Skinner et al v. Continental Motors, Inc. et al

MOTION to dismiss for failure to state a claim

M.D. Fla.December 29, 2016

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN MICHAEL SKINNER and DAWN SKINNER, Plaintiffs, v. Case No: 8:16-cv-3223-T-24AAS CONTINENTAL MOTORS, INC., d/b/a CONTINENTAL MOTORS GROUP; CONTINENTAL MOTORS SERVICES, INC., CIRRUS DESIGN CORPORATION, CIRRUS INDUSTRIES, INC., CUSTOM SENSORS & TECHNOLOGIES and KAVLICO CORP., Defendants. / DEFENDANTS’ CONTINENTAL MOTORS, INC. AND CONTINENTAL MOTORS SERVICES, INC., MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW Defendants, CONTINENTAL MOTORS, INC. (“CMI”) and CONTINENTAL MOTORS SERVICES, INC. (“CMSI”) (collectively the “Continental Companies”), by and through the undersigned counsel and pursuant to Federal Rules of Civil Procedure 8, 10 and 12(b), hereby move this Court for an Order dismissing all claims and causes of action against CMI and CMSI, and in support hereof states as follows: I. ARGUMENT The Complaint, as filed, should be dismissed for the following reasons: (1) Plaintiffs JOHN MICHAEL SKINNER (“Mr. Skinner”) and DAWN SKINNER (“Mrs. Skinner”) (collectively “Plaintiffs”) failed to properly plead a cause of action against CMI and CMSI, (2) Plaintiffs failed to comply with federal pleading standards resulting in the current shotgun pleading, (3) Plaintiffs failed to plead sufficient facts supporting their claims as required by Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 1 of 18 PageID 372 2 Florida law to support their claims, which include claims for Fraud that requires particular specificity in pleading, and (4) Plaintiffs failed to provide any legal authority to support their attorneys’ fees claims. This action arises out of the November 28, 2014 incident where a Cirrus SR22T aircraft, bearing registration number N227RR (hereinafter, the “Aircraft”), made an emergency landing and impacting trees in South Carolina. The Complaint alleges thirty-two counts against six corporate defendants. Plaintiffs, the passengers onboard the Aircraft, allege claims based on strict liability; negligence; breach of contract; breach of express warranties 1 ; breach of implied warranties; fraud; recklessness, outrageousness, willful, and wanton conduct 2 . The Complaint fails to state causes of action, fails to comport with the well-settled rules of pleading and should be dismissed for various reasons more fully set forth herein. i. Plaintiff has failed to state a cause of action against the Continental Defendants. Plaintiffs impermissibly lump the Continental Companies together. Specifically, Plaintiffs fail to align specific conduct with each claim and defendant, and fails to allege conduct attributable to each separate and distinct corporate entity. While Plaintiffs seemingly acknowledge that CMI and CMSI are separate and distinct corporations, Plaintiffs fail to set forth factual allegations pertaining to either of these two separate and independent corporate entities. Instead, Plaintiffs lump CMI and CMSI together as if they are one. Plaintiff’s method of pleading 1 The Federal Aviation Administration’s Registry lists Header Bug LLC as the corporate owner of the Aircraft, despite Plaintiffs’ allegation that Robert Hinkle, the pilot, owns the Aircraft. The Complaint is devoid of any allegation that would place the Skinner plaintiff in any capacity as purchaser, provide other support for standing to bring causes of action sounding in breach of contract, breach of warrantees or fraud. 2 “Recklessness, Outrageous, Willful and Wanton Conduct” as alleged in Count XXXII is not a recognized cause of action under Florida law subjecting this Complaint to dismissal under Fed. R. Civ. P 12(b)(6). Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 2 of 18 PageID 373 3 is so vague, ambiguous, disorganized, confusing, and repetitive that neither CMI nor CMSI can discern the specific claims against each to be able to reasonably frame a response. ii. The Complaint constitutes an impermissible shotgun pleading The counts in the Complaint are so disorganized, confusing, and repetitive, that allegations within each Count consist primarily of allegations that are irrelevant to the particular claim alleged. As such, the Complaint materializes into an impermissible “shotgun” pleading. The Complaint incorporates factual allegations applicable to the other Defendants into the Counts