Fentriss v. Gateway Bank Fsb et alMOTION to dismiss for failure to state a claimM.D. Fla.February 3, 20171 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LAURENCE FENTRISS CASE NO. 8:15-cv-2675-T-23-MAP Plaintiff, v. GATEWAY BANK, F.S.B; JEFFREY CHEUNG, an individual; and JAMES KEEFE, an individual. Defendants. _____________________________/ GATEWAY BANK, F.S.B; JEFFREY CHEUNG, an individual; and JAMES KEEFE, an individual. v. LAURENCE FENTRISS, an individual, Plaintiff/Counter Claim Defendant; TIER ONE PARTNERS, INC., CBIA ADVISORS, INC., Third-Party Defendants. ______________________________/ MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT Pursuant to Federal Rules of Civil Procedure 12(b)(4), (b)(6) and 12(e) TIER ONE PARTNERS, INC., (“Tier One”) f/k/a CBIA Advisors, Inc. (“CBIA”), by and through undersigned counsel, hereby moves this Court to dismiss this action initiated by the Amended Counterclaim and Third-Party Complaint (the “Complaint”) filed by GATEWAY BANK, FSB (“Third Party Plaintiff” or “Gateway”), or in the alternative, require the Third Party Plaintiff to file an amended pleading providing a more definite statement, stating as follows in support: 1. Gateway Bank filed its Answer, Counter-Claim and Third Party Complaint on August 26, 2016. Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 1 of 6 PageID 396 2 2. This Court entered an order dismissing Gateway’s Counterclaim on December 27, 2016 (Doc. No. 63)(the “Dismissal Order”). Specifically, this Court found that Gateway had failed to comply with Rule 10(b) by comingling its actions for rescission and restitution into one count, and that Gateway’s Count I of its original counter claim was subject to dismissal. 3. This Court further found in its Dismissal Order that the original counterclaim failed to state a cause of action against Tier One because Gateway failed to allege facts that show Gateway’s entitlement to rescission or restitution from Tier One. 4. Gateway filed an amended counterclaim on January 20, 2017 (Doc. No. 64)(the “Amended Counterclaim”). Failure to Comply with Rule 10(b) 5. The Amended Counterclaim continues to comingle causes of action for rescission and restitution in each count, and comingle those causes of action between multiple defendants. 6. The Amended Counterclaim again fails to comply with Rule 10(b) in its Counts I and II and those counts should be dismissed. Tier One is not Alleged to be a Party to Contract Alleged to Be Subject to Rescission 7. Tier One is a Florida Corporation, and is the successor entity to CBIA Advisors, Inc. by virtue of a name change performed in Virginia. Gateway again fails to state an independent cause of action against Tier One or CBIA directly or as an alter ego of Fentriss in its Amended Counterclaim. 8. Tier One, either by its current name or its previous name CBIA Advisors, Inc., was not a party, nor is alleged to have been a party, to any contract at issue in the Amended Counterclaim. Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 2 of 6 PageID 397 3 9. Gateway merely alleges that “Tier One was paid the following amounts in connection with the Anderson and Strudwick agreement alleged in Fentriss’ complaint: $21,637.69 on October 14, 2011; $38,743.26 on January 1, 2012; and $27,052.71 on April 11, 2012; $14,381.41 on July 13, 2012” and that “CBIA was paid the following amounts in connection with the Anderson and Strudwick agreement alleged in Fentriss’ amended complaint: $6,538.81, on February 12, 2009; and $7,772.71, on July 11, 2011.” 10. While this allegation is more specific than the previous allegation that Tier One “received money pursuant to the [Gateway-Fentriss agreements]” Gateway does not specifically plead facts which would show why Gateway is entitled to rescission or restitution from non- contractual party Tier One f/k/a CBIA. Failure to State a Cause of Action for Rescission 11. Gateway fails to plead necessary elements for a claim of rescission. 