
B.

Deficient Premises (Count VI)

With respect to Defendant Schachter 5320, L.L.C., the owner of the land upon which
WEA is located, Plaintiff alleges that the premises were deficient because WEA did not have an
Anderson U.C. Davis Large Animal Lift (“Anderson Lift”) to assist the horse with anesthesia
recovery. 5 Id. ¶¶ 39–42, 74. Plaintiff was sufficiently alarmed by this alleged deficiency that he

4

Defendant Ben L. Schachter, D.V.M., Inc.’s Motion to Dismiss, with respect to the arguments made as to Count V,
was withdrawn at the hearing. Additionally, both sides agreed at the hearing that “Wellington Equine Associates” is
a fictitious name registered to Ben L. Schachter, D.V.M., Inc. Accordingly, if and when Plaintiff amends his
Complaint, the Court requires Plaintiff clarify that Wellington Equine Associates is not a separate entity and
defendant, but rather the fictitious name of Ben L. Schachter, D.V.M., Inc. See Zolin v. Caruth, No. 3:09cv38–WS,
2009 WL 2982907, at *11 (N.D. Fla. Sept. 14, 2009) (requiring the same). The amended complaint should remove
Wellington Equine Associates as a defendant. Assuming Plaintiff wishes to continue with his claims against Ben L.
Schachter, D.V.M., Inc., that defendant should be listed as “Ben L. Schachter, D.V.M., Inc. d/b/a Wellington Equine
Associates.”
5
In his Complaint, Plaintiff details the ways in which improperly positioning a horse during and after it is
anesthetized may be dangerous for the animal. See Compl. ¶ 39. He also alleges that the treatment provided by WEA
and its staff in this respect was in violation of the Guidelines for Anesthesia in Horses, published by the American
College of Veterinary Anesthesia and Analgesia, and that it violated Equine Board Review Procedures. Id.

3

made arrangements to borrow an Anderson Lift and have it sent to WEA. Id. ¶ 41. WEA’s
premises could not accommodate the Anderson Lift that Plaintiff delivered, however, because
the building owned by Defendant Schachter 5320, L.L.C. was not properly equipped with a hoist
or with support for a hoist. Id. ¶ 42. Plaintiff himself had to assist WEA with ongoing
construction on the premises so that a proper hoist could be installed and the Anderson Lift could
be used. Id. ¶¶ 42–45.
C.

Corporate Alter Egos (Count VII)

In Plaintiff’s Count VII, he alleges that Defendants Ben L. Schachter, D.V.M., Inc.,
Wellington Equine Associates, Schachter 5320, L.L.C., Schachter D.V.M., L.L.C., Schachter
Management, L.L.C., and Schachter Notes, L.L.C. (collectively, “the corporate defendants”) are
Dr. Schachter’s corporate alter egos, and that the corporate entities should be disregarded. Id. ¶
76. Specifically, he alleges:
Ben L. Schachter, D.V.M., Inc.; Wellington Equine Associates; Schachter 5320,
L.L.C.; Schachter D.V.M., L.L.C.; Schachter Management, L.L.C.; and Schachter
Notes, L.L.C. are single owner entities which operate out of the same facility
located at 5320 South Shore Blvd., Wellington, Florida 33449 and are controlled
by and used by Dr. Schachter for his own benefit with disregard of corporate
formalities and to hide his assets and to shield his assets from his creditors. As
such, the corporate entities should be disregarded.
Id. That is the gist of Plaintiff’s allegations with respect to Defendants Ben L. Schachter,
D.V.M., Inc. and Defendant Wellington Equine Associates. 6
With respect to Defendants Schachter 5320, L.L.C., Schachter D.V.M., L.L.C., Schachter
Management, L.L.C., and Schachter Notes, L.L.C., Plaintiff additionally alleges that these
corporate entities were “created by Dr. Schachter, according to a letter he wrote to [Plaintiff] on
March 24, 2014, as part of ‘an extremely sophisticated estate plan that began in 1993. That plan

6

The Complaint alleges that “Wellington Equine Associates” is a fictitious name registered with the Florida
Secretary of State to Ben L. Schachter, D.V.M., Inc. Id. ¶ 7.

