Technocable Wiring Specialist, Inc. v. Genesis Networks Telecom Services, Llc

MOTION to dismiss for failure to state a claim and to dismiss for improper venue

M.D. Fla.October 12, 2016

19204886v1 0991063 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CASE NO.: 16-CV-02590-MSS-MAP TECHNOCABLE WIRING SPECIALIST, INC., Plaintiff, vs. DISPOSITIVE MOTION GENESIS NETWORKS TELECOM SERVICES, LLC, Defendant. _____________________________________/ MOTION TO DISMISS Defendant, Genesis Networks Telecom Services, LLC, respectfully moves pursuant to Federal Rule of Civil Procedure 12(b)(3) to dismiss this lawsuit due to improper venue or, alternatively, pursuant to rule 12(b)(6) to dismiss all counts of Plaintiff's Complaint for failure to state a claim upon which relief can be granted, or, in the further alternative, for a more definite statement of Count Two. In support, Defendant states as follows: I. INTRODUCTION This lawsuit stems from Plaintiff's allegations that Defendant agreed to acquire or to form a joint venture with Plaintiff in a memorandum of understanding for the purpose of securing and performing a contract to install Google Fiber. Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 1 of 17 PageID 45 2 19204886v1 0991063 Plaintiff contends Defendant failed to honor the agreement after Google awarded Defendant the contract. If necessary, then Defendant will defend against these allegations. However, the Court should instead dismiss this lawsuit because this district is an improper venue. The only event alleged to have happened in Florida was single meeting in Tampa, Florida before any agreement was allegedly made. All other alleged events occurred either in Texas or in California. The Court should alternatively: (a) dismiss Count One because the memorandum of understanding was not sufficiently certain to create a binding contract; (b) dismiss Count Two for the same reason as to the alleged oral agreement, or at least require a more definite statement as to what event Plaintiff claims (out of the many listed in the cited statute) occurred which triggers a dissolution under Florida law; and (c) dismiss Count Three because it is duplicative of Count One, in that Count Three merely alleges the same breach of contract, and because it does not comply with Rule 9(b). II. THIS LAWSUIT SHOULD BE DISMISSED FOR IMPROPER VENUE Plaintiff alleges in its Complaint that "[v]enue is proper in the Middle District of Florida pursuant to 28 U.S.C. § 1391(b)," in pertinent part, because "Defendant has availed itself of this jurisdiction to the extent that a substantial part of the events, acts, omissions, transactions, events, and occurrences giving rise to the causes of action asserted within this Complaint herein occurred in this District." [ECF No. 1, ¶ 6(emphasis in original; brackets added)]. The actual facts plead are inconsistent Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 2 of 17 PageID 46 3 19204886v1 0991063 with this legal conclusion and therefore the Court should dismiss this lawsuit for improper venue.1 "Where a defendant has filed a motion to dismiss based on improper venue, the plaintiff has the burden of establishing venue in the forum is proper." Diaz- Verson v. Aflac Inc., No. 811-CV-852-T-17TBM, 2012 WL 398353, at *3 (M.D. Fla. Jan. 11, 2012), report and recommendation adopted, No. 8:11-CIV-852-T-17, 2012 WL 398329 (M.D. Fla. Feb. 8, 2012) (citing Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004)). "To determine whether venue is proper under Section 1391(a)(2), 'only the events that give rise to a claim are relevant,' and of the places where the events have taken place, only those locations hosting a substantial part of the events will be considered." HME Providers, Inc. v. Heinrich, No. 6:09CV2186-ORL-31GJK, 2010 1 "'The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.' 28 U.S.C. § 1406(a). Additionally, '[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' 28 U.S.C. § 1404(a)." Diaz-Verson v. Aflac Inc., No. 811- CV-852-T-17TBM, 2012 WL 398353, at *4 (M.D. Fla. Jan. 11, 2012), report and recommendation adopted, No. 8:11-CIV-852-T-17, 2012 WL 398329 (M.D. Fla. Feb. 8, 2012). Defendant believes this case should be dismissed, however, to the extent the Court believes transfer is in the interest of justice, then Defendant requests transfer to the Western District of Texas, San Antonio Division, as Plaintiff alleges two of the critical meetings occurred in that district [ECF No. 1, p. 6, ¶17(c)] and, as this is Defendant's location, it will be the most convenient forum available for parties and witnesses (the only alternative appears to be California, where no parties are located). The Nondisclosure Agreement ("NDA") attached to the Complaint contains the name of a non-party, Genesis Networks Integration Services, LLC. However, as alleged in the Complaint, it serves as evidence Plaintiff contemplated resolving any disputes relating to its work with Defendant in Texas under Texas law. [See ECF No. 1-1, ¶ 12]. In other words, Plaintiff cannot claim any unfairness in requiring it to litigate in Texas. Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 3 of 17 PageID 47 4 19204886v1 0991063 WL 653920, at *2 (M.D. Fla. Feb. 18, 2010) (quoting Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.2003)). This analysis focuses on where the activities of the defendant occurred, not where a plaintiff suffered harm. See HME Providers, Inc., 2010 WL 653920 at *3 (citing multiple authorities). Bare conclusory allegations that a substantial part of the events or omissions giving rise to a claim occurred in a district or that a defendant does a substantial amount of business in a district is insufficient to plead proper venue. Corley v. Osprey Ship Mgmt., Inc., No. 06-60275- CIV, 2007 WL 201263, at *2 (S.D. Fla. Jan. 24, 2007). Put another way, "[t]he relevant acts or omissions are only those that have a 'close nexus to the wrong.'" Anthony Sterling, M.D. v. Provident Life and Acc. Ins. Co., 519 F. Supp. 2d 1195, 1204 (M.D. Fla. 2007) (brackets added) (citing Jenkins, 321 F.3d at 1371). In the breach of contract context, factors to consider are "where the contract was presented, where the contract was executed, where the contract was intended to be performed, and where the contract was breached." Anthony Sterling, M.D., 519 F. Supp. 2d at 1205 (citing Jenkins, 321 F.3d at 1372). Here, Plaintiff has not alleged a substantial part of the events giving rise to this claim occurred in Florida. The only fact, as opposed to bare recitation of the elements of venue, Plaintiff alleges is that four months prior to the signing of the memorandum of understanding, a meeting occurred in Tampa, Florida. [ECF No. 1, ¶17(a)]. This contrasts with its many specific allegations regarding multiple meetings in Texas and California. It also contrasts with Plaintiff's only specific factual allegations regarding where the work contemplated was actually performed (i.e., Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 4 of 17 PageID 48 5 19204886v1 0991063 Tennessee). Plaintiff further does not even allege where the contract was presented or where it was executed and, given its lack of a relationship to Florida, it does not appear plausible a breach occurred in Florida. For the reasons above, the Court should dismiss this lawsuit because it was filed in an improper venue or, alternatively, if justice requires, transfer this suit to the Western District of Texas, San Antonio Division. III. COUNTS ONE, TWO, & THREE OF THIS LAWSUIT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM In reviewing a motion to dismiss under Rule 12(b)(6), a court should take all well-pleaded facts in the plaintiff's complaint and all reasonable inferences drawn from those facts as true. Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Federal Rule of Civil Procedure 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 663 (quoting rule). Federal Rule of Civil Procedure 10(c) provides, in pertinent part, that [a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). Instead, a plaintiff must plead enough facts to state a plausible basis for the claim. Id. In other words, a Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 5 of 17 PageID 49 6 19204886v1 0991063 plaintiff’s [f]actual allegations must be enough to raise a right to relief above the speculative level.” Id.; see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2013) (“it is clear that in order to satisfy the requirements of Rule 8(a) the pleading must contain something more by way of a claim for relief than a . . . statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”). A complaint does not state a plausible claim where the described conduct is “‘‘merely consistent with’ a defendant’s liability.’” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Courts should also not abandon common sense or ignore their experience in reviewing a complaint on a motion to dismiss. In fact, the opposite is true: Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 556 U.S. 679 (emphasis added). a. Count One - Plaintiff Fails to State a Claim for Breach of Contract Because the Memorandum of Understanding is Too Indefinite to Constitute an Enforceable Agreement Plaintiff contends the memorandum of understanding attached to its Complaint is a binding agreement obligating Defendant either to acquire Plaintiff or to establish a joint venture with Plaintiff. [See generally ECF No. 1, Count One]. Respectfully, Defendant disagrees because this portion of the memorandum of Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 6 of 17 PageID 50 7 19204886v1 0991063 understanding is an essential term (indeed, it is the very basis of this lawsuit) but it is insufficiently certain to create a binding agreement. It is