THIS CAUSE is before the Court upon Defendant's Motion to Dismiss Plaintiff's Complaint (the "Motion"). D.E. 13. The Court has reviewed the Motion, the pertinent portions of the record and is otherwise fully advised in the premises. For the following reasons the motion is GRANTED.
I. Factual Background
Unless otherwise indicated, the following facts are taken from the well-pleaded allegations in Plaintiff's amended complaint. D.E. 11.
A. The Parties
Plaintiff is a Delaware corporation with its principal place of business in Broward County, Florida, whose primary business is e-commerce retail, selling products to consumers through online marketplaces. D.E. 11 ¶ 1. Defendant is a Wisconsin corporation, with its principal place of business in Wisconsin that manufactures furniture to be sold to retailers like Plaintiff. Id. ¶ 2.
B. The Early Relationship
In mid-2013, Plaintiff and Defendant commenced a business relationship wherein Plaintiff would sell Defendant's products directly to consumers. Id. ¶ 7. Specifically, Plaintiff would receive orders from its customers, submit the orders to Defendant, Defendant would ship the orders directly to Plaintiff's customers, and Plaintiff would pay Defendant for these products. Id. To memorialize this agreement, the parties entered into an Electronic Commerce Agreement that established a process by which Plaintiff could submit electronic orders to Ashley for fulfillment. Id. ¶ 8; D.E. 7-1.
C. The Investments
On January 19, 2017, Defendant called Plaintiff to discuss Plaintiff's marketing of Defendant's products. D.E. 11 ¶ 10. At this meeting, Defendant allegedly asked Plaintiff to invest in their relationship by augmenting Plaintiff's catalogue of Defendant's goods by adding images, content and other marketing investments. Id. ¶ 11. Defendant allegedly assured Plaintiff that if it undertook these investments, Defendant would commit more merchandise, support, and personnel to Plaintiff to ensure a successful long-term relationship. Id.
On July 31, 2017, Defendant allegedly requested that Plaintiff enter into a shipping relationship with a third party shipping company,
In mid-November 2017, Defendant asked Plaintiff to integrate its inventory system with Defendant, which Defendant allegedly knew would require Plaintiff to invest in expensive custom technology. D.E. 11 ¶ 17. Defendant asserted that after making this investment, Plaintiff would have "live" access to Defendant's inventory throughout 2018 and be able to list Defendant's products immediately. Id. ¶ 18. Plaintiff also requested that Defendant update its product catalogue with Defendants new 2018 products, which Defendant allegedly knew would involve great cost. Id. ¶ 19. Defendant also reiterated that Plaintiff would earn back all of the money invested through discounts and incentives offered by Defendant. Id.
Finally on December 7, 2017, Defendant re-asserted all of the promotions and investments Defendant wanted Plaintiff to invest in and run until the end of 2018. D.E. 11 ¶ 20. Defendant allegedly promised Plaintiff that in return for its efforts, Defendant would:
(i) support OJC through 2018 with personnel and promotions sufficient to regain its investments and profit; (ii) work together to ensure OJC could replicate the success of the 2017 holiday season throughout the entire 2018 calendar year; and (iii) promised that the year of 2018 would be the best year of its business relationship with OJC D.E. 11 ¶ 23.
In reliance on these promises, Plaintiff spent significant resources preparing its 2018 offering of Defendant's products, including hiring data analysts, graphic designers, and expanding its shipping and programming systems. Id. ¶¶ 25-30.
D. Termination of Relationship
On February 13, 2018, Defendant terminated its relationship with Plaintiff. D.E. 11 ¶ 31. Defendant's stated rationale for the termination was that Defendant was changing its distribution strategy; the decision to terminate the relationship was not a result of any acts or omissions on the part of Plaintiff. Id. ¶ 32. Plaintiff alleges that as a result of its reasonable reliance on Defendant's representations and abrupt termination of its business, it has suffered damages. Id. ¶ 33.
E. Written Agreement
While not attached by Plaintiff, Defendant's motion to dismiss attaches the parties' written E-Commerce Agreement, entered into on May 14, 2013. (the "Agreement").
