Opinion
Case No. 3:10-cv-1140-J-32TEM.
July 19, 2011
ORDER
Plaintiff, Westfield Insurance Company, an Ohio corporation, as subrogee of its insureds Westmoreland/Filichia Partnership and Jaguar Builders of Jax, Inc., filed this suit for negligence and breach of contract against Defendant, Accessibility Specialists, Inc., a Florida corporation. (Doc. 1). According to the complaint, Westmoreland/Filichia Partnership owned a commercial property located at 4969 Beach Boulevard, Jacksonville, Florida ("property"). (Id. at 2). Both Defendant and Jaguar Builders of Jax., Inc. were tenants of the property. (Id. at 2, 3). Prior to April 23, 2009, Plaintiff had issued an insurance policy to Westmoreland/Filichia Partnership and Jaguar Builders of Jax, Inc. ("Plaintiff's insureds"). (Id. at 2). On April 23, 2009, Defendant's employee's welding activities in Defendant's leased space in the property caused a fire, allegedly resulting in damages to Plaintiff's insureds in excess of $75,000. (Id. at 3). Pursuant to the insurance policy, Plaintiff compensated Plaintiff's insureds for losses sustained as a result of the fire. (Id.). As a result of Plaintiff's payments and pursuant to the terms of the insurance policy, Plaintiff is equitably and contractually subrogated to the rights of Plaintiff's insureds to the extent of those payments. (Id.). Plaintiff has brought suit against Defendant for negligence and breach of contract. (Id. at 3-5). Defendant has moved to dismiss for failure to state a claim (Doc. 7), and Plaintiff filed a response in opposition (Doc. 10).
For reasons which are not clear, the Clerk filed a redacted version of the complaint in the public record which omitted this address and other information. By this Order, the Clerk shall replace that complaint with the unredacted version plaintiff originally submitted to the Court for filing.
I. Standard of Review
In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must "accept [] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff." Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The court must limit its scope of review "to the four corners of the complaint." St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). However, "a document attached to a motion to dismiss may be considered by the court . . . only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed." Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). "While a complaint attacked by a . . . 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and brackets omitted). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id.
In a diversity case, the federal court "applies the substantive law of the forum state [,] unless federal constitutional or statutory law compels a contrary result." Technical Coating Applicators, Inc. v. U.S. Fid. and Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998). As such, this Court will apply Florida law.
II. Discussion
A. Count One: Negligence
Count one alleges that Defendant was negligent when it breached duties owed to its landlord Westmoreland/Filichia Partnership and its fellow tenant Jaguar Builders to maintain its leased space in a reasonable manner when it permitted its employee to perform work on the property without exercising reasonable care, thereby causing a fire which damaged the property of Plaintiff's insureds. In moving for dismissal, Defendant states that "Plaintiff's complaint is based exclusively on breach of contract" (Doc. 7 at 1) and seeks dismissal of the entire complaint. (Id. at 5). Defendant has not cited any case law or other authority to provide a basis for the dismissal of Plaintiff's negligence count. Therefore, Defendant's Motion to Dismiss as to Plaintiff's negligence count (Count one) is denied.
B. Count Two: Breach of Contract
Count two alleges that Defendant breached a contract with its landlord, Westmoreland/Filichia Partnership, Plaintiff's insured, to maintain its leased space in a reasonable manner and to perform work in a reasonable and prudent manner. Defendant seeks to dismiss the claim because it is based solely on conclusory legal allegations. To state a claim for breach of contract under Florida law, a plaintiff must allege "(1) a valid contract; (2) a material breach; and (3) damages." Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000).
Plaintiff alleges a valid contract by stating, "[p]ursuant to a written and/or oral agreement between Westmoreland/Filichia Partnership and Accessibility, Accessibility expressly and/or impliedly agreed to maintain its leased space in a reasonable manner and to ensure that the work it performed was done in a reasonably prudent manner to ensure that the Property was safe from risk of fire." (Doc. 1 at 4). Next, Plaintiff alleges a material breach by stating, "Accessibility breached its express and/or implied agreement with Westmoreland/Filichia Partnership by failing to ensure that the work it performed at the Property was done in a reasonably prudent manner and to ensure that the Property was safe from risk of fire." (Id. at 5). Finally, Plaintiff alleges damages by stating, "[a]s a direct and proximate result of . . . Accessibility's breach, Westmoreland/Filichia Partnership suffered damages [and] . . . Westfield paid Westmoreland/Filichia Partnership for damages sustained as a result of the fire." (Id.). While this count surely could have been pled with more specificity, Plaintiff has (just barely) alleged the necessary elements for a claim of breach of contract.
