United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Retained Subsidiary One,
LLC's Motion to Dismiss Plaintiff's Complaint on
Behalf of Defendant Kash N' Karry Food Stores, Inc. (Doc.
87) to which Plaintiff Hancock Shoppes, LLC opposes (Doc.
92). For the following reasons, the Court grants Retained
case involves the breach of a commercial lease. During the
lease's thirty-year duration, the landlord and tenant
roles changed no less than five times. Pertinent here, the
Kroger Co. of Michigan assigned the lease to Kash N'
Karry in the late 1980s. Kash N' Karry, as the new
assignee, agreed to “perform and observe all of the
obligations of Tenant under the Lease.” (Doc. 2-3 at
2). Eventually, Kash N' Karry merged with Retained
Subsidiary effective April 2014, and Retained Subsidiary
became Kash n' Karry's successor-in-interest. (Doc. 2
at ¶ 23; Doc. 47-1 at 23). Retained Subsidiary thus was
the last tenant to occupy the property before the lease
Kash N' Karry entered the lease, the original landlord
assigned its interest in the property to another company. And
that company contemporaneously entered into an assignment and
assumption agreement with FMAP Realty Company, LLC. Finally,
when Hancock bought the property, FMAP LLC assigned its
interest in the lease to Hancock. This made Hancock the
landlord about ten months before the lease expired.
the lease ended in March 2015, Retained Subsidiary
surrendered possession of the property to Hancock. According
to Hancock, the property was “untenantable”
because Defendants “failed to protect the property from
theft, vandalism, waste, and neglect.” (Doc. 2 at
¶ 29). Hancock thus sued every prior tenant - Family
Center, Kroger, Kash n' Karry, and Retained Subsidiary -
for breach of lease. Retained Subsidiary now moves to dismiss
the Complaint as against Kash N' Karry.
Federal Rule of Civil Procedure 12(b)(6), a complaint may be
dismissed for failure to state a claim upon which relief can
be granted. A Rule 12(b)(6) motion tests whether the pleader
has satisfied the rule's pleading requirements. A claim
will fail this inspection if it asserts a legal theory that
is not cognizable as a matter of law and/or if the factual
tale alleged is implausible. When a claim is challenged under
Rule 12(b)(6), the court presumes that all well-pleaded
allegations are true, resolves all reasonable inferences in
the non-moving party's favor, and views the complaint in
the light most favorable to the non-moving party.
See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007).
detailed factual allegations are not required, the federal
pleading requirement is far from trivial. See
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A
complaint must contain sufficient information to give
defendants fair notice of the complaint's claims and the
grounds on which they rest. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 319
(2007). Plaintiffs must allege enough facts to raise their
claims beyond the speculative level and must “nudge
their claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 678. To that end, a claim is
facially “plausible” when it alleges sufficient
factual content to permit the reasonable inference that the
defendant is liable for unlawful conduct. Twombly,
550 U.S. at 559. To cross into the “realm of plausible
liability, ” a plaintiff's allegations must be
factual (not conclusory) and suggestive (not neutral).
Id. at 557 n.4. Thus, a plaintiff must do more than
offers labels, conclusions, and a formulaic recitation of a
claim's elements. See Iqbal, 556 U.S.
at 678. And a court need not accept speculation, bald
assertions, and legal inferences masquerading as facts.
See Twombly, 550 U.S. at 555.
Subsidiary moves to dismiss the Complaint as against Kash
N' Karry because Kash N' Karry has been merged out of
existence and transferred its interest in the Lease to
Retained Subsidiary. It argues that Kash N' Karry, as an
intermediate tenant of the lease, cannot be liable for the
alleged damages to the property at the time of turnover.
(Doc. 87). Retained Subsidiary thus asks the Court to dismiss
Kash N' Karry for the same reasons it dismissed Kroger,
another intermediate tenant (Doc. 80).
prior order, the Court found that Hancock brings this suit
based on the lease provision that required the tenant to
return the property in good order upon the lease's
expiration. Thus, it was not until the property was
surrendered to Hancock in March 2015 that the tenant could
have breached the lease. But this pleading has a logical
consequence. That being only the lease's original and
last tenants (with Retained Subsidiary being the latter) can
be liable for the breach as pled in this case.
between the original and last tenants, however, are Kroger
and Kash N' Karry. The Court has dismissed Kroger because
it assigned its obligations under the lease to Kash N'
Karry more than thirty years ago. (Doc. 80). One such
obligation included surrendering the property to Hancock in
good condition. The Court thus found Kroger to be, at best,
an “intermediate” assignor/assignee that was no
longer on the hook for any subsequent breaches in the least.
(Id. at 5-6).
N' Karry is a bit different from Kroger. Kash N'
Karry did not assign its interest in the lease to Retained
Subsidiary. Rather, Retained Subsidiary assumed all of Kash
N' Karry's rights and liabilities under the lease
because of the merger. Recognizing this distinction, Retained
Subsidiary argues that “[u]nder Florida law, the rights
and liabilities of a predecessor are imposed on a successor
in interest when the successor expressly assumes the
obligations of the predecessor. . . The express assumption of
obligations by a successor is the legal equivalent to an
assignment under the lease, which states that the
‘assignee shall expressly assume all of Tenant's
obligations under this ...