Monsoon, Inc. et al v. Bizjet International Sales & Support, Inc.

Filing 25

ORDER AND OPINION granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim; denying as moot 12 Motion for More Definite Statement; granting in part and denying in part 12 Motion to Strike. Signed by Judge Kenneth A. Marra on 2/27/2017. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-80722-CIV-MARRA/MATTHEWMAN
MONSOON, INC., and
MOON, SUN & STARS, INC.,
Plaintiffs,
vs.
BIZJET INTERNATIONAL
SALES & SUPPORT, INC.,
Defendant.
________________________/
ORDER AND OPINION ON MOTION TO DISMISS
THIS MATTER is before the Court upon Defendant's Motion to Dismiss, Motion
for More Definite Statement, and Motion to Strike [DE 12]. The motion is fully briefed
and ripe for review. The Court has carefully considered all relevant filings, entire
Court file, and is otherwise fully advised in the premises.
Facts as Alleged1
Ms. Ward, the CEO of Monsoon, Inc. and Moon, Sun & Stars, Inc. (“Plaintiffs”),
is one of the leading and most successful female pioneers of entrepreneurship and
corporate governance in the United States. She has served on the boards of multiple
large corporations, currently serves on the board of Sanmina-SCI Corp., and is

1

In accordance with established law, the Court accepts all of Plaintiffs’
allegations as true in determining whether they have stated claims for which relief
could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Furthermore, in
light of the detailed nature of the instant motion to dismiss, the Court finds the
extensive reiterations of the Complaint necessary.

chairman of the Board of Sysco Corporation. Compl. ¶ 10.
Ms. Ward travels extensively for business. In 2009, Monsoon purchased a
Gulfstream G450 airplane (the “Aircraft”) from its first owner in order to provide safe
and reliable private transportation for Ms. Ward and those with whom she travels,
including fellow directors of several large corporations. Compl. ¶ 11.
Aircraft engines must be inspected at certain intervals during their lifetime.
For the Aircraft’s Rolls-Royce Tay 611-8C engines, Rolls-Royce requires what is known
as a “mid-life inspection” when the engine has been in service for 10 years. Compl. ¶
13. In 2013, the two engines on Plaintiffs’ Aircraft were one of the first, if not the
first, Tay 611-8C engines to reach the 10-year mark. Compl. ¶ 16. A mid-life
inspection involves disassembling each engine, inspecting the components and parts,
replacing parts where necessary, reassembling the engine, and placing the engine
into a test cell to ensure that it is operating properly. At that point, the engine is
certified and placed back on the aircraft. Compl. ¶ 14.
BizJet International Sales & Support, Inc. (“Defendant”) actively sought to
perform the Aircraft’s mid-life inspection. Compl. ¶ 18. The potential market for
mid-life inspections on these engines was enormous. The potential revenue stream
from these inspections was projected to exceed $100 million. Defendant hoped that
securing the first Tay 611-8C mid-life inspection from Plaintiffs would put it in a
prime position to corner the market. Compl. ¶ 27. Defendant issued press releases
announcing its Tay 611-8C engine inspection business, stating, “the timing is perfect
Page 2 of 27

for our marketing approach and launch into supporting the Tay 611-8C as the age of
the fleet and demand is just beginning,” and that it “chose to enter the market now
due to the high number of engine inputs starting this year and increasing each year.”
Compl. Exhibits C and D.
Defendant’s representatives repeatedly assured Plaintiffs that it had the
capability to perform the mid-life inspection on the Tay 611-8C engines. Defendant
assured Plaintiffs that it had the facilities, equipment, and expertise necessary to
perform a high-quality and thorough mid-life inspection. Knowing that price and
timeliness were critical factors as well, Defendant quoted a very attractive price and
assured Plaintiffs that the work could be completed within approximately 40 days.
The timeliness was very important for Plaintiffs in light of Ms. Ward’s business
schedule and that of her fellow board members who would travel on the Aircraft.
Compl. ¶ 19.
Plaintiffs, believing and relying on Defendant’s representations, entrusted
Defendant to inspect the two engines on its Aircraft. Plaintiffs accepted Defendant’s
proposal in Florida on June 14, 2013. Compl. ¶ 29.
Defendant failed to meet its projected completion deadline. Nevertheless,
Defendant issued a press release on October 22, 2013, falsely stating that it had
“executed flawless removals and introduction of [the Aircraft’s] engines. . . We also
maintained normal production targets regarding turn-time and client costs.” Compl.
¶¶ 34-35, Ex. D. In fact, as of October 22, forty days into the project, Defendant had
Page 3 of 27

