Denarii Sys., LLC v. Arab

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: JOHN J. O'SULLIVAN
• Decision Date: 11 February 2013
• Docket Number: Case No. 12-24239-CIV-O'SULLIVAN
• Citation: Denarii Sys., LLC v. Arab, Case No. 12-24239-CIV-O'SULLIVAN (S.D. Fla. Feb 11, 2013)
• Parties: DENARII SYSTEMS, LLC, Plaintiff/Counter-Defendant, v. OMAR ARAB and GREYNIER FUENTES, Defendants/Counter-Plaintiffs.

DENARII SYSTEMS, LLC, Plaintiff/Counter-Defendant,

v.OMAR ARAB and GREYNIER FUENTES, Defendants/Counter-Plaintiffs.

Case No. 12-24239-CIV-O'SULLIVAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: February 11, 2013

[CONSENT]

ORDER

THIS MATTER is before the Court on the plaintiff's Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses (DE# 15, 12/28/12) and the defendants' Motion for Leave to File Amended Affirmative Defenses and Incorporated Memorandum of Law in Support Thereof (DE# 22, 1/14/13).¹ Having held a hearing on February 11, 2013 and for the reasons stated herein, it is

ORDERED AND ADJUDGED that the plaintiff's Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses (DE# 15, 12/28/12) is GRANTED in part and DENIED in part and the defendants' Motion for Leave to File Amended Affirmative Defenses and Incorporated Memorandum of Law in Support Thereof (DE# 22, 1/14/13) is GRANTED in part.

BACKGROUND

The plaintiff initiated this action in state court on October 30, 2012. See Complaint (DE# 1-2, 11/29/12). The complaint alleges causes of action for violation of Florida's Uniform Trade Secrets Act, Fla. Stat. § 688 (Count I), violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (Count II), violation of the Stored Communications Act, 18 U.S.C. §§ 2701 & 2707 (Count III) and Injunctive Relief (Count IV). Id. The defendants removed the case to this Court on November 29, 2012. See Notice of Removal (DE# 1, 11/29/12). On December 6, 2012, the defendants filed their answer to the Complaint, asserted eight affirmative defenses and defendant Omar Arab alleged a two-count counterclaim against the plaintiff for Breach of Employment Agreement (Count I) and Unjust Enrichment (Count II). See Defendants' Answer, Affirmative Defenses, and Counterclaims (DE# 4, 12/6/12).

On December 28, 2012, the plaintiff filed the instant motion. See Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses (DE# 15, 12/28/12). On January 14, 2013, the defendants filed their response. See Response in opposition to Plaintiff's Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses and Memorandum of Law in Support Thereof (DE# 21, 1/14/13). The plaintiff filed its reply on January 24, 2013. See Plaintiff's Reply in Support of Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses (DE# 23, 1/24/13). The defendants have also sought leave to amend all eight of their affirmative defenses. See Motion for Leave to File Amended Affirmative Defenses and Incorporated Memorandum of Law in Support Thereof (DE# 22, 1/14/13). The plaintiff opposes the relief requested. See Plaintiff's Response in Opposition to Defendants' Motion for Leave File Amended Affirmative Defenses (DE# 24, 1/31/13). Thismatter is ripe for consideration.

STANDARDS OF REVIEW

1. Motion to Dismiss under 12(b)(6)

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 does not require "detailed factual allegations," but "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted).

In considering a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the Court's analysis is generally limited to the four corners of the complaint and the attached exhibits. See Grossman v. Nationsbank, 225 F.3d 1228, 1231 (11th Cir. 2000). The Court must also accept the non-moving party's well-pled facts as true and construe the complaint in the light most favorable to that party. See Caravello v. Am. Airlines, Inc., 315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004) (citing United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc)).

To survive a motion to dismiss, the complaint must contain factual allegations which are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950. The issue to be decided is not whether the claimant will ultimately prevail, but "whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scheuer, 468U.S. 183 (1984).