Defendant further argues that the claim should be dismissed because no agreement is attached to the complaint. (Doc. 7 at 2). However, "there is no requirement that a plaintiff attach the contract to the complaint." Spring Air Int'l, LLC v. R.T.G. Furniture Corp., No. 8:10-cv-1200-T-33TGW, 2010 WL 4117627, at *5 (M.D. Fla. Oct. 19, 2010). Therefore, Plaintiff is not required to attach a copy of the contract to the complaint in order to state a claim upon which relief may be granted.
Finally, Defendant argues that the claim is being brought pursuant to an oral agreement "pertain[ing] to an interest in land and an alleged agreement to pay for the debts of another[,]" (Id.), and therefore is barred by the statute of frauds. Statute of frauds may be pled as an affirmative defense. Fed.R.Civ.P. 8(c). However, an affirmative defense may be raised in a 12(b)(6) motion to dismiss "only if the defense is apparent on the face of the complaint." Hudson Drydocks Inc. v. Wyatt Yachts Inc., 760 F.2d 1144, 1146 n. 3 (11th Cir. 1985). Plaintiff's breach of contract claim is based on a "written and/or oral agreement." (Doc. 1 at 4 (emphasis added)). Accepting Plaintiff's allegations as true, the statute of frauds defense is not apparent on the face of the Complaint because the agreement may have been written and/or oral. Thus, the potential application of the defense of Statute of Frauds will have to await further case developments. For the foregoing reasons, Defendant's Motion to Dismiss as to Plaintiff's breach of contract count (Count two) is denied.
Accordingly, for the reasons stated, it is hereby
ORDERED:
1. Defendant's Motion to Dismiss (Doc. 7) is DENIED. Defendant shall file and serve its answer to the complaint no later than August 19, 2011.
2. By that same date ( August 19, 2011), the parties shall confer and file their Case Management Report (the form of which is attached).
DONE AND ORDERED at Jacksonville, Florida. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION Plaintiff(s), v. Case No. Defendant(s).
CASE MANAGEMENT REPORT
The parties have agreed on the following dates and discovery plan pursuant to Fed.R.Civ.P. 26(f) and Local Rule 3.05(c): DEADLINE OR EVENT AGREED DATE Mandatory Initial Disclosures (pursuant to Fed.R.Civ.P. 26(a)(1)) Certificate of Interested Persons and Corporate Disclosure Statement Motions to Add Parties or to Amend Pleadings Disclosure of Expert Reports Discovery Deadline Dispositive and Daubert Motions Trial Term Begins must not Estimated Length of Trial Jury/Non-Jury Mediation mandatory All Parties Consent to Proceed Before Magistrate Judge all [Court recommends 30 days after CMR meeting] [all parties are directed to complete and file the attached] Plaintiff: Defendant: [Court recommends 5 months before trial to allow time for dispositive motions to be filed and decided; all discovery must be commenced in time to be completed before this date] [Court requires 4 months or more before trial term begins] (month, year) [Local Rule 3.05(c)(2)(E) sets goal of trial within 1 year of filing complaint in most Track Two cases, and within 2 years in all Track Two cases; trial term be less than 4 months after dispositive motions deadline (unless filing of such motions is waived). Trials before the District Judge will generally be set on a rolling trial term toward the beginning of each month, with a Final Pretrial Conference to be set by the Court the preceding month. If the parties consent to trial before the Magistrate Judge, they will be set for a date certain after consultation with the parties] [trial days] Deadline: Mediator: Address: Telephone: [Mediation is in most Track Two cases; Court recommends either 2 — 3 months after CMR meeting, or just after discovery deadline; if the parties do not so designate, the Court will designate the mediator and the deadline for mediation. A list of certified mediators is available on the Court's website and from the Clerk's Office.] Yes____ No____ If yes, the parties shall complete and counsel and/or unrepresented parties shall execute the attached Form AO-85.I. Meeting of Parties
Lead counsel shall meet in person or, upon agreement of all parties, by telephone. (If all parties agree to conduct the case management conference by telephone, they may do so without filing a motion with the Court.) Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A), a meeting was held on ___________________ (date) at _______________ (time) and was attended by: Name Counsel for (if applicable) _______________________________________ _________________________________ _______________________________________ _________________________________ _______________________________________ _________________________________II. Preliminary Pretrial Conference
Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are mandatory in Track Three cases. Track Two cases: Parties (check one) [___] request [___] do not request a preliminary pretrial conference before entry of a Case Management and Scheduling Order in this Track Two case. Unresolved issues to be addressed at such a conference include:_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
III. Pre-Discovery Initial Disclosures of Core Information
Fed.R.Civ.P. 26(a)(1)(A) — (D) Disclosures
The parties (check one) [___] have exchanged [___] agree to exchange information described in Fed.R.Civ.P. 26(a)(1)(A) — (D) on or by _______________ (date).