not yet reassembled or tested either of the Aircraft’s engines. Compl. ¶ 32. Contrary
to Defendant’s assurances that it was prepared for the mid-life inspection, it had to
make a number of crucial upgrades before it could even begin the inspection.
Defendant knew that its representations to Plaintiffs regarding the completion date
were false, both before and after the contract was signed. Compl. ¶ 35.
In addition, Defendant used a type of adapter, a crucial component to be used
in the test cell, that was inadequate for the inspection, despite knowing that it was
inadequate, and over the objections of its own engineer. Compl. ¶¶ 38-39.
The Aircraft’s right engine completed its test cell certification without
incident and was mounted on the Aircraft on November 12. The left engine,
however, failed testing three times. On November 22nd, during the fourth test, the
left engine underwent a catastrophic failure when the inadequate adapter broke off
the engine, resulting in severe damage to the test cell equipment and to the engine.
Compl. ¶¶ 41-44, Ex. E.
Photographs of the broken adapter show that the adapter was not properly
secured by Defendant. Defendant’s failure to perform such a relatively simple (and
crucial) task was grossly negligent, particularly given that the engine had failed in the
test cell three previous times and that Defendant was on notice to be particularly
careful with the inadequate adapter. Compl. ¶ 45.
The November 22nd incident rendered Defendant’s test cell inoperable.
Defendant then sent the engine to Rolls-Royce in Montreal for certification in RollsPage 4 of 27

Royce’s test cell. Compl. ¶ 46. On December 31, 2013, the Aircraft was returned to
Boca Raton. Compl. ¶ 47. In all, the mid-life inspection took 92 days - more than
double what Defendant had estimated in the contract. The Aircraft had been out of
service for 113 days. Plaintiffs incurred additional expenses, including charter
aircraft, as a result of Defendant’s gross delays in completing the work. Compl. ¶ 48.
Defendant then charged Plaintiffs over $1.3 million - more than twice what
Defendant estimated and far more than Defendant’s highest estimate. Defendant
intentionally underestimated the cost in order to secure Plaintiffs’ business, with no
intent to honor the estimate and no good faith belief the estimate was accurate.
On January 15, 2014, the Aircraft was taken on its first flight after the mid-life
inspection. During the flight, the cabin noise was noticeably higher than it had been
prior to the mid-life inspection, and strong vibrations were felt in the cabin that had
not existed before. On further investigation, the vibrations appeared to emanate
from the left engine. Compl. ¶ 56-58.
When Defendant was alerted of these developments, Defendant’s
representatives did not fly in the Aircraft, but merely took pictures of the gauges in
the cockpit that registered information about the engines. Based on the minimal
information conveyed by these gauges, Defendant advised Plaintiffs to continue to
operate the Aircraft.
Concerned with Defendant’s advice, Plaintiffs retained Gulfstream to conduct
a cabin noise and engine vibration survey. During the test flight, the Gulfstream
Page 5 of 27

engineer commented that the nosie and vibration were significant enough to cause
him to be uncomfortable flying his own family in the Aircraft. Compl. ¶ 61.
Gulfstream identified a low frequency rumble and vibration emanating from the left
engine and advised that the problem should receive immediate attention. Compl. ¶
62. It became evident that Defendant did not use the proper equipment to detect
vibration issues during the test flight, which occurred at the end of the mid-life
inspection before the Aircraft was returned to Plaintiffs. Compl. ¶¶ 63-65.
Before Plaintiffs signed the contract with Defendant for the mid-life
inspection, Defendant represented that Gulfstream engineers would be on-site to
assist with certain portions of the inspection, including the final test flight before the
Aircraft was returned to Plaintiffs. Plaintiffs relied on this representation. However,
Defendant did not retain Gulfstream to assist in the inspection or the test flight.
Compl. ¶¶ 66-67. If Defendant had retained Gulfstream as they represented, and
Gulfstream employees had been present for the test flight, they would have used the
appropriate equipment to detect improper vibrations and noise levels in the cabin
before the Aircraft was returned to Plaintiffs. However, contrary to representations,
Defendant did not have this equipment, and they did not obtain it for use during the
test flight of the Aircraft. As a result, Plaintiffs received the Aircraft back in a
defective and dangerous condition. Compl. ¶ 69.
After Gulfstream’s inspection, Plaintiffs were forced to discontinue operation
of the Aircraft for the safety of its passengers and crew, incurring expenses for
Page 6 of 27

alternative transportation in the interim. Compl. ¶ 71. Defendant summarily
dismissed the reports from both Plaintiffs and Gulfstream. Compl. ¶ 72. Defendant’s
advice to continue flying the plane was not only in direct contravention of the data
collected, but also was grossly negligent and in reckless disregard for Plaintiffs’
passengers’ and pilot’s safety. Compl. ¶ 74.
Defendant proposed flying the Aircraft back to their headquarters to be
retested. Compl. ¶ 75. Defendant refused to examine all mechanical possibilities for
the Aircraft’s symptoms and to follow Gulfstream’s recommendations for repair.
Instead, Defendant stated that there was no indication that the Aircraft was
malfunctioning, and provided Plaintiffs a proposal to only re-do the tests it had
already performed poorly. Compl. ¶ 77.
Defendant made it clear it would not accept responsibility for the work or
spend the time and money necessary to complete the work properly. Defendant’s
CEO was more interested in denying there were any issues and in putting the blame
elsewhere. Nor did Defendant have the capability to perform any warranty work
properly. Compl. ¶ 81.
Plaintiffs entrusted Gulfstream to do the first of the necessary repair work to
address the cabin noise and vibration. Compl. ¶ 82. Beginning on March 24, 2014,
Gulfstream performed inspections consistent with the recommendations in its earlier
report. During the inspection and repair processes, Gulfstream identified extensive
damage to several of the left engine’s LP fan blades, which in turn caused damage to
Page 7 of 27

