United States District Court, S.D. Florida
ORDER DENYING MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant, Health
Care@Home, LLC's Verified Motion to Dismiss Complaint and
Memorandum of Law in Support Thereof, ECF No. , filed on
October 2, 2017. ECF No.  (“Motion”). The
Court has carefully reviewed the Motion, all opposing and
supporting materials, the record in this case and the
applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is denied.
Interim Healthcare Inc. (“Interim” or
“Plaintiff”) operates a health care staffing
franchise which provides nursing, therapy, and non-medical
home care, hospice, and healthcare staffing through over 300
franchisees throughout the United States. ECF No.  ¶
5. Defendant Healthcare@Home (“HCH” or
“Defendant”) is one such franchisee. Id.
¶¶ 1, 9. On August 30, 2013, Interim and HCH
entered into a Franchise Agreement which granted HCH an
Interim franchise in a portion of Arizona (“Franchise
Agreement” or “Agreement”). Id.
¶ 9; see also ECF No. [1-1] at 5. Under the
Franchise Agreement, HCH agreed to pay certain weekly service
charges based on a percentage of sales, and, in the event
that the service charge was not timely paid, certain late
fees. Id. ¶¶ 12-13; see also ECF
No. [1-1] at 17-21. The Franchise Agreement further allows
for termination by Interim in the event of HCH's default
by “fail[ing] to fully and faithfully perform and abide
by all of the terms, covenants, and conditions of th[e
Franchise] Agreement.” ECF No. [1-1] at 23. The
Franchise Agreement also contains an eleven-month non-compete
clause and a clause which allows the prevailing party in any
litigation to recover reasonable attorneys' fees, costs
and expenses. Id. at 14-15; see also ECF No. [1-1]
to the Complaint, the parties operated without event under
the Franchise Agreement until June 1, 2015, when Interim
served HCH with a notice of default, claiming HCH owed
Interim $72, 774.37 under the Agreement. Id. ¶
16. On March 13, 2017, Interim terminated the Franchise
Agreement because HCH had failed to cure the defaults noticed
in the June 2015 default notice. Id. ¶ 17. On
June 6, 2017, Interim further notified HCH that it was in
violation of the eleven-month non-compete clause contained in
the Franchise Agreement. Id. ¶ 20.
to the Complaint, as of May 31, 2017, HCH owed $399, 803.63
in past due royalties under the Franchise Agreement.
Id.¶¶ 19, 24-25. Interim also alleges that
it is due $1, 436, 400 in “future royalties, ”
which it has calculated by multiplying the number of weeks
(336) remaining on the ten year Franchise Agreement by the
“average weekly service charge due from HCH” ($4,
275). Id. ¶¶42-44. Finally, Plaintiff also
seeks attorneys' fees, costs, and expenses payable to the
prevailing party in pursuant to Franchise Agreement.
Id. ¶¶ 26, 45.
on the foregoing, Plaintiff filed its Complaint, ECF No. 
on July 11, 2017 alleging three causes of action: Count I -
Breach of Contract - Past Due Royalties; Count II - Breach of
Contract - Non-Compete; and Count III - Breach of Contract -
Future Royalties. On December 4, 2017, the Court entered an
Order pursuant to the parties' stipulations, ECF Nos.
 & , dismissing all claims against Defendant
Cohen and Count II in its entirety. ECF No. .
Accordingly, the only claims remaining before the Court are
Counts I and III against HCH, both of which HCH seeks to
Motion, HCH argues that Count I fails to state a claim
because Interim fails to allege that it complied with all its
obligations under the contract. ECF No.  at 17. HCH
further argues that Count III fails to state claim because
the alleged future royalties are speculative and that it was
Interim's conduct in terminating the agreement-rather
than HCH's-that caused any alleged future royalty
damages. ECF No.  at 15-16. In Opposition to both these
arguments, Interim argues that both claims have been
sufficiently plead. First, it argues that Count III states a
claim because HCH's argument regarding damages is
irrelevant on a motion to dismiss a claim for breach of
contract under 12(b)(6). Id. at 8. Second, it argues
that Count I is sufficiently plead by reiterating the
allegations plead in the Complaint and stating that
“Interim has pled all the elements of a breach of
contract claim and therefore, pled enough facts to state a
claim of breach of contract that is plausible on its
face.” Id. at 8-9.
pleading in a civil action must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,
” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule
8(a)(2)'s pleading standard “demands more than an
accusation”). Nor can a complaint rest on
“‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). ”To 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.'”
Id. (quoting Twombly, 550 U.S. at 570).
reviewing a motion to dismiss, a court, as a general rule,
must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Chaparro v. Carnival
Corp., 693 F.3d 1333, 1337 (11th Cir. 2012);
Miccosukee Tribe of Indians of Fla. v. S.
Everglades Restoration Alliance, 304 F.3d 1076, 1084
(11th Cir. 2002). Although the Court is required to accept
all of the allegations contained in the complaint and
exhibits attached to the pleadings as true, this tenet is
inapplicable to legal conclusions. Iqbal, 556 U.S.
at 678; Thaeter v. Palm Beach Cnty. Sheriff's
Office, 449 F.3d 1342, 1352 (11th Cir. 2006)
(“When considering a motion to dismiss . . . the court
limits its consideration to the pleadings and all exhibits
attached thereto.”) (internal quotation marks omitted).
In the Rule 12(b)(6) context, a plaintiff's pleadings
should be read as a whole. See Speaker v. U.S. Dep't
of Health & Human Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1383 (11th Cir. 2010)
(interpreting specific language in complaint within the
context of the entire complaint); Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11
(11th Cir. 2005) (stating that, in a Rule 12(b)(6) context,
“[w]e read the complaint as a whole”). But
pleadings that “are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations.” Iqbal, 556
U.S. at 679; see also Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252, 1260 (11th Cir. 2009)
(“‘[U]nwarranted deductions of fact' in a
complaint are not admitted as true for the purpose of testing
the sufficiency of plaintiff's allegations.”).
Through this lens, the Court addresses the instant Motion.
parties recognize that Florida law governs the construction
of the Franchise Agreement. See ECF No. [1-1] ¶19.
“[U]nder Florida law, franchise agreements are
considered personal service contracts.” Burger King
Corp. v. Agad, 911 F.Supp. 1499, 1506 (S.D. Fla. 1995)
(citing Burger Chef Sys., Inc. v. Burger Chef of
Fla., Inc., 317 So.2d 795, 797 (Fla. 4th DCA 1975)). To
state a claim for breach of a franchise contract, a plaintiff
must allege: (1) a valid contract; (2) a material breach of
that contract; and (3) damages resulting from the ...