instead, at best, an agreement to agree. "'An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages.'" Silvester v. Am. Family Life Assur. Co. of Columbus, No. 2:14-CV-105-FTM-29, 2014 WL 1689277, at *2 (M.D. Fla. Apr. 29, 2014) (quoting Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)). "Under Florida law, the question of whether a valid contract exists is a threshold question of law that may be properly decided by the court." Kolodziej v. Mason, 774 F.3d 736, 740 (11th Cir. 2014) (citing Acumen Constr., Inc. v. Neher, 616 So. 2d 98, 99 (Fla. 2d DCA 1993)). "'To prove the existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms.'" Kolodziej v. Mason, 774 F.3d 736, 740-41 (11th Cir. 2014) (citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009)). The creation of a contract requires that there be mutual assent to a certain and definite proposition. “Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract.” Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003). However, what constitutes an essential term of a contract will vary widely according to the nature and complexity of each transaction and must be evaluated on a case specific basis. King v. Bray, 867 So.2d 1224, 1228 (Fla. 5th DCA 2004). Nevertheless, an “agreement to agree” is unenforceable as a matter of law. Spanish Broad. Sys. of Fla., Inc. v. Alfonso, 689 So.2d 1092, 1094 (Fla. 3d DCA 1997). Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 7 of 17 PageID 51 8 19204886v1 0991063 ABC Liquors, Inc. v. Centimark Corp., 967 So. 2d 1053, 1056 (Fla. 5th DCA 2007). "[U]ncertainty as to an essential term renders the agreement unenforceable regardless of the parties' intent." Aldora Aluminium & Glass Prods., Inc. v. Poma Glass & Specialty Windows, Inc., Case No. 3:14-cv-1402-J-34JBT, 2016 WL 3922938, at *3 (M.D. Fla. July 21, 2016); Dows v. Nike, Inc., 846 So. 2d 595, 602 (Fla. 4th DCA 2003) ("Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract."). Essential terms in contracts of sale vary greatly depending on the nature and complexity of the underlying transactions. Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057, 1060 (Fla.3d DCA 1979). These terms must be expressed with reasonable certainty considering “the subject-matter of the agreement, the purposes for which it was entered into, the situation and relation of the parties, and the circumstances under which it was made.” Rundel v. Gordon, 92 Fla. 1110, 111 So. 386, 389 (1927). Farrell v. Phillips, 414 So. 2d 1119, 1120 (Fla. 4th DCA 1982). Even where the Parties intend to be bound by a memorandum of understanding, that alone does not make it legally binding if there is uncertainty as to essential terms. See Aldora Aluminium & Glass Prods., Inc. v. Poma Glass & Specialty Windows, Inc., No. 3:14-cv-01402-J-34JBT, ECF No. 117, p. 13-14 (M.D. Fla. May 16, 2016), R&R adopted by 2016 WL 3922938. "A court cannot 'afford a remedy for the breach of a promise to negotiate a contract, because there would be no way to determine whether the parties would have reached an agreement had they negotiated.'" Alpha Data Corp. v. HX5, L.L.C., 139 So. 3d 907, 911 (Fla. 1st DCA 2013) (quoting Dep't of Corr. v. C & W Food Serv., Inc., 765 So.2d 728, 730 (Fla. 1st DCA 2000)). Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 8 of 17 PageID 52 9 19204886v1 0991063 Here, based upon the contractual language and Plaintiff's allegations, there can be no doubt that Plaintiff considers the essential term of the memorandum of understanding to be an obligation for Defendant to acquire or to form a joint venture with Plaintiff. It appears Plaintiff alleges the entire purpose of the memorandum of understanding was to effect this combination. [ECF No. 1, ¶ 21]. This term states, in whole, only the following: "This [the combination] will occur through the acquisition of TechnoCable by Genesis or via a joint venture of the Parties, with the arrangements to be finalized by Summer of 2015." [ECF No. 1, p. 17 (italics added)]. The very fact that the language "with the arrangements to be finalized by Summer of 2015" is used is unambiguously indicative that this is nothing more than an unenforceable an agreement to agree. That is, at best the parties agreed on a very general basic common goal, but did not agree how that goal would be accomplished, only that they would agree on that later. See John Alden Life Ins. Co. v. Benefits Mgmt. Assocs., Inc., 675 So. 2d 188, 189 n.1 (Fla. 3d DCA 1996) (holding agreement which provided "a separate bonus payment will be negotiated" was merely an agreement to agree and thus unenforceable); C & W Food Serv., Inc., 765 So. 2d at 729 ("An agreement to negotiate the terms of a renewal does not create a contractual right to renew."). An acquisition could conceivably take many forms and there is no clear line as to what this language means. There is thus no way to determine whether the Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 9 of 17 PageID 53 10 19204886v1 0991063 agreement has been breached or whose fault it is that the combination never occurred. For example, among many other possible questions, does this language mean Defendant need acquire only a controlling interest or must Defendant acquire 100% of Plaintiff? Was this to be an outright purchase or would it occur by providing Plaintiff's owners a share in Defendant in exchange for their interests in Plaintiff? How much would Plaintiff's owners receive, either in cash or of ownership in Defendant? Was Plaintiff to be absorbed into Defendant or merely to become a subsidiary which maintained its original management (or to become a subsidiary with new management)? If a new entity were to be formed, then in what state (or even foreign jurisdiction) would this entity be formed? Was financing involved and if so who would guarantee any such financing? If the parties formed a joint venture, then how was this to be structured? See CSX Transp., Inc. v. Prof'l Transp., Inc., 467 F. Supp. 2d 1333, 1339 (M.D. Fla. 2006) (agreement to modify an agreement later unenforceable because "such modification could be anything."). What party would have which obligations? How would the profits be divided? Under what parameters can a party leave the joint venture and when, if ever, does it terminate naturally? None of these critical issues are in any way addressed in the memorandum of understanding and, for an acquisition or joint venture to occur, would necessarily have to have been the subject of future negotiation and agreement. These are all Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 10 of 17 PageID 54 11 19204886v1 0991063 very complicated issues and there is no certainty the parties could have ever agreed on all of them. That is not to say that a memorandum of understanding can never be enforceable, but to do so it must lay our sufficient terms regarding a business combination that any unspecified terms can be deemed to be corollary. For example, in Staaldam Beheer B.V. v. ASAP Installations, LLC, No. 809-CV-02226-T- 17EAJ, 2010 WL 1730780, at *1-*2 (M.D. Fla. Apr. 28, 2010), two parties entered into a memorandum of understanding that laid out in great, but not all, detail as to how a joint venture would be formed. The memorandum in the Staaldam Beheer B.V. case specifically indicated that one party would transfer 51% ownership to the other and which entity would formally operate the joint venture. Id. at *1. The memorandum in that case also discussed ownership of specific equipment and how the equipment will be transferred and financed. Id. ASAP Installations, LLC attempted to argue the memorandum was not a binding contract because two details, an operating agreement and a particular employee's employment agreement, had not been worked out. Id. at *6. The Court rejected this argument and held the memorandum addressed the material terms and was therefore binding. Both Staaldam Beheer B.V. and other cases in which a memorandum of understanding spells out in great detail how a business combination was to be achieved, however, are completely distinguishable from the present case. In the present case, the memorandum of understanding attached to the Complaint spells Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 11 of 17 PageID 55 12 19204886v1 0991063 out absolutely no details as to how to effect a joint venture or acquisition. Consequently, the Court should dismiss Count One for failure to state a claim.2 b. Count Two - Plaintiff Fails to State a Claim for Oral Partnership To prove a joint venture under Florida law, the evidence must show all of the following: (1) all the essentials of an ordinary contract, including an intent to enter into a contract; (2) a community of interest in the performance of a common purpose; (2) joint or shared control or right of control over operations, personnel, and facilities; (3) joint ownership interest in the venture's business; (4) a right to share in the profits; and (5) a duty to share in any losses that may be sustained. Williams v. Obstfeld, 314 F.3d 1270, 1275-76 (11th Cir.2002). Miami-Dade Cnty. v. United States, 345 F. Supp. 2d 1319,1351 (S.D. Fla. 2004) (number of factors as written in original). Here, even assuming Plaintiff has adequately alleged the other factors, Plaintiff's oral partnership claim fails for the same reason as its breach of contract claim: all of the essentials of an ordinary contract are not present. That is, Plaintiff does not allege any oral communications establishing how this alleged partnership 2 In paragraph 38 within Count One, Plaintiff alleges "Genesis refused or failed to negotiate in good faith for the execution of a joint venture agreement." [ECF No. 1]. Plaintiff is, in effect, admitting that the memorandum of understanding was nothing more than an agreement to