the fan track liners. Compl. ¶¶ 83-84, Ex. G. At this point, Gulfstream removed the
left engine from the Aircraft and replaced it with a rental engine so that Plaintiffs
could continue to operate the Aircraft.
Upon removal of the left engine, Gulfstream discovered numerous, serious
errors committed by Defendant during the mid-life inspection. Compl. ¶ 85. During
removal, Gulfstream discovered that an employee of Defendant had failed properly to
torque an engine mounting bolt, and Defendant’s inspector responsible for inspecting
the engine mounting bolt installation failed to recognize the error. Compl. ¶¶ 86-87,
Ex. H. The loose bolt was the source of the noise in the cabin, and endangered the
lives of the Aircraft’s passengers. Compl. ¶¶ 88-89.
Defendant made additional errors evidencing gross negligence with which it
performed the mid-life inspection, and decreased the value of the Aircraft by
unnecessarily extending its maintenance history. Compl. ¶¶ 90-91. For example,
Defendant, in creating its fan blade charts, incorrectly recorded the weights for each
fan blade and failed to install the fan blades in their correct positions. Compl. ¶ 90,
Ex. I. Defendant’s failure on such a fundamental point showed a strong lack of
competency to perform the mid-life inspection, for which it claimed to have been
preparing for years. Compl. ¶ 92.
Gulfstream also discovered additional examples of Defendant’s gross
negligence, and its disregard for its contractual obligations, representations of
competency, and flight safety. Particularly egregious examples include the following:
Page 8 of 27

!

Defendant left an engine mounting bolt un-torqued.

!

Defendant damaged a crane beam during engine installation.

!

Defendant damaged engine isolators during engine installation.

!

Defendant improperly mounted an LP duct, causing damage to the duct.

!

Defendant failed to torque thrust strut mounting bolts on both the
forward and aft sections of the engine. As a result, the strut was
contacting the airframe and the strut was tearing.

Compl. ¶ 93.
Following Gulfstream’s work, and despite Defendant’s claims to the contrary,
it was now obvious that the left engine needed a full inspection and repair, which
would essentially be a re-do of the mid-life inspection. Compl. ¶ 94. After first
refusing to perform the repairs, Rolls-Royce finally agreed to do the inspection and
repair in October, 2014. Compl. ¶¶ 95-96.
During the second mid-life inspection, Rolls-Royce discovered even more gross
negligence by Defendant. Rolls-Royce ultimately generated a report for Plaintiffs,
which detailed the errors by Defendant, which were numerous and potentially
deadly. Compl. ¶ 97-101. On December 23, 2014, Rolls-Royce completed the engine
test, and the Aircraft was placed back into flight in February 2015 - 17 months after
the Aircraft had gone to Defendant for the mid-life inspection.
Due to Defendant’s breaches of contract and grossly negligent and willful
misconduct, Plaintiffs incurred at least $1,472,000 in unreimbursed expenses, in
addition to attorneys’ fees and personnel time to handle the issue. Compl. ¶ 104. In
Page 9 of 27

addition, the Aircraft has been diminished in value by at least $1,500,000. Compl. ¶
104. Defendant has denied any responsibility and refuses to compensate Plaintiffs for
its losses. Compl. ¶ 105. Defendant failed to perform its contractual obligations
necessary to fulfill the essential purpose of the contract, which was to investigate the
mid-life status of the engines appropriately. Compl. ¶ 111.
The Complaint consists of 166 paragraphs asserting six counts: Breach of
Contract (Count I), Breach of Contractual Express Warranty (Count 2), Gross
Negligence (Count 3), Intentional Misrepresentation/Fraud (Count 4), Negligent
Misrepresentation (Count 5), and Punitive Damages (Count 6). Defendant moves to
dismiss all counts, or alternatively a more definite statement as to Count Four and
Count Five. Defendant also asks the Court to strike the narrative preface and
allegations pertaining to Defendant’s business generally, as immaterial, impertinent,
and scandalous, and to strike Plaintiffs’ prayer for attorneys’ fees based on the
absence of any statutory or contractual basis for them. DE 12.
Legal Standard
With respect to a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires that a pleading contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." The Supreme Court has held that
"[w]hile a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement
Page 10 of 27