II. Procedural Background
On May 25, 2018, Defendant removed the instant action to this Court. D.E. 1. On June 1, 2018, Defendant filed a motion to dismiss, D.E. 7, which was subsequently mooted by Plaintiff's amended complaint. D.E. 11. Plaintiff's amended complaint contains five counts under Florida law: breach of the oral contract, or in the alternative, promissory estoppel; fraudulent misrepresentation; negligent misrepresentation; and unjust enrichment. Id. Defendant then re-filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 2, 2018. The Motion is fully briefed and ripe for disposition.
III. Legal Standard
In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." While a court, at this stage of the litigation, must consider the allegations contained in the plaintiff's complaint as true, this rule "is inapplicable to legal conclusions." Ashcroft v. Iqbal ,
In practice, to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "
IV. Analysis
As discussed supra , Plaintiff's amended complaint contains one count for breach of contract and four counts of alternative equitable remedies. D.E. 11. Defendant argues that Plaintiff's claims must be dismissed with prejudice because: (1) Plaintiff's claims are barred by the terms of the Agreement and Plaintiff should not be allowed to circumvent the terms of the Agreement; (2) Plaintiff's claims are barred by the Statute of Frauds; and (3) Plaintiff's complaint contains fatal pleading deficiencies. D.E. 13. The Court will address each contention in turn.
A. Are Plaintiff' s Claims Barred by the Agreement?
Although not entirely clear, Defendant's argument appears to be that the
Acceptance: Acceptance by [Defendant] of all Purchase Orders is required and any such Purchase Order that has been properly received by Ashley shall not give rise to any obligation until [Defendant] has properly received in return an Acceptance Document (as specified in the Appendix) from [Defendant].
D.E. 13-1 at 4 ¶ C (emphasis in original).
Defendant also points to the anti-waiver and merger clause in the Agreement which states:
Complete Agreement, Modifications. Each party acknowledges that it has read this Agreement in its entirety (including the Appendix and the Exhibit A Standard Terms and Conditions), understands it, and agrees to be bound by its terms. This Agreement constitutes the complete agreement of the parties relating to the matters specified in this Agreement and supersedes and merges all prior proposals, understandings, representations and agreements, whether oral or written, with respect to such matters. No oral modification or waiver of any of the provisions of the Agreement shall be binding on either party and this Agreement may not be modified or altered except by written instrument duly executed by both parties. No obligation to enter into any Transaction is to be implied from the execution or delivery of this Agreement.
Id. at 5 ¶ 15 A (emphasis in original).
Defendant concludes that:
the terms of the parties' Agreement could not be more clear (1) that the Agreement is terminable simply upon either party giving written notice; (2) that Ashley is under no obligation whatsoever to continue to do business with OJ in connection with any Transaction or Purchase Order not expressly accepted by Ashley; and (3) that the Agreement may not be modified or altered except by written instrument duly executed by both parties. These provisions are fatal to each of OJ's claims, all premised on the notion that Ashley orally agreed to continue the parties' business relationship through the end of the 2018 calendar year.
D.E. 13 at 8-9.
Plaintiff responds that the Agreement is illusory because it only obligates Defendant to perform when Defendant unilaterally decides to perform and provides no remedies for breach. D.E. 18 at 5-7.
As described by Plaintiff, the Agreement's main object is to facilitate purchase and sale transactions between Plaintiff and Defendant. D.E. 18 at 8. However, Plaintiff argues, the Agreement is illusory because the contract permits Defendant to fulfill these obligations at its sole option:
Acceptance: Acceptance by Ashley of all Purchase Orders is required and any such Purchase Order that has been properly received by Ashley shall not give rise to any obligation until [Defendant] has properly received in return an Acceptance Document (as specified in the Appendix) from [Defendant].
D.E. 13-1 at 4 ¶ C (emphasis added).
No obligation to enter into any Transaction is to be implied from the execution or delivery of this Agreement.
Id. at ¶ 15 A.
Indeed, Defendant itself in its motion to dismiss states that it "is under no obligation whatsoever to continue to do business with OJ in connection with any Transaction or Purchase Order not expressly accepted by [Defendant]." D.E. 13 at 8. Plaintiff further notes that while there are incidental obligations, such as product warranty, "these clauses do not obligate Defendant until after it has unilaterally decided to accept an order." D.E. 18 at 6 n.4. Defendant responds that the Agreement is not illusory because Defendant must fulfill each purchase order it accepts and comply with specified warranties of products. D.E. 19 at 3.
