United States District Court, M.D. Florida, Tampa Division
DANIEL S. BICZ, Plaintiff,
COLLIERS INTERNATIONAL DETROIT, LLC; PATRICH JETT; RANDALL BOOK; CHRIS L. KIRWIN; DONALD DAY; JAY G. YASSO; and ELMER ROLLER, Defendants.
REPORT AND RECOMMENDATION
HONORABLE CHRISTOPHER P. TUTTE UNITED STATES MAGISTRATE JUDGE
cause is before me on referral for consideration of motions
to dismiss filed by Defendants Chris Kirwin, Patrich Jett,
Randall Book, and Colliers International Detroit, LLC
(Colliers). (Docs. 93, 97, 125). Plaintiff Daniel Bicz
opposes these motions. (Docs. 101, 121, 128). For the reasons
discussed below, I respectfully recommend that Kirwin's
motion to dismiss be granted and that Jett, Book, and
Colliers's motions to dismiss be granted in part and
denied in part.
Florida resident and longtime real estate developer,
initiated this action in August 2017 asserting various claims
arising from a failed business venture involving the
attempted purchase and repurposing of the Ford Motor
Company's shuttered manufacturing plant in London,
Ontario, Canada (the Ontario plant). The Defendants'
motions to dismiss relate to Bicz's third amended
complaint (Doc. 91), which he filed after the Court dismissed
his second amended complaint as a shotgun pleading (Doc. 88).
The Defendants in the suit consist of Kirwin, Jett, Book, and
Colliers, as well as Donald Day, Jay Yasso, and Elmer Roller.
to the allegations in the third amended complaint, the
genesis of Bicz's involvement with the Defendants dates
back to 2011. (Doc. 91 at 4). It was then that Bicz first met
Day, who was the President of AE Equities Group. Id.
At the time, Bicz was looking “to use his experience in
real estate development to craft a development method for
commercial real estate” that was “dedicated to
green energy solutions.” Id. at 3.
the course of the next year, Day-along with the other
Defendants- convinced Bicz they could acquire the Ontario
plant as well as several other facilities, which could then
be used as “a platform for [Bicz] to shift resources to
Day in order to fulfill [Bicz's] advanced energy plan and
vision.” Id. at 4. Day told Bicz that
Colliers, an international real estate development,
operation, and brokerage firm, was playing an active role in
the project. Id. at 5.
January 2012, Day provided Bicz with a copy of a
ninety-seven-page proposal that Colliers had presented to
Ford Motor Company in Michigan two months earlier (the
Colliers Presentation) (Doc. 91-1) regarding a $274-million
package to acquire the Ontario plant (Doc. 91 at 5). That
proposal was presented to Ford by Jett, Book, and Kirwin, all
of whom were employed by Colliers. Id. According to
Bicz, the proposal contained “bold claims of Day's
financial strength, his ownership of a variety of companies,
his investments into energy technology, and his professional
prowess as a partner and real estate developer.”
the Colliers Presentation, Day offered Bicz the opportunity
to become a partner in the Ontario plant project and, when
Bicz agreed, the two formed a company, AE Power Group, to
achieve that goal. Id. at 6. Bicz then began
assisting Day in pursuing financing options, exploring
regulatory issues, and analyzing various development
challenges. Id. For his part, Day introduced Bicz to
Day's attorneys, Yasso and Roller, who arranged and
participated in meetings with Bicz and others about the plan
to repurpose other outdated facilities. Id. at 7-9.
ultimately discovered that the plan was a fraud, but only
after he had expended considerable time, money, and effort on
the project. Id. at 15-17. For these alleged harms,
Bicz seeks compensatory and punitive damages, among other
relief. Id. at 24, 31, and 37.
third amended complaint contains thirteen counts, the first
four of which are asserted against Kirwin, Jett, Book, and
Colliers. (Doc. 91 at 18-43). These counts allege
state-law claims for Fraudulent Misrepresentation (Count 1);
Negligent Misrepresentation (Count 2); Fraud in the
Inducement (Count 3); and Breach of Fiduciary Duty (Count 4).
of the instant motions, the Defendants seek dismissal of all
of these claims, as well as Bicz's requests for punitive
Jett and Book's Motion to Dismiss (Doc. 97) and
Colliers's Motion to Dismiss (Doc. 125)
Book, and Colliers's motions raise similar pleading
deficiencies and are therefore addressed together. (Docs. 97,
125). In short, these Defendants argue: (a) Count 4 is
subject to dismissal pursuant Rule 12(b)(6) of the Federal
Rules of Civil Procedure because it fails to allege the
existence of a fiduciary relationship between the Defendants
and Bicz; (b) Counts 1 through 3 are subject to dismissal
because they fail to plead fraud with particularity as
required by Rule 9(b); and (c) Bicz's demands for
punitive damages are subject to dismissal because they do not
satisfy the pleading requirements imposed under Florida
Id. Bicz disputes each of these contentions. (Docs.
Count 4 - Breach of Fiduciary Duty
12(b)(6) permits a defendant to seek dismissal of a cause of
action for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). To avoid dismissal under this
rule, a “‘complaint must contain sufficient
factual matter . . . to state a claim to relief that is
plausible on its face.'” Gates v. Khokhar,
884 F.3d 1290, 1296 (11th Cir. 2018) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)), petition for cert.
denied, 139 S.Ct. 807 (Jan. 7, 2019). “A complaint
is plausible on its face when it contains sufficient facts to
support a reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.