to relief' requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise
a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted).
"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.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotations and citations omitted). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at 1950. When considering a motion to
dismiss, the Court must accept all of the plaintiff's allegations as true in determining
whether a plaintiff has stated a claim for which relief could be granted. Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984).
In this case, Plaintiffs do not attach the contract at issue, but Defendant
attaches it to their reply. As a general rule, the Court must "limit[] its consideration
to the pleadings and exhibits attached thereto" when deciding a Rule 12(b)(6) motion
to dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(internal quotation marks and citation omitted). Fed. R. Civ. P. 12(d) mandates that
if matters outside the pleadings are presented to the court and not excluded, the
motion must be treated as one for summary judgment under Rule 56.
Page 11 of 27

In Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002), the Eleventh Circuit
held that the court may consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment if the attached document is (1)
central to the plaintiff's claim, and (2) undisputed. In this context, “undisputed”
means that the authenticity of the document is not challenged. Id. These two
elements are present in this case. The contract is central to Plaintiff’s claims
because the Complaint arises out of the allegation that Defendant failed to properly
perform the mid-life inspection as contracted. Furthermore, the authenticity of the
document has not been challenged by Plaintiffs. The Eleventh Circuit’s prior
decisions also make clear that a document need not be physically attached to a
pleading to be incorporated by reference into it; if the document's contents are
alleged in a complaint and no party questions those contents, this Court may consider
such a document, provided it meets the centrality requirement. Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005); Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir.
1999). Accordingly, this Court may consider the contract, as necessary, to resolve
the instant motion.
Discussion
Counts One and Two
Defendant argues that Counts One and Two must be dismissed because the
Complaint fails to attach the contract or warranty, fails to plead with any degree of
specificity the terms and conditions of the contract and warranty, and fails to allege
Page 12 of 27

the exact contractual provisions which Defendant has breached.
As far as Plaintiffs’ failure to attach the contract, that issue has been resolved
by Defendant itself. And as just discussed, the Court may consider the contract as it
is central to Plaintiffs’ claims and its authenticity is not disputed.
As for not pleading the terms and conditions of the contract and warranty with
any degree of specificity, the Court concludes Plaintiffs have met the requisite
standard. A breach of contract claim requires (1) a contract; (2) a breach thereof;
and (3) damages. Formula LLC v. RSUI Indem. Co., 2009 WL 2342455, at *3 (S.D. Fla.
2009) citing Friedman v. New York Life Insurance Co., 985 So.2d 56, 58 (Fla. Dist. Ct.
App. 2008); Profilet v. Cambridge Financial Corp., 231 B.R. 373, 382 (S.D. Fla. 1999).
The Complaint provides the date of the agreement (Compl. ¶ 29) and explicit detail
of pertinent provisions at issue (often with quoted language). See, e.g., Compl. ¶ 22
(time line for performance), ¶ 23 (estimated cost), ¶¶ 30, 109 (representations and
warranties), ¶ 115 (essential purpose). The Complaint is likewise full of references to
the contractual provisions breached by Defendant and how those breaches led to the
failure of the agreement’s essential purpose:
•

BizJet failed to perform the mid-life inspection with workmanship that
conforms to the intent of the requirements of the manufacturer of the engines
and that is of a quality that satisfies the applicable provisions of the Federal
Aviation Regulations as represented in the contract. (Compl. at ¶ 110; see also
Compl. at ¶ 30.)

•

BizJet’s mid-life inspection was riddled with defects of workmanship and
ultimately caused serious damage to the engines. (Compl. at ¶ 113.)
Page 13 of 27

•

BizJet failed to overhaul and/or repair the engines, modules and accessories so
as to render them free of defects in workmanship for ten years from the date
of completion of the work. (Compl. at ¶ 119.)

•

BizJet refused to stand by its warranty and refused to pay for any costs to
repair the engine. (Compl. at ¶ 121.)
The Complaint explains in adequate detail the nature of the contract’s terms

or provisions which were allegedly breached.
“Perhaps most importantly for the purposes of this Motion to Dismiss,” argues
Defendant, is that Plaintiffs’ fail to cite to any contract provisions which Defendant
breached which caused the contract to fail of its essential purpose.2 DE 12 at 7. The
Court rejects this contention. For instance, in paragraph 81, Plaintiff asserts,

the warranties failed of their essential purpose. BizJet made it clear it
would not accept responsibility for the work or spend the time and

