United States District Court, S.D. Florida
N. Scola, Jr. United States District Judge
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).
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
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.
seeks to recover millions of dollars he alleges Banco de
Bogota and German companies Knauf International and Knauf de
Colombia, S.A.S. 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.
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
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
The claims common to both Hakim-Daccach's first amended
complaint and proposed second amended complaint are subject
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.
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.
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
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 ...