BH GROUP USA, LLC v. UNITED WINE INC.

MOTION TO DISMISS 29 Answer to Complaint, Counterclaim FOR FAILURE TO STATE A CLAIM

S.D. Fla.March 27, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:18-CV-81555-RLR BH GROUP USA, LLC, Plaintiff, vs. UNITED WINE INC., Defendants / PLAINTIFF BH GROUP USA, LLC’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM AND INCORPORATED MEMORANDUM OF LAW Plaintiff, BH Group, LLC (“BH GROUP” or “Plaintiff”), by and through its undersigned counsel, hereby files its Motion to Dismiss and Incorporated Memorandum of Law in response to Defendant United Wine Inc.’s (“United Wine” or “Defendant”) Counterclaim and states as follows: INTRODUCTION Defendant filed a seven-Count Counterclaim alleging (1) a violation of Florida’s Deceptive and Unfair Trade Practices Action, (2) Unjust Enrichment, (3) Unfair Competition; (4) purported violations of Federal Antitrust Laws; (5) breach of contract; (6) fraud; and (7) defamation. See Counterclaim, ¶¶1-7. However, Defendant’s Counterclaim falls woefully short of pleading requirements necessary to withstand dismissal. It what can only be dubbed a “shot gun” pleading, Defendant’s Counterclaim must be dismissed for failure to plead any facts whatsoever to support its claims and, thus, Defendant has failed to state causes of action as a matter of law. ARGUMENT I. COUNTS I THROUGH VII SHOULD BE DISMISSED FOR FAILURE TO SATISFY THE PLEADING REQUIREMENTS OF RULE 8. To survive a motion to dismiss, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) Case 9:18-cv-81555-RLR Document 30 Entered on FLSD Docket 03/27/2019 Page 1 of 4 2 (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)). While a court must accept a complaint’s well-pled factual allegations as true, “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Jackson v. Bellsouth Communications, 72 F.3d 1250, 1262-63 (11th Cir. 2004). A complaint must contain allegations supporting “all the material elements necessary to sustain a recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001). While the Court must accept as true all well-pled allegations in the complaint (see, e.g., Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)), no such presumption attaches to “conclusory allegations and unwarranted deductions of fact.” S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996). A plaintiff is required to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678. Here, Counts I through VII fail to contain any factual statements in support of the claims; rather, Defendant merely incorporates legal conclusions throughout each claim. Defendant’s failure to allege facts supporting the material elements of the claims necessitates dismissal of Counts I through VII. See Jackson, 72 F.3d at 1262-63; Hill, 321 F.3d at 1335; Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. II. COUNT VI SHOULD ALSO BE DISMISSED FOR FAILURE TO MEET THE HEIGHTENED PLEADING REQUIREMENTS OF RULE 9(B). In addition to the threshold pleading standard of Rule 8(a)(2), fraud allegations must also meet the heightened pleading requirements set forth in Rule 9(b). To comply with Rule 9(b), a plaintiff must allege with particularity: (1) the precise statements, documents, misrepresentations or omissions made; (2) the time, place, and person responsible for making the statement; (3) the content of such statements and the way these statements misled the plaintiff; and (4) what the defendant obtained by Case 9:18-cv-81555-RLR Document 30 Entered on FLSD Docket 03/27/2019 Page 2 of 4 3 the alleged fraud. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)). The purpose of these heightened pleading requirements is to alert defendants “to the precise misconduct with which they are charged and [protect] defendants against spurious charges of immoral and fraudulent behavior.” Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Weighed against these standards, Count VI falls woefully short. Defendant fails to allege even a single statement, document, or representation made by Plaintiff that was false, much less allege with particularity who made such a representation, the content and form of the representation, or when and how it was made. Indeed, the Defendant’s Counterclaim fails to allege any facts sufficient to state a claim. Thus, Count VI should also be dismissed under Rule 9(b) for failing to state a claim for fraud. CONCLUSION WHEREFORE, Plaintiff, BH Group, respectfully requests this Court to enter an Order dismissing Defendant’s Counterclaim in its entirety, and further relief this Court deems just and appropriate. Respectfully submitted, GREENBERG TRAURIG, P.A. By: /s/ Andrea Shwayri Ferraro Dawn I. Giebler-Millner, Esq. Florida Bar No. 856576 GREENBERG TRAURIG, P.A. 450 South Orange Avenue, Suite 650 Orlando, Florida 32801 Telephone: (407) 420-1000 Email: gieblerd@gtlaw.com Secondary: culpepperd@gtlaw.com Secondary: FLService@gtlaw.com Case 9:18-cv-81555-RLR Document 30 Entered on FLSD Docket 03/27/2019 Page 3 of 4 4 Andrea Shwayri Ferraro, Esq. Florida Bar No. 51566 777 S. Flagler Drive, Suite 300 East West Palm Beach, FL 33401 Telephone: (561) 650.7993 Email: ferraroa@gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 27, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. Joshua M. Liszt, Esq. LISZT LAW, P.A. 1095 Broken Sound Parkway NW, Suite 100 Boca Raton, FL 33487 josh@GLlawcenter.com Case 9:18-cv-81555-RLR Document 30 Entered on FLSD Docket 03/27/2019 Page 4 of 4