2

There appears to be no dispute that the essential purpose of the contract
was to complete the mid-life inspection of the engines with the degree of
workmanship that complied with the engine’s manufacturer’s requirements and
applicable provisions of the Federal Aviation Regulations. Where circumstances cause
a limited remedy to fail of its essential purpose, alternative UCC remedies may be
available. Fla. Stat. § 672.719; Typographical Service, Inc. v. Itek Corp., 721 F.2d
1317, 1321 (11th Cir. 1983) (a repair-or-replace warranty fails of its essential purpose
if the warrantor does not successfully repair defects within a reasonable time or
within a reasonable number of attempts); David v. American Suzuki Motor Corp., 629
F. Supp. 2d 1309, 1319 (S.D. Fla. 2009); Griffis v. Leisure Tyme RV, Inc., 884 So.2d
241, 243 (Fla. Dist. Ct. App. 2004); Pinellas Suncoast Transit Authority v. Mincom,
Inc., 2007 WL 1222595, *3-4 (M.D. Fla. 2007) (holding that Fla. Stat. § 672.316 and §
672.719 stand for the principle that parties to a contract may properly limit the
remedies for a breach-of-warranty to repair and replacement when such limitations
are reasonable, but noting that the limitation is not valid when the limitation causes
the product to fail of its essential purpose).
Page 14 of 27

money necessary to complete the work properly. BizJet’s CEO was more
interested in denying there were any issues and in putting the blame
elsewhere. Nor did BizJet have the capability to perform any warranty
work properly.
In paragraph 115, it is alleged,
The warranties, as alleged above, failed of their essential purpose.
BizJet did not have the capability of successfully repairing the engine.
Nor did Monsoon have any confidence in BizJet’s willing[ness] to do so,
in light of the position of BizJet’s CEO at the time, the cover-up of past
deficiencies, and the grossly negligent performance of services to date.
Monsoon was unwilling to further risk the safety of its owner and
passengers.
In paragraph 123, it is alleged,
The warranty failed of its essential purpose, in light of BizJet’s
continuing denial that any work was necessary, its failure to correct
issues earlier, and its lack of capabilities, expertise, and equipment to
handle any repairs.
DE 1.
It may be said that the “essential purpose” of a contract is unfulfilled when
repeated unsuccessful efforts to repair a product has completely failed in its
intended purpose. See Parsons v. Motor Homes of America, Inc., 465 So.2d 1285,
1292 (Fla. Dist. Ct. App. 1985). The Complaint alleges clearly that Defendant failed
to satisfy the essential purpose of the contract by performing defective workmanship
and ultimately, seriously damaging the engines.
In sum, the Motion to Dismiss based on Plaintiff’s failure to attach the
contract, based on the argument that the contract is not plead with adequate
specificity, and based on Plaintiffs’ failure to cite to any contract provisions which
Page 15 of 27

Defendant breached which caused the contract to fail of its essential purpose, is
denied.
Counts Three through Six
Defendant next argues that Plaintiffs’ tort claims alleged in Counts Three
through Six are barred because the alleged torts are not in any way independent of or
separate from the alleged breach of contract and breach of warranty claims.
Defendant asserts that these tort claims all complain about the same thing: that
Defendant failed to perform its obligations under the contract.
Count Three: Gross Negligence
Economic Loss Doctrine
Defendant asserts that Plaintiffs’ gross negligence claim is simply a contract
claim “dressed up” as a tort action. “More specifically, Plaintiffs allege that BizJet
undertook to perform the mid-life inspection, was grossly negligent in claiming it was
ready to perform such work, was grossly negligent in actually performing the
inspection, and was grossly negligent in advising Plaintiffs with respect to alleged
complaints about the performance of the engine.” DE 12 at 11.
Plaintiff counters that the economic loss rule only applies in product liability
cases, but even if it does apply here, it fails because Defendant agreed it could be
sued for gross negligence.
In Tiara Condominium Association, Inc. v. Marsh & McLennan Cos., Inc., 110
So.3d 399 (Fla. 2013) (“Tiara”), the Florida Supreme Court explained, “the economic
Page 16 of 27

loss rule is a judicially created doctrine that sets forth the circumstances under which
a tort action is prohibited if the only damages suffered are economic losses.” Id. at
401 (citation omitted). Tiara clarified that the economic-loss rule applies only to
cases involving products liability. Tiara, 110 So.3d at 407. Nonetheless, it is still
possible to set forth a claim in tort between parties in contractual privity if a tort is
alleged that is beyond and independent of the breach of contract claim. See Tiara,
110 So.3d at 408 (Pariente, J., concurring) (quoting Elec. Sec. Sys. Corp. v. S. Bell
Tel. & Tel. Co., 482 So.2d 518, 519 (Fla. Dist. Ct. App. 1986)). As Justice Pariente
explained in her concurrence in Tiara,
Our decision is neither a monumental upsetting of Florida law nor an
expansion of tort law at the expense of contract principles. To the
contrary, the majority merely clarifies that the economic loss rule was
always intended to apply only to products liability cases....
The majority's conclusion that the economic loss rule is limited to the
products liability context does not undermine Florida's contract law or
provide for an expansion in viable tort claims. Basic common law
principles already restrict the remedies available to parties who have
specifically negotiated for those remedies, and ... our clarification of
the economic loss rule's applicability does nothing to alter these
common law concepts. For example, in order to bring a valid tort claim,
a party still must demonstrate that all of the required elements for the
cause of action are satisfied, including that the tort is independent of
any breach of contract claim ....
Tiara, 110 So.3d at 408–09 (Pariente, J., concurring); see also Kaye v. Ingenio, Filiale
De Loto-Quebec, Inc., 2014 WL 2215770, at *4 (S.D. Fla. 2014).
In the wake of Tiara, the Eleventh Circuit noted that “[w]hile the exact
contours of this possible separate limitation, as applied post-Tiara, are still unclear,
Page 17 of 27