The Court agrees with Plaintiff and finds that the Agreement is illusory. It is of no moment that Defendant must perform when it chooses to perform; under the terms of the Agreement, Defendant's performance is conditional upon the sending of acceptance letter, the sending of which is "wholly under the promisor's control and his bringing it about is left wholly to his own will and discretion." Metro. Ventures, LLC ,
B. Statute of Frauds
i. Choice of Law
Defendant next argues that the claims are barred by the statute of frauds. In order to determine if Plaintiff's claims are barred by the statute of frauds, the Court must first determine which state's statute of frauds applies. As this action is before the court upon diversity jurisdiction, the Court applies the substantive law of the forum state, including its choice of law rules, which in this case is Florida. Erie R.R. v. Tompkins ,
The first step in choice of law analysis is to ascertain the nature of the problem involved, i.e. is the specific issue at hand a problem of the law of contracts, torts, property, etc. The second step is to determine what choice of law rule the state of [Florida] applies to that type of legal issue. The third step is to apply the proper choice of law rule to the instant facts and thereby conclude which state's substantive law applies.
Acme Circus Operating Co. v. Kuperstock ,, 1540 (11th Cir.1983). 711 F.2d 1538
The validity of the oral agreement and whether Plaintiff's breach of contract claim is barred by the statute of frauds plainly sound in contract.
Applying these principles here, the dispute in this case concerns issues of validity of the oral agreement; which sounds in contract. The last meeting alleged to have occurred as part of the oral contract occurred on December 7, 2017 at Plaintiff's "facilities." D.E. 11 at 5. Plaintiff does not explain where its "facilities" are located, but it does assert that it is a Delaware corporation with its principal place of business in Broward County, Florida. D.E. 11 ¶ 1. Defendant also asserts that Plaintiff's facilities are in Broward, County Florida. D.E. 13 at 11 n.7. Moreover, in Defendant's motion to dismiss and in Plaintiff's response, the Parties argue that Florida's statute of frauds applies to Plaintiff's claims. See D.E. 13; D.E. 18. Accordingly, the Court will apply Florida's statute of frauds in determining whether Plaintiff's claims are barred.
ii. Are Plaintiff's Claims Barred by Florida's Statute of Frauds?
1. Breach of Contract
Defendant argues that Plaintiff's breach of contract claim is barred by Florida's statute of frauds.
No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
Fla. Stat. § 725.01
The Supreme Court of Florida further clarified:
[A]ll actions based on agreements for longer than one year must depend on a written statement or memorandum, signed by the party to be charged. The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, Courts should be reluctant to take cases from its protection.
Tanenbaum v. Biscayne Osteopathic Hosp., Inc. ,, 779 (Fla. 1966). 190 So.2d 777
The Supreme Court of Florida has further held that the statute of frauds only applies if full performance is impossible within a year. In other words, the statute of frauds does not apply if there is a possibility "in law and in fact that full performance such as the parties intended may be completed before the expiration of a year." Browning v. Poirier ,
Defendant argues that since the alleged oral contract was made on December 7, 2017 with the time for performance specified as "the full 2018 calendar year," D.E.