pertaining to the Continental Companies. Moreover, many paragraphs in the counts alleged by Mr. Skinner were simply a “cut and paste” into the counts alleged by Mrs. Skinner. This creates a confusing situation in which Mrs. Skinner may be praying for relief and damages for counts related to Mr. Skinner, and vice versa, making it impossible to determine what Mr. Skinner is alleging and what Mrs. Skinner is alleging. The result is a disjointed, repetitive and disorganized pleading for which it is difficult for defendants to frame a response. Furthermore, Plaintiffs take the impermissible litigation strategy of filing as many causes of action as possible without any regard to whether these have factual or legal support, and without incorporating the requisite short, plain statement entitling the pleader to relief. While federal pleading requirements do not require laser-like precision, Plaintiffs’ shotgun pleading contains inaccurate, inconsistent and unsupportable causes of action that simply does not make sense - the quintessential and impermissible shotgun pleading that warrants dismissal. iii. The allegations in the Complaint are insufficient to support a cause of action for breach of contract, breach of warranty and fraud. Plaintiffs fail to plead sufficient facts to support their breach of contract and breach of warranty claims against either CMI or CMSI. Plaintiffs allege that Mr. Hinkle, the pilot and non- party to this action, purchased the aircraft directly from the Cirrus defendants (not the Continental Defendants). [D.E. 1 ¶¶ 80, 130]. Plaintiffs fail to allege any facts demonstrating that either CMI Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 3 of 18 PageID 374 4 or CMSI entered into that contract with either Plaintiff in this action so as to maintain the necessary privity of contract to support a Breach of Contract allegation. Although allege to have attached the contract as an exhibit, Plaintiffs have not actually done so, likely since attaching the contract would leave no doubt that Plaintiffs are not in contractual privity with the Defendant and are not an intended third-party beneficiary under the purported contract. It is impossible to judge how CMI or CMSI are bound to the Plaintiffs in this case by a contract, or what elements of such contract may exist and/or may have been breached. Further still, Plaintiffs’ purport to assert a breach of contract claim against the Continental Companies; however, within the four corners of the Complaint, Plaintiffs alleges that it was Mr. Hinkle who entered into contract, and thus negating Plaintiff’s contractual privity and leaving Plaintiffs standing to raise such claim 3 . Finally, it is well-settled under Florida law that passengers injured as a result of an aircraft crash do not have a cause of action for breach of implied warranty against the aircraft manufacturer. Therefore, Plaintiffs breach of contract claims and breach of warranty claims fail to state a cause of action and should be dismissed as a matter of law. Moreover, Plaintiffs include a cause of action for fraud, but fail wholeheartedly to comply with the specific pleading requirements to properly allege a fraud claim as set forth by Federal Rule (b). The Complaint fails to identify the precise conduct constituting the alleged fraud or even which of the two distinct Continental entities is alleged to have committed the alleged fraud. The mere conclusory allegations are insufficient to comply with the time, place, manner, content and reliance on the alleged misrepresentation to meet the pleading requirements for fraud. 3 Although Plaintiffs attempts to incorporate themselves into the Contract as purported third-party beneficiaries, the Complaint is devoid of the necessary elements and allegations to support a third-party beneficiary status. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 4 of 18 PageID 375 5 iv. Plaintiffs fail to support its petition for the recovery of attorney fees. Finally, Plaintiffs impermissibly make claims for attorneys’ fees with respect to all of their counts without asserting legal or factual basis for such. Plaintiffs must invoke a statute, regulation, or contractual provision to properly plead an entitlement to attorney’s fees, which the Complaint fails to do. II. CITATIONS TO COMPLAINT 1. On November 28, 2014, Mr. Robert Hinkle piloted the Aircraft out of Sarasota Bradenton International Airport with the intended destination of Orangeburg, South Carolina. [D.E. 1 ¶¶ 17-19]. Plaintiffs were passengers on the Aircraft. [D.E. 1 ¶21]. 