Citimark Int'l v. V10 Glob. Logistics & Trading Corp.
| Decision Date | 09 August 2022 |
| Docket Number | 21-cv-24394-ALTMAN/REID |
| Parties | CITIMARK INTERNATIONAL LIMITED, Plaintiff, v. V10 GOLBAL LOGISTICS & TRADING CORP., et al., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS
This cause is before the Court on Defendant, V10 Global Logistics & Trading Corp.'s (“V10”) Motion to Dismiss [ECF No. 19], Plaintiff, Citimark International Limited's (“Citimark”) First Amended Complaint (“FAC”) [ECF No. 12]. For the reasons discussed below, it is RECOMMENDED that V10's Motion to Dismiss be DENIED.
Citimark filed the FAC on February 2, 2022, asserting six claims against V10 seeking compensatory damages in the amount of $24,257,801 and punitive damages alleging: (1) breach of contract; (2) promissory estoppel; (3) tortious interference with business relationships; (4) violation of Florida's Deceptive and Unfair Trade Practices Act; (5) fraud; and (6) conversion. [ECF No. 12]. V10 filed a Motion to Dismiss the FAC. [ECF No. 19]. V10's Motion seeks dismissal of three of Citimark's claims: breach of contract, tortious interference, and conversion.
This is in many ways a typical breach of contract case. Citimark, a Hong Kong Corporation, is a wholesale distributor of frozen chicken and other animal meat products. [ECF No. 12 at ¶ 4]. It has ongoing business relationships with several different frozen meat purchasers, including restaurants suppliers, and food distributers in China. [Id. at ¶ 4, 17]. According to the FAC, beginning in March 2021 Citimark began negotiating with Defendant, V10, a Florida corporation holding itself out as a “global seller and supplier of frozen foods,” for the purchase of frozen Brazilian meat products. [Id. at ¶¶ 11 18]. V10 made representations to Citimark that V10 had relationships with Brazilian meat farms, including Copacol, Rivelli, and Cvale, and could sell frozen Brazilian meat products to Citimark for shipment and distribution to Citimark's customers. [Id.]. Citimark negotiated with V10 for the purchase, shipment, and distribution of frozen Brazilian meat to Citimark's customers in China. [Id.].
More specifically, on or around March 2021, Citimark representatives spoke with Kris Kielbasiewicz. [Id. at ¶ 19]. The statements Kielbasiewicz made during these communications, and his relationship to V10 play an important role in this dispute. Kielbasiewicz, purportedly holding himself out as “‘the VP of Sales for V10'-offered to sell, supply, and ship Brazilian-sourced frozen chicken and pork products to Citimark in China.” [Id.]. During the negotiations, Kielbasiewicz and Citimark agreed Citimark would pay a deposit of 30% of the order price upon confirmation, and the remaining 70% balance after Citimark received copies of the shipping documents. [Id.].
Kielbasiewicz is also the Director of, as of yet unserved Defendant, IMC Europe Sp. Z o.o. sp.K (“IMC”). [Id. at 178]. IMC, whose role in this case is disputed by the parties, is a Polish company also involved in the wholesale distribution of frozen meat products. [Id. at 12]. Citimark contends that during its negotiations with Kielbasiewicz, it was agreed that IMC would serve as V10's authorized agent and broker in this matter, and “would assist in facilitating the financing of V10's sale and shipment of frozen meat products to Citimark.” [Id. at ¶¶ 19-20].
Citimark accepted Kielbasiewicz's terms and began contacting V10 directly, primarily through its VP of Operations, to order the type of product, brand, and quantity it needed. [ECF No. 12 at ¶¶ 19, 21]. V10 would in turn provide the requested information and, following Citimark's acceptance of the proposed terms, V10 would have IMC issue “Proforma Invoices,” memorializing “all essential terms and conditions of [the] purchase offered by V10 and accepted by Citimark.” [Id. at ¶ 22]. Each of the Proforma Invoices included the type and brand of the products ordered, the quantity, the price per metric ton, the type of shipping container, shipping terms, proposed delivery date, total purchase price, previously accepted payment terms, and wiring instructions to IMC's account. [Id. at ¶ 23]. IMC also sent copies of these Proforma Invoices to V10 in Florida. [Id.].