This argument is unavailing. As Defendant rightly points out, even if Plaintiff's complaint could be read to allege multiple oral agreements
Accordingly, as each oral agreement was allegedly entered into in 2017, and contemplated performance through the end of 2018, it was not possible that each contract could be fully performed within one year; the statute of frauds therefore bars Plaintiff's claim for breach of contract(s). For this same reason, Plaintiff's argument that it fully performed the agreement is unavailing as each agreement contemplates that Defendant perform throughout 2018. See Brodie v. All Corp. of USA ,
2. Promissory Estoppel
Count Two of Plaintiff's complaint asserts that "if the Court finds no contract exists, Plaintiff pleads in the alternative for promissory estoppel ...." D.E. 11 ¶¶ 39-45. As Defendant rightly notes, Florida law is clear that promissory estoppel is not an exception to the statute of frauds. D.E. 13 at 14 n.9; See Tanenbaum v. Biscayne Osteopathic Hosp., Inc. ,
3. Fraudulent and Negligent Misrepresentation
Count Three of Plaintiff's complaint alleges fraudulent misrepresentation. D.E. 11 ¶¶ 46-53. Count Four of Plaintiff's complaint alleges negligent misrepresentation. D.E. 11 ¶¶ 54-60. Although the elements of fraudulent and negligent misrepresentation are not exactly the same, the Court considers them together because, as Defendant points out, D.E. 13 at 14 n.9, Florida law holds that an action for fraudulent or negligent misrepresentation
While it is contended by plaintiffs that they are suing for damages for fraud and deceit, such an action under the circumstances of this case is simply an attempt in an indirect manner to obtain damages for breach of the contract. Since the provision in the statute prohibiting any action to be brought on an oral contract within the statute includes actions based indirectly on the contract, an action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it.
Canell v. Arcola Hous. Corp. ,, 851 (Fla. 1953) (quotation omitted) (emphasis added). 65 So.2d 849
[Plaintff] contends that he is suing to recover damages for negligent misrepresentation, but in reality he is seeking indirectly to recover damages predicated upon the breach of an oral [contract] for a period in excess of one year. This he may not do.
Broward Nat. Bank of Fort Lauderdale v. Bethel ,, 1013 (Fla. Dist. Ct. App. 1977) (citations omitted). 341 So.2d 1012
Here, Counts Three and Four of Plaintiff's complaint can only be characterized as an attempt to indirectly obtain damages for breach of contract, and the Court thus holds they are barred by the statute of frauds. Indeed, the very first lines of Counts Three and Four indicate that they are merely an indirect breach of contract claim: "[i]n the event this Court finds no contract exists, [Plaintiff] pleads in the alternative for fraudulent misrepresentation ...." D.E. 11 ¶ 46; D.E. 11 ¶ 54 ("[i]n the event this Court finds no contract exists, [Plaintiff] pleads in the alternative for negligent misrepresentation ...."). Counts Three and Four further allege that the Defendant misrepresented that it would perform the contract: "[Defendant made intentional false statements ... that it would continue its business relationship with [Plaintiff] throughout the 2018 calendar year." D.E. 11 ¶ 47; D.E. 11 ¶ 55 ("[Defendant] made false statements of material fact to [Plaintifff] ... that it would continue its business relationship with [Plainttiff] throughout the 2018 calendar year ...."). And that Defendant "knew this representation to be false, as [Defendant] did not intend to maintain its business relationship with Plaintiff throughout the 2018 calendar year...." id. ¶ 49, and/or that Defendant's representatives "were negligent in making this statement ... because they should have known that the statement was false and that [Defendant] did not intend to maintain its business relationship with Plaintiff throughout the 2018 calendar year...." id. ¶ 57. Stated differently, Plaintiff's claim is that Defendant represented that it would perform the terms of the oral agreement(s), and knew these representations to be false or should have known they were false because Defendant did not intend to perform the agreement(s). Accordingly, the Court finds Counts Three and Four are merely indirect claims for breach of contract and are therefore barred by the statute of frauds. See Conner, I, Inc. v. Walt Disney Co. ,
4. Unjust Enrichment
Count Five of Plaintiff's complaint alleges unjust enrichment. D.E. 11 ¶¶ 61-65. Under Florida law a claim for unjust enrichment sounds in equity and is
Defendant argues that Plaintiff's claim for unjust enrichment must be dismissed for failure to state a claim. Under Florida law, the elements of a claim for unjust enrichment are:
(1) plaintiff conferred a benefit on the defendant; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.
Porsche Cars N. Am., Inc. v. Diamond ,, 1100 (Fla. Dist. Ct. App. 2014) 140 So.3d 1090
Defendant argues that the complaint does not specify what benefits Defendant unjustly accepted or retained because there is no explanation of any on-going benefits to Defendant after termination of the relationship. D.E. 13 at 19. In addition, Defendant argues that there is no allegation that Plaintiff was not paid during its relationship with Defendant. Defendant thus concludes that Plaintiff's allegations should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff responds that it has adequately pled each element. D.E. 18 at 20. Plaintiff alleged that it conferred benefits upon Defendant in the form of marketing, advertising and promoting of Defendant's products.
