United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on
Plaintiff/Counter-Defendant Palladium Technologies,
Inc.'s Motion to Dismiss Counts I and V of
Defendant's Counterclaim [ECF No. 28]. The Court has
carefully reviewed the Motion, the record, and the applicable
law. For the reasons discussed below, Palladium's Motion
Amended Complaint, Plaintiff Palladium Technologies, Inc.
(“Palladium”) brings claims for payment in
rem and in personam against Defendants M/Y
“Amica” (“Vessel”) and Amica Yachts
Limited (“Amica”). In August 2015, Palladium
began providing mechanical services on Amica's Vessel.
Palladium was paid 50 percent up front with the balance due
upon completion. See Am. Compl. Ex. A. After
completion of the services, Palladium alleges that it made
repeated demands for the balance due but Amica refused to
pay. See Am. Compl. ¶ 14. Amica claims that
Palladium expressly represented that it possessed the skills
to perform the services but was unable to adequately perform.
Amica disputes the outstanding balance and the accuracy of
Palladium's invoices. Furthermore, Amica's Answer
includes five Counterclaims: (1) Fraudulent or Negligent
Misrepresentation, (2) Breach of Contract, (3) Breach of
Implied Warranty, (4) Negligence, and (5) Wrongful Arrest.
[EFC No. 24]. Palladium now moves to dismiss Amica's
claims of Fraudulent or Negligent Misrepresentation (Claim I)
and Wrongful Arrest (Claim V) for failure to plead with the
necessary specificity. [EFC No. 28].
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, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although this pleading standard “does not
require ‘detailed factual allegations, ' . . . it
demands more than an unadorned,
Id. (quoting Twombly, 550 U.S. at 555).
must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Indeed, “only a complaint that states a plausible claim
for relief survives a motion to dismiss.”
Iqbal, 556 U.S. at 679 (citing Twombly, 550
U.S. at 556). To meet this “plausibility standard,
” a plaintiff must “plead[ ] factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. at 678 (citing Twombly, 550 U.S. at
556). When reviewing a motion to dismiss, a court must
construe the complaint in the light most favorable to the
plaintiff and take the factual allegations therein as true.
See Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
Fraudulent or Negligent Misrepresentation
9(b) of the Federal Rules of Civil Procedure requires that
“[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b); see, e.g., Inman v.
Am. Paramount Fin., 517 F. App'x 744, 748 (11th Cir.
2013). The particularity rule alerts “defendants to the
‘precise misconduct with which they are charged'
and protect[s] defendants ‘against spurious charges of
immoral and fraudulent behavior.'” Durham v.
Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)
(quoting Seville Indus. Mach. Corp. v. Southmost Mach.
Corp., 742 F.2d 786, 791 (3d Cir. 1984)). “The
application of the rule, however, must not abrogate the
concept of notice pleading.” Id. Rule 9(b) is
satisfied if the complaint states:
(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.
Brooks, 116 F.3d at 1371 (internal quotation marks
alleges that “[i]n the course of negotiations”
Palladium made misrepresentations. [EFC No. 24]. Amica does
not specify when and precisely what statements were made and
thus fails to alert Palladium to the exact fraudulent
misconduct it alleges. Even when specific dates are
unavailable, courts have required that plaintiffs specify a
narrow timeline and provide additional specific allegations
to support a claim of fraud. See Medalie v. FSC Sec.
Corp., 87 F.Supp.2d 1295, 1307 (S.D. Fla. 2000) (holding
that a six-month time frame was sufficiently narrow because
the fraud happened more than ten years prior and plaintiff
identified seven transactions, stated the place of contact,
and quoted or paraphrased the material representations);
Raimbeault v. Accurate Mach. & Tool,
LLC, No. 14-CIV-20136, 2014 WL 5795187, at *11 (S.D.
Fla. Oct. 2, 2014) (holding that a “sufficiently narrow
timeline, including specific events, documents and
places” provided enough notice to defendants to satisfy
the pleading standard).
Amica has failed to specifically allege who made the
misrepresentations. The Complaint alleges that Kevin Bubier
negotiated an oral contract for Palladium, but never
specifies if he was the one who made the statements. [EFC No.
24]. Nor does Amica quote or paraphrase those
representations. Amica's allegations are “too vague
and general to meet the requirements of Rule 9(b)”;
rather, the Counterclaim states broadly that Palladium
“represented” that it possessed the skill to
complete the work. See Curtis Inv. Co., LLC v. Bayerische
Hypo-und Vereinsbank, AG, 341 F. App'x 487, 494
(11th Cir. 2009) (affirming a motion to dismiss where a
plaintiff merely alleged that defendants
“represented” information “knowing full
well” the information was false because the
“allegations were too vague and general to meet the
requirements of Rule 9(b)”). Amica has failed to plead
with specificity the ...