Upfitters, L.L.C. v. Brooking
| Decision Date | 27 February 2020 |
| Docket Number | Case No. 3:18-cv-496-J-34PDB |
| Parties | UPFITTERS, L.L.C., Plaintiff/Counterclaim Defendant, v. RICHARD K. BROOKING, in his individual capacity, EDWARD SPENCER ROOKING, in his individual capacity, BROOKING INDUSTRIES, INC., and DANA SAFETY SUPPLY, INC., Defendants/Counterclaim Plaintiffs/Third-Party Plaintiffs, v. BODIE BRACKEN, AMANDA PIERSING, and QCU, L.L.C., Third-Party Defendants. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on Third-Party Defendants Bodie Bracken and Amanda Piersing's motion to dismiss. See Motion to Dismiss Defendants' Second Amended Counterclaims and by Third-Party Defendants Amanda Piersing and Bodie Bracken and Memorandum of Law (Doc. 90; Motion), filed on July 12, 2019. Third-Party Plaintiffs Richard K. Brooking, Edward Spencer Brooking, Brooking Industries, Inc., and Dana Safety Supply, Inc. filed a response in opposition to the Motion on July 31, 2019. See Defendants' Response in Opposition to Motion to Dismiss (Doc. 97; Response). Accordingly, the Motion is ripe for review.
Upfitters, L.L.C. initiated this action on April 16, 2018, by filing a Complaint for a Jury Trial and Injunctive Relief (Doc. 1) against Richard K. Brooking (Richard Brooking), Edward Spencer Brooking, Brooking Industries, Inc., and Dana Safety Supply, Inc. (collectively, the Brooking Group), asserting claims for patent infringement, copyright infringement, and breach of contract.1 On January 16, 2019, the Brooking Group responded by filing a counterclaim and third-party complaint against Upfitters, Bodie Bracken, Amanda Piersing, and QCU, L.L.C. See Counterclaims and Third-Party Complaint (Doc. 57). Upon review, the Court sua sponte issued an Order (Doc. 65) striking the Counterclaims and Third-Party Complaint as an impermissible "shotgun pleading." Specifically, the Court determined that counts two and three of the Counterclaims and Third-Party Complaint adopted the allegations of all preceding paragraphs, "'causing each count to carry all that came before[.]'" Id. at 1 (quoting Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1321 & n.11 (11th Cir. 2015)). As a result, the Brooking Group filed am amended counterclaim and third-party complaint on February 1, 2019, see Amended Counterclaims and Third-Party Complaint (Doc. 66), and the operative second amended counterclaim and third-party complaint on June 25, 2019, see Second Amended Counterclaims and Third-Party Complaint (Doc. 87; Third-Party Complaint). Bracken and Piersing's Motion followed on July 12, 2019.
On May 1, 2012, Brooking Industries, Bracken, and Piersing executed an agreement (the May 2012 Agreement) governing "their joint efforts to invent, develop, patent, and sell new products for the public safety marketplace." See Third-Party Complaint ¶ 16. "To perform these functions, Brooking Industries and a third party . . . formed an LLC named [PPV], and Bracken and Piersing separately formed . . . Upfitters." Id. ¶ 19. Thereafter, PPV and Upfitters formed QCU "to operate the business venture envisioned by the May 2012 Agreement." Id. ¶ 20. On December 20, 2012, PPV transferred its ownership interest in QCU, a portion of which PPV transferred to ISP—another LLC owned by Brooking Industries—and the remaining portion PPV transferred to Upfitters. Id. ¶ 21. Later, on July 18, 2013, ISP transferred its interest in QCU to Upfitters. Id. ¶ 38. "Effective on or about August 23, 2014, QCU terminated the parties' business venture." Id. ¶ 31.
During their business venture, the parties developed copyrights and patents. See id. ¶¶ 24-29, 32. According to the Brooking Group, although Richard Brooking "made significant contributions to the inventions claimed" in the patents, Bracken and Piersing are "erroneously and wrongfully . . . identified as the sole inventors . . . ." Id. ¶ 25, 27. The Brooking Group alleges that "Bracken and Piersing, individually and through Upfitters," are now "wrongfully" asserting these patents and copyrights against theBrooking Group "as a basis of their infringement suit in this case." Id. ¶¶ 29, 32.