4

organizes our assets into various entities making it impossible to collect money from us in any
way, shape or form.’” Id. ¶¶ 8, 9, 10, 11. Plaintiff further alleges that these corporate entities are
instrumentalities created by Dr. Schachter to shield himself, Mrs. Schachter, and/or the other
corporate defendants (including Ben L. Schachter, D.V.M., Inc. and Wellington Equine
Associates) from their creditors, “because none of these defendants obtained malpractice or any
type of insurance to cover their professional liabilities.” Id.
The letter from Dr. Schachter is quoted more fully later in the Complaint. Plaintiff alleges
it reads as follows:
[Y]ou should be aware that neither my wife nor myself carry any professional
liability insurance. What we do have, however, is an extremely sophisticated
estate plan that began in 1993. That plan organizes our assets into various entities
making it impossible to collect money from us in any way, shape or form. Further
proof of this can be obtained by reading the attached judgment that Iberia bank
has recorded against my wife and myself. Despite them spending over 200 hours
litigating and attempting to collect this judgement, they have been unable to
collect one dime thusfar [sic]. If you are successful in obtaining a judgement
against us, which I doubt you will be, you will be in line behind them.
Id. ¶ 51. 7 Defendants Ben L. Schachter, D.V.M., Inc., Schachter 5320, L.L.C., Schachter
D.V.M., L.L.C., Schachter Management, L.L.C., and Schachter Notes, L.L.C. have moved to
dismiss Count VII in their Motions.

7

Defendants argue that the letter was sent to Plaintiff as part of settlement negotiations and that it is inadmissible
under Florida’s litigation privilege. See, e.g., DE 33 at 2 n.1. First, the Complaint—to which the Court’s review is
limited at this stage of the litigation—does not state that the letter was part of settlement negotiations. Second,
Plaintiff alleges that the letter was sent to him on March 24, 2014, months before the commencement of this action.
“The litigation privilege protects only acts that take place during the course of a judicial proceeding, not those that
take place before one begins.” Century Senior Services v. Consumer Health Benefit Ass’n, Inc., 770 F. Supp. 2d
1261, 1265 (S.D. Fla. 2011); see also Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins.
Co., 639 So. 2d 606, 608 (Fla. 1994) (“[P]articipants in judicial proceedings must be free from the fear of later civil
liability as to anything said or written during litigation so as not to chill the actions of the participants in the
immediate claim.” (emphasis added)). Accordingly, the Court will not exclude it from consideration, at least at this
stage.

5

II.
A.

LEGAL STANDARD

Rule 8(a)(2)

Federal Rule of Civil Procedure 8(a)(2) requires that any claim contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” To comply with Rule
8(a)(2), a complaint must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 554,
570 (2007). A claim is plausible on its face where the plaintiff has pled “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff’s allegations must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555 (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)). A complaint does not need
detailed factual allegations; however, a “plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 545. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678.
B.

Rule 9(b)

In addition to satisfying the pleading requirements of Rule 8(a)(2), a claim sounding in
fraud must be stated with sufficient particularity to satisfy the heightened pleading standard of
Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that a party alleging fraud or mistake
“state with particularity the circumstances constituting fraud or mistake.” “Because fair notice is
[p]erhaps the most basic consideration underlying Rule 9(b), the plaintiff who pleads fraud must
reasonably notify the defendants of their purported role in the scheme.” Brooks v. Blue Cross &
Blue Shield of Florida, Inc., 116 F.3d 1364, 1381 (11th Cir. 1997) (quoting Vicom, Inc. v.

6

Harbridge Merchant Servs., Inc., 20 F.3d 771, 777–78 (7th Cir. 1994)) (internal quotation marks
and citation omitted). Accordingly,
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.
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting Brooks, 116 F.3d at
1371) (internal quotation marks omitted). “Essentially, the requirements of Rule 9(b) are
satisfied if the complaint provides a reasonable delineation of the of the underlying acts and
transactions allegedly constituting fraud such that the defendants have fair notice of the nature of
plaintiff’s claim and the grounds upon which it is based.” Alhassid v. Bank of Am., N.A., No. 14CIV-20484, 2014 WL 6480656, at * 11 (S.D. Fla. Nov. 17, 2014) (quoting United States ex rel.
Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1033 (S.D. Fla. 2007)) (internal
quotation marks omitted).
III.
A.

