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Hakim-Daccach v. Knauf International GmbH

United States District Court, S.D. Florida

November 22, 2017

Carlos Hakim-Daccach, Plaintiff,
v.
Knauf International GmbH, and others, Defendants.

          OMNIBUS ORDER

          Robert N. Scola, Jr. United States District Judge

         Plaintiff Carlos Hakim-Daccach seeks leave from the Court to amend his complaint for the second time. (ECF No. 50.) At the same time Defendants Knauf International GmbH, Knauf Insulation, GmbH, and Banca de Bogota, S.A. have previously filed motions to dismiss Hakim-Daccach's first amended complaint. (ECF Nos. 30, 31, 49.) Only Knauf Insulation and Banco de Bogota's motions to dismiss were fully briefed. Having reviewed Hakim-Daccach's first amended complaint, the Court concludes all six counts, as alleged, should be dismissed. With some minor changes, Hakim-Daccach realleges these six counts in his proposed second amended complaint and adds seven other counts. Since the Court finds all thirteen counts would necessarily fail, allowing Hakim-Daccach to file his proposed second amended complaint would be futile. However, because it appears it is possible, upon better allegations, that Hakim-Daccach may be able to state a claim for relief on some counts, the Court affords him one more opportunity to amend his complaint, consistent with the analysis and findings below. The Court thus denies Hakim-Daccach's motion for leave to file his proposed second amended complaint (ECF No. 50) but affords him the opportunity to file a revised second amended complaint, consistent with this order as well as his obligations under Federal Rule of Civil Procedure 11(b). Hakim-Daccach must file this revised second amended complaint on before December 6, 2017. The Court also grants Banco de Bogota's motion to dismiss (ECF No. 30), finding two of the first amended complaint's counts against the bank should be dismissed with prejudice and one without. In anticipation of the filing of Hakim-Daccach's revised second amended complaint, and because Hakim-Daccach appears to be dropping Knauf Insulation from the suit, the Court denies as moot both Knauf Insulation's motion to dismiss and Knauf International's not-yet-fully-briefed motion to dismiss (ECF Nos. 31 & 49).

         1. Legal Standard

         In accordance with Federal Rule of Civil Procedure 15(a)(2), a party seeking to amend its complaint may do so only with the opposing party's written consent or the court's leave. According to the rule, leave should be freely given when justice so requires. Rule 15(a) reflects a policy of “liberally permitting amendments” and absent a “substantial reason to deny leave to amend” a plaintiff's request should be granted. Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir. 1984). “Although leave to amend shall be freely given when justice so requires, a motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment.” Maynard v. Bd. of Regents of Div. of Universities of Florida Dep't of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1287 (11th Cir. 2003) (quotations omitted). “An amendment is considered futile when the claim, as amended, would still be subject to dismissal.” Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 864 (11th Cir. 2017).

         A court considering a motion to dismiss must accept all of the complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft v. Iqubal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)) (internal punctuation omitted). A court must dismiss a plaintiff's claims if she fails to nudge her “claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         2. Background

         Hakim-Daccach seeks to recover millions of dollars he alleges Banco de Bogota and German companies Knauf International and Knauf de Colombia, S.A.S.[1] have wrongfully withheld from him. According to the allegations in his complaint, Hakim-Daccach is a 33.33% owner of two Panamanian companies which in turn own over 99% of Gyptec, S.A., a Colombian drywall business. By virtue of this business structure, Hakim-Daccach claims a 33.33% ownership interest in Gyptec.

         According to Hakim-Daccach, another Gyptec part owner, Jorge Hakim Tawil (Hakim-Daccach's cousin), has improperly taken control over Gyptec and shut Hakim-Daccach out of certain sales proceeds. He alleges that, at the direction of Tawil, Knauf International purchased the majority of Gyptec's assets in 2015 for $58.5 million. According to Hakim-Daccach, Tawil was inappropriately working both sides of the sales transaction. Hakim-Daccach also recounts that when Knauf International became aware of Colombian legal proceedings involving Tawil, it placed $20 million of the purchase price into an escrow account with Banco de Bogota in Miami. Hakim-Daccach submits that much of this $20 million represents approximately 33.33% of the purchase price and is owed to him directly, as part owner of Gyptec. Hakim-Daccach also alleges that another approximately $10 million is being held in another Banco de Bogota account, in Gyptec's name, and that he is entitled to a portion of these funds as part of a related dividend distribution that he is owed from Gyptec.