agree, because otherwise negotiation on this essential term would not be necessary. And even if it were true that Genesis did not exercise good faith in so negotiating, then it would be of no legal consequence since "[i]n Florida, there is no independent cause of action for breach of implied covenant of good faith and fair dealing if there is no express contract or intended third-party beneficiary contract." Caduceus Properties, LLC v. Gordon, 2011 WL 8184028 (Fla. Cir. Ct.) (citing Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232, 1234 (Fla. 4th DCA 2001) (noting that such a claim must be based on the breach of an express contract term). In other words, if no binding contract existed then whether Defendant acted in good faith is irrelevant. Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 12 of 17 PageID 56 13 19204886v1 0991063 was to be structured.3 The Court should therefore dismiss Count Two for failure to state a claim. Alternatively, pursuant to Rule 12(e), the Court should require Plaintiff to provide a more definite statement regarding Plaintiff's claimed entitlement to dissolution of the partnership. Plaintiff cites only generically to § 620.8801, Florida Statutes [ECF No. 1, ¶49], but this section provides that multiple different events may trigger dissolution. A more definite statement would allow Defendant to know specifically what Defendant is admitting or denying in response to this allegation. For these reasons, the Court should dismiss Count Two or, alternatively, order Plaintiff to provide a more definite statement. c. Count Three - Plaintiff Fails to State a Claim for Fraud Because This Count is Merely Duplicative of Count I for Breach of Contract and Does Not Comply With Rule 9(b) The Court should dismiss Count Three because it is duplicative of Count One and because it does not satisfy the pleading requirements of Rule 9(b). 3 Although we are at the pleadings stage, Defendant believes the Supreme Court of Florida's words on the burden of proof of an oral partnership should inform this Court's plausibility analysis of whether Plaintiff has sufficiently alleged a contract: "[W]here, as in this case, the events and transactions which form the basis of the alleged relationship are not in writing, the burden of establishing the existence of such contract, including all of its essential elements, is indeed, as it should be, a heavy and difficult one. Business relationships are not customarily entered into in a casual manner. This is particularly true as to those involving the magnitude of that under discussion. The very fact that the agreement was not reduced to writing is evidence, however slight, that no such agreement actually existed. This is especially true in those cases where, as here, the alleged relationship is either in its executory stages or has not actually commenced to function to the extent that the actions of the parties themselves may tend to establish the validity of the assertion that such agreement existed. Kislak v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957). Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 13 of 17 PageID 57 14 19204886v1 0991063 Plaintiff alleges in Count III that Defendant induced Plaintiff to assist Defendant in obtaining the Google Fiber contract by making "various fraudulent representations, warranties, and promises, including" that the two would form a joint partnership or Defendant would acquire Plaintiff, upon award of the contract the two would share in the earnings and profits, and the execution of the memorandum of understanding itself. [ECF No. 1, ¶ 53(a)-(b)]. This claim is barred by the independent tort doctrine because the alleged fraudulent acts amount to nothing more than allegations Defendant breached the memorandum of understanding or an oral agreement of the same nature. As noted by the Florida Supreme Court in Tiara Condominium Association, Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3d 399 (Fla. 2013), under basic common law principles, “in order to bring a valid tort claim, a party [ ]must demonstrate that all of the required elements for the cause of action are satisfied, including that the tort is independent of any breach of contract claim.” Id. at 408 (Pariente, J. concurring). Osan v. Verizon Florida LLC, No. 8:15-CV-104-T-36TGW, 2016 WL 2745001, at *4 (M.D. Fla. May 11, 2016). "Fundamental contractual principles continue to bar a tort claim where the offending party has committed no breach of duty independent of a breach of its contractual obligations." Quantum Capital, LLC v. Banco De Los Trabajadores, No. 1:14-cv-231193-UU, 2014 WL 1251957, at *11 (S.D. Fla. Nov. 21, 2014). Representations about future conduct to be performed pursuant to a contract merge with the breach of contract claim. See Prewitt Enters., LLC v. Tommy Constantine Racing, LLC, 185 So. 3d 566, 570 (Fla. 4th DCA 2016). Here, Plaintiff's