2. The Aircraft made an emergency landing in a wooded area in South Carolina. [D.E. 1 ¶ 36]. The Aircraft was equipped with an engine manufactured by one of the Continental companies. [D.E. 1 ¶¶ 38-41]. 3. On November 17, 2016, Plaintiffs filed the original Complaint arising from the aforementioned events. [D.E. 1]. 4 4. The Complaint initially acknowledges that CMI and CMSI are separate, distinct corporate entities. [D.E. 1 ¶¶ 3-5]. Yet, virtually every paragraph that relates to the Continental Companies refers to the two entities as one. [D.E. 1]. 5. The Complaint alleges both Continental companies manufactured the engine, but fails to specify which company performed which alleged negligent act. [D.E. 1]. 6. The Complaint is entirely void of any factual allegations that refer distinctly to CMI. [D.E. 1]. Likewise, the Complaint is also void of any factual allegations that refer distinctly to CMSI. [D.E. 1]. Moreover, paragraphs 38-41 purportedly relate to the “Claims as to the 4 This Complaint is nearly identical to the Complaint filed by the pilot and another passenger in a separate action. That Complaint -consisting of seventy-five pages and three-hundred sixty four paragraphs- was dismissed because it was a textbook shotgun pleading. The Court granted Plaintiff’s leave to file an Amended Complaint. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 5 of 18 PageID 376 6 Continental Defendants”. However, these paragraphs do not provide factual allegations that are attributable to each defendant; rather, the Plaintiffs summarily state that these claims relate to the Continental Defendants collectively, failing to support a cause of action against either of these two separate entities. [D.E. 1 ¶¶ 39-41]. It is impossible for the Continental Companies to know which factual allegations pertain solely to CMI, which factual allegations pertain solely to CMSI, and which factual allegations pertain to both. Accordingly, the Complaint impermissibly fails to align specific conduct with each claim and defendant. 7. Furthermore, the Complaint contains contradictory and nullifying allegations in that Plaintiffs alleged that Mr. Hinkle, a non-party to this case, bought his Aircraft “directly from the Cirrus defendants.” [D.E. 1 ¶¶ 80, 130], and the Continental Companies “supplied it with a brand new engine” [D.E. 1 ¶ 130]. Plaintiffs further allege the Aircraft was “sold to Mr. Robert Hinkle, the aircraft’s owner, and his corporation in the State of Florida.” [D.E. 1 ¶ 14]. Yet, Plaintiffs allege “the Continental defendants did agree to provide him [Mr. Hinkle] an engine.” [D.E. 1 ¶¶ 130-31, 286-87] (emphasis added). Moreover, Plaintiffs allege breach of contract counts stating that, “[t]he owner, Robert Hinkle, bought his aircraft directly from the Cirrus defendants, who supplied it with a brand new engine, supplied by the Continental defendants.” [D.E. 1 ¶ 286] [emphasis added]. Plaintiffs also allege “the Continental defendants did agree to provide him [Mr. Hinkle] an aircraft engine and component parts.” [D.E. 1 ¶ 287] (emphasis added). These two statements are facially contradictory in that Plaintiff asserts that the Aircraft was purchased with an engine on it, yet later in the pleading claim that the engine was purchased in a separate transaction. Regardless of how the Aircraft may have been configured, the purchaser as clearly set forth in the Complaint, was non-party Mr. Hinkle, nor either of the Plaintiffs in this case. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 6 of 18 PageID 377 7 8. The foregoing is followed by the perplexing proposition that Mr and Mrs. Skinner, the passenger on the Aircraft, alleging no ownership or contractual privity, somehow have standing to raise issues related to the purchase, contract and warranty related to the acquisition of the Aircraft that, as set forth in the Complaint, only Mr. Hinkle purchased and thus only Mr. Hinkle is in privity, and has standing, to raise 5 . 9. Plaintiffs further fail to provide a short plain statement that qualifies either of them as an intended third-party beneficiary to plead a breach of contract. [D.E. 1 ¶¶ 285]. 