12. Under Florida Law, “the requisite elements which must be plead to establish a prima facie case for rescission or cancellation of a contract are: (1) character or relationship of the parties; (2) contract formation; (3) existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground; (4) rescission by one party and notification thereof to the other party; (5) offer to restore any benefits received from the contract; and (6) inadequacy of a remedy at law.” Capital Factors, Inc. v. Heller Financial, Inc., 712 F.Supp. 908 (S.D. Fla., 1989) (citing Crown Ice Machine Leas. Co. v. Sams Senter Farms, Inc., 174 So.2d 614, 617 (Fla. 2d DCA 1965) cert. denied, 180 So.2d 656 (Fla.1965). Should this Court deem California law applicable, California provides similar elements, in particular, a required offer to restore any benefits received from the contract. Cal. Civ. Code § 1691. Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 3 of 6 PageID 398 4 13. Gateway has failed to plead each of these elements as to all counter-defendants, but particularly as to Tier One/CBIA, which is not alleged to have been a contractual party. Failure to State a Cause of Action for Restitution 14. Further, Gateway has not plead entitlement to restitution under any theory other than in relation to successfully prosecuting a claim for rescission. As stated above, Gateway has not plead a claim for rescission against Tier One or CBIA and Counts I and II again fail to state a cause of action for restitution or rescission. The Statute of Limitations Bars the Third Party Claim 15. This Court in the Dismissal Order explained as follows: Florida provides a four-year limitation for a claim to rescind a contract whether oral or written, a five-year limitation for a restitution claim based on a written contract, and a four- year limitation for a restitution claim based on an oral contract. Fla. Stat. §§ 95.11(3)(l), 95.11(2)(b), and 95.11(3)(k), respectively. California provides a four-year limitation for a rescission or restitution claim based on a written contract and a two-year limitation for a rescission or restitution claim based on an oral contract. Cal. Civ. P.Code §§ 337, 339. 16. Gateway alleges that CBIA and Tier One were paid on various dates, none more recent than July 2012, “in connection with the Anderson and Strudwick agreement” which is a written contract attached to Fentriss’ Complaint and Amended Complaint dated March 6, 2006. 17. Gateway does not allege that CBIA or Tier One were paid pursuant to a new agreement reached by Fentriss and Gateway in July 2012. 18. Several alleged dates of payment above are also more than five years from the date of filing of the Counterclaim against Tier One f/k/a CBIA. 19. Although difficult to discern from the commingled claims of Gateway, its appears that Gateway seeks rescission of a 2006 contact against Tier One and CBIA (which they are not a party to) and restitution of amounts paid to these entities “in connection with” that contract. Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 4 of 6 PageID 399 5 20. Even taking as true the allegations of the counterclaim, the statute of limitations has passed for an action for rescission (even if such an action made sense against a non-party to a contract). 21. Even taking as true the allegations of the counterclaim, the statute of limitations has passed for an action for restitution as to those dates of payment identified as payment dates to “CBIA.” 22. Moreover, Gateway’s inability to prosecute an action for rescission based upon the applicable statute of limitations should preclude an action for restitution solely premised upon the success of that cause of action. WHEREFORE, Defendant Tier One respectfully requests an order of this Court dismissing the Amended Counterclaim, or alternatively requiring Plaintiff to file an amended pleading containing a more definite statement, containing more specific allegations as to any cause of action against Tier One, and providing such other and further relief as is necessary and proper under the circumstances. Dated: February 3, 2017 /s/ Jake C. Blanchard JAKE C. BLANCHARD, ESQ. Florida Bar No: 055438 BLANCHARD LAW, P.A. 1501 S. Belcher Rd., 2B Largo, FL 33771 Phone: 727-531-7068/ Fax: 727- 535-2086 Email: jake@jakeblanchardlaw.com Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 5 of 6 PageID 400 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Motion was provided by using the CM/ECF system to all parties registered to receive service in this case via CM/ECF on this 3rd of February, 2017. Respectfully submitted, s/ Jake C. Blanchard ATTORNEY Case 8:15-cv-02675-SDM-MAP Document 65 Filed 02/03/17 Page 6 of 6 PageID 401
