United States District Court, S.D. Florida
OCEANIC RESEARCH & SALVAGE COMPANY 1, LLC and BOBBY BOSTICK, individually, Plaintiffs,
EMERGING SCIENCE & TECHNOLOGIES GROUP, INC. and JOSEPH W. FOLEY, individually, and WES ESTES, individually, Defendants.
OPINION AND ORDER
Kenneth A. Marra, United States District Judge
cause is before the Court upon Defendants Joseph W. Foley and
Wes Estes' Motion to Dismiss for Lack of Personal
Jurisdiction [DE 8], and Defendants' Motion to Strike and
for Sanctions [DE 29]. Both motions have been fully briefed
and are ripe for the Court's consideration. The Court has
reviewed all papers submitted in connection therewith, the
entire file, and is otherwise duly advised in the premises.
Complaint generally alleges that the Parties entered into an
agreement under which Defendants would use their unique
experience, specialized proprietary equipment and software to
locate precious metals and artifact sites at various
locations off the coast of Florida from Sebastian to Jupiter.
[DE 1-3 at ¶ 9]. Plaintiffs allege they performed all
conditions precedent to the Agreement and made all payments
thereunder. [Id. at ¶ 10]. Plaintiffs allege
that Defendants breached the Agreement by failing to complete
all of the work and by presenting an inaccurate report.
[Id. at ¶ 11]. Plaintiffs seek damages arising
from this alleged breach. [Id. at 3]. Plaintiffs
also seek specific performance and injunctive relief, the
latter relating to the potential dissemination of information
in the survey and report. [Id. at 3-4].
further allege fraud in the inducement; civil theft; breach
of loyalty to partner; seek an accounting; seek establishment
of a constructive trust; allege interference with prospective
business relationships; breach of joint venture agreement;
conversion; and seek declaratory relief [Id. at
4-11], all relating to their claim that Defendant Estes
represented to Plaintiffs that if Plaintiff Bostick provided
Defendants Estes and ESTG with one million dollars in cash,
with another $500, 000 to be paid later, they would use the
money to develop new equipment, technology and software to
make locating natural resources, precious metals and
artifacts easier and would share the ownership rights equally
with Plaintiffs. [Id. at ¶ 27]. Plaintiffs
claim that they made that payment, but were never provided
with any further information on these advancements or the
profits derived therefrom.
Motion to Strike and for Sanctions.
have moved pursuant to Fed.R.Civ.P. Rule 11 and Fla. Stat.
Ann. §57.105, seeking to have the Court strike the
Complaint as wholly without factual support. Defendants also
seek sanctions. [DE 29]. Defendants assert that
Plaintiffs' claims are completely baseless. Id.
They argue that the contract claims are baseless, because the
contract was completed. As to the claims relating to the
alleged transfer of $1, 000, 000 in cash in exchange for an
interest in a joint venture, Defendants argue that this
simply never occurred. Id.
response thereto, Plaintiffs argue that there is a factual
dispute relative to whether Defendants breached the contract.
Furthermore, Plaintiffs have submitted three sworn affidavits
attesting to the transfer of the $1, 000, 000 in cash. [DE
45-1, 45-2, and 45-3]. Having provided some evidentiary
support for their Complaint, Defendants' Motion must be
denied. See, e.g., Davis v. Carl, 906 F.2d
533, 536 (11th Cir. 1990).
Defendants Joseph W. Foley and Wes Estes' Motion to
Dismiss for Lack of Personal
individually named Defendants have brought a motion pursuant to
Fed.R.Civ.P. 12(b)(2) and (6), seeking a dismissal of the
Complaint as against them for lack of personal jurisdiction
and for failure to plead fraud with particularity. [DE 8].
They argue that Florida's corporate shield doctrine
protects them, in their individual capacities, for actions
taken as corporate officers. [DE 8 at 7-10]. As to the fraud
claim, Defendants note the absence of the kinds of details
required in a complaint. [Id. at 12-13].
respond that they adequately pled personal jurisdiction,
which shifted the burden to Defendants. Defendants, having
submitted evidence in support of their motion, the burden
shifted back to Plaintiffs. Plaintiffs submit the affidavit
of Plaintiff Bostick, which they note is contrary to
Defendants' submission. In his affidavit, Mr. Bostick
states that after the survey was done,
Mr. Estes in his individual capacity told me that he and Mr.
Foley could develop additional technology which would assist
in more precise location of precious metals, gas, oil and
ore. Further he suggested that if I could come up with the
needed development funds the three of us (Mr. Estes, Mr.
Foley, and myself) would enter into joint ...