2013) (quoting Iqbal, 556 U.S. at 678). In
evaluating a plaintiff's complaint under this standard,
the court must accept all well-pleaded factual allegations as
true and construe them in the light most favorable to the
plaintiff. Jara v. Nunez, 878 F.3d 1268, 1271-72
(11th Cir. 2018) (citation omitted). The court, however,
“afford[s] no presumption of truth to legal conclusions
and recitations of the basic elements of a cause of
action.” Franklin, 738 F.3d at 1248 n.1
(citations omitted); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
noted above, Jett, Book, and Colliers move to dismiss the
breach of fiduciary duty claim alleged in Count 4. (Docs. 97,
125). To plead a cause of action for breach of fiduciary duty
under Florida law, a plaintiff must aver: (1) “the
existence of a fiduciary duty, ” and (2) “the
breach of that duty such that it is the proximate cause of
the plaintiff's damages.” Gracey v. Eaker,
837 So.2d 348, 353 (Fla. 2002).
fiduciary duty may be expressly or impliedly created.
Id. at 354; Capital Bank v. MVB, Inc., 644
So.2d 515, 518 (Fla. Dist. Ct. App. 1994); Neelu
Aviation, LLC v. Boca Aircraft Maint., LLC, 2019 WL
3532024, at *4 (S.D. Fla. Aug. 2, 2019). Those fiduciary
duties “expressly created are either by contract, such
as principal/agent or attorney/client, or through legal
proceedings, such as trustee/beneficiary and
guardian/ward.” Capital Bank, 644 So.2d at 518
(citation omitted). Implied fiduciary relationships, on the
other hand, “are premised upon the specific factual
situation surrounding the transaction and the relationship of
the parties.” Id. (citation omitted).
there is no finite, defined list of fiduciary relationships,
the Florida Supreme Court has described such relationships as
The relation and duties involved need not be legal; they may
be moral, social, domestic or personal. If a relation of
trust and confidence exists between the parties (that is to
say, where confidence is reposed by one party and a trust
accepted by the other, or where confidence has been acquired
and abused), that is sufficient as a predicate for
relief. The origin of the confidence is immaterial.
Doe v. Evans, 814 So.2d 370, 374 (Fla. 2002)
(quoting Quinn v. Phipps, 113 So. 419, 421 (1927)).
the fact-specific nature of this inquiry, many courts have
found that “‘a claim alleging the existence of a
fiduciary duty usually is not subject to dismissal under Rule
12(b)(6)' because it ‘is often impossible to say
that [a] plaintiff will be unable to prove the existence of a
fiduciary relationship.'” Hansen v. Premier
Aviation Holdings, LLC, 2017 WL 8893119, at *4
(S.D. Fla. Nov. 20, 2017) (quoting Reuss v. Orlando
Health, Inc., 140 F.Supp.3d 1299, 1304 (M.D. Fla.
2015)); see also Taylor Woodrow Homes Fla., Inc. v.
4/46-A Corp., 850 So.2d 536, 540 (Fla. Dist. Ct. App.
2003) (per curiam) (“[T]he issue whether a fiduciary
relationship exists will generally depend upon the specific
facts and circumstances surrounding the relationship of the
parties and the transaction in which they are
said, “[t]o establish a fiduciary relationship, a party
must allege some degree of dependency on one side and some
degree of undertaking on the other side to advise, counsel,
and protect the weaker party.” Watkins v. NCNB
Nat'l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla.
Dist. Ct. App. 1993) (quotation and citation omitted)
(affirming dismissal of counterclaim for breach of fiduciary
duty), review denied, 634 So.2d 629 (Fla. 1994);
see also Willis v. Fowler, 102 Fla. 35, 51-52 (Fla.
1931); Quinn, 113 So. at 421. “The analogue to
this rule [ ] is that the mere fact that one party places its
trust in the other does not create a fiduciary relationship
absent some manifestation of recognition, acceptance, or
undertaking of fiduciary duties by . . . the other
party.” Scolieri v. John Hancock Life Ins. Co.
(U.S.A.), 2017 WL 700215, at *4 (M.D. Fla. Feb. 22,
2017) (granting dismissal of breach of fiduciary duty claim)
(citations omitted); see also Harris v. Zeuch, 103
Fla. 183, 189 (1931) (finding failure to plead fiduciary
relationship where claimant reposed confidence in the
opposing party, but there was nothing to show that the
opposing party “recognized or accepted any trust
reposed in himself . . . relating to the said
the case law in Florida makes clear that, “[i]n an
arms-length transaction, there is no duty on either party to
act for the benefit or protection of the other party nor to
disclose facts that the other party could by its own due
diligence have discovered.” Barnett Bank of W. Fla.
v. Hooper, 498 So.2d 923, 927 (Fla. 1986) (citations
omitted); see also Herons Cove Enterprises, LLC v. Epic
Consulting, Inc., 2008 WL 2915066, at *6 (M.D. Fla. July
25, 2008) (granting dismissal of breach of fiduciary duty