Eye Care Intern., Inc. v. Underhill

• Decision Date: 31 March 2000
• Docket Number: No. 8:99-CV-1568-T-17E.,8:99-CV-1568-T-17E.
• Citation: 92 F.Supp.2d 1310
• Parties: EYE CARE INTERNATIONAL, INC., Plaintiff/Counter-Defendant, v. David UNDERHILL, aka David R. Underhill, Defendant/Counter-Plaintiff.
• Court: U.S. District Court — Middle District of Florida

Page 1310

92 F.Supp.2d 1310

EYE CARE INTERNATIONAL, INC., Plaintiff/Counter-Defendant, v. David UNDERHILL, aka David R. Underhill, Defendant/Counter-Plaintiff.

No. 8:99-CV-1568-T-17E.

United States District Court, M.D. Florida, Tampa Division.

March 31, 2000.

Kevin Hackett O'Neill, Cheffy Passidomo Wilson & Johnson, Naples, FL, for Eye Care International, Inc., plaintiff.

Karen E. Maller, Powell, Carney, Hayes, & Silverstein, P.A., St. Petersburg, FL, Barbara F. Florez, Gregory A. Ruehlmann, White, Getgey & Meyer Co., L.P.A., Cincinatti, OH, for defendants.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff/Counter Defendant's motion to dismiss and/or for more definite statement, filed August 26, 1999, (Docket No. 4) and Defendant/Counter Plaintiff's response thereto, filed September 22, 1999, (Docket No. 8). This Court, having reviewed the motions and response submitted by counsel for the parties, does hereby find as follows:

FACTS

The following facts, as taken from the pleadings in this cause, are found to be the facts only for the purpose of resolving the instant motion.

On March 19, 1996, Defendant/Counter-Plaintiff, R. David Underhill ("Underhill"), a resident of Cincinnati, Ohio, entered into an agreement ("Agreement") with Plaintiff/Counter-Defendant Eye Care International ("ECI") to participate in and/or market ECI's non-insurance based, discount fee for service network, offering members various discounts on services and goods in the ophthalmic/optometric industry. Underhill, as an employee and agent of ECI, was required to report and account to ECI for his sales activities and provide to ECI certain enrollment information. The Agreement was supplemented by subsequent mutual agreements by and between the parties regarding the nature and extent of compensation and services to be rendered. Underhill received commissions and compensation subject to withholdings from ECI by and through its principal place of business in Tampa, Florida.

ECI initiated this litigation by suing Underhill for fraud in the inducement, breach of agency contract, breach of employment contract, and accounting. Thereafter, Underhill filed an Answer and Counterclaim against ECI seeking recovery for breach of contract, fraud, fraud in the inducement, and for an accounting. ECI seeks to dismiss and/or for more definite statement regarding Underhill's Counterclaim.

STANDARD OF REVIEW

Under Conley v. Gibson, a district court should not dismiss a complaint "for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts" that would entitle the plaintiff relief, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; see also Bracewell v. Nicholson Air Servs., 680 F.2d 103, 104 (11th Cir.1982). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996).

In deciding a motion to dismiss, a court can examine only the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir.1985). Also, a court must accept a plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995). However, when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); Powell v. United States, 945 F.2d 374 (11th Cir.1991).

MOTION TO DISMISS

Count I — Breach of Contract

Plaintiff/Counter-Defendant seeks to dismiss Count I by arguing that the allegations are inconsistent, self-contradictory, and legally flawed, as well as contrary to Rule 10(b), Fed.R.Civ.P., because it intermingles various distinct, separate and conflicting claims and writings. Defendant/Counter-Plaintiff responds to these allegations by preliminarily asserting that Ohio law and not Florida law, should apply to the performance and interpretation of the contract. Defendant/Counter-Plaintiff relies on Peoples Bank and Trust Co. v. Piper Aircraft Corp., 598 F.Supp. 377 (S.D.Fla.1984) as holding that when a contract fails to embody a choice of law provision, various factors such as where the contract was made, the place of performance of the contract, the location of the contract subject matter, the domicile, residence, nationality, place of incorporation, and place of business of the parties, are evaluated to determine whose law governs.

