Opinion
Case No. 8:04-CV-937-T-17TGW.
October 5, 2005
ORDER
This cause is before the Court on:
Dkt. 6 Motion to Dismiss
Dkt. 7 Response
This case is a Complaint for: 1) Count I — Conversion — Wells; 2) Count II — Conversion — Pennachio; 3) Count III — Civil Theft — Wells; 4) Civil Theft — Pennachio; 5) Fraud — Wells; and 6) Fraud — Pennachio.
I. Fraud
Defendants seek dismissal of Counts V and VI for failure to allege fraud with sufficient particularity. Defendants argue that there are no specific allegations regarding the exact statements made, the time and place of the statement, the content of the statement, or the way the statement misled the plaintiff. Defendants also argue that these Counts merely allege a failure of performance.
Plaintiff responds that the allegations of the Complaint identify each individual Defendant, indicate the representations made to Plaintiff by each Defendant, and show that the Defendants gained $25,000 each as a result of their statements. Plaintiff relies on C.S.I.R. Enterprises v. Sebright Agency, 214 F.Supp.2d 1276 (M.D. Fla. 2002).
The Court notes that in the Complaint, there is no allegation of place, and the only allegation of time is a relative term — sometime before June 30, 2002, the date on the checks. After consideration, the Court grants the Motion to Dismiss as to the fraud counts, with leave to amend.
II. Economic Loss Rule
Defendants argue that in the absence of personal injury or property damage, a party is generally not entitled to pursue a tort action to recover economic losses. Defendants argue that it is apparent from the face of the Complaint that the plaintiff is claiming that there was an oral agreement or an implied agreement between the parties regarding the sale of stock to plaintiff. Defendants argues that there is no tort that is independent from the breach of an agreement between the parties.
Plaintiff responds that the economic loss rule does not bar the claims for fraud, conversion, or for civil theft.
A. Fraud
The economic loss rule does not bar fraud claims based on facts that are independent from the facts relating to performance of a contract. Fraud in the inducement is an independent tort. The Court therefore denies the Motion to Dismiss as to fraud.
B. Conversion
After consideration, the Court denies the Motion to Dismiss Plaintiff's claim for conversion because the claim goes beyond the failure to comply with the terms of any agreement between the parties. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla. 1997).
C. Civil Theft
Plaintiff has brought a claim under Section 812.014(1), Fla. Stat. The Court is required to construe Florida law as the Florida Supreme Court construes it. Since the Florida Supreme Court has held that the economic loss rule does not bar statutory causes of action, see Comptech International v. Milam Commerce Park, Ltd., 753 So.2d 1219, 122-23 (Fla. 1999), the Court denies the Motion to Dismiss as to this issue. The Court agrees that its decision in C.S.I.R. Enterprises, Inc. v. Sebrite Agency, Inc., 214 F.Supp.2d 1276 (M.D. Fla. 2002) interpreted Comptech too narrowly, and did not adequately take into account the doctrine of separation of powers. See Indemnity Ins. Co. v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004).
III. Lack of Jurisdictional Amount
Defendants argue that the Complaint alleges that Plaintiff provided $25,000 to each Defendant, and the jurisdictional amount is not sufficient.
The Court has denied the Motion to Dismiss the claims for civil theft and conversion, and will permit the fraud claim to proceed after amendment. After consideration, the Court denies the Motion to Dismiss as to jurisdictional amount. Accordingly, it is
ORDERED that Defendants' Motion to Dismiss is granted in part and denied in part, with leave to amend within ten days.
DONE and ORDERED.