DISCUSSION

Fraudulent Misrepresentation (Count V)

Under Florida law, “there are four elements of fraudulent misrepresentation: (1) a false
statement concerning a material fact; (2) the representor’s knowledge that the representation is
false; (3) an intention that the representation induce another to act on it; and (4) consequent
injury by the party acting in reliance on the representation.” Butler v. Yusem, 44 So. 3d 102, 105
(Fla. 2010) (per curiam) (internal quotation marks omitted). Federal Rule of Civil Procedure
9(b)’s heightened pleading standard applies to claims for fraudulent misrepresentation. Twinstar
Partners, LLC v. Diamond Aircraft Indus., Inc., No. 11-61684-CIV, 2013 WL 3288560, at *3
(S.D. Fla. June 28, 2013).

7

The Court finds that Plaintiff has failed to plead his claim of fraudulent misrepresentation
against Mrs. Schachter, Schachter D.V.M., L.L.C., Schachter Management, L.L.C., and
Schachter Notes, L.L.C. with particularity, as required by Federal Rule of Civil Procedure 9(b).
Plaintiff does not allege that any of these defendants made statements which were false. With
respect to Mrs. Schachter, it is only alleged that she told Dr. Schachter and Dr. Nixon during the
surgery on Plaintiff’s horse that “we have to speed it up,” and that afterwards she remarked that
“the operation was too long.” Compl. ¶¶ 36–37. Plaintiff has not alleged these are false
statements, and indeed, it is his argument that these are true statements—that the surgery should
have been performed in less time, and that its length contributed to his horse’s problems. Id. ¶¶
36, 38. With respect to the other defendants mentioned at the beginning of this paragraph,
Plaintiff has not alleged that they made any statements at all. Count V is dismissed as to these
defendants without prejudice.
B.

Premises Liability (Count VI)

“The elements for negligence are duty, breach, harm, and proximate cause; the additional
elements for a claim of premises liability include the defendant’s possession or control of the
premises and notice of the dangerous condition.” Lisanti v. City of Port Richey, 787 So. 2d 36,
37 (Fla. Dist. Ct. App. 2001). “A property owner or occupier has two duties toward invitees: (1)
to keep his property in reasonably safe condition and to protect the invitee from dangers of which
he is or should be aware; and (2) to warn the invitee of concealed dangers which are or should be
known to the owner or occupier and which are unknown to the invitee and cannot be discovered
by him through the exercise of due care.” Kaid v. Store Cent. Food Mkt., Inc., 668 So. 2d 1110,
1111 (Fla. Dist. Ct. App. 1996).

8

The Court finds that Plaintiff has not stated a claim for premises liability against
Defendant Schachter 5320, L.L.C. Plaintiff has not clearly alleged that Schachter 5320, L.L.C. or
its agents were aware of the alleged deficiencies of the premises. Moreover, and as noted at the
hearing, the Court is unaware of a legal basis for the proposition that a missing piece of
equipment allegedly required for equine surgery could reasonably be considered a “danger” to
those coming onto the premises. The Court was unable to find any factually analogous cases
where a premises liability claim survived a motion to dismiss. Additionally, and as Plaintiff
conceded at the hearing, he was unable to find any case law supporting his legal theory that his
horse could qualify as a business invitee for purposes of a premises liability claim. Plaintiff’s
Count VI against Defendant Schachter 5320, L.L.C. is dismissed without prejudice.
C.

Piercing the Corporate Veil (Count VII)

At the pleading stage, “[a] party seeking to pierce the corporate veil and prove alter ego
liability must show both a blurring of corporate lines, such as ignoring corporate formalities or
using a corporation for the stockholder’s personal interest, and that the stockholder used the
corporation for some illegal, fraudulent or other unjust purpose.” Century Senior Servs. v.
Consumer Health Benefit Ass’n, Inc., 770 F. Supp. 2d 1261, 1265 (S.D. Fla. 2011) (citing Dania
Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1121 (Fla. 1984)). “[M]ere failure to observe
corporate formalities alone is not enough. Rather, Florida courts require proof of deliberate
misuse of the corporate form—tantamount to fraud—before they will pierce the corporate veil.
Thus, absent proof of fraud or ulterior motive by the shareholder, the corporate veil shall not be
pierced.” John Daly Enterprises, LLC v. Hippo Golf Co., 646 F. Supp. 2d 1347, 1353 (S.D. Fla.
2009) (internal quotation marks omitted).