10. Adding to the confusion, Plaintiffs also state that “the contract evidencing this agreement is evidenced by a purchase order in possession of the defendants” but Plaintiff fails to mention which defendants have the purchase order, and fail to articulate whether the purported purchase order is for the Aircraft, the engine, both, or who the parties to the purported purchase order might be. [D.E. 1 ¶¶ 133, 240, 289]. 11. Without this purported agreement or explanation within the Complaint, it is impossible for Defendants to determine which Defendant is bound by the terms of the Contract, what the terms were, which terms were breached or how Plaintiffs purport to have standing. Without pleading any statements or facts evincing contract between Plaintiffs and CMI or CMSI, Plaintiffs fail to present their claims discretely and succinctly, so that Defendants can discern what they are claiming and frame a responsive pleading. 5 Evidence in this, and the other case, case shows that the Aircraft was not purchased by Mr. Hinkle, but rather a company named Header Bug LLC. Regardless, Plaintiffs have not alleged any facts or conduct that suggests that Plaintiffs, the passengers, were privy to the contract, or third party beneficiaries. In fact, Plaintiffs have not alleged any conduct or facts that show the Continental Companies knew of the Plaintiffs existence in order to support a claim as an intended beneficiary. Instead, Plaintiffs rely on conclusory recitations of the elements of the causes of action in violation of Rule 8. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 7 of 18 PageID 378 8 12. Plaintiffs also demand attorneys’ fees for each of their thirty-two counts. However, Plaintiffs’ Complaint is void-in its entirety-of any statutory, regulatory, or contractual entitlement to attorneys’ fees as required by Florida law and therefore warrants dismissal. III. MEMORANDUM OF LAW Motion to Dismiss Standard “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint’s factual allegations must be enough to raise a right to relief above speculative level.” Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1372 (S.D. Fla. 2015)(Cooke, J.). In other words, a plaintiff must allege sufficient factual content to “nudge” her claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Detailed factual allegations are not required, but a pleading “that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal , 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If “allegations are. . . more conclusory than factual, then the court does not have to assume their truth.” Chaparro v.Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). “In assessing whether a plaintiff has met these requirements, conclusory allegations, unwarranted factual deductions, and conclusions of law need not be accepted as true.” Business Radio, Inc. v. Relm Wireless Corp., 373 F. Supp. 2d 1317, 1319 (M.D. Fla. 2005). Here, the Plaintiffs make conclusory allegations tracking the elements of the causes of action without factual support, and unwarranted factual deductions with respect to the contractual claims, breach of warranty claims, and fraud claims. Therefore, the Court should not accept them as true. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 8 of 18 PageID 379 9 Plaintiffs Failed to Properly Plead Causes of Action Against CMI and CMSI. Plaintiff violated well-settled federal pleading requirements by not alleging separate factual allegations to put CMI and CMSI on notice as to what they must individually defend against. Federal Rules of Civil Procedure 8 and 10 work together "'to require the pleader to present his claims discretely and succinctly, so that his adversary can discern what he is claiming and frame a responsive pleading.” Roundtree v. Countrywide Home Loans, Inc., 2009 U.S. Dist. LEXIS 120687, *11 (M.D. Fla. Dec. 29, 2009) (citing Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996)(citation omitted). In Roundtree, the trial court dismissed an amended complaint because it failed “to align specific conduct with each claim and defendant.” Roundtree, 2009 U.S. Dist. LEXIS 120687, at *13. The court also found it improper that plaintiff treated "’Countrywide Home Loans, Inc.,’ ‘Countrywide Bank N.A.’ and ‘Country Wide Financial’ as one, despite defendants' corporate disclosure statement which represents that Countrywide Financial Corp. is the parent corporation of Countrywide Home Loans, Inc.” Id. Roundtree clearly states that a plaintiff cannot lump separate corporate