the standard appears to be that ‘where a breach of contract is combined with some
other conduct amounting to an independent tort, the breach can be considered
negligence.’”• Lamm v. State St. Bank & Trust, 749 F.3d 938, 947 (11th Cir. 2014)
(quoting U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So. 3d 477, 480 (Fla. Dist Ct.
App. 2013)).
Courts in this District have continually followed the interpretation of Tiara
suggested by the Eleventh Circuit in Lamm. See, e.g., Burdick v. Bank of Am., N.A.,
99 F. Supp. 2d 1372, 1378 (“[T]he alleged duty [element of a negligence claim]
cannot stem from a contractual relationship between the parties.... To bring a
negligence claim under Florida law, a party must demonstrate that ‘the tort is
independent of any breach of contract claim.’”•(quoting Tiara, 110 So. 3d at 408
(Pariente, J., concurring)); Kaye v. Ingenio, Filale de Loto-Que., Inc., No. 13-61687,
2014 WL 2215770, at *4 (S.D. Fla. May 29, 2014) (“to set forth a claim in tort between
parties in contractual privity, a party must allege action beyond and independent of
breach of contract that amounts to an independent tort”); Altenel, Inc. v. Millennium
Partners, L.L.C., 947 F. Supp. 2d 1357, 1369 (S.D. Fla. 2013); Callaway Marine
Technologies, Inc. v. Tetra Tech, Inc., 2016 WL 7407769, at *3 (S.D. Fla. 2016).
“Generally, an action in tort arising out of a breach of contract by a
defendant involves a separate and distinct duty imposed by law for the benefit of the
plaintiff and allows the plaintiff to maintain an action without regard to whether a
contractual relationship exist[s] between the two.” Southern Wind Aviation, LLC v.
Page 18 of 27

Cessna Aircraft Company, 2014 WL 12570958, at *5 (M.D. Fla. 2014) citing Miller v.
Allstate Ins. Co., 573 So. 2d 24, 27 (Fla. Dist. Ct. App. 1990). A review of the
paragraphs in Count Three of the Complaint does not show any independent duties
not imposed by the contract. Indeed, Count Three is entirely about Defendant’s
actions or inactions taken with respect to the mid-life inspection of the Aircraft and
how those actions and inactions were performed in a grossly negligent fashion.
Compl. ¶¶ 126- 129. Accordingly, Count Three is barred by the economic loss rule.
Court Appointed Receiver of Lancer Offshore, Inc. v. Citco Group Ltd., 2008 WL
926513, at *3 (S.D. Fla. 2008).
Defendant Agreed to be Sued for Gross Negligence?
Plaintiffs argue that they should be entitled to bring a claim for gross
negligence because Defendant “agreed in the contract at issue that the limitation on
liability provision under the contract does not apply to claims of gross negligence or
willful misconduct.” [DE 1 at ¶ 114]. More specifically, Plaintiffs’ Response Brief
states that “[t]o hold that Monsoon is nevertheless barred from bringing a gross
negligence claim because it is duplicative of its contract claims, despite gross
negligence being excluded from the contract, would lead to an absurd result.” DE 13
at 10.
The operative language states in pertinent part as follows:
SERVICE CENTER’S TOTAL LIABILITY ON ANY AND ALL CLAIMS, OF ANY
NATURE (INCLUDING NEGLIGENCE BUT EXCLUDING GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT), ARISING FROM, CONNECTED WITH, OR
Page 19 of 27