Defendant/Counter-Plaintiff argues that the essence of the dispute involves Defendant/Counter-Plaintiff's right to collect commissions for sales of Plaintiff/Counter-Defendant's Vision Care Network Plans to member businesses of the Cincinnati Chamber of Commerce. Defendant/Counter-Plaintiff also argues that while his sales activities were not restricted to Ohio, the vast majority of his sales activities and consummated sales were within Ohio. Furthermore, Defendant/Counter-Plaintiff contends that while Plaintiff/Counter-Defendant is principally located in Florida, its dealings with Defendant/Counter-Plaintiff were Cincinnati, Ohio based.

In its complaint, Plaintiff/Counter-Defendant asserts that the Agreement between Defendant/Counter-Plaintiff and Plaintiff/Counter-Defendant, for the receipt and distribution of payments, enrollment fees and commissions, was by and through Plaintiff/Counter-Defendant's principal offices in Tampa, Florida. (Docket No. 1). Additionally, Plaintiff/Counter-Defendant asserts that Defendant/Counter-Plaintiff continually reported to Plaintiff/Counter-Defendant and conducted business in Tampa Florida, including the continuous offering for sale membership in the Plaintiff/Counter-Defendant discount eyecare-eyewear program administered and directed through the Plaintiff/Counter-Defendant's offices in Tampa, Florida. (Docket No. 1).

A significant concern of conflicts jurisprudence is ensuring that a sufficient nexus exists between the parties and the law sought to be applied. From the existing record, the Court finds that Plaintiff/Counter-Defendant's acceptance and approval in Florida was the last act necessary for the creation of the contract. Therefore, Florida law and the law of the Eleventh Circuit applies to the interpretation of the contract. However, the Court now turns to the essence of Plaintiff/Counter-Defendant's Motion to Dismiss Count I.

Plaintiff/Counter-Defendant relies upon Rule 10(b), Fed.R.Civ.P., for dismissal of Count I. Plaintiff/Counter-Defendant alleges that Defendant/Counter-Plaintiff seeks recovery of substantial damages based upon three writings entitled the "Agreement", "Independent Agency Agreement", and "letter agreement" (Exhibits A, B, and C to Counterclaim). Plaintiff/Counter-Defendant argues that this is over-incorporation and is legally deficient because it intermingles various distinct, separate, and conflicting claims and writings. Plaintiff/Counter-Defendant contends that Count I is contrary to Rule 10(b) because it does not limit each claim to a statement of a single set of circumstances or segregate claims by separate transaction or occurrence. Additionally, Plaintiff/Counter-Defendant contends that neither party executed the "independent agency agreement" (Exhibit B to Counterclaim) and Plaintiff/Counter-Defendant neither executed nor endorsed the "letter agreement" (Exhibit C to Counterclaim). Moreover, Plaintiff/Counter-Defendant maintains that both documents allegedly modify and conflict with the Agreement (Exhibit A to Counterclaim) because the Agreement is executed by both parties and indicates that it "shall not be modified except by an agreement in writing executed by the parties."

Defendant/Counter-Plaintiff responds that the three writings referenced in Count I of its Counterclaim represent the changing roles of Defendant/Counter-Plaintiff's relationship with Plaintiff/Counter-Defendant over the years. Defendant/Counter-Plaintiff alleges that the initial Agreement was modified from time to time by the parties' agreement and by issuance of an Independent Agency Agreement. Defendant/Counter-Plaintiff further maintains that while the Independent Agency Agreement was not signed by the parties, Plaintiff/Counter-Defendant's actions established and carried out the policies and practices set forth in that document when Plaintiff/Counter-Defendant paid commissions to Defendant/Counter-Plaintiff.

Rule 10(b), Fed.R.Civ.P., provides that "Paragraphs; Separate Statements ... Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth." This Court disagrees with Plaintiff/Counter-Defendant's allegation that Defendant/Counter-Plaintiff's incorporation of all three writings in Count I intermingles various distinct, separate and conflicting claims and writings and therefore, fail to constitute a consistent basis for recovery.

Both parties contend, Plaintiff/Counter-Defendant in its Complaint (Docket No. 1) and Defendant/Counter-Plaintiff in its Answer and Counterclaim (Docket No. 3) that the Agreement was supplemented by subsequent mutual agreements by and between the parties regarding the nature and extent of compensation and services to be rendered. This Court agrees with Defendant/Counter-Plaintiff that the three documents represent the changing roles of Defendant/Counter-Plaintiff's relationship with Plaintiff/Counter-Defendant and are not three separate and...