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Malhotra v. Aggarwal

United States District Court, S.D. Florida

June 15, 2018

SUSHIL MALHOTRA, Plaintiff,
v.
SANJAY AGGARWAL, Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS 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.

         I. BACKGROUND

         In the 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.[1][Id. ¶¶ 5-6]. On the same day, Defendant accepted the $500, 000. [Id. ¶ 7].

         According 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].

         II. LEGAL STANDARD

         In 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.

         Reviewing 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)).

         III. DISCUSSION

         A. Civil Theft

         “To 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).

         Here, 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 I.

         B. ...


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