RESULTING FROM, PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL
NOT EXCEED SERVICE CENTER’S INVOICE FOR THE ITEM OR WORK GIVING
RISE TO SUCH CLAIM.
Contract, DE 14-1 (Ex. A) at 6.
This clause limits Defendant’s liability to the amounts invoiced to Plaintiffs for
“the item or work giving rise to such claim” unless Defendant performs under the
contract in a grossly negligent fashion, or engages in willful misconduct. The
provision confirms that if Plaintiffs prove that Defendant’s performance under the
contract was grossly negligent, then the specific limitation of liability in this passage
does not apply. It is silent as to whether such a claim sounds in contract or tort.
However, it appears Plaintiffs contemplated that its claim for breach of contract
would include alleged breaches resulting from grossly negligent performance, because
their Complaint so alleges. (“Bizjet, by performing grossly negligently under the
contract, materially breached the contract with Monsoon, Inc.” DE 1 at ¶ 112).
Even though Count Three alleging gross negligence and willful misconduct is
dismissed pursuant to the economic loss doctrine, this result does not preclude
Plaintiffs from proving damages in their breach of contract claim in excess of the
amount of the invoice if Plaintiffs can demonstrate gross negligence or willful
misconduct. See Stewart & Stevenson Services, Inc. v. Pickard, 749 F.2d 635, 645
(11th Cir. 1984); Serina v. Albertson's, Inc., 744 F.Supp. 1113, 1118 (M.D. Fla. 1990);
Country Club of Miami Corp. v. McDaniel, 310 So.2d 436 (Fla. Dist. Ct. App. 1975).
Count Three makes sufficient allegations of gross negligence to sustain such an
Page 20 of 27

argument.
Accordingly, in accordance to the discussion above, the Motion to Dismiss
Count Three is granted as barred by the economic loss doctrine. Plaintiffs, however,
are not barred from seeking damages in excess of the contractual limitation if they
can establish gross negligence or willful misconduct of the part of Defendant.
Count Four: Intentional Misrepresentation/Fraud;
Count Five: Negligent Misrepresentation
The crux of Counts Four and Five is that Defendant intentionally, or at least, in
a grossly negligent manner, misrepresented material information throughout the
process of the mid-life inspection before, during, and after the contract was signed,
upon which Plaintiffs relied, in order to get Plaintiffs’ business and to keep its
business. DE 1, ¶¶ 139-146, 154, 158, 160-162.
Defendant argues that these claims all arise out of the alleged breach of
contract and claim purely economic damages that arise from the breach. Plaintiffs
respond that their tort claims arise out of separate facts apart from the breach of
contract claim because Defendant’s unlawful conduct continued throughout its
relationship with Plaintiffs, including before the contract was in place, and after
Defendant completed the mid-life inspection. “Whereas Monsoon’s breach of
contract claims center on BizJet’s failure to properly perform the mid-life inspection
as required by the contract, Monsoon’s fraud and negligent misrepresentation claims
center on the promises Monsoon made before the parties entered the agreement as

Page 21 of 27

well as after the job was complete.” Response, DE 13 at 13.
Regardless of when the alleged misrepresentations were made, the question
that must be answered is whether the representations at issue concern the heart of
the parties' agreement. See In re Takata Airbag Products Liability Litigation, 193 F.
Supp. 3d 1324, 1339 (S.D. Fla. 2016) (Moreno, J.) citing In re Atlas Roofing Corp.
Chalet Shingle Prods. Liab. Litig., No. 130-md–2495, 2015 WL 3796456, at *3 (N.D. Ga.
June 18, 2015); TRA Farms, Inc. v. Syngenta Seeds, Inc., 2014 WL 3844823, at *3 (N.D.
Fla. 2014). In this case, the alleged pre- and post-contract misrepresentations relate
exclusively to the Defendant's performance of the contract and cannot therefore be
said to give rise to an independent cause of action in tort. Plaintiffs complain that
Defendant committed fraud to get the work by misrepresenting its ability to work on
the Tay 611-8C (DE 1, ¶¶ 139-143, 146), by misrepresenting that certain safeguards
would be in place that were not (id. ¶¶ 144-145), by misrepresenting that it was
flawlessly executing the inspection when internally doubts continued regarding its
ability to perform the mid-life inspection adequately (id. ¶¶ 148-151), by making false
inspection certificates to create the appearance that each procedure was carefully
performed and inspected (id. ¶ 153), and then by withholding crucial information as
to the quality of its work once the engine was delivered, including information
regarding the risks of flying the Aircraft “so that BizJet could avoid the expense of
repairing the Aircraft, as it was contractually obligated to do.” (Id. at ¶¶ 155-157).

Page 22 of 27

Thus, since Plaintiffs’ fraud and misrepresentation claims concern the heart of
the parties' agreement, the economic loss rule applies and the Motion to Dismiss
Counts Four and Five is granted. See Tiara, 110 So.3d at 408 (Pariente, J.,
concurring) (citing Lewis, 428 So.2d at 224); Altenel, 947 F. Supp. 2d at 1368-1370.
The relief sought in the alternative, for a more definite statement as to the claims
for fraud and negligent misrepresentation, is denied as moot.
Count Six: Punitive Damages
Count Six appears to be a prayer for punitive damages to which Plaintiffs claim
entitlement as a result of their fraud and gross negligence claims. Defendant argues
Count Six fails to meet the requirements of Rule 8(a) of the Federal Rules of Civil
Procedure because it fails to state an independent basis for relief. Punitive damages
is not a cause of action, but instead a remedy available under certain circumstances.
Because the claims for fraud and gross negligence have been dismissed pursuant to
the economic loss doctrine herein, the Motion to Dismiss Count Six is granted.
Motion to Strike
Defendant moves to strike certain allegations concerning its business
operations. The Federal Rules of Civil Procedure provide that “the court may order