9

The Court finds that Plaintiff has failed to state a claim for piercing the corporate veil.
With respect to Defendants Ben L. Schachter, D.V.M., Inc., Wellington Equine Associates,
Schachter 5320, L.L.C., Schachter D.V.M., L.L.C., Schachter Management, L.L.C., and
Schachter Notes, L.L.C., Plaintiff has not alleged that corporate lines were blurred, or that
corporate formalities were disregarded. Moreover, with respect to Defendant Ben L. Schachter,
D.V.M., Inc., the defendant to which the fictitious name of “Wellington Equine Associates” is
assigned, Plaintiff has not alleged that the entities were created for any improper purpose.
The Court further notes that in its research, it has been unable to find a factually
analogous case where a claim for piercing the corporate veil ultimately survived a motion to
dismiss. To the extent that Dr. and Mrs. Schachter may benefit from the estate plan, Plaintiff has
not alleged that the corporations were created strictly “to mislead or defraud creditors,” see
Lipsig v. Ramlawi, 760 So. 2d 170, 187 (Fla. Dist. Ct. App. 2000), or that he (Plaintiff) is a
creditor. The Court believes that Plaintiff’s claims for piercing the corporate veil merit dismissal
for this reason as well. Accordingly, Count VII is dismissed without prejudice as to all
defendants named therein.
IV.

CONCLUSION

For all of the foregoing reasons, it is hereby ORDERED AND ADJUDGED:
1.

Defendant Schachter 5320, L.L.C.’s Motion to Dismiss Complaint for Failure to
State a Claim [DE 33] is GRANTED. Counts VI and VII, as plead against
Defendant Schachter 5320, L.L.C., are DISMISSED WITHOUT PREJUDICE.

2.

Defendant Kathryn B. Schachter’s Motion to Dismiss Complaint for Failure to
State a Claim [DE 45] is GRANTED. Count V, as plead against Defendant
Kathryn B. Schachter, is DISMISSED WITHOUT PREJUDICE.

3.

Defendant Schachter, D.V.M., L.L.C.’s Motion to Dismiss Complaint for Failure
to State a Claim [DE 46] is GRANTED. Counts V and VII, as plead against
Defendant Schachter, D.V.M., L.L.C., are DISMISSED WITHOUT
PREJUDICE.

10

4.

Defendant Schachter Management, L.L.C.’s Motion to Dismiss Complaint for
Failure to State a Claim [DE 47] is GRANTED. Counts V and VII, as plead
against Defendant Schachter Management, L.L.C., are DISMISSED WITHOUT
PREJUDICE.

5.

Defendant Schachter Notes, L.L.C.’s Motion to Dismiss Complaint for Failure to
State a Claim [DE 48] is GRANTED. Counts V and VII, as plead against
Defendant Schachter Notes, L.L.C., are DISMISSED WITHOUT
PREJUDICE.

6.

Defendant Ben L. Schachter, D.V.M., Inc.’s Motion to Dismiss Complaint for
Failure to State a Claim [DE 49] is GRANTED. 8 Count VII, as plead against
Defendant Ben L. Schachter, D.V.M., Inc., is DISMISSED WITHOUT
PREJUDICE.

If Plaintiff chooses to file an amended complaint, he must do so within ten (10) days of
the date of rendition of this Order. Defendants shall have ten (10) days from the date they are
served a copy of the amended complaint to file an answer or responsive motion. To extent this
conflicts with the amended pleadings deadline currently in place, this Order supersedes that
deadline.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 26th day of March,
2015.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

8

As noted supra, Defendant Ben L. Schachter, D.V.M., Inc.’s Motion was withdrawn with respect to Count V.

11