allegations in Count Three amount to nothing more than Defendant made an agreement promising to do something in the future but then did Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 14 of 17 PageID 58 15 19204886v1 0991063 not perform when performance was due. It goes without saying many parties might not have made an agreement if they knew the other side was going to breach the agreement, but it does not turn the breach into an independent tort. Plaintiff even goes as far as incorporating by reference all previous allegations, including the alleged breach of a contract to do what the fraud count addresses, and requests the exact same damages in its "Wherefore" clause, because it is clear Plaintiff wants to be put into the same place Plaintiff allegedly would have been had the alleged agreement been honored (i.e., Plaintiff wants damages for breach of contract). Plaintiff's fraud claim also fails for another reason. Namely, it fails to comply with Rule 9(b). Rule 9(b) provides as follows: "Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." As this Court has held previously: Rule 9(b) may be satisfied if the complaint sets forth:(1) [P]recisely what statements were made in what documents or oral representations or what omissions were made, and(2) [T]he time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) the same, and(3) [T]he content of such statements and the manner in which they misled the plaintiff, and(4) [W]hat the defendants obtained as a consequence of the fraud. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir.1997). Linville v. Ginn Real Estate Co., LLC, 697 F. Supp. 2d 1302, 1306 (M.D. Fla. 2010) (Scriven, J.). Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 15 of 17 PageID 59 16 19204886v1 0991063 Nowhere in Count Three itself is any statement or omission identified at all, but rather Plaintiff merely makes completely vague allegations that false "representations, warranties, and promises were made." [E.g., ECF No. 1, ¶ 54]. While Plaintiff does mention a promise to form a partnership or joint venture within this count, this promise was the subject of the memorandum of understanding and therefore cannot form an independent tort. Plaintiff does incorporate prior paragraphs 8 through 51 in Count Three as well, and in those paragraphs Plaintiff provides the dates and locations of several meetings. But the only person credited with making any specific statement is in paragraph 17(d), where Plaintiff attributes that single statement-that Defendant would "do whatever it took to secure the account"-to three different individuals.4 The rest of the paragraphs are full simply of generic summaries of the meetings, agreements the parties allegedly made to cooperate in securing a contract from Google, and descriptions of what Google said was necessary for them to do so. Stated differently, Plaintiff does not appear even to identify any false statements at all in paragraphs 8 through 51, let alone who made them, their specific content, or how those statement misled it. For the above reasons, the Court should dismiss Count Three for failure to state a claim. 4 There is no indication that this statement was false, as Plaintiff alleges Defendant did secure the contract and Plaintiff does not appear to complain in this lawsuit that Defendant's efforts to secure the contract were in any way deficient, just that Plaintiff believes Defendant breached an agreement to acquire Plaintiff or to form a joint venture with Plaintiff after receipt of the contract. Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 16 of 17 PageID 60 17 19204886v1 0991063 IV. CONCLUSION Venue is improper in this district and Plaintiff has failed to state a claim as to any count. The Court should therefore dismiss this Complaint in its entirety or, alternatively, transfer this lawsuit to the Western District of Texas, San Antonio Division. In the further alternative, a more definite statement is required as to Count Three. CERTIFICATE OF SERVICE I hereby certify that on October 12, 2016, this document was served via the Court's CM/ECF system on: Chad Andrew Justice, Black Rock Trial Lawyers, 201 South Westland Ave, Tampa, FL 33606, 813-254-1777, Fax: 813-254-3999, chadjustice@blackrocklaw.com, Juan Guillermo Sanchez, Sanchez Law Firm, 2665 S Bayshore Dr Ste 220, Coconut Grove, FL 33133-5402, 305-209-7282, jsanchez@sanchez-law-firm.com; Lara Michelle LaVoie, LaVoie & Kaizer, P.A., 6601 Memorial Highway Suite 201, Tampa, FL 33615, 18448137246, 18448137246, lara@flinjuryadvocates.com. By: s/Daniel A. Krawiec Daniel A. Krawiec Florida Bar No. 59136 Martin D. Stern Florida Bar No. 72354 mstern@hinshawlaw.com dkrawiec@hinshawlaw.com Hinshaw & Culbertson LLP One East Broward Blvd., Suite 1010 Fort Lauderdale, FL 33301 Telephone: 954-467-7900 Fax: 954-467-1024 Case 8:16-cv-02590-MSS-MAP Document 12 Filed 10/12/16 Page 17 of 17 PageID 61