         Hakim-Daccach, in this case, has not sued either Tawil or Gyptec for their alleged wrongdoing. Instead he seeks to recover from two of the Knauf entities who were part of the sale of Gyptec's assets and the bank who is holding the two escrow funds described above. The majority of his claims are based on various Florida common law theories (replevin, breach of contract, unjust enrichment, equitable lien, aiding and abetting a breach of fiduciary duty, civil conspiracy to commit a breach of fiduciary duty, tortious interference with an advantageous business relationship, money had and received, and rescission) but he seeks redress under Florida's Deceptive and Unfair Trade Practices Act as well.

         3. The claims common to both Hakim-Daccach's first amended complaint and proposed second amended complaint are subject to dismissal.

         In his proposed second amended complaint, Hakim-Daccach includes all six of the claims presented in his first amended complaint, with only minor changes. Since none of these claims would survive dismissal, the Court denies his request to include these counts as pleaded in a second amended complaint. Further, upon consideration of Banco de Bogota's motion to dismiss, the Court dismisses with prejudice two of the first amended complaint's claims against the bank as more fully discussed below.

         A. Replevin

         Counts 5 and 6 of Hakim-Daccach's proposed amended complaint are very similar to counts 1 and 2 of his first amended complaint. In count 5, Hakim-Daccach seeks to replevy $19, 498, 050.00 from Knauf International and Knauf de Colombia which is in an escrow account at Banco de Bogota in Miami. In count 6, Hakim-Daccach seeks to replevy $7, 475, 316.70 from Banco de Bogota itself which he claims is in another escrow account, allegedly associated with Gyptec, also held through Banco de Bogota in Miami. Additionally, Hakim-Daccach has clarified in his proposed complaint that he seeks the money “whether it be in tangible or intangible form” and that “[t]he property includes any cash on hand, such as currency (coined metal and paper bank notes) or account debtors' checks.” (Prop. 2d Am. Compl. ¶ 84, ECF No. 50-1, 20.) This claim fails as stated.

         “Under Florida law, replevin lies for any wrongful taking or wrongful detention of any specific personal property.” Land-Cellular Corp. v. Zokaites, 463 F.Supp.2d 1348, 1353 (S.D. Fla. 2006) (Lenard, J.) (citing Fla. Stat. § 78.01; Williams Mgmt. Enters., Inc. v. Buonauro, 489 So.2d 160, 161 n. 1 (Fla. 5th DCA 1986)). Further, “[b]ecause replevin involves recovery of the personalty itself, the personal property subject to recovery via replevin has always been restricted to the recovery of tangible personalty capable of specific identification and manual seizure.” Land-Cellular, 463 F.Supp.2d at 1353. Thus, “replevin is inappropriate and unavailable when the personalty sought to be recovered is, as a practical matter, incapable of being specifically described by the party moving for the writ, and located, identified, and seized by the marshal executing the writ.” Id. In sum, replevin is simply “not available to recover a sum of money claimed by the plaintiff and possessed by the plaintiff only in the form of funds on deposit in the defendant's bank checking account.” Id.; see also Charter Sch. Capital, Inc. v. N.E.W. Generation Preparatory High Sch. of Performing Arts, Inc., No. 15-CIV-60966, 2015 WL 2239061, at *3 (S.D. Fla. May 12, 2015) (Bloom, J.) (“Funds in a deposit account are not the type of specific, tangible property capable of particular identification and manual seizure toward which the writ of replevin is aimed.”); Textron Fin. Corp. v. Unique Marine, Inc., No. 08-10082-CIV-MOORE, 2008 WL 4716965, at *4 (S.D. Fla. Oct. 22, 2008) (Simonton, Mag. J.) (“Nor can a writ of replevin reach intangible property in the form of checking accounts.”).

         The replevin claims alleged in counts 1 and 2 of Hakim-Daccach's first amended complaint are therefore due to be dismissed. Further, the Court denies Hakim-Daccach's request for leave to amend the replevin claims because his proposed counts 5 and 6, despite the language added, also necessarily fail for the same reasons. Based on Banco de Bogota's fully-briefed motion to dismiss, the replevin claim against the bank is dismissed with prejudice. Because Hakim-Daccach did not have an opportunity to ...


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