IV. Agreed Discovery Plan for Plaintiffs and Defendants
A. Certificate of Interested Persons and Corporate Disclosure Statement
This Court makes an active effort to screen every case in order to identify parties and interested corporations in which the assigned judge may be a shareholder, as well as for other matters that might require consideration of recusal. Therefore, each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee shall file and serve within fourteen (14) days from that party's first appearance a Certificate of Interested Persons and Corporate Disclosure Statement using the attached mandatory form. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Corporate Disclosure Statement. All papers, including emergency motions, are subject to being denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement. Any party who has not already filed and served the required certificate is required to do so immediately. Each party has a continuing obligation to file and serve an amended Certificate of Interested Persons and Corporate Disclosure Statement within eleven days of 1) discovering any ground for amendment, including notice of case reassignment to a different judicial officer; or 2) discovering any ground for recusal or disqualification of a judicial officer. A party should not routinely list an assigned district judge or magistrate judge as an "interested person" absent some non-judicial interest.
B. Discovery Plan/Deadline
The parties shall not file discovery materials with the Clerk except as provided in Local Rule 3.03. The Court encourages the exchange of discovery requests on diskette. See Local Rule 3.03(e). In propounding and responding to discovery, the parties are directed to consult and comply with the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Middle District of Florida, and the Middle District of Florida's Discovery Handbook. Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. In addition, the parties agree as follows: _______________________________________________________
_________________________________________________________________
C. Confidentiality Agreements/Motions to File Under Seal
Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. The Court is a public forum, and disfavors motions to file under seal. The Court will permit the parties to file documents under seal only upon motion and order entered under Local Rule 1.09.
The parties may reach their own agreement (without Court endorsement) regarding the designation of materials as "confidential." The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce appropriate stipulated and signed confidentiality agreements. See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed to provide, that "no party shall file a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." With respect to confidentiality agreements, the parties agree as follows: ______________________________________________________
_________________________________________________________________
D. Disclosure or Discovery of Electronically Stored Information and Assertion of Claims of Privilege
Pursuant to Fed.R.Civ.P. 26(f)(3), the parties have made the following agreements regarding the disclosure and discovery of electronically stored information as well as the assertion of claims of privilege or protection of trial preparation materials after production:
_________________________________________________________________
_________________________________________________________________
V. Mediation
Absent a Court order to the contrary, the parties in every case will participate in Court-annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The parties have agreed on a mediator from the Court's approved list of mediators as set forth in the table above, and have agreed to the date stated in the table above as the last date for mediation. The list of mediators is available from the Clerk, and is posted on the Court's web site at www.flmd.uscourts.gov. If the parties do not so designate, the Court will designate the mediator and the deadline for mediation.
VI. Requests for Special Handling
Requests for special consideration or handling (requests may be joint or unilateral):
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Date: _____________________
Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
I hereby disclose the following pursuant to this Court's interested persons order:1.) the name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action — including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case:
[insert list]
2.) the name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings:
[insert list]
3.) the name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases:
[insert list]
4.) the name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution:
[insert list]
I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict. Pro Se
[Date] _____________________________ [Counsel of Record or Party] [Address and Telephone] [Certificate of Service]