United States District Court, M.D. Florida, Tampa DivisionMay 24, 2007
Case No. 8:06-cv-01973-T-30TGW (M.D. Fla. May. 24, 2007)

Case No. 8:06-cv-01973-T-30TGW.

May 24, 2007


JAMES MOODY JR., District Judge

THIS CAUSE comes before the Court upon Defendant Hani S. Banoub's Motion to Dismiss Complaint (Dkt. 8), and Plaintiff's response in opposition thereto (Dkt. 12). For the reasons stated below, this Court finds that Defendant's motion should be DENIED.

Motion to Dismiss Standard

At the motion to dismiss stage, this Court must review the Complaint in the light most favorable to plaintiff and construe all allegations in the Complaint as true. Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). A court may, however, dismiss a complaint on a dispositive issue of law. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F. 2d 1171 (11th Cir. 1993). Conclusory allegations "will not survive a motion to dismiss if not supported by facts constituting a legitimate claim for relief . . . However, the alleged facts need not be spelled out with exactitude, nor must recovery appear imminent." Quality Foods De Centro America S.A. v. Latin America Agribusiness Development Corp., 711 F. 2d 989, 995 (11th Cir. 1983). A motion to dismiss is appropriate when it appears "beyond a reasonable doubt" that the plaintiff can prove no set of facts to support his claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); South Florida Water Management District v. Montalvo, 84 F. 3d 402, 406 (11th Cir. 1996).


Plaintiffs have filed a four count Complaint alleging Breach of Oral Contract (Count 1), Quantum Meruit (Count 2), Conversion (Count 3), and Fraud (Count 4) against Defendant, resulting from Defendant's alleged plan to defraud Plaintiffs out of $900,000.00 for the purchase of a yacht on behalf of the Plaintiffs. (Dkt. 1). Defendant has filed his Motion to Dismiss Complaint pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiffs have failed to allege that they are proper parties in interest to bring this action.

In reviewing the Complaint, this Court disagrees with Defendant's Motion. Plaintiffs have alleged that the money came from them individually. (Dkt. 1, ¶¶ 11-13). While the court may look to attachments, in this case it is not dispositive because often money comes from a source other than that which seems apparent. For example, banks are capable of making many complex transactions and a transfer of funds that appears to be from the bank may, in fact, be from an account holder. This issue is more appropriately brought up on Summary Judgment.

It is therefore ORDERED AND ADJUDGED that:

1. Defendant Hani S. Banoub's Motion to Dismiss Complaint (Dkt. 8) is DENIED.
2. Defendant Hani S. Banoub is hereby given twenty (20) days from the date of this Order in which to file a response to the Complaint.