The Court agrees with Defendant that this claim must be dismissed for failure to plausibly plead that "the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Porsche Cars N. Am., Inc. ,
V. Conclusion
For the reasons set out above Defendant's Motion to Dismiss, D.E. 13, is GRANTED. As re-pleading Plaintiff's claims would be futile, they are DISMISSED WITH PREJUDICE.
DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of September, 2018.
Notes
Plaintiff states that "At the July Meeting, Ashley requested OJC to enter into [a] ... shipping relationship with Watkins Shepherd." D.E. 11 at 3. Plaintiff does not explain who "Watkins Shepherd" is, but the Court assumes for the purposes of this order that Watkins Shepherd is a shipping company. Presumably this alleged request was to facilitate the shipment of a larger number of Defendant's goods.
In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC ,
Plaintiff also argues that the terms of the Agreement itself do not bar its claims, but as the Agreement is illusory, the Court does not address this contention.
Defendant also argues that the Agreement is illusory because it provides no remedy for breach. D.E. 18 at 8. Specifically, Plaintiff argues that the only potential damages it could suffer are "lost profits" and because the Agreement prohibits Plaintiff from recovering "lost profits," it provides no remedy for breach. The Court is unpersuaded; the Agreement provides that Plaintiff is entitled to creditor or replacement for defective parts, and the Agreement only limits damages for claims arising out of defects or inability to make use of Defendant's goods. D.E. 13-1 at 8 ¶ 10; cf. Pier 1 Cruise Experts v. Revelex Corp. , No. 9:16-CV-80567,
"[C]ourts are to undertake a separate choice-of-law analysis for each claim." Viridis Corp. v. TCA Glob.Credit Master Fund, LP ,
"Generally, the statute of frauds is an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action." Conner, I, Inc. v. Walt Disney Co. ,
Plaintiff alleges that this agreement was formed in Las Vegas, Nevada. D.E. 11 ¶ 12. According to Florida's choice of law rules, Nevada law and thus Nevada's statute of frauds would apply to any breach of contract claim relating to this agreement. However, Nevada's statute of frauds is significantly similar to Florida's statute of frauds. Stanley v. A. Levy & J. Zentner Co. ,
The Court must draw all reasonable inferences in Plaintiff's favor when ruling on a motion to dismiss, but Plaintiff's complaint appears to allege that there was only one contract. See Wilson v. Strong ,
The allegations above demonstrate that the parties mutually assented to a certain and definite proposition that left no essential terms open. Specifically, the essential terms were that OJC promised to (a) setup Watkins Shepard's LTL shipping service, (b) integrate with Ashley's ATP System, (c) update all of Ashley's product listings, and (d) market and promote them, in exchange for Ashley's promise to (i) continue its business relationship with OJC through the end of the 2018 calendar year, and (ii) provide sufficiently greater access, increased merchandise, discounts, incentives, and support through the 2018 calendar year so that, in 2018, OJC would earn back all the money it invested, and profit ...
[Plaintiff] has satisfied all conditions precedent to the contract ...
[Defendant] materially breached the contract when it completely ceased its business relationship with OJC ...
In the event this Court finds no contract exists, Plaintiff pleads in the alternative for promissory estoppel ....
D.E. 11 ¶¶ 35-37, 39 (emphasis added).
This is also reflected in Plaintiff's response to Defendant's motion to dismiss, which (with the exception of the statute of frauds discussion) references a singular oral contract:
IV. OJC's complaint sufficiently alleged mutual assent and essential terms to establish the existence of an enforceable oral contract ....
D.E. 18 at 12 (emphasis in original).
As discussed supra , ultimately whether Plaintiff alleged that there was only one oral contract or multiple oral contracts is of no moment as each contract contemplates performance beyond the one year statute of limitations. See, e.g. , D.E. 11 ¶ 35 (explaining that Defendant promised to "continue its business relationship with [Plaintiff] through the end of the 2018 calendar year" (emphasis in original).