In conjunction with the transfer of ISP's interest in QCU to Upfitters on July 18, 2013, "QCU executed a Promissory Note to Brooking Industries," and "QCU, ISP, Upfitters, and Brooking Industries executed a Mutual Release and Settlement Agreement." Id. ¶ 36. In the Promissory Note, QCU promised to pay Brooking Industries $44,653.87 by June 20, 2018, for products that QCU had previously purchased from Brooking Industries. Id. ¶ 35, 38. The Brooking Group alleges that QCU has defaulted on the Promissory Note. Id. ¶ 39. In addition, after executing the Promissory Note, QCU continued to purchase products from Brooking Industries. Id. ¶ 40. The Brooking Group alleges that Brooking Industries invoiced QCU for the products and that QCU never objected to the invoice, but QCU has failed to pay the invoice. Id. ¶¶ 41-43; id., Exhibit B: Brooking Industries, Inc. Customer Balance Detail (Doc. 87-2; Invoice).
Importantly, the Brooking Group seeks to pierce the LLC veils of Upfitters and QCU to hold Bracken and Piersing personally liable for QCU's alleged default on the Promissory Note and failure to pay the Invoice. See generally Third-Party Complaint. In doing so, the Brooking Group alleges that QCU is the alter ego of Upfitters, id. ¶ 45, Upfitters is the alter ego of Bracken and Piersing, id. ¶ 55, and QCU is the alter ego of Bracken and Piersing, id. According to the Third-Party Complaint, Upfitters is the parent company and sole member of QCU, and that Bracken and Piersing are the sole members of Upfitters. See Third-Party Complaint ¶¶ 5-6. The Brooking Group further alleges, "upon information and belief," that Upfitters and QCU share common officers and directors; Upfitters provides QCU with its funding to operate; Upfitters dominates QCU to such an extent that QCU lacks an independent existence; Upfitters has used QCU to perpetuate injustice and tojustify its wrongful conduct; QCU is a mere instrumentality of Upfitters; Bracken and Piersing dominate Upfitters to such an extent that Upfitters lacks an independent existence; Bracken and Piersing have used Upfitters and QCU to perpetuate injustice; Upfitters and QCU are severely undercapitalized; Upfitters and QCU do not maintain adequate records or observe organizational formalities; Upfitters' and QCU's assets have been used to pay the personal obligations of Bracken and Piersing; QCU, Bracken, and Piersing comingle assets and affairs; QCU and Upfitters are the mere instrumentalities of Bracken and Piersing; Bracken and Piersing have used Upfitters and QCU to perpetuate injustice, which has damaged the Brooking Group. See id. ¶¶ 45-64. In addition, after Upfitters initiated this lawsuit, Bracken and Piersing "purportedly assigned all of their rights and obligations under the May 2012 Agreement to Upfitters . . . ." Id. ¶ 44.
Based in part on these allegations, the Brooking Group asserts nine claims for relief against Upfitters, QCU, Bracken, and Piersing.3 As relevant here, the Brooking Group asserts the following three third-party claims against Bracken and Piersing: Breach of Promissory Note - Alter Ego (Count II); Breach of Contract/Account Stated - Alter Ego (Count IV); and Breach of the May 2012 Agreement (Count V). In Count II, the Brooking Group alleges that QCU defaulted on the Promissory Note by failing to pay Brooking Industries the amount due thereunder, and that Bracken and Piersing are personally liable for QCU's wrongful conduct. Id. ¶¶ 69-73. In Count IV, the Brooking Group alleges that QCU failed to pay Brooking Industries for products purchased after the execution of the Promissory Note, and that Bracken and Piersing are personally liable for QCU's wrongfulconduct. Id. ¶¶ 79-85. Finally, in Count V, the Brooking Group alleges that Bracken and Piersing breached the May 2012 Agreement and that their "purported assignment of the May 2012 Agreement to Upfitters after this litigation was commenced was an improper and legally ineffective attempt to escape liability." Id. ¶¶ 86-91.
In their Motion, Bracken and Piersing assert several reasons why the third-party claims against them should be dismissed with prejudice. First, they contend that all three counts constitute a "shotgun pleading" and that even "[i]f Count IV is not a shotgun pleading, [it] is too vague to answer." See Motion at 2, 5, 7. Second, Bracken and Piersing assert that Count V is due to be dismissed because they are no longer parties to the May 2012 Agreement in light of the assignment to Upfitters. Id. at 8. Third, Bracken and Piersing argue that Counts II and IV should be dismissed because the Brooking Group's "alter ego theory fails." Id. at 3-4, 6. Fourth, Bracken and Piersing maintain that all claims against them should be dismissed because the Mutual Release and Settlement Agreement "released Bracken and Piersing by contract." Id. at 13. Finally, Bracken and Piersing argue that this Court does not have personal jurisdiction over them under Florida's long-arm statute. Id. at 9-12.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meetsome minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while "[s]pecific facts are not necessary[,]" the complaint should "'give the defendant fair notice of what the . . . claim is and the...
To continue reading
Request your trial