Silberman v. Premier Beauty & Health LLC
| Decision Date | 22 September 2021 |
| Docket Number | 1:20-cv-21984-GAYLES/OTAZO-REYES |
| Parties | AARON SILBERMAN, an individual, and AMJ MISIL AB LLC, a Florida Limited Liability Company, Plaintiffs, v. PREMIER BEAUTY AND HEALTH LLC, a Florida Limited Liability Company, JORGE HANE, an individual, and FLORENICA HANE, an individual, jointly and severally, Defendants. PREMIER BEAUTY AND HEALTH LLC, a Florida Limited Liability Company, JORGE HANE, an individual, and FLORENICA HANE, an individual, Counter-Plaintiffs, v. AARON SILBERMAN, an individual, AMJ MISIL AB LLC, a Florida Limited Liability Company, SALOMON MISHAAN, an individual, and SARITA MISHAAN, an individual, Counter-Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE comes before the Court on Counter-Defendants', Aaron Silberman (“Silberman”), AMJ Misil AB LLC (“AMJ”), Salomon Mishaan (“Salomon”) and Sarita Mishaan (“Sarita”), Motion to Dismiss Counter-Plaintiffs' Counterclaim (the “Motion”) [ECF No. 55]. The Court has considered the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted.
BACKGROUND[1]
In 2018, Florencia Hane (“Florencia”) formed Premier Beauty and Health LLC (“Premier”) to conduct business in the health and beauty markets. Florencia and her husband, Jorge Hane (“Jorge”), have decades of experience in consumer sales and have successfully marketed and sold a variety of products on television and other mediums. Around 2019, Premier decided to shift its business from nutrition-related products to the sale of skin care products infused with cannaboid (“CBD”) ingredients. Because Premier lacked funds and was not generating sufficient revenue to pay for the processing and testing of its CBD products, it decided to sell portions of its membership interests. In May 2019, Florencia and Jorge met with Sarita and Salomon to discuss Premier. Jorge explained Premier's new focus on cosmetic CBD products. Sarita stated that her son-in-law, Silberman, recently left a CBD company and had an abundance of experience in the CBD market. She also explained that Silberman was seeking new employment. Florencia and Jorge saw working with Silberman as a great business opportunity.
On May 31, 2019, Salomon met with Jorge and Florencia to discuss the terms of both Silberman's potential employment with Premier as the Chief Operating Officer (“COO”) and Salomon's potential purchase of membership interests in Premier. On August 13, 2019, Silberman and Salomon met with Florencia and Jorge to further discuss the details of Silberman's employment and of Salomon's purchase of membership interests. Salomon and Sarita required that Silberman be hired as the COO for them to purchase membership interests in Premier. Relying on Salomon and Sarita's representation that Silberman had experience in the CBD market, Premier and Florencia agreed to employ Silberman and sell membership interests in Premier to Salomon.[3]On August 14, 2019, Salomon texted Jorge stating: [ECF No 47 at 14 ¶ 31].
To effectuate the sale, Silberman and his wife formed AMJ at Salomon's request and acted as managers of AMJ. The purchase of membership interests was done through AMJ and funded by Salomon. AMJ purchased 10% of Premier's membership interests for $400, 000.00. Additionally, Premier hired Silberman as its COO at a salary of $10, 000.00 a month. As Premier began to experience success, Salomon demanded to be more involved in the business. At or about the end of January 2020, Salomon sought to increase his membership interests in Premier, offering to purchase an additional 40% of Premier's membership interests for $200, 000.00. Salomon also demanded to have veto power over whom Premier sold additional membership interests. While Premier and Florencia did not want to sell that percentage, the parties agreed that Salomon, through AMJ, would purchase an additional 10% of Premier's membership interests for $50, 000.00. Silberman did not participate in these discussions.
As Premier's COO, Silberman was authorized to sign checks for purchases, had no limitations as a signatory and authorized user of Premier's bank accounts, held decision-making authority over Premier's day-to-day business operations, and oversaw processing and fulfillment. Silberman also accompanied Florencia and Jorge on a lab visitation in Boca Raton, Florida, a fulfillment pickup, and a business trip to the ShopHQ headquarters in Minneapolis, Minnesota, in which he was involved in presentations to the producers, marketing team, and legal department. Moreover, Silberman acted as Salomon's “authorized representative.” Counter-Plaintiffs allege that it quickly became apparent that Silberman lacked the industry knowledge that Salomon and Sarita stated he had and that he would not fulfill his duties as COO. Counter-Plaintiffs also allege that Silberman would arrive late to work and leave early, take multiple vacations, and use Premier's office to work on another business venture with his wife.
The relationship between the parties ultimately deteriorated. At the beginning of 2020, Premier was scheduled to film its next big product package for television. Florencia planned for her, Jorge, and a spokesperson to travel to Minneapolis. Silberman insisted on going as well, but he was required to stay in Miami to continue running daily operations. A few days later, Premier prepared for its biggest sales event that would be aired on television and that Premier anticipated would result in a large number of orders. Silberman, however, stated that he was on vacation. Silberman failed to return calls from vendors and abandoned his day-to-day responsibilities as COO, undermining the fulfillment process. Counter-Plaintiffs state that this left Premier with a “bad industry tone, ” which has to date not dissipated despite Florencia and Jorge's best efforts. [ECF No. 47 at 18 ¶ 60]. Silberman eventually did not return to work, and Salomon demanded the return of the funds he used to purchase membership interests in Premier.[4]
On May 12, 2020, Counter-Defendants Silberman and AMJ filed the original Complaint against Counter-Plaintiffs, raising several securities and Florida-based claims. [ECF No. 1]. On June 26, 2020, Counter-Plaintiffs moved to dismiss the original Complaint. [ECF No. 11]. On November 16, 2020, the Court granted the motion to dismiss following a telephonic motion hearing. [ECF No. 31]. On December 16, 2020, Counter-Defendants Silberman and AMJ filed their Amended Complaint, raising similar securities and Florida-based claims. [ECF No. 34]. On January 13, 2021, Counter-Plaintiffs filed their Answer, Affirmative Defenses, and Counterclaim to the Amended Complaint. [ECF No. 47]. In the Counterclaim, Counter-Plaintiffs raise three counts against Counter-Defendants: (1) fraud in the inducement against Salomon, Sarita, and Silberman (Count I); (2) breach of fiduciary duty against Silberman (Count II); and (3) indemnification against Salomon (Count III). On February 9, 2021, Counter-Defendants filed the instant Motion. [ECF No. 55].
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” meaning that it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not entitled to an assumption of truth-legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly, ” Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom, the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (internal quotation and citation omitted).
Although Counter-Plaintiffs' Counterclaim raises claims for fraud in the inducement, breach of fiduciary duty, and indemnification, Counter-Defendants' Motion only raises arguments as to the fraud in the inducement and the indemnification counts. Before the Court may address the merits of the Motion, it must first determine whether it has jurisdiction over the Counterclaim.
Counter-Plaintiffs state that the Court has supplemental jurisdiction over the Counterclaim, pursuant to 28 U.S.C. § 1367, because the claims “arise out of the transaction or occurrence that is the subject matter of Silberman and AMJ's claims.” [ECF No. 47 at 12 ¶ 9]. “Federal courts are obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (quoting Galindo-Del Valle v. Att'y Gen. 213 F.3d 594, 599 (11th Cir. 2000) (per curiam)). See also Ameritox, Ltd. v. Millennium Lab'ys, Inc., 803 F.3d 518, 537 (11th Cir. 2015) (...
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