BLUESTAREXPO, INC. v. Enis

United States District Court

for the

Southern District of Florida

BluestarExpo, Inc., Plaintiff, )

)

v. ) Civil Action No. 21-20875-Civ-Scola

)

Jay L. Enis and others, )

Defendants. )

Order Granting in Part and Denying in Part Motion to Dismiss

Plaintiff BluestarExpo, Inc., seeks to recover $300,000 in payments and

$35 million in lost profits from individual Defendants Jay L. Enis, Grovind

Srivastava, and Syed Ali Abbas; and entity Defendants The Enis Family Trust

(the “Trust”), Soleil1 Chartered Bank, and R & T Pharmacy Corp. In its second

amended complaint (“complaint”), Bluestar lodges seventeen counts against the

Defendants, or various subsets of them: fraudulent and negligent

misrepresentation (counts one and two, respectively), conversion (count three),

civil theft under Florida Statutes section 772.11 (count four), fraudulent

conveyance (count five), fraudulent asset conversion (count six), unjust

enrichment (count seven), intentional and negligent breach of fiduciary duty

(counts nine and ten, respectively), civil conspiracy (count eleven), two counts

seeking declaratory judgments regarding piercing the corporate veil as to R&T

and Soleil (counts twelve and thirteen, respectively), negligent hiring and

retention (counts fourteen and fifteen, respectively), violations of the Florida

Deceptive and Unfair Trade Practices Act (count sixteen), and, finally, false

information negligently supplied for the guidance of others (count seventeen).

(2nd Am. Compl. (“Compl.”), ECF No. 33.) The Defendants have jointly filed a

motion to dismiss, seeking dismissal of all seventeen claims for a multitude of

reasons. (Defs.’ Mot., ECF No. 37.) Bluestar has responded (Pl.’s Resp., ECF

No. 40) and thereafter the Defendants timely replied (Defs.’ Reply, ECF No. 41).

After careful review, and for the reasons detailed below, the Court grants the

motion, in part, and denies it, in part (ECF No. 37), dismissing Bluestar’s

claims for fraudulent misrepresentation (count one), as to only Enis and R&T;

negligent misrepresentation (count two), as to only Enis and R&T; conversion

(count three), in its entirety; civil theft (count four), as to only Enis, R&T,

Srivastava, Abbas, and Soleil; fraudulent conveyance (count five), in its

entirety; fraudulent-asset conveyance (count six), in its entirety; unjust

1 The Court adopts the spelling of “Soleil” as used by the Defendants in their briefing.

enrichment (count seven), as to only Enis, R&T, Srivastava, Abbas, and Soleil;

intentional breach of fiduciary duty (count nine), in its entirety; negligent

breach of fiduciary duty (count ten), in its entirety; declaratory relief (counts

twelve and thirteen), as to the remedy sought but not the factual allegations;

and negligent hiring (count fourteen), in its entirety.

1. Background2

Several months into the COVID-19 pandemic, Bluestar began negotiating

a deal involving the purchase and immediate resale of thirty-million boxes of

powder-free nitrile examination gloves. (Compl. ¶¶ 11.) To that end, Bluestar

intended to purchase the gloves from Wish Paradise Corp., for $285 million,

and then resell them, upon receipt, to a buyer that Bluestar had already

secured. (Id.) The expected profit on the deal was $70 million. (Id.)

Part of Bluestar’s agreement with Wish involved Bluestar’s providing

Wish “with a ‘bank confirmation letter,’ also known as a ‘comfort letter,’ from a

reputable banking institution,” “[t]o ensure payment of the multi-million-dollar

transaction.” (Id. ¶ 12.) The letter had to confirm “that at least

$250,000,000.00 in liquid cash was available to facilitate the transaction,”

before Wish would move forward with the transaction. (Id. ¶¶ 12–13.) In its

quest to procure such a letter, Bluestar contacted Enis. (Id. ¶ 13.) Enis told

Bluestar that his company, R&T, was financially able to provide the funds for

the transaction and, therefore, was in a position of being able to secure the

comfort letter required by Wish. (Id.)

Bluestar and Enis agreed that they would split the profits on the sale of

the gloves, evenly, to compensate Enis for his role in the transaction. (Id.) Enis

also assured Bluestar that the comfort letter would be from a highly reputable

bank. (Id.) On July 28, 2020, Enis provided Bluestar with what he said was a

comfort letter from Soleil. (Id. ¶ 14.) The letter was signed by Srivastava, as the

managing director of Soleil, and Abbas, as the director of an entity called

“MENA Trade Finance.” (Id.) The letter represented that R&T had “cash funds

and/or credit line in the amount of USD 250,000,000.00.” (Id.) Contrary to the

representations in the letter, however, Enis did not have $250 million in cash

funds or a valid credit line, nor did Soleil have $250 million available through

which it could extend credit to R&T. (Id. ¶¶ 14, 18) According to Bluestar, Soleil

provided the fabricated letter simply to prop up Enis’s misrepresentation to

Bluestar that R&T had access to the funds Enis said it did. (Id. ¶¶ 14, 18.)

2 This background is based on the allegations Bluestar presents in its complaint. For the

purposes of evaluating the Defendants’ motion, the Court accepts Bluestar’s factual allegations

as true and construes them in the light most favorable to Bluestar per Federal Rule of Civil

Procedure 12(b)(6).

At some point during the parties’ discussions, Enis told Bluestar that

Soleil would charge a fee of .25% for R&T to transfer $250 million to Soleil to

then consummate the transaction with Wish. (Id. ¶ 15.) Enis said the fee would

amount to about $625,000 but that he would split it, with Bluestar’s covering

$300,000 of the fee. (Id.) Enis and R&T also promised Bluestar that the

$300,000 would go towards paying Soleil for the comfort letter. (Id. ¶ 19.) On

July 28, the same day the comfort letter was provided, Enis emailed a Bluestar

officer, providing wire instructions for Bluestar to send the $300,000 to the

Trust. (Id. ¶ 16.) Enis advised that he had already paid his share of the fee in

order to procure the comfort letter. (Id.)

