877 F. Supp. 2d 1321
S.D. Fla.2012Background
- Five Live contracted to promote six Django Yankee shows in Argentina; later expanded to ten shows via alleged threats to cancel.
- Plaintiffs expended over $1,000,000 pre-tour; defendants canceled all shows days before commencement.
- Press releases by Yankee and Icaro publicly blamed plaintiffs for defaults; publications widely disseminated.
- Plaintiffs assert nine-count complaint spanning contract, equitable, tort, statutory, and conspiracy theories.
- Defendants moved to dismiss Counts 2 and 5-9, seek bond on FDUTPA claim, and requested a hearing; court granted partial dismissal and denied bond/hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre-suit notice under § 770.01 applies to Defendants? | Counts 5-9 do not fall under media-notice rule. | Defendants are media defendants subject to § 770.01. | Counts 5-9 not dismissed for lack of notice. |
| Sufficiency of Count Two (oral contract) | All essential terms implied; payment upon arrival. | Missing explicit payment timing. | Count Two pled sufficiently; denial of dismissal. |
| Defamation claim viability (Count Five) | Statements published by press releases and Baldiri’s remarks constitute defamation. | Inadequate pleading of speaker, statements, and timing; need for more specificity. | Defamation claim dismissed with leave to re-plead; related claims dismissed without prejudice. |
| FDUTPA claim viability and damages | FDUTPA alleged; seeks lost profits; location of conduct within Florida. | Lost profits not recoverable; location insufficient. | FDUTPA claim dismissed with leave to re-plead; lost profits dismissed with prejudice. |
| IIED viability (Count Seven) | Baldiri’s conduct could be outrageous. | Conduct not extreme or outrageous. | IIED claim dismissed for failure to state a claim. |
Key Cases Cited
- Fortson v. Colangelo, 434 F.Supp.2d 1369 (S.D. Fla. 2006) (defamation pleading requirements emphasized; time/identity descriptions needed)
- Ross v. Gore, 48 So.2d 412 (Fla. 1950) (statutory notice policy aims to protect media; not extended to private parties)
- Twombly v. Bell Atlantic Corp., 550 U.S. 544 (U.S. Supreme Court 2007) (requirements to plead plausible entitlement to relief; avoid mere conclusory statements)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court 2009) (pleading standard for plausibility beyond conclusory allegations)
- Williams v. Worldwide Flight Servs., Inc., 877 So.2d 869 (Fla. 3d DCA 2004) (IIED not arising from mere insults or threats; outrageousness required)