Page 23 of 27

stricken from any pleading ... any redundant, immaterial,3 impertinent4 or
scandalous5 matter.” Fed. R. Civ. P. 12(f). The purpose of a motion to strike is to
clean up the pleadings, remove irrelevant or otherwise confusing materials, and avoid
unnecessary forays into immaterial matters. Liberty Media Holdings, LLC v. Wintice
Group, Inc., No. 6:10–cv–44–Orl–19GJK, 2010 WL 2367227, *1 (M.D. Fla. June 14,
2010); Hutchings v. Fed. Ins. Co., 2008 WL 4186994 at *2 (M.D. Fla. Sept. 8, 2008). It
is not intended to procure the dismissal of all or part of a complaint. Williams v.
Delray Auto Mall, Inc., 289 F.R.D. 697, 700 (S.D. Fla. 2013). Granting a motion to
strike is a drastic remedy and is disfavored by the courts. Nash v. O.R. Colan Group,
LLC, No. 12–60759–CIV, 2012 WL 4338817, *1 (S.D. Fla. Sept. 20, 2012) (citing
Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla.
2002)); Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354, 1361
(S.D. Fla. 2009). If there is any doubt as to whether under any contingency the
matter may raise an issue, the motion should be denied. Therefore, a motion to
strike will be granted only if the matter sought to be omitted has no possible
relationship to the controversy, may confuse the issues, or otherwise prejudice a
3

An allegation is immaterial if it has no value in developing the issues of the
case. Oaks v. City of Fairhope, Alabama, 515 F. Supp. 1004, 1032 (S.D. Ala. 1981)
(citing 2A, Moore's Federal Practice P 12.21(1) at 2420 (2d ed. 1979)).
4

An allegation is impertinent if it is irrelevant to the issues and which are not
properly in issue between the parties Id.; 2 Moore’s Federal Practice, pp. 2312-13.
5

A matter is scandalous if it is both grossly disgraceful (or defamatory) and
irrelevant to the action or defense. Black’s Law Dictionary.
Page 24 of 27

party. 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1382 (3d ed. 1998).
Defendant asserts that the Complaint contains a prefatory narrative composed
of a number of scandalous and impertinent allegations designed solely to embarrass
and harass it. Defendant specifically objects to the allegation that it has “continued
to deteriorate,” and references to changes in Defendant’s officers and workforce. [DE
1 at p 3]. The Court finds these allegations relate to the controversy and are not
immaterial, impertinent, or scandalous.
Defendant further argues the prefatory narrative in the Complaint should be
stricken because it violates Rule 10(b). Rule 10(b) of the Federal Rules of Civil
Procedure provides, in pertinent part, that “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” This rule is designed to protect Defendants by requiring pleadings to
be organized so that the Defendant can make a proper response.
The Court finds that Plaintiffs’ Summary of Claims section does not make the
Complaint disorganized or inhibit a proper response from Defendant. The content
and allegations contained within the Summary of Claims merely summarizes what is
later alleged throughout the Complaint. There is no risk of confusion and
Defendant’s Motion to Strike pursuant to Rule 10(b) is denied.
Defendant also seeks to strike Plaintiffs' request for attorneys' fees because
Plaintiff has failed to allege any statutory or contractual basis that would support
Page 25 of 27

such an award. Plaintiffs do not address this argument in their response. There
being no applicable statute or contract that would authorize an award of attorney's
fees, Defendant’s Motion to strike Plaintiffs’ request for attorneys’ fees is granted,
with leave for Plaintiffs to amend the Complaint should they have either a
contractual or statutory basis authorizing an award of attorneys' fees in this matter.
See, B & J Holding Corp. v. Weiss, 353 So.2d 141, 143-44 (Fla. Dist. Ct. App. 1977);
Alfeo v. I-Flow, LLC, 2012 WL 442981, at *3 (S.D. Fla. 2012).
Conclusion
Therefore, in accordance with the conclusions made herein, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss, Motion for More
Definite Statement, and Motion to Strike [DE 12] is granted in part and denied in part
as follows:
It is denied as to Counts One and Two.
It is granted as to Count Three but Plaintiffs may attempt to prove gross
negligence and willful misconduct to avoid the Contract’s limitation on damages.
It is granted as to Counts Four, Five and Six.
Counts Three, Four, Five and Six are dismissed with prejudice. Granting leave
to amend would be futile given that the economic loss rule bars these claims.
The alternative Motion for a More Definite Statement is denied as moot.
The Motion to Strike is granted in part and denied in part. It is denied in all
respects except for the request for attorneys’ fees, which is stricken without
Page 26 of 27

prejudice.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 27th day of February, 2017.
_________________________
KENNETH A. MARRA
United States District Judge

Page 27 of 27