entities into one. Id. Likewise, in Brooks, the court dismissed a complaint because it treated two separate corporate entities as one. Brooks v. CSX Transp., Inc., 2009 U.S. Dist. LEXIS 89474, *9 (M.D. Fla. Sept. 29, 2009). In Brooks, the plaintiff brought a myriad of causes against CSX Transportation, Inc. and CSX Intermodal. Id. However, the plaintiff failed to allege which conduct was attributable to CSX Transportation, Inc., individually, and what was attributable to CSX Intermodal, individually. Id. The court dismissed the complaint because “Plaintiff treats two defendants - CSX Transportation Inc. and CSX Intermodal - as one, despite defendants' corporate disclosure statement which represents that ‘CSX Transportation, Inc. and CSX Intermodal are wholly owned subsidiaries of CSX Corporation.’” Id. The court required the plaintiff, when re- Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 9 of 18 PageID 380 10 pleading, to specify “(1) which defendant or defendants each cause of action is asserted against, including distinguishing between defendants CSX Transportation, Inc. and CSX Intermodal; (2) what factual allegations form the basis of each claim against each defendant; and (3) each legal theory upon which she asserts liability against each defendant.” Id at 10. In the present case, Plaintiffs impermissibly treat CMI and CMSI as one. Despite acknowledging that the Continental companies are separate corporate entities, Plaintiffs lump them together. Plaintiffs fail to align any specific, independent conduct or omission by CMI that subjects it to this lawsuit. Plaintiffs also fail to align any specific, independent conduct or omission by CMSI that subjects it to this lawsuit. Like in Roundtree and Brooks, in which the court dismissed the complaint and forced the plaintiffs to align specific conduct attributable to each corporate defendant, Plaintiffs completely ignored the corporate boundaries separating the two entities. As a result, CMI and CMSI are unable to determine how to frame a responsive pleading. CMI should not be forced to speculate as to what each allegedly did or failed to do to give rise to the claims against it. Instead, Plaintiffs are required to allege a short and plain statement of the claim showing that the pleader is entitled to relief from each defendant, thus asserting the factual conduct by CMI that subjects CMI to the lawsuit. Plaintiffs must do the same with respect to CMSI. Until then, the Complaint fails to comply with the minimum pleading requirements set forth by Rule 8 and 10, and should be dismissed as a matter of law. The Complaint constitutes an impermissible shotgun pleading. The Complaint is an impermissible shotgun pleading. The drafters of the Federal Rules of Civil Procedure created pleadings requirements so the “defendant could understand the cause(s) of action the plaintiff was asserting and frame a responsive pleading, and the district court, having a clear and definitive response before it, could recognize the parties' claims and defenses, identify the issues of fact to be litigated, and proceed to a just result.” Davis v. Coca-Cola Bottling Co. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 10 of 18 PageID 381 11 Consol., 516 F.3d 955, 979 (11th Cir. 2008). The rules require brevity and clarity. Fed. R. Civ. P. 10(b). Complaints that are disorganized, confusing, and repetitive constitute impermissible shotgun pleadings and are disallowed. See Anderson v. District Bd. of Trustees of Cent. Fla. Community College, 77 F.3d 364, 367 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.”). “A complaint that fails to articulate claims with sufficient clarity to allow the defendant to frame a responsive pleading constitutes a ‘shotgun pleading.’” Lampkin-Asam v. Volusia County School Bd., 261 Fed. Appx. 274, 277 (11th Cir. 2008) (citation omitted). This includes a complaint that is “disjointed, repetitive, disorganized and barely comprehensible.” Id. at 276. Likewise, this includes a complaint in which many of the counts incorporate irrelevant information and/or legal claims. See Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126 (11th Cir. 2014). When faced with such a pleading, a court should strike the complaint and instruct plaintiff’s counsel to file a more definite statement. See Davis v. Coca-Cola Bottling Co. Consolidated, 516 F.3d 955, 984 (11th Cir. 2008). The Complaint in this case contains a textbook shotgun complaint-and is the mirror opposite of brevity and clarity. The Complaint contains three hundred fifty seven paragraphs and seventy-five pages. The Complaint includes irrelevant and factually unsupported causes of action, discussed further below. Plaintiffs appear to be employing the “kitchen sink” theory of pleading in which they plead causes of action and hope to see what sticks. Simply, the Complaint is confusing, inaccurate, repetitive, and does not comply with federal pleading requirements. This is impermissible and warrants dismissal as a matter of law. