United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS COUNT II OF THE THIRD
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant ASF
Holland, B.V.'s (“ASF” or
“Defendant”) Motion to Dismiss Count II of Fresh
Results, LLC's Third Amended Complaint, ECF No. 
(“Motion”). Plaintiff Fresh Results, LLC
(“Fresh Results” or “Plaintiff”)
filed a response, ECF No.  (“Response”), to
which ASF filed a reply, ECF No.  (“Reply”).
The Court has carefully considered the Motion, Response and
Reply, the record in this case and the applicable law, and is
otherwise fully advised. For the reasons that follow, the
Motion is denied.
facts in this case remain essentially
unchanged. According to the Third Amended Complaint
(“TAC”), Fresh Results is engaged in the business
of buying and selling wholesale quantities of produce in
interstate and foreign commerce. ECF No.  ¶ 5.
Plaintiff maintains direct business relationships with
growers and producers of produce, who seek to market and sell
their produce in interstate and foreign commerce.
Id. ¶ 6. Plaintiff had business relationships
with several growers located in South America at the time
period relevant to this case. Id. ¶ 7. As part
of its agreement with the growers, Plaintiff was hired to
identify prospective consignees/wholesalers, negotiate and
enter into consignment transactions with
wholesaler/consignees, provide administrative support
including arranging for overnight airfreight shipments,
manage relationships with consignees, and receive and process
payments from consignees. Id. ¶ 9.
a wholesaler located in Holland to which the berries at issue
in this case were consigned. Id. ¶ 12.
According to the TAC, Fresh Results and ASF entered into a
contractual relationship through which Fresh Results arranged
for numerous bulk shipments of berries sourced from the
growers in South America to ASF in Holland. Id.
¶¶ 22-23. As the shipments were sent on a
consignment basis, ASF would take custody and control of the
shipments upon arrival in Holland, and was obligated to
undertake efforts to sell the berries to its customers in
Europe. Id. ¶ 24. Out of the payments received
from its customers, ASF could deduct costs for inspecting,
sorting and re-packing the berries, and to take an eight
percent (8%) commission. Id. ¶ 25. ASF then
remitted payment of the net proceeds of sales to Fresh
relationship between Fresh Results and ASF lasted for two
berry seasons in 2015 and 2016. Id. ¶ 27. The
first season proceeded successfully, so Fresh Results
continued its relationship with ASF for the second season.
Id. ¶ 42. During the second season, Fresh
Results consigned berries in twenty-two (22) bulk shipments
to ASF between October 8, 2016 and November 8, 2016.
Id. ¶ 29. Prior to a shipment, ASF provided
Fresh Results with a reference price which represented the
anticipated net returns less ASF's commission and costs
for each shipment that would be paid to Fresh Results after
ASF's sales to one or more of its customers. Id.
¶ 30. Based upon the reference price and ASF's
ability to timely process and sell the requested volume of
berries, Fresh Results would decide in consultation with the
growers whether to make arrangements for the harvesting and
shipment of the requested volume of berries to ASF.
Id. ¶ 32. Fresh Results alleges further that
ASF knew that Fresh Results relied upon the reference prices
in order to decide whether to make a shipment of berries to
ASF. Id. ¶ 33.
arrival of the berries in Holland, it was ASF's
responsibility to break bulk, inspect the berries, and
prepare quality control (“QC”) reports and send
the QC reports to Fresh Results. Id. ¶ 35. ASF
also was responsible for sorting and re-packing the berries
to its customers' specifications, issuing pack reports,
and sending the pack reports to Fresh Results. Id.
¶ 36. The QC inspections were to take place within one
or two days after the arrival of shipments, and the sorting,
re-packing and delivery to ASF's customers should have
occurred within four days of arrival. Id. ¶ 38.
In reliance on the reference prices, QC reports and pack
reports, Fresh Results generated final invoices for each
shipment of berries, and upon payment by ASF of the net
returns, Fresh Results would pay the growers. Id.
to the TAC, prior to the second berry season, Ron Jongbloed,
a managing executive for ASF, assured Fresh Results that ASF
could handle any volume of shipments and encouraged Fresh
Results to consign all of its berries to ASF. Id.
¶¶ 14, 43. The first seven bulk shipments appeared
to go smoothly. Id. ¶ 44. However, by the time
of the seventh shipment, ASF became aware that the market had
changed, and that it would not be able to market or sell
berries for the prices it had been receiving. Id.
¶ 46. Fresh Results alleges that even so, ASF continued
to request shipments from Fresh Results, and induced Fresh
Results to continue shipments by giving reference prices that
ASF knew were false and were far in excess of what ASF would
be able to realize. Id. Based on ASF's
misrepresentations, Fresh Results arranged for an additional
fifteen (15) bulk shipments, which ASF reported eventually
selling for only a fraction of the represented reference
price. Id. ¶ 47. According to Fresh Results,
ASF continued making misrepresentations about reference
prices and inducing Fresh Results to make more shipments to
increase revenues in the face of a declining market.
Id. ¶ 61. As a result of ASF's actions,
Fresh Results estimates that it has incurred damages of at
least $798, 500.00.
TAC, Fresh Results asserts claims for breach of contract
(Count 1), fraudulent inducement (Count 2), and tortious
interference with business relationship (Count 3) against
ASF. In the Motion, ASF seeks dismissal of Fresh Results'
claim for fraudulent inducement.
9(b) provides that “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b).
“Rule 9(b) is satisfied if the complaint sets forth
‘(1) precisely what statements were made in what
documents or oral representations or what omissions were
made, and (2) the time and place of each such statement and
the person responsible for making (or, in the case of
omissions, not making) same, and (3) the content of such
statements and the manner in which they misled the plaintiff,
and (4) what the defendants obtained as a consequence of
fraud.'” Ziemba v. Cascade Int'l,
Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting
Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)). “The
particularity rule serves an important purpose in fraud
actions by alerting defendants to the precise misconduct with
which they are charged and protecting defendants against
spurious charges of immoral and fraudulent behavior.”
United States ex rel. Atkins v. McInteer, 470 F.3d
1350, 1359 (11th Cir. 2006) (quoting Durham v. Bus. Mgmt.
Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)) (internal
state a claim for fraud in the inducement under Florida law,
a party must allege a “(1) misrepresentation of a
material fact, (2) by someone who knew or should have known
of the statement's falsity, (3) with intent that the
representation would induce another to rely and act on it,
and (4) injury suffered in justifiable reliance on the
representation.” Florida Evergreen Foliage v. E.I.
Dupont Nemours & Co., 336 F.Supp.2d 1239, 1284 (S.D.
Fla. 2004). “Fraud in the inducement presents a special
situation where parties to a contract appear to negotiate
freely . . . but where in fact the ability of one party to
negotiate fair terms and make an informed decision is
undermined by the other party's fraudulent
behavior.” HTP, Ltd. v. Lineas Aereas
Costarricenses, S.A., 685 So.2d 1238, 1240 (Fla.1996)
(citation omitted). Through this lens, the Court considers