CASE NO: 8:12-cv-755-T-26TBM
Before the Court is Plaintiff Yellow Pages Photos, Inc.'s Motion to Dismiss Ziplocal, LP's Amended Counterclaim (Dkt. 95), and Defendant Ziplocal, LP's Response. (Dkt. 112). After careful consideration of the allegations of the Amended Counterclaim (Dkt. 91), the arguments, and the applicable law, the Court concludes that the motion should be granted with leave to amend.
Count I— Declaratory Relief
Plaintiff YPPI argues that count I for declaratory relief should be dismissed because the issues presented are already pending before this Court in the breach of contract and copyright infringement claims. See DZ Bank AG Deutsche Zent-Ral-Genossenschaftsbank v. McCranie, No. 3:10-cv-222-J-MCR, 2010 WL 4739521, at *3-4 (M.D. Fla. Nov. 16, 2010) (exercising discretion to dismiss declaratory relief action without leave to amend because issues alleged were already pending before the court); Trilogy Prop. LLC v. SB Hotel Assoc., No. 09-21406-CIV, 2010 WL 7411912 (S.D. Fla. Dec. 23, 2010) (exercising discretion to dismiss declaratory judgment claim because a judgment in plaintiff's favor would offer nothing beyond "what a victory on the breach-of-contract claim offers"); Sembler Family Part. v. Brinker Fla., Inc., No. 8:08-cv-1212-T-24MAP, 2008 WL 5341175 (M.D. Fla. Dec. 19, 2008) (exercising discretion to dismiss declaratory judgment claim in counterclaim when complaint already contained a declaratory claim to determine rights under lease for termination). Ziplocal counters that there is a controversy raised by the declaratory judgment claim that will not be resolved through the claims in YPPI's complaint. See Medmarc Cas. Ins. Co. v. Pineiro & Byrd PLLC, 783 F. Supp. 2d 1214, 1215 (S.D. Fla. 2011) (declining to dismiss declaratory relief action sought in counterclaim because some issues raised in the counterclaim would go unresolved in plaintiff's claim and affirmative defenses).
In this case, the amended complaint contains two counts: (1) breach of license agreement between Ziplocal and YPPI and (2) copyright infringement against all defendants. The breach of contract count seeks damages for Ziplocal's furnishing CDs and files with YPPI's photographic images to YPG, and for failing to return all the copies after termination of the agreement. Ziplocal's first counterclaim count seeks a declaration of rights under the license agreement that the agreement exists in the first instance,claiming that YPPI now takes the position that the license agreement is not one. The count also seeks a declaration of rights that YPPI authorized an unlimited number of users under the license agreement. Giving Ziplocal the benefit of the doubt, this Court will permit the counterclaim to stand in the event all issues raised in the counterclaim for declaratory relief are not fully resolved by the complaint and affirmative defenses. Ziplocal shall amend the counterclaim for declaratory relief to correct the scrivener's error in the wherefore clause.
There is apparently a discrepancy over exactly which documents constitute a license agreement.
Count II— Fraud
YPPI asserts that Ziplocal has failed to state a claim for relief for fraudulent inducement for lack of particularity and specificity pursuant to Fed. R. Civ. P. 9(b). See Postel Indus., Inc. v. Abrams Group Constr., LLC, No. 6:11-cv-1179-Orl-28DAB, 2012 WL 4194660, at *3 (M.D. Fla. Sept. 19, 2012). Ziplocal asserts that it can add additional facts to the allegations of count II to better specify the fraudulent inducement and add the element of intent.
It is therefore ORDERED AND ADJUDGED that Plaintiff Yellow Pages Photos, Inc.'s Motion to Dismiss Ziplocal, LP's Amended Counterclaim (Dkt. 95) is GRANTED with leave to amend. Ziplocal shall file an amended counterclaim within ten (10) days of this order. Yellow Pages Photos, Inc., shall file a response to the amended counterclaim within ten (10) days of service.
DONE AND ORDERED at Tampa, Florida, on November 20, 2012.
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record