United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
Matter comes before the Court without a hearing on the
Defendant's (“NARS”) Motion to Dismiss (Doc.
8) and the Plaintiff's Response in Opposition (Doc. 19).
Plaintiff filed its Complaint on February 14, 2018. Doc. 1.
Count I alleges breach of Contract against NARS, Count II
alleges negligence against NARS, and Count III alleges
Negligent Misrepresentation against NARS. On March 9, 2018,
NARS filed the Motion to Dismiss. Doc. 8. On April 5, 2018,
the Plaintiff filed its Response in Opposition. Doc. 19.
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“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).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.'
” U.S. v. Baxter Intern., Inc., 345 F.3d 866,
880 (11th Cir. 2003) (citing Fed.R.Civ.P. 8(a)). This is a
liberal pleading requirement, one that does not require a
plaintiff to plead with particularity every element of a
cause of action. Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001). However, a
plaintiff's obligation to provide the grounds for his or
her entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 554-555 (2007). The
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level, ”
id. at 555, and cross “the line from
conceivable to plausible.” Ashcroft v. Iqbal,
556 U.S. 662, 680 (2009).
first argues that Oakwood is a non-party to the subject
contract and, as such, lacks standing to sue for Counts I,
II, and III. Doc. 8 at 1. According to the allegations in the
Complaint, Oakwood is a successor corporation that is the
surviving entity to a merger, not an assignee. See Corp.
Exp. Office Prod., Inc. v. Phillips, 847 So.2d 406, 414
(Fla. 2003) (explaining that no assignment was necessary
“because in a merger, the two corporations in essence
unite into a single corporate existence”). Taking
Oakwood's allegations as true, Oakwood has standing to
sue for Breach of Contract, Negligence, and Negligent
NARS argues that the Court should dismiss the complaint
because “NARS was contractually indemnified from any
claims by Oakwood's predecessor.” Doc. 8 at 1. The
indemnification provision in the contract applies to third
party claims, and does not shield NARS from a breach of
contract claim by the other contracting party. NARS's
contention is without merit and is rejected by the Court.
NARS argues that Oakwood's claim for negligent
misrepresentation was insufficiently pled. Doc. 8 at 1. To
recover on a claim of negligent misrepresentation, a
plaintiff must establish: (1) a misrepresentation of a
material fact; (2) lack of knowledge by the representor as to
the truth or falsity of the representation, or circumstances
under which he ought to have known of its falsity; (3) intent
by the representor that the representation induce another to
act on it; and (4) injury to the plaintiff as a result of
acting in justifiable reliance on the misrepresentation.
Postel Indus., Inc. v. Abrams Grp. Const., L.L.C., No.
6:11-cv-1179-ORL-28, 2012 WL 4194660, at *2 (M.D. Fla. Sept.
19, 2012). Under Florida law, negligent misrepresentation is
considered tantamount to actual fraud. Ostreyko v. B.C.
Morton Organization, Inc., 310 So.2d 316, 318 (Fla. 3d
DCA 1975). As such, the stricter pleading requirements of
Fed.R.Civ.P. 9(b) apply to the negligent misrepresentation
claim. Postel Indus., Inc., 2012 ...