Opinion
CASE NO. 07-22989-PAS-SEITZ/O'SULLIVAN.
April 23, 2008
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS; AND (2) SETTING DEADLINE TO REPLEAD
THIS MATTER came before the Court for hearing on April 21, 2008, on Defendant's Motion to Dismiss the First Amended Complaint [DE-16]. As discussed at the hearing, Defendant's motion is granted as to all counts, with leave to replead Counts I and IV.
As discussed at the hearing, Count I of Plaintiff's First Amended Complaint (breach of contract) does not clearly set forth facts in support of Plaintiff's allegation that Defendant breached the October 6, 2006 Intercreditor Agreement between the parties by entering the December 15, 2006 Modification Agreement. In the Eleventh Circuit, Count II (breach of implied covenant of good faith and fair dealing) is subsumed into Count I. Centurion Air Cargo v. United Parcel Service, Co., 420 F.3d 1146, 1151 (11th Cir. 2005). Under Florida law, Count III (breach of fiduciary duty) fails where, as here, the contract at issue is between two sophisticated parties, neither of which depended on the other to advise, counsel, or protect it. Watkins v. NCNB Nat. Bank of Florida, N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993) (citation omitted). Lastly, the First Amended Complaint does not include the specificity required under Fed.R.Civ.P. 9 to support Count IV (fraudulent inducement). Brooks v. Blue Cross and Blue Shield of Florida, 116 F.3d 1364, 1371 (11th Cir. 1997).
In addition to agreeing to the deadline set forth below, the parties confirmed that they can abide by the scheduling dates proposed by the Court, which will be set forth in a separate Order.
For reasons set forth at the April 21, 2008 hearing, it is hereby ORDERED that:
(1) Defendant's Motion to Dismiss [DE-16] is GRANTED, with prejudice as to Counts II and III, and with leave to replead Counts I and IV of the First Amended Complaint; and
(2) Plaintiff has until May 6, 2008 to file a Second Amended Complaint, if Plaintiff so chooses.
DONE AND ORDERED in Miami, Florida.