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 11 of 18 PageID 382 12 Plaintiff’s Failed to Plead Sufficient Facts in Support of Their Breach of Contract Claims. The requirements of Fed. R. Civ. P 8 are simple, yet mandatory. Rule 8 unequivocally states that “A Pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A pleading “that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678. Plaintiffs fail to allege any facts evincing a contract between CMI or CMSI and the Plaintiffs. Plaintiffs claim that a purchase order evincing an agreement is in the possession of the defendants; however, Plaintiffs fail to allege any conduct between themselves and CMI or CMSI to support the inference that CMI or CMSI would have such an agreement. Furthermore, Plaintiffs freely admit that Mr. Hinkle purchased the Aircraft directly from Cirrus-not CMI or CMSI. Plaintiffs allege no facts evincing any contact-oral or in writing-between Plaintiffs and CMI or CMSI. Instead, Plaintiffs make false, formulaic recitation of the elements of a cause of action in that, “in exchange for valuable consideration, the Continental Defendants did agree to provide him [Mr. Hinkle] an aircraft engine and components parts.” Plaintiffs offer no required factual support for the proposition that passengers in an aircraft are in privity of contract with the engine manufacturer for that aircraft. While Plaintiffs make conclusory allegations that the “Continental Defendants” breached a contract, the Complaint fails to specify which “Continental Defendant” entered or breached the purported contract. Plaintiffs fail to allege facts demonstrating that either CMI or CMSI had any contact with the Plaintiffs, much less facts attributable to either that constitute a breach such contract. Similarly, Mrs. Hinkle claims a breach of contract, but fails to allege any facts demonstrating that she in fact entered into any contract with anybody, much less CMI or CMSI. Plaintiffs allege “Robert Hinkle bought his aircraft directly from the Cirrus defendants”, [DE20 ¶286] but Plaintiffs do not allege how Mr. or Mrs. Skinner is in privity of contract or has any Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 12 of 18 PageID 383 13 standing to support a breach of contract claim. Accordingly, Plaintiffs have failed to plead sufficient facts to support their causes of action for breach of contract and should be dismissed. Plaintiffs allege a breach of warranty cause of action, which has been abolished by Florida substantive law. Under Florida law, warranties are contractual in nature. S. Broad. Grp., LLC v. Gem Broad., Inc., 145 F. Supp. 2d 1316, 1324 (M.D. Fla. 2001). An express warranty is treated as a contract between the buyer and seller. Lennar Homes, Inc. v. Masonite Corp., 32 F. Supp. 2d 396, 399 (E.D. La. 1998) (citing Council Bros., Inc. v. Ray Burner Co., 473 F.2d 400, 406 (5th Cir. 1973). “An express warranty arises where the seller asserts a fact of which the buyer is ignorant prior to the beginning of the transaction, and on which the buyer justifiably relies as part of the ‘basis of the bargain.’" S. Broad. Group v. Gem Broad., 145 F. Supp. 2d 1316, 1321 (M.D. Fla. 2001) (citing Hobco, Inc. v. Tallahassee Assoc., 807 F.2d 1529, 1533 (11th Cir. 1987); and Thursby v. Reynolds Metals Co., 466 So. 2d 245, 250 (Fla. 1st DCA 1984). Necessarily, the existence of a contract is required for bringing a breach of express warranty claim. Brennan v. Dow Chem. Co., 613 So. 2d 131, 132 (Fla. 4th DCA 1993) (noting that a warranty is "a voluntarily undertaken contractual commitment"). In the present case, as mentioned above, there is no contract between Plaintiff-passengers and Defendant-engine manufacturers. Plaintiffs are not the buyer. Neither CMI nor CMSI sold the aircraft to its passengers. Simply, there is no bargained for exchange between Plaintiffs and CMI. Likewise, there is no bargained for exchange between Plaintiffs and CMSI. While there is arguably an express warranty in the contract between the aircraft owner-alleged as Mr. Hinkle- and the aircraft manufacturer-Cirrus Design Corporation-there is no contract between the passengers in the aircraft and the aircraft’s engine manufacturer. As such, there is no argument, or facts provided by Plaintiffs, to support and express warranty between the parties. