Tempay, Inc. v. Biltres Staffing of Tampa Bay, LLC, Case No. 8:11–cv–02732–T–27AEP.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtJAMES D. WHITTEMORE
Citation945 F.Supp.2d 1331
Decision Date15 May 2013
Docket NumberCase No. 8:11–cv–02732–T–27AEP.
PartiesTEMPAY, INC., an Ohio company, Plaintiff, v. BILTRES STAFFING OF TAMPA BAY, LLC, a Florida limited liability company, Otto Biltres and Constandina I. Biltres, individuals, and PFG Loans, Inc., a California corporation, Defendants.

945 F.Supp.2d 1331

TEMPAY, INC., an Ohio company, Plaintiff,
v.
BILTRES STAFFING OF TAMPA BAY, LLC, a Florida limited liability company, Otto Biltres and Constandina I. Biltres, individuals, and PFG Loans, Inc., a California corporation, Defendants.

Case No. 8:11–cv–02732–T–27AEP.

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

May 15, 2013.


[945 F.Supp.2d 1335]


Charles M. Harris, Jr., Stephanie Smith Leuthauser, Trenam Kemker, Edward B. Carlstedt, Ford & Harrison, LLP, Tampa, FL, for Plaintiff.

Michael A. Gold, Cohen & Foster, P.A., Todd Alan Foster, Todd Foster, PLLC, Mercedes G. Hale, Broad and Cassel, Tampa, FL, for Defendants.


ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are Plaintiff, TemPay, Inc.'s Motion for Summary Judgment against Defendants (Dkt. 96), Constandina Biltres' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment against Defendants (Dkt. 101), Otto Biltres' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment against Defendants (Dkt. 102), Biltres Staffing of Tampa Bay, LLC's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment against Defendants (Dkt. 103), and TemPay, Inc.'s Reply in Support of Motion for Summary Judgment (Dkt. 111).1 Upon consideration, Plaintiff, TemPay, Inc.'s Motion for Summary Judgment against Defendants (Dkt. 96) is GRANTED in part and DENIED in part.

Introduction

TemPay, Inc. (“TemPay”) asserts claims against Biltres Staffing of Tampa Bay, LLC (“Biltres Staffing”), Otto Biltres, and Constandina Biltres (together, the “Biltres Defendants”) for fraud, fraud in the inducement, breach of contract, violations of the Florida Deceptive and Unfair Trade Practices Act and violations of the Florida RICO Act. See Plaintiff's Amended Verified Complaint for Injunctive Relief and Damages (Dkt. 32) (the “Amended Complaint”). In addition, TemPay asserts a fraudulent transfer claim against the Biltres Defendants and PFG Loans, Inc. (“PFG Loans”).

TemPay contends that Biltres Staffing and the Biltres Defendants were engaged in a classic “ponzi-type” scheme whereby they used TemPay money from new factored invoices to pay older invoices as they became due. TemPay also contends the Biltres Defendants wrongfully converted to their own use payments that TemPay deposited into Constandina Biltres' personal bank account.

Biltres Staffing, Otto Biltres (with the exception of the fraudulent transfer claim), and PFG Loans apparently concede liability (or at least concede that TemPay is entitled to summary judgment on the issue of liability), but dispute the amount of damages that TemPay is entitled to recover.

[945 F.Supp.2d 1336]

Constandina Biltres denies liability as to all claims asserted by TemPay based on her purported lack of involvement in the alleged fraudulent and deceptive activity that is the subject of the Amended Complaint.

The Underlying Dispute

TemPay, a company that specializes in payroll funding and accounts receivable factoring, entered into several Master Factoring Agreements (“Master Agreements”) with Biltres Staffing, whereby TemPay agreed to purchase and Biltres Staffing agreed to sell, certain accounts receivable of Biltres Staffing. Biltres Staffing's obligations under the Master Agreements were guaranteed by one or both of the Biltres Defendants.2

During the time frame relevant to this dispute, Otto Biltres was the “President” of Biltres Staffing and Constandina Biltres was the sole managing member of Biltres Staffing.3 While Otto Biltres was responsible for the day-to-day management of Biltres Staffing,4 Constandina Biltres visited the Biltres Staffing office, had a business card indicating that she was “chairman or president” of Biltres Staffing, was identified as a part owner of Biltres Staffing to at least one Biltres Staffing employee, and may have attended client meetings on behalf of Biltres Staffing. See, e.g., Jessica Roser Depo. (Dkt. 97), pp. 43–50. In addition, Constandina Biltres exchanged emails with Biltres Staffing employees regarding the status of various business matters and was involved in discussions regarding the renaming of Biltres Staffing. See, e.g., Jessica Roser Depo. (Dkt. 97), pp. 47–49, 61–62.5

Pursuant to the April 20, 2011 Master Agreement, TemPay purchased receivables

[945 F.Supp.2d 1337]

due from four of Biltres Staffing's purported customers: Aluminum Coils, Inc.; Lennar Manufacturing, Inc.; Miller Contracting, Inc.; and RBA Print Communications (collectively referred to as the “Biltres Staffing Customers”). TemPay advanced eighty-five percent of the customers' weekly invoices to Biltres Staffing. TemPay typically received full payment on these invoices forty-five to sixty days later. Purportedly, invoice payments were made by checks from the Biltres Staffing Customers, which Otto Biltres forwarded to TemPay. After TemPay received full payment on the invoices, it deposited Biltres Staffing's “profit” payments (the “Profit Payments”) into a bank account owned by Constandina Biltres.6

On October 10, 2011, TemPay and Biltres Staffing entered into a new Master Agreement that provided terms more favorable to Biltres Staffing due to “Biltres Staffing's increased invoices and alleged excellent track record as a TemPay customer to date.” Affidavit of Larry Holstein (Dkt. 96–2), ¶¶ 5–6. In addition, based on Otto Biltres' representation that Constandina Biltres no longer had any involvement with, or interest in, Biltres Staffing, Constandina Biltres was not required to execute a Guaranty with respect to the October 10, 2011 Master Agreement. Id. Otto Biltres signed the October 10, 2011 Master Agreement as President of Biltres Staffing and executed a Guaranty personally guaranteeing Biltres Staffing's performance under the October 10, 2011 Master Agreement.

