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Bicz v. Colliers International Detroit, LLC

United States District Court, M.D. Florida, Tampa Division

September 10, 2019

DANIEL S. BICZ, Plaintiff,
v.
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

         This 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.

         I.

         Bicz, a 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.

         According 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.

         Over 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.

         In 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.” Id.

         Following 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.

         Bicz 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.

         Bicz's third amended complaint contains thirteen counts, the first four of which are asserted against Kirwin, Jett, Book, and Colliers.[1] (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). Id.

         By way of the instant motions, the Defendants seek dismissal of all of these claims, as well as Bicz's requests for punitive damages.

         II. Jett and Book's Motion to Dismiss (Doc. 97) and Colliers's Motion to Dismiss (Doc. 125)

         Jett, 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 law.[2] Id. Bicz disputes each of these contentions. (Docs. 121, 128).

         A. Count 4 - Breach of Fiduciary Duty

         Rule 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).

         As 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).

         A 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).

         While there is no finite, defined list of fiduciary relationships, the Florida Supreme Court has described such relationships as follows:

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)).

         Given 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 involved.”).

         That 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 transaction”).

         Moreover, 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 ...


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