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 13 of 18 PageID 384 14 Even more troubling, Plaintiffs claims for breach of implied warranty are not permitted under Florida law. In 1988, the Florida Supreme Court declared that aircraft passengers have no cause of action for breach of implied warranty against the aircraft’s manufacturer. Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988). In Kramer, the plaintiffs were injured when the aircraft in which they were passengers crashed in Virginia. Id at 38. The plaintiffs brought claims for negligence, strict liability, breach of implied warranty of fitness and merchantability. Id. After some procedural maneuvers, the Court declared that Florida “abolished the no-privity, breach of implied warranty cause of action.” Id at 39. In the present case, Plaintiffs’ claims for breach of implied warranty are prohibited because there is no privity of contract between the passengers and the alleged engine manufacturer. Plaintiffs did not buy the aircraft. Neither CMI nor CMSI sold the aircraft to the passengers. Like in Kramer, in which the Florida Supreme Court held that a person injured while a passenger on an aircraft does not have a cause of action in implied warranty against the aircraft’s manufacturer, Plaintiffs in this case do not have a cause of action against either CMI or CMSI. This has been the law for almost thirty years. Therefore, Plaintiffs’ claims for breach of warranty are without merit, and the requisite factual support, warranting dismissal as a matter of law. Plaintiffs Failed to Plead Fraud with Particularity. Federal Rule of Civil Procedure 9(b) provides that when fraud is pled in federal court, "the circumstances constituting fraud . . . shall be stated with particularity." Fed. R. Civ. P. 9(b). 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." Durham v. Business Management Associates, 847 F.2d 1505, 1511 (11th Cir. 1988) (citing Seville Indus. Mach. Corp. v. Southmost Mach. Corp., Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 14 of 18 PageID 385 15 742 F.2d 786, 791 (3d Cir. 1984). “Mere conclusory allegations of fraud, couched in statutory language, will not satisfy Rule 9(b). The allegations ‘must be accompanied by some delineation of the underlying acts and transactions which are asserted to constitute fraud.’" First Union Brokerage v. Milos, 717 F. Supp. 1519, 1522 (S.D. Fla. 1989)(citing Merrill Lynch, Pierce, Fenner & Smith v. Del Valle, 528 F. Supp. 147, 149 (S.D. Fla. 1981)). In the Eleventh circuit, Federal Rule 9(b) may be satisfied by pleading: “(1) precisely what statements were made in what documents or oral representations or what omissions were made; (2) the time and place of each such statement and the person responsible for making. . same; (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 the fraud.” Haskin v. R.J Reynolds Tobacco Co., 995 F. Supp. 1437, 1439 (M.D. Fla. 1998) (citing Brooks v. Blue Cross & Blue Shield of Fla., 116 F.3d 1364, 1371 (11th Cir. 1997) (internal citations omitted)). The spirit of Rule 9(b) requires greater specificity so defendants have the opportunity to adequately answer what would otherwise amount to boundless, amorphous general allegations of "fraud." Brooks, 116 F.3d at 1371 ((citing Durham, 847 F.2d at 1511 (11th Cir. 1988)). Allegations of date, time, or place satisfy the Rule 9(b) requirement. In re Sahlen & Assoc., Sec. Litig., 773 F. Supp. 342, 352 (S.D. Fla. 1991) (citing Durham, 847 F.2d at 1512). In the present case, Plaintiffs violate Rule 9(b) because they make boilerplate allegations against the Continental companies that are applicable to any manufacturer. Specifically, Plaintiffs allege “these defendants did knowingly misrepresent that its aircraft engine and component parts . . . were safe for use and non-defective” and “the defendants did also fail to disclose . . . that a dangerous