United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Boca
Aircraft Maintenance, LLC's Motion to Dismiss, ECF No.
, Defendant Skurka Aerospace, Inc.'s Motion to
Dismiss for Lack of Personal Jurisdiction relating to the
Amended Complaint, ECF No. , and Defendant Skurka
Aerospace, Inc.'s Motion to Dismiss for Lack of Personal
Jurisdiction relating to Defendant Advent Aircraft Systems,
Inc.'s Crossclaim, ECF No. . The Court has reviewed
the motions, all supporting and opposing submissions, the
record and applicable law, and is otherwise fully advised.
For the reasons that follow, Defendant Boca Aircraft
Maintenance, LLC's Motion to Dismiss, ECF No. , is
denied in part and granted in part, and Defendant Skurka
Aerospace, Inc.'s Motions to Dismiss, ECF Nos.  and
, are granted.
April 16, 2019, Plaintiff Neelu Aviation
(“Plaintiff”) filed an Amended Complaint against
Boca Aircraft Maintenance, LLC (“Boca Aircraft”);
Skurka Aerospace, Inc. (“Skurka”); Advent
Aircraft Systems, Inc. (“Advent”); and One
Aviation Corp. (“One Aviation”). ECF No. .
is the owner of an Eclipse 500 Jet (“Jet”). One
Aviation is a company that services Eclipse jets.
Id. at ¶ 18. Boca Aircraft is one of One
Aviation's service maintenance facilities. Id.
On or around June 26, 2018, Plaintiff hired Boca Aircraft to
perform a multi-point 300-hour annual inspection of
Plaintiff's Jet. Id. at ¶ 9. Plaintiff
alleges that, upon completion of the inspection, Boca
Aircraft cleared the Jet as “flight ready, ” when
it was not. Id. at ¶¶ 9, 11. Boca Aircraft
also worked on the Jet's anti-lock brake system.
Id. at ¶ 10. After the inspection, Plaintiff
flew the Jet from Boca Aircraft's facility in Boca Raton,
Florida and, due to a generator failure, was required to make
an emergency landing in Jacksonville, Florida. Id.
at ¶ 11. The Jet was then flown back to Boca Raton
Airport for testing and, upon landing, the anti-lock brakes
failed causing damage to the Jet. Id. at ¶ 12.
alleges that it acted in reliance on Defendant One
Aviation's representation that Defendant Boca
Aircraft's maintenance facility would service and repair
the Jet. Id. at ¶ 64. Due to Plaintiff's
lack of experience in Jet maintenance it alleges to have
deferred and detrimentally relied on the advice of Defendant
Boca Aircraft, which ultimately caused damages, by clearing
it to fly when the Jet was not flight ready and by damaging
the anti-lock brakes during the multipoint 300-hour
inspection. Id. at ¶¶ 25-26. The Jet took
approximately 75 days to repair, during which time, Plaintiff
claims it sustained lost profits. Id. at ¶ 14.
The Jet diminished in value due to the damage report history.
Id. at ¶ 15.
Jet's generators (“Subject Generators”) and
brake system were manufactured by Skurka and Advent,
respectively. Id. at ¶¶ 56, 66. Although
Defendant Skurka warranted that the Subject Generators were
reasonably fit for their intended use, they failed while
being used for their intended purpose, requiring Plaintiff to
make an emergency landing and causing injury to Plaintiff.
Id. at ¶¶ 57-58. Although Defendant Advent
warranted that the brake system was reasonably fit for its
intended use, the product failed while being used for its
intended purpose, causing injury to Plaintiff upon landing.
Id. at ¶¶ 67-68.
grounds for jurisdiction, Plaintiff states that Defendant
Boca Aircraft is a Florida corporation with its principal
place of business in Palm Beach County, Florida; Defendant
One Aviation is a New Mexico corporation that does business
in Palm Beach County; Defendant Skurka is a Delaware
corporation that does business in Palm Beach County; and
Defendant Advent is a Delaware corporation that does business
m Palm Beach County. Id. at ¶¶ 3-6.
asserts claims for Breach of Fiduciary Duty (Count I),
violation of Florida's Deceptive and Unfair Trade
Practices Act (FDUTPA) (Count II), Negligent
Misrepresentation (Count III), Negligence (Count IV), and
Conversion (Count V) against Defendant Boca Aircraft.
Id. at ¶¶ 20-54. Plaintiff asserts a claim
for Breach of Implied Warranty of Merchantability (Count VI)
against Defendant Skurka, Id. at ¶¶ 55-59,
a claim for Fraud in the Inducement (Count VII) against
Defendant One Aviation, Id. at ¶¶ 60-64,
and a claim for Breach of Implied Warranty of Merchantability
against Defendant Advent (Count VIII), Id. at
Boca Aircraft and Skurka filed motions to dismiss the claims
against them for independent bases. Defendant Boca Aircraft
moves to dismiss Counts I-V for failure to state a claim. ECF
No. . Defendant Skurka moves to dismiss the action
against it entirely for lack of personal jurisdiction. ECF
20, 2019, Defendant Advent filed an Answer to the Amended
Complaint and two Crossclaims. ECF No. . Defendant Advent
asserts a First Crossclaim for Negligence against Defendant
Boca Aircraft. Id. at ¶¶ 97-104. Defendant
Advent asserts its Second Crossclaim for Strict Liability
against Defendant Skurka. Id. at ¶¶
105-1114. Defendant Boca Aircraft has filed an Answer to
Advent's Crossclaim. ECF No. . Defendant Skurka has
filed a Motion to Dismiss Advent's Crossclaim for Lack of
Personal Jurisdiction, ECF No. , and a Motion to Dismiss
for Failure to State a Claim. ECF No. .