During the course of the parties' relationship, TemPay became suspicious of Biltres Staffing and Otto Biltres's business activities, based in large part on the steady weekly increase in staffing invoices and several customer payments that were returned for insufficient funds. In November 2011, TemPay commenced an investigation into the legitimacy of the accounts receivable purchased from Biltres Staffing. TemPay requested that Otto Biltres provide contact information for the Biltres Staffing customers. Otto Biltres furnished what he contended was the requested information and TemPay contacted the “customers” and “confirmed” the legitimacy of the outstanding invoices.7

TemPay continued its investigation even after contacting the purported Biltres Staffing Customers. TemPay first discovered that the bank account number for Miller Contracting was identical to the account number TemPay had on file for Biltres Staffing and was the same account into which TemPay wired Biltres Staffing's weekly cash payments. In addition, TemPay independently obtained contact information for Biltres Staffing's “customers” only to learn that none of these purported customers had ever heard of Otto Biltres,

[945 F.Supp.2d 1338]

had ever worked with Biltres Staffing, and had no record of the employees Otto Biltres identified. These facts were confirmed by depositions conducted by TemPay on February 16, 2012.8

TemPay subsequently discovered that Otto Biltres had filed fictitious name notifications for one or more of the Biltres Staffing Customers, owned the email addresses of the purported customer contacts furnished to TemPay, and that the Bank of America accounts purportedly owned by the Biltres Staffing Customers were actually owned or controlled by Otto Biltres.

Standard

Summary judgment is proper if, following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). “An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir.2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548. The evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249, 106 S.Ct. 2505;Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable jury could find for the nonmoving party. Id.

Liability of Defendants

Defendants each filed separate responses to TemPay's Motion for Summary Judgment (Dkts. 101, 102, 103). Biltres Staffing does not dispute that it is liable to TemPay, but argues that TemPay has failed to provide sufficient factual support to allow the Court to determine the amount of damages it has suffered.9 Otto Biltres argues that he is not liable for the alleged fraudulent transfers and that TemPay has failed to provide sufficient factual support to allow the Court to determine the amount of damages it has...

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7 practice notes
  • Melton v. Century Arms, Inc., Case Number: 16–21008–CIV–MORENO
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 20, 2017
    ...the broad concept of "unfair or deceptive" conduct under the Act. See TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC , 945 F.Supp.2d 1331, 1344 (M.D. Fla. 2013). Indeed, courts have denied motions to dismiss Florida Deceptive and Unfair Trade Practices Act claims arising from ......
  • Cemex Constr. Materials Fla., LLC v. Armstrong World Indus., Inc., Case No. 3:16-cv-186-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 15, 2018
    ..."[t]he concept of 'unfair and deceptive' conduct is extremely broad," TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1344 (M.D. Fla. 2013) (citing cases), and "the provisions of the [FDUTPA] are to be 'construed liberally[,]'" Intercoastal Real......
  • United States v. Faulkner, CASE NO. 18-14122-CIV-MARRA
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 27, 2020
    ...Act has also been interpreted to require proof of intent to deceive the creditor. TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1347 (M.D. Fla. 2013); In re McCuan, 603 B.R. 829, 843 (M.D. Fla. 2019). 10. The Government's Motion for Summary Judgment [DE 34], p....
  • Arbitron Inc. v. Renda Broad. Corp., Case No. 3:13-cv-716-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 27, 2014
    ..."[t]he concept of 'unfair and deceptive' conduct is extremely broad," TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1344 (M.D. Fla. 2013) (citing cases), and "the provisions of the [FDUTPA] are to be 'construed liberally[,]'" Intercoastal Real......
  • Request a trial to view additional results
7 cases
  • Melton v. Century Arms, Inc., Case Number: 16–21008–CIV–MORENO
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 20, 2017
    ...the broad concept of "unfair or deceptive" conduct under the Act. See TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC , 945 F.Supp.2d 1331, 1344 (M.D. Fla. 2013). Indeed, courts have denied motions to dismiss Florida Deceptive and Unfair Trade Practices Act claims arising from ......
  • Cemex Constr. Materials Fla., LLC v. Armstrong World Indus., Inc., Case No. 3:16-cv-186-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 15, 2018
    ..."[t]he concept of 'unfair and deceptive' conduct is extremely broad," TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1344 (M.D. Fla. 2013) (citing cases), and "the provisions of the [FDUTPA] are to be 'construed liberally[,]'" Intercoastal Real......
  • United States v. Faulkner, CASE NO. 18-14122-CIV-MARRA
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 27, 2020
    ...Act has also been interpreted to require proof of intent to deceive the creditor. TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1347 (M.D. Fla. 2013); In re McCuan, 603 B.R. 829, 843 (M.D. Fla. 2019). 10. The Government's Motion for Summary Judgment [DE 34], p....
  • Arbitron Inc. v. Renda Broad. Corp., Case No. 3:13-cv-716-J-34JRK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 27, 2014
    ..."[t]he concept of 'unfair and deceptive' conduct is extremely broad," TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 945 F. Supp. 2d 1331, 1344 (M.D. Fla. 2013) (citing cases), and "the provisions of the [FDUTPA] are to be 'construed liberally[,]'" Intercoastal Real......
  • Request a trial to view additional results

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