condition would develop in this aircraft engine”. However, Plaintiffs entirely fail to allege the date, time, or place of these alleged misrepresentation contrary to federal pleading requirements. (“Despite the inclusion of over 100 paragraphs in the fraud count, the complaint Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 15 of 18 PageID 386 16 does not describe with specificity what "best practices" means, the type of technology promised, or what was meant by "whatever it takes." These alleged misrepresentations are too vague to provide the essential foundation for a fraud claim.” Simon v. Celebration Co., 883 So. 2d 826, 833 (Fla. 5th DCA 2004) (citing Allen v. United Zinc Co., 64 Fla. 171, 60 So. 182 (Fla. 1912)). Furthermore, Plaintiffs fail to allege which statements were made by either CMI or CMSI, or both. Accordingly, Plaintiffs’ fail to plead their fraud claim with sufficient specificity and therefore should be dismissed. Plaintiffs Fail to Plead Any Basis for the Recovery of Attorneys’ Fees. There is no basis in law or contract for the recovery of attorney fees. As the Supreme Court reiterated last year, the point of departure for analyzing a request for attorney fees is "the bedrock principle known as the American Rule: Each litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise." Baker Botts LLP v. ASARCO LLC, 135 S. Ct. 2158, 2164, 2015) (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-253, (2010)). Accordingly the Complaint is improper on its face and thus, should be dismissed. Though Plaintiffs claims it is entitled to said fees, there is no statutory or contractual basis for this assertion. Anderson Columbia Co. v. State, 744 So. 2d 1206, 1207 (Fla. 1st DCA 1999)(“There was no general right at common law accorded a party to recover attorney's fees in litigation from the opposing party. A party's right to fees is limited by statute and by contract”). Plaintiffs must provide the requisite contractual, statutory, or common authority to support their claims for attorneys’ fees. They have not done so. Until then, the Complaint should be dismissed as a matter of law. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 16 of 18 PageID 387 17 IV. CONCLUSION The Complaint is a textbook example of overreaching and careless pleading by Plaintiffs. Defendants are unable to formulate a response or even understand the allegations against each since the allegations are presented in a disorganized, confusing, and repetitive shotgun pleading. The result is a hodgepodge of conclusory allegations lacking the requisite factual support. Furthermore, Plaintiffs’ breach of contract and breach of warranty claims are contradicted and nullified by the allegations found within the four corners of the Complaint. The allegations in support of the fraud claims fail to comply with well-settled Florida and Federal law on pleading fraud. Also, their breach of implied warranty claim is directly inapposite to longstanding Florida precedent. Finally, Plaintiffs fail to provide any authority in support of their claims for attorneys’ fees. Therefore, the Complaint should be dismissed. WHEREFORE, for the foregoing reasons, Defendants, Continental Motors Inc. and Continental Motors Services, Inc., respectfully request this Honorable Court grant their Motion to Dismiss and enter an order dismissing the Plaintiffs’ Complaint, along with such other relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on 29 December 2016, the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either 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. Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 17 of 18 PageID 388 18 GRIFFIN & SERRANO, P.A. Landmark Bank Building, Sixth Floor 707 Southeast 3 rd Avenue Fort Lauderdale, Florida 33316 Phone: (954) 462-4002 Fax: (954) 462-4009 /s/ Peter J. Lewis ______________________________ Juan R. Serrano Florida Bar No. 319510 Peter J. Lewis Florida Bar. No. 118316 Primary Email: jserrano@griffinserrano.com Secondary Email: service@griffinserrano.com apavon@griffinserrano.com plewis@griffinserrano.com SERVICE LIST Mark H. Perenich, Esquire Perenich, Caulfield, Avril & Noyes, P.A. 1875 North Belcher Road, Suite 201 Clearwater, Florida 33765 Tele: 727-796-8282 Fax: 727-797-6337 Primary e-mail: mark@usalaw.com Secondary e-mail: l inda@usalaw.com Case 8:16-cv-03223-SCB-AAS Document 33 Filed 12/29/16 Page 18 of 18 PageID 389