As specified by the Proforma Invoices, Citimark paid IMC for the agreed upon meat products. [Id. at ¶¶ 23, 24]. IMC wired the money to V10, then V10 issued a “Statement of Payment” from its Florida office to Citimark. [Id.]. Citimark contends the Statement of Payments confirmed each payment V10 received from Citimark. [Id]. Upon receipt of these payments, V10 agreed to place Citimark's order with the Brazilian meat farms. [Id. at ¶ 25]. V10 then emailed copies of proposed shipping documents to Citimark for approval, which included the Brazilian meat farm's order and invoice, bills of lading, shipping details, certificate of export, packing list, and certificate of origin. [Id.]. Following Citimark's approval, V10, usually via its operations assistant in Florida, emailed the shipping confirmation documents to Citimark, requiring Citimark to pay the remaining 70% of the purchase price. [Id. at ¶¶ 19, 25].
Between March and July of 2021, Citimark placed numerous orders with V10 in this manner for over 1,600 containers of Brazilian frozen meat products. [Id. at ¶ 11-23]. In the FAC, Citimark alleges 96% of these orders were never filled, despite having paid V10 over $16,000,000. [Id. at ¶¶ 98-101]. Citimark asserts that it continued to place orders with V10 during this period, based on V10's representations that the nonperformance was a result of complications caused by the COVID-19 pandemic and concomitant scarcity of shipping containers which impacted the Brazilian suppliers. See generally [Id. at ¶¶ 53-61]. Citimark informed V10 that it was relying on the fulfillment of these orders so that it could meets its obligations to existing customers in China, and that “shipping or other delays would frustrate and produce a hardship for Citimark concerning ... [its] existing customers in China.” [Id. at ¶¶ 31-33].
When Citimark learned V10's representations regarding its reasons for nonperformance were false, this became more than a simple breach of contract case. To induce continued orders, Citimark alleges V10 went as far as forging documents. Specifically, Citimark alleges that on June 18, 2021, V10 sent Citimark representatives a copy of a letter, purporting to be from Copacol's International Sales Manager, concerning the orders Citimark had placed with V10. [Id. at ¶ 56]. The June 18 letter, written on Copacol letterhead, stated as follows:
We at Copacol would like to address delays in shipments. There is a worldwide shortage of containers, availability is scarce, and affects shipments. Also, Covid situation in Brazil is severe, resulting in decreased labor force and office working remotely. We are late shipping to all our customers. We expect to improve greatly by the end of July.
[Id. at ¶ 57]. Having no reason to doubt the letter's veracity, and because of Citimark's obligations to its customers in China, Citimark relied on the letter, and continued to place orders with V10 through early August 2021. [Id. at ¶ 58]. But, those additional orders were never fulfilled. [Id. at 17-23]. By August 25, 2021, when the situation had not improved, Citimark contacted Copacol directly and was informed by Copacol's International Sales Manager that the June 18 letter was a forgery; it was not written by Copacol. [Id. at ¶¶ 59-60]. He stated that Copacol's shipments were not affected by the pandemic nor container shortages, and Copacol was operating and shipping under normal schedules. [Id.].
Citimark alleges V10's misrepresentations were not limited to the June 18 Letter or explanations regarding the Brazilian suppliers' COVID-19 related shipping issues. Citimark contends V10 had at times indicated that paid-for-shipments had been sent to China, when in reality V10 resold these shipments to other customers without Citimark's consent. [Id. at ¶ 41].
On November 18, 2021, Citimark's attorney sent a letter to V10, detailing the breach of contract, and demanding full performance. [Id. at ¶ 93]. V10 never responded. [Id.]. Between October and December 2021, Citimark contacted V10 and IMC attempting to resolve the dispute, but V10 responded by asking Citimark to place additional orders. [Id. at ¶ 95]. During that time, on numerous occasions, Citimark requested V10 provide it with proof of the payments of Citimark's funds to Copacol and the other Brazilian meat suppliers. [Id. at ¶ 96]. V10 failed to do so. [Id.]. The instant suit followed.
V10 argues that the FAC contains insufficient allegations to support Citimark's breach of contract, tortious interference, and fraud claims. For the reasons addressed below, V10's assertion is incorrect, and the FAC contains well-pleaded allegations as to these three claims sufficient to survive V10's Motion to Dismiss.
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To achieve this end, pleadings must contain more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]” Id. at 678 (citing Twombly, 550 U.S. at 555). Therefore, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556).
“A claim has facial plausibility when the pleaded factual content allows ...
To continue reading
Request your trial