United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Defendant's
Motion to Dismiss Plaintiff's Amended Complaint [ECF No.
13] (“Motion”). The Court has carefully reviewed
the submissions of the parties and the applicable law. For
the reasons that follow, the Motion is granted.
Amended Complaint [ECF No. 12], Plaintiff Sushil Malhotra
(“Plaintiff”) brings claims of civil theft,
unjust enrichment, and fraud against Defendant Sanjay
Aggarwal (“Defendant”). On July 10, 2013,
Plaintiff wired Defendant $500, 000. [Id. ¶ 4].
Plaintiff claims the $500, 000 was his personal property and
alleges that he wired the funds to Defendant because
Defendant stated he was owed a salary due to his business
relationship with Kingfisher Airlines.[Id.
¶¶ 5-6]. On the same day, Defendant accepted the
$500, 000. [Id. ¶ 7].
to Plaintiff, in September 2016, upon a “review of
accounting books and auditing, ” he learned that the
transfer was an “error.” [Id.
¶¶ 9-10]. Plaintiff claims that he notified
Defendant of the error and requested that Defendant return
the funds. [Id. ¶ 11]. Defendant has not paid
any money to Plaintiff, and in July 2017, Plaintiff sent
Defendant a Notice of Civil Theft Demand. [Id.
¶¶ 17-18]. Plaintiff filed suit in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida, on November 2, 2017 [ECF No. 1-1], and the
case was removed to this Court on the basis of diversity
jurisdiction on December 6, 2017. [ECF No. 1].
order for a complaint to withstand a motion to dismiss, it
“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)). A claim is considered facially
plausible when the court is able to draw a reasonable
inference that the defendant is liable based on the factual
content pleaded by the plaintiff. Id. The
“plausibility standard” requires there be
“more than sheer possibility that a defendant acted
unlawfully.” Id. A determination of a
claim's plausibility “is a context-specific task
that requires the reviewing court to draw on its judicial
experiences and common sense.” Id. at 679. It
is not enough for a complaint to recite the statutory
elements of a cause of action. Id. at 678.
Allegations within a complaint must be more than conclusory
and must have a factual basis. Id. at 679.
a motion to dismiss, courts accept the allegations as
presented in the complaint as true and view those facts
“in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
The issue before the Court is “‘not whether
[Plaintiff] will ultimately prevail' . . . but whether
his complaint [is] sufficient to cross the federal
court's threshold.” Skinner v. Switzer,
562 U.S. 521, 529-30 (2011) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
prevail on an action for civil theft, the plaintiff must
prove that the defendant (1) knowingly; (2) obtained or used,
or endeavored to obtain or use, the plaintiff's property;
(3) with felonious intent; (4) to deprive the plaintiff of
its right to or a benefit from the property or appropriate
the property to the defendant's own use or to the use of
a person not entitled to use the property.”
Howard v. Murray, 184 So.3d 1155, 1167 n.24 (Fla.
1st DCA 2015).
Plaintiff fails to allege that Defendant acted with felonious
intent. Although Plaintiff alleges that he notified Defendant
that the transfer of funds was an error, that Defendant has
refused to return the money, and that the purpose of the
transfer was later learned to be improper [ECF No. 12,
¶¶ 8, 16-19], there is a lack of clarity as to the
circumstances surrounding the transfer. Thus, Plaintiff's
Amended Complaint lacks factual allegations from which the
court could “draw [a] reasonable inference” that
Defendant is liable for civil theft. See Iqbal, 556
U.S. at 678. Accordingly, the Motion is granted as to Count