Order addresses Defendant Boca Aircraft's Motion to
Dismiss the Amended Complaint and Defendant Skurka's
Motion to Dismiss the Amended Complaint for Lack of Personal
Jurisdiction, each in turn.
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint
“does not need detailed factual allegations, ” it
must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, (2007); see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s
pleading standard “demands more than an unadorned,
Additionally, a complaint may not rest on “‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These pleading elements are required for a party to
survive a 12(b)(6) motion, which requests dismissal for
“failure to state a claim upon which relief can be
granted.” Fed. R. Civ. Pro. 12(b)(6).
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians
of Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this rule does not apply to legal
conclusions; courts “are not bound to accept as true a
legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555; see Iqbal, 556
U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff's
Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover,
“courts may infer from the factual allegations in the
complaint ‘obvious alternative explanations,' which
suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Am. Dental
Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010) (quoting Iqbal, 556 U.S. at 682).
a motion to dismiss for lack of personal jurisdiction, a
court must accept the facts alleged in plaintiff's
complaint as true, to the extent that they are not
contradicted by defendant's affidavits.” Kim v.
Keenan, 71 F.Supp.2d 1228, 1231 (M.D. Fla. 1999) (citing
Cable/Home Commc'n Corp. v. Network Productions,
Inc., 902 F.2d 829, 855 (11th Cir. 1990)). “Once
the plaintiff pleads sufficient material facts to form a
basis for in personam jurisdiction, the burden shifts to the
defendant to challenge plaintiff's allegations by
affidavits or other pleadings.” Carmouche v.
Carnival Corp., 36 F.Supp.3d 1335, 1338 (S.D. Fla.
2014), aff'd, sub nom, Carmouche v. Tamborlee Mgmt.,
Inc., 789 F.3d 1201 (11th Cir. June 15, 2015). “If
the defendant provides sufficient evidence, ‘the burden
shifts to the plaintiff to prove jurisdiction by affidavits,
testimony or documents.'” MPS Entm't, LLC
v. Headrush Apparel, Inc., 2013 U.S. Dist. LEXIS 141307,
2013 WL 5446543, at *2 (S.D. Fla. Sept. 30, 2013) (quoting
Thomas v. Brown, 504 Fed. App'x 845, 847 (11th
Defendant Boca Aircraft's Motion
Motion, Defendant Boca Aircraft argues that Counts I-V of the
Amended Complaint must be dismissed due to Plaintiff's
failure to allege the necessary elements of each offense. ECF
No. . Plaintiff responds that the allegations are
sufficient and Defendant has waived its right to seek
dismissal of Counts I, III, and IV (which were also asserted
in the original complaint) by failing to do so in its answer
to the original complaint. ECF No. . Plaintiff relies
upon Rule 12(b), which states “[a] motion asserting any
of [the Rule 12(b)] defenses must be made before pleading if
a responsive pleading is allowed.” Fed. R. Civ. Pro.
Court first dispenses with the Plaintiff's waiver
argument. The filing of an amended complaint
“supersedes any former pleadings” by a plaintiff
and becomes the operative pleading. Dresdner Bank AG v.
M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir.
2006); see Hoefling v. City of Miami, 811 F.3d 1271,
1277 (11th Cir. 2016); Varnes v. Glass Bottle Blowers
Asso., 674 F.2d 1365, 1370 n.6 (11th Cir. 1982);
Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241,
1243 (11th Cir. 2007). As such, when Plaintiff filed the
Amended Complaint, the first original complaint became a
“legal nullity.” Hoefling, 811 F.3d at
decision to answer or file a Rule 12 responsive motion to the
Amended Complaint, Defendant Boca Aircraft chose to file a
motion to dismiss. Defendant's Motion to Dismiss is
therefore procedurally proper and the Court considers the
merits of its arguments. Alternatively, Plaintiff argues that
Defendant's Motion to Dismiss should be denied as
Defendant offers no basis for its conclusory assertions that
Counts I-V fail. ECF No. . The Court will address each
count in turn.
Count I - Breach of Fiduciary Duty
elements of a claim for breach of fiduciary duty include: (1)
the existence of a fiduciary duty, and (2) the breach of that
duty such that it is the proximate cause of Plaintiff's
damages. See Gracey v. Eaker, 837 So.2d 348, 353
(Fla. 2002). Plaintiff is not required to prove the existence
of a fiduciary relationship but must allege that one exists
with sufficient plausibility. Twombly, 550 U.S. at
555. The Court must accept the plaintiff's allegations as
true and evaluate all plausible inferences in favor of the
Motion to Dismiss, Defendant Boca Aircraft first argues that
Count I for Breach of Fiduciary Duty should be dismissed
because Plaintiff has failed to allege the first element, the
existence of a fiduciary duty. ECF No. , at 2. Plaintiff
responds that its business relationship with Defendant Boca,
whereby Plaintiff would adhere to the guidance of Defendant
Boca Aircraft as an expert in the field, rose to the level of
a fiduciary duty. ECF No. , at 7.
and Defendant both rely on Gracey v. Eaker, 837
So.2d 348 (Fla. 2002) in support of their respective
positions. In Gracey, a husband and wife sued their
psychotherapist for breach of fiduciary duty, after the
psychotherapist divulged to each of them what the other had
said in confidence. Gracey, 837 So.2d at 350. As
Defendant Boca Aircraft correctly points out, the plaintiffs
in Gracey brought their claim for breach of
fiduciary duty under a statutorily established fiduciary
relationship. Id. at 351. Here, no such statutorily
established relationship exists. Defendant Boca Aircraft
further contends that the Amended Complaint lacks the facts
necessary to show an express or ...