Bowen, Miclette & Britt of Florida, LLC v. James
6:12-cv-00306
M.D. Fla.Jun 12, 2013Background
- BMB Florida sued James for breach of three promissory notes and guaranties.
- James filed counterclaims (Counts I–VII) against multiple Counter-Defendants for contract, fraud, and related claims.
- Court dismissed original counterclaims with prejudice but allowed amendments.
- James amended counterclaims (Counts I–V) dropping some defendants and claims, adding a new Fla. Stat. §679.615(4) claim.
- Defendants moved to dismiss amended counterclaims; Judge recommended dismissal of Counts I–IV and Count V, with leave to re-file second amended claims.
- Recommendation: grant in part/deny in part, dismiss amended counterclaims without prejudice, and allow James 14 days to file second amended claims if actionable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts I–IV plead viable claims. | James amended claims are actionable; revisions cure deficiencies. | Counts I–IV are nearly identical to previously dismissed claims and fail Rule 8/9(b). | Counts I–IV should be dismissed. |
| Whether Count V pleads a recoverable surplus under §679.615(4). | James seeks surplus from sale of HSH assets. | No plausible surplus; misalignment with §679.625/§679.626 requirements. | Count V should be dismissed. |
| Whether leave to amend should be with prejudice. | Given history, not with prejudice; new amend can cure defects. | Repeated deficiencies justify prejudice. | Court should grant leave to file a second amended counterclaim. |
| Whether Rule 9(b) and general pleading standards apply to fraud claims. | Fraud claims pleaded with sufficient specificity. | Fraud claims lack particularity. | Fraud pleading standards apply; current claims insufficient. |
| Whether the court should convert motions to summary judgment by considering new facts raised in responses. | Courts may consider only amended counterclaims. | External facts should not be considered at this stage. | Court will not consider extrinsic facts outside amended counterclaims. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading a claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (labels and conclusions insufficient; require plausible claim)
- Neitzke v. Williams, 490 U.S. 319 (U.S. 1989) (exception to pleading standards for certain frivolous claims)
- Brown v. Crawford Cnty., Ga., 960 F.2d 1002 (11th Cir. 1992) (reaffirmed pleading standards in the Eleventh Circuit)
- Hughes v. Rowe, 449 U.S. 5 (U.S. 1980) (pro se pleadings Liberally construed)
- United States ex rel. Atkins v. McInteer, 470 F.3d 1350 (11th Cir. 2006) (requirement of particularity for fraud claims under Rule 9(b))