United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiff's/Counter-Defendant's
Motion to Dismiss (Dkt. 127), which
Defendant/Counter-Plaintiff opposes (Dkt. 128). Upon
consideration, the motion is GRANTED in
part and DENIED in
Jade International, Ltd. brought this action alleging that
Ultroid, LLC, Ultroid Marketing Development Corp., and
Ultroid Technologies, Inc. (collectively,
“Ultroid”), breached two agreements between the
parties. See (Dkts. 1, 1-1, 1-2). Ultroid
counterclaimed, alleging a violation of the Florida Deceptive
and Unfair Trade Practices Act, violations of the federal and
Florida Racketeering Influenced and Corrupt Organization
Acts, fraud in the inducement, conspiracy to defraud, and
breach of contract. (Dkt. 39). Dragon Jade moves to dismiss
seven of the eight claims asserted in Ultroid's Second
counterclaim should contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). This rule does not
require detailed factual allegations, but it demands more
than an unadorned, conclusory accusation of harm.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must “plead all facts establishing an
entitlement to relief with more than ‘labels and
conclusions' or a ‘formulaic recitation of the
elements of a cause of action.'” Resnick v.
AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). A court's scope of review on a motion to
dismiss must be limited to the four corners of the complaint.
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000).
complaint must contain enough facts to make a claim for
relief plausible on its face.” Resnick, 693
F.3d at 1324-25. This occurs “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (internal
citation omitted). The plausibility standard “asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. Therefore, “[w]here a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Twombly, 550 U.S. at 557).
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
not shown that the pleader is entitled to relief.
Id. at 679. In each instance, this determination is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. (internal citation omitted).
it is axiomatic that the allegations of the Second Amended
Counterclaims must be accepted for purposes of Dragon
Jade's motion, this is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Id. at 679. And all reasonable
inferences must be drawn in Ultroid's favor. St.
George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.
Jade moves to dismiss seven of the eight counterclaims
brought by Ultroid, contending that the Second Amended
Counterclaims is a shotgun pleading, or in the alternative,
that Ultroid's factual allegations are insufficient and
its conclusions are not supported by factual allegations.
(Dkt. 127). For the reasons set out below, I agree with the
contentions as they relate to Ultroid's federal and state
RICO claims, as well as Ultroid's rescission claim based
on a lack of shareholder approval (Count IV).
Jade moves to dismiss the entire Second Amended Counterclaims
as an impermissible shotgun pleading. Shotgun pleadings make
it “virtually impossible to know which allegations of
fact [were] intended to support which claim(s) for
relief.” Anderson v. Dist. Bd. Of Trs. Of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). If
a pleading fails “to give defendants adequate notice of
the claims against them and of the grounds upon which each
claim rests, ” the pleading violates the “shotgun
pleading” rule. Weiland v. Palm Beach Cnty.
Sheriff's Office, 792 F.3d 1313, 1323 (11th Cir.
2015). Weiland identifies four categories of shotgun
pleadings, two of which Dragon Jade contends Ultroid's
Second Amended Counterclaims fall within. Id. at
shotgun pleading “incorporat[es] . . . preceding
paragraphs where a complaint ‘contains several counts,
each one incorporating by reference the allegations of its
predecessors . . ., leading to a situation where [all but the
first count] contain irrelevant factual allegations and legal
conclusions.” Id. at 1321 (quoting
Strategic Income Fund, L.L.C. v. Spear Leeds &
Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002)).
Dragon Jade argues that Ultroid “includ[es] multiple
counts that adopt all the allegations of the preceding
counts.” (Dkt. 127 at p. 5). But that is not the case.
Counts I and VIII do not incorporate any allegations from the
preceding counts, but rather incorporate the general
allegations. And Counts II through VII justifiably
incorporate the general allegations and specific paragraphs
from its FDUTPA claim as the alleged conspiracy and fraud
claims includ deceptive and unfair trade practices.
a shotgun pleading is “replete with conclusory, vague,
and immaterial facts not obviously connected to any
particular cause of action.” Weiland, 792 F.3d
at 1322. Dragon Jade argues that Ultroid “failed to
refine their allegations or identify which allegations are
related to and support each claim.” (Dkt. 127 at p. 5).
Dragon Jade's contentions are without merit. Drawing all
reasonable inferences in Ultroid's favor, the allegations
that pertain to each count are not so unrelated as to be
the allegations in the Second Amended Counterclaims do not
make it “virtually impossible to know which allegations
of fact are intended to support which claim(s) for
relief.” Anderson, 77 F.3d at 366. Within its
four corners, the counterclaims place Dragon Jade on
sufficient notice of the allegations against it.
Weiland, 792 F.3d at 1325 (citing Anderson,
77 F.3d at 366).
FDUTPA (Counterclaim I)
Count I, Ultroid alleges that Dragon Jade violated Fla. Stat.
§ 501.204, Florida's Deceptive and Unfair Trade
Practice Act (“FDUTPA”). Dragon Jade argues that
Ultroid's claim fails because it does not sufficiently
allege actual damages.
elements of a FDUTPA claim for damages are: “(1) a
deceptive act or unfair practice; (2) causation; and (3)
actual damages.” KC Leisure, Inc. v. Haber,
972 So.2d 1069, 1073 (Fla. 5th DCA 2008). Actual damages are
“the difference in the market value of the product or
service in the condition in which it was delivered and its
market value in the condition in which it should have been
delivered according to the contract of the parties.”
Smith v. 2001 S. Dixie Highway, Inc., 872 So.2d 992,
994 (Fla. 4th DCA 2004) (citation and internal quotation
marks omitted). Actual damages “do not include
‘actual consequential' damages”,
id., “nominal damages, speculative losses, or
compensation for subjective feelings of
disappointment.” Rollins, Inc. v. Butland, 951
So.2d 860, 873 (Fla. 2d DCA 2006). A non-consumer FDUTPA
claim may therefore survive a motion to dismiss if actual,
non-speculative damages are sufficiently
alleged. See Economakis v. Butler &
Hosch, P.A., No. 2:13-CV-832-FTM-38DN, 2014 WL 820623,
at *2 (M.D. Fla. Mar. 3, 2014).
liberally, the paragraph alleging that “the Ultroid
Companies have been aggrieved and damaged in that they did
not end up with the remediated product that they expected to
have and their shareholders have been robbed of their
investment, ” and “not to mention the possible
loss of the Ultroid Companies' Product and Assets for
tens of millions of dollars below their worth, ” is
sufficient to support actual damages. (Dkt. 126 at
¶123); see also Collins v. DaimlerChrysler
Corp., 894 So.2d 988, 990 (Fla. 5th DCA 2004)
(“Florida courts have allowed diminished value to serve
as ‘actual damages' recoverable in a FDUTPA
claim”). Accordingly, Ultroid's allegations
sufficiently allege the elements of a FDUTPA claim.
RICO Claims ...