2. Motion to Strike Affirmative Defenses

Under the Federal Rules of Civil Procedure, the Court may strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored and are usually denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. See Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC., No. 09-61490-CIV, 2010 WL 5393265, at *1 (S.D. Fla. Dec. 21, 2010) (citation omitted). Affirmative defenses fall under the general pleading requirements of Rule 8 of the Federal Rule of Civil Procedure and should be stricken if they fail to recite more than bare-bones conclusory allegations. Id. at *2 (quoting Home Mgmt. Solutions, Inc. v. Prescient, Inc., No 07-20608-CIV, 2007 WL 2412834, at *2 (S.D. Fla. Aug. 21, 2007)). They should also be stricken when they are insufficient as a matter of law. Id. at *2 (quoting Microsoft Corp. v. Jesse's Computers and Repairs, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002)). A defense is insufficient as a matter of law only if the pleading on its face is patently frivolous, or it is clearly invalid as a matter of law. Id.

3. Motion for Leave to Amend a Pleading

Rule 15(a)(2) of the Federal Rules of Civil Procedure states that: "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Unless a motion to amend a pleading is made in bad faith or for undue delay, constitutes dilatory conduct or will prejudice a non-movant, leave to amend should be given freely. See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th Cir. 1995).

ANALYSIS

1. Motion to Dismiss the Counterclaims

The plaintiff seeks to dismiss Counts I (Breach of Employment Agreement) and II (Unjust Enrichment) of the Counterclaim for failure to state a claim upon which relief may be granted under Rule 12(b)(6). For the reasons stated herein, the motion to dismiss the Counterclaim (DE# 4) is GRANTED and Counts I and II of the Counterclaim are hereby DISMISSED without prejudice. "Generally, where a more carefully drafted [pleading] might state a claim, [the party asserting the claim] must be given at least one chance to amend the [pleading] before the district court dismisses the action with prejudice." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (internal quotation marks and alteration omitted)). Accordingly, the dismissal of Counts I and II is without prejudice.

a. Breach of Employment Agreement (Count I)

Florida law governs the counterclaims asserted in the instant case. The elements of a breach of contract claim in Florida are: "(1) a valid contract; (2) a material breach; and (3) damages." Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citing Abruzzo v. Haller, 603 So. 2d 1338, 1340 (Fla. 1st DCA 1992)). To meet the first element, the existence of a valid contract, a claimant must show: "(1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms." Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009).

Here, Count I of the Counterclaim alleges that from October 2011 to September 2012, defendant Arab began receiving an additional payment of $10,000.00 per month, that the $10,000 payment was part of his employment compensation and that he did not receivethe $10,000 payment for the month of October 2012. See Counterclaim (DE# 4 at ¶¶77-79, 12/6/12). Count I further alleges that the plaintiff and/or its agents breached the employment agreement with defendant Arab "when it failed to provide Mr. Arab full compensation pursuant to the agreement and conduct of the parties." Id. at ¶86.

The plaintiff argues that Count I "fail[s] to allege the elements of a valid contract: namely, an offer, acceptance, consideration, and sufficient specification." Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses (DE# 15 at 5, 12/28/12) (citing St. Joe Corp. v. McIver, 875 So. 2d 374, 381 (Fla. 2004)). The plaintiff further argues that defendant Arab is unable to plead consideration due to "his preexisting duty to [the plaintiff] as an employee of [the plaintiff] . . . ." Id. The plaintiff notes that the counterclaim alleges that the additional $10,000 monthly payments began approximately two months after defendant Arab's August 15, 2011 employment start date. Id. Defendant Arab maintains that the plaintiff is improperly disputing the facts and that Count I of the counterclaim has been properly pled. See Response in opposition to Plaintiff's Motion to Dismiss Defendant Omar Arab's Counterclaim and to Strike Defendants' Affirmative Defenses and Memorandum of Law in Support Thereof (DE# 21, 1/14/13).

"Under Florida law, the performance of a preexisting duty does not constitute the consideration necessary to support a valid contract." Senter v. JPMorgan Chase Bank, N.A., 810 F. Supp. 2d 1339, 1346 (citing Brinson v. Herlong, 121 Fla. 505, 164 So. 137 (1935)). Here, the counterclaim does not allege what...