Under Florida law, every contract includes an implied duty of good faith. Burger King Corp. v. Ashland Equities. Inc., 217 F. Supp. 2d 1266, 1278 (S.D. Fla. 2002). With respect to BKC's contractual duty of good faith, Section 5 of the Agreement states that BKC can only make changes and additions to the BKC Operating system "which BKC in the good faith exercise of its judgment believes to be desirable and reasonably necessary. . . ."
Nonetheless, the limit placed on a party's discretion "is not great" under Florida law. Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1291 (11th Cir. 2001); Burger King Corp. v. Ashland Equities, Inc., 217 F. Supp. 2d 1266, 1278 (S.D. Fla. 2002) ( quoting Ford). No violation of the duty of good faith occurs "unless no reasonable party . . . would have made the same discretionary decision."
Although these courts rarely find that the franchisee has proven its case, they do not hold the franchisor excluded from tort liability simply by virtue of the franchise contract. See, e.g., Interim Health Care of Northern Illinois, Inc. v. Interim Health Care, Inc., 225 F.3d 876, 886-87 (7th Cir. 2000) (applying Illinois law) (tort actionable, but not proven); Brock v. Baskin Robbins, USA, Co., No. 5:99-CV-274, 2003 WL 21309428, at *6-*7 (E.D.Tex. Jan.17, 2003) (same); Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1279-80 (S.D.Fla. 2002) (same); Dunkin' Donuts v. Shree Dev Donut LLC, 152 F.Supp.2d 675, 678-79 (E.D.Pa. 2002) (tort counterclaim survived summary judgment); Harford Donuts, Inc. v. Dunkin' Donuts, Inc., No. Civ. L-98-3668, 2001 WL 403473, at *4-*5 (D.Md. April 10, 2001) (tort actionable, but not proven); Clark v. America's Favorite Chicken Co., 916 F.Supp. 586, 594-95 (E.D.La. 1996). In other states, the apparent minority, courts have added to tortious interference claims the requirement that the tortfeasor be a "third party," or a "stranger," to the interrupted economic relationship.
Giglio, 2012 WL 4477504, at *2 (citing Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1280-81 (S.D. Fla. 2002) (Gold, J.); see also ABCO Premium Fin. LLC v. Am. Int'l Grp., Inc., No. 11-23020-CIV, 2012 WL 3278628, at *4 (S.D. Fla. Aug. 9, 2012)
Consequently, “affidavits and declarations [attached to a reply brief] may contain facts not previously mentioned in the” underlying motion, “as long as the facts rebut elements of the opposition memorandum and do not raise wholly new factual issues.” Giglio Sub S. N.C. , 2012 WL 4477504 at *2 (citing Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1280-81 (S.D. Fla. 2001)). The Lock Declaration fails to rebut the evidence Plaintiffs cite in their opposition, as well as the core of Plaintiffs' opposition-that the forum-selection clause in the Ticket Contract governs.
Thus, while raising new arguments on reply is generally inappropriate, reply evidence “may contain facts not previously mentioned in the opening brief, as long as the facts rebut elements of the opposition memorandum and do not raise wholly new factual issues.” GiglioSub s.n.c., 2012 WL 4477504, at *2 (citing Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1280-81 (S.D. Fla. 2002)); see also ABCO Premium Fin. LLC v. Am. Int'l Grp., No. 11-23020-CIV, 2012 WL 3278628, at *4 (S.D. Fla. Aug. 9, 2012) (“While the ‘raising of new issues and submission of new facts in reply brief is improper,' a court has the discretion to consider the additional exhibits despite this ‘procedural shortcoming.'” (citation omitted)), aff'd, 518 Fed.Appx. 601 (11th Cir. 2013); Intra-Lock Int'l, Inc. v. Choukroun, No. 14-cv-80930, 2015 WL 1268278, at *1 (S.D. Fla. Mar. 19, 2015). Upon review of parties' briefing and the record evidence, the Court is unpersuaded that the challenged exhibits are improper attempts to raise new factual issues on reply.
However, there is "'[a] significant difference ... between new arguments and evidence, on the one hand, and rebuttal arguments and evidence, on the other' when they are raised in reply briefs." Id. (quoting Giglio Sub S.N.C. v. Carnival Corp., No. 12-21680-CIV, 2012 WL 4477504, at *2 (S.D. Fla. Sept. 26, 2012) (citing Burger King Corp. v. Ashland Equities, Inc., 217 F. Supp. 2d 1266, 1280-81 (S.D. Fla. 2001))). Although some of the arguments in the University's reply overlap with its motion for summary judgment, the reply is largely limited to addressing the arguments and reliance on evidence in the Plaintiff's response in opposition.
However, there is “‘[a] significant difference ... between new arguments and evidence, on the one hand, and rebuttal arguments and evidence, on the other' when they are raised in reply briefs.” Id. (quoting Giglio Sub S. N.C. v. Carnival Corp., No. 12-21680-CIV, 2012 WL 4477504, at *2 (S.D. Fla. Sept. 26, 2012) (citing Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1280-81 (S.D. Fla. 2001))). Although some of the arguments in the University's reply overlap with its motion for summary judgment, the reply is largely limited to addressing the arguments and reliance on evidence in the Plaintiff's response in opposition.
Accordingly, Defendants' failure to timely pay constituted a material breach. See, e.g., Burger KingCorp. v. Ashland Equities, Inc., 217 F. Supp. 2d 1266, 1274 (S.D. Fla. 2002), aff'd sub nom. 103 F. App'x 666 (11th Cir. 2004) (granting summary judgment in favor of franchisor for breach of contract where franchisee failed to pay royalties, advertising payments, and property taxes after receiving default notice). Defendants rely on Ron Matusalem & Matusa of Florida, Inc. v. Ron Matusalem, Inc., 872 F.2d 1547 (11th Cir. 1989) and claim that under Restatement of Contracts § 241, their failure to pay is not material.
While raising new arguments on reply is generally inappropriate, reply evidence “may contain facts not previously mentioned in the opening brief, as long as the facts rebut elements of the opposition memorandum and do not raise wholly new factual issues.” Giglio, 2012 WL 4477504, at *2 (citing Burger King Corp. v. Ashland Equities, Inc., 217 F.Supp.2d 1266, 1280–81 (S.D.Fla.2002) ); see alsoABCO Premium Fin. LLC v. Am. Int'l Grp., Inc., No. 11–23020–CIV, 2012 WL 3278628, at *4 (S.D.Fla. Aug. 9, 2012) aff'd , 518 Fed.Appx. 601 (11th Cir.2013) (“While the raising of new issues and submission of new facts in reply brief is improper, a court has the discretion to consider the additional exhibits despite this procedural shortcoming.”