United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, DISRTRICT JUDGE.
matter comes before the Court on two motions to dismiss: the
first (Doc. 66) filed by Defendants Castle Law Group, P.C.
(henceforth, “Castle Law”) and Judson Phillips
(“Phillips”), and the other (Doc. 67) filed by
Defendant Sean Austin (“Austin”). In resolving
these motions, the Court has also considered the response in
opposition (Doc. 74) filed by the Plaintiffs.
to the allegations of the Second Amended Complaint (Doc. 65),
which are accepted in pertinent part as true for purposes of
resolving the instant motion, the Plaintiffs are a group of
11 timeshare developers (the “Westgate
Developers”) and 15 timeshare owners' associations
(the “Associations”). Each Plaintiff has
“Westgate” as part of its name. Anyone who
purchases a timeshare interest from one of the Westgate
Developers (henceforth, “Westgate Owners”) signs
a contract agreeing to pay maintenance fees and property
taxes to one of the Associations; some Westgate Owners also
obtain financing from a Westgate Developer, in which case the
Westgate Developer holds a promissory note. (Doc. 65 at
Castle Venture Group, LLC (“Castle Venture”)
funds Defendant Castle Marketing Group, LLC (“Castle
Marketing”). (Doc. 65 at 18). Along with Defendant
Resort Relief, LLC (“Resort Relief”), Castle
Marketing solicits timeshare owners, including Westgate
Owners, who wish to get out of their contracts. (Doc. 65 at
18-19). Such owners are directed to retain Defendant Castle
(Doc. 65 at 19). As one step in the process of getting out of
their contracts, Westgate Owners who retain Castle Law are
encouraged to stop paying maintenance fees and taxes and to
stop making payments on any promissory note. (Doc. 65 at
instant case was filed on June 12, 2017. (Doc. 1). On August
7, 2017, the Plaintiffs filed their Second Amended Complaint
(Doc. 65), which consists of six counts: tortious
interference with existing contracts (Count I); tortious
interference with advantageous business relationships (Count
II); civil conspiracy (Count III); violation of Section
721.121, Florida Statutes (Count IV); violation of
Florida's Deceptive and Unfair Trade Practices Act, Fla.
Stat. § 501.201 et seq. (“FDUTPA”)
(Count V); and temporary and permanent injunctive relief
(Count VI). The statutory claim in Count IV is asserted
against Resort Relief, Hansen and Austin. The remaining
counts are asserted against all of the Defendants.
of the instant motions, Austin seeks dismissal of all six
counts, while Castle Law and Phillips seek dismissal of the
five counts asserted against them. Because the argument s
raised in both motions are, for the most part, identical,
they will be addressed together.
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other grounds,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule 12(b)(6) motion to
dismiss for failure to state a claim merely tests the
sufficiency of the complaint; it does not decide the merits
of the case. Milburn v. United States, 734 F.2d 762,
765 (11th Cir.1984). In ruling on a motion to dismiss, the
Court must accept the factual allegations as true and
construe the complaint in the light most favorable to the
plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272
(11th Cir.1988). The Court must also limit its consideration
to the pleadings and any exhibits attached thereto.
Fed.R.Civ.P. 10(c); see also GSW, Inc. v. Long County,
Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level, Twombly, 550
U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence
of the required elements, Watts v. Fla. Int'l
Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). Conclusory
allegations, unwarranted factual deductions or legal
conclusions masquerading as facts will not prevent dismissal.
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), the Supreme Court explained that a
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. at 1949
(internal citations and quotations omitted). “[W]here
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 ‘show[n]' - ‘that the
plaintiff is entitled to relief.'” Id. at
1950 (quoting Fed.R.Civ.P. 8(a)(2)).
Count I - tortious interference with contract
first count, the Plaintiffs allege that the Defendants
tortiously interfered with the contracts between the
Plaintiffs and the Westgate Owners. Under Florida law, the
tort of contractual interference occurs when: (1) a contract
exists; (2) a third party has knowledge of the contract; (3)
the third party intentionally interferes with a party's
rights under the contract; (4) there is no justification or
privilege for the interference; and (5) there are damages.
Mariscotti v. Merco Group At Akoya, Inc., 917 So.2d
890, 892 (Fla. 3d DCA 2005).
Law, Phillips, and Austin (collectively, the
“Movants”) do not challenge the existence of the
first, fourth, and fifth elements here. Instead, they seek
dismissal of Count I on the grounds that, as agents of the
Westgate Owners, they were not third parties to any contracts
between the Westgate Owners and the Plaintiffs and therefore
could not be liable for tortious interference. Generally
speaking, one cannot tortiously interfere with a contract to
which it is a party. Ethyl Corp. v. Balter, 386
So.2d 1220, 1224 (Fla. 3d DCA 1980). Consequently, an agent
generally cannot be held liable for tortiously ...