Less than a week later, on August 2, Bluestar and Wish executed the

contract under which Wish would provide the thirty-million boxes of gloves for

a total purchase price of $285 million. (Id. ¶ 11.) To comply with the comfort

letter requirement, Bluestar presented the letter from Soleil, to Wish,

confirming R&T’s access to $250 million. (Id. ¶ 17.) Wish, apparently aware of

“Soleil’s dishonorable reputation” and that “Soleil is a fraudulent institution,”

known to provide “fraudulent letters of credit and comfort letter[s],” and known

to be “subject to many lawsuits alleging similar fraudulent misconduct,” did

not accept the letter. (Id.) In fact, says Bluestar, although Soleil purports to be

a banking institution, organized under the laws of the Union of Comoros, in

reality, it “does not offer any true banking services,” instead operating only to

“provide[] its clients with fraudulent letters of credit and comfort letters” that

falsely claim “their clients have funds or credit which they do not possess.” (Id.)

Indeed, “Soleil currently has multiple lawsuits filed against it in the past year

that all claim that . . . Soleil refused to honor its letter of credit after various

parties using Soleil’s letter[s] defaulted.” (Id.)

After the deal with Wish fell through, Bluestar demanded the repayment

of its $300,000. (Id. ¶ 18.) In response, Enis said that the $300,000 had

already been paid to Soleil for the anticipated Wish transaction. (Id.) Enis could

not, however, provide any proof that any funds had ever been actually

transferred to Soleil or that Enis had ever handed over any of the $300,000 to

Soleil. (Id.) Indeed, Bluestar says Enis and R&T kept the $300,000 for

themselves and never transferred the $250 million to Soleil. (Id. ¶ 19.)

From the beginning, Enis and R&T knew that Soleil was a discredited

banking institution and that the comfort letter would not be afforded any

credibility. (Id. 23.) Bluestar now seeks to hold all six Defendants responsible

for the $300,000 payment to the Trust as well as the millions of dollars of

profits lost when the deal with Wish collapsed.

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept all the complaint’s allegations as

true, construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6)

challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In

assessing the legal sufficiency of a complaint’s allegations, the Court is bound

to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is,

the complaint “must . . . contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Am. Dental Ass’n v. Cigna

Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at

570). “Dismissal is therefore permitted when on the basis of a dispositive issue

of law, no construction of the factual allegations will support the cause of

action.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)

(internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v. Marshall

Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id.

3. Analysis

An overarching theme presented in the motion to dismiss, is the

Defendants’ characterization of Bluestar’s complaint as largely turning on

Bluestar’s charge that R&T never actually had $250 million in cash available.

As the Defendants frame it, Bluestar’s argument is that, because R&T did not

actually have these funds, the Soleil comfort letter was wholly false. Attacking

Bluestar’s argument, as the Defendants themselves teed it up, the Defendants

point out that the letter was not necessarily false because it was phrased in the

disjunctive, representing only that “R&T Pharmacy either had funds or a line of

credit available at Soleil Bank.” (Defs.’ Mot. at 6–7 (emphasis in original).) But,

in doing so, the Defendants grossly mischaracterize Bluestar’s complaint and,

disconcertingly, omit any acknowledgment of the allegations that directly

undercut their argument. To that point, as Bluestar demonstrates in its

opposition, the complaint not only presents factual allegations that neither

Enis nor R&T had $250 million in cash on hand, but it also sufficiently alleges

that neither Enis nor R&T ever had a valid credit line for that amount either.

(See Compl. ¶¶ 14 (“The representations . . . in the comfort letter are false. Enis

does not have $250,000,000.00 in cash funds or valid credit . . . .”) (“Soleil does

not have $250,000,000.00 by which it can extend credit to R&T . . . .”), 18

(“Enis does not have the $250,000,000.00 necessary to complete the

transaction and the letter from Soleil is a fraudulent misrepresentation.”), 23

(“Enis/R&T does not have $250,000,000.00 in cash funds/credit”), 31 (same),

37 (noting the “fraudulent comfort letter . . . purporting that R&T has

$250,000,000.00 of case funds and/or credit, when it did not”), 41 (describing

the “fraudulent comfort letter” as “purporting that R&T has $250,000,000.00 of

cash funds and/or credit”), 81 (same), 89 (same), 109 (same).) And so, as a

starting point, the Court finds the main thrust of the Defendants’ argument, in

urging dismissal, unavailing.

With this preliminary issue disposed of, the Court turns its attention to

the Defendants’ more specific arguments, directed at various counts in

Bluestar’s complaint.

A. The Defendants have failed to show that all of Bluestar’s fraud

claims should be dismissed for falling short of Rule 9(b)’s

particularity standards.

The Defendants urge the Court to dismiss all ten of Bluestar’s fraud-

based claims for failing to meet the heightened pleading requirements of Rule

9(b): counts one through six, nine through eleven, and sixteen. In support of

their argument, the Defendants complain that Bluestar “fails . . . to recite the

date and time of each allegedly fraudulent statement, where each statement

was made, the person who made the statement, and fails to connect any of the

Defendants to each purported statement with the level of particularity required

under Rule 9(b).” (Defs.’ Mot. at 8.) The Defendants also complain that Bluestar

has impermissibly lumped together all six Defendants, making it “impossible

for each of the Defendants to know what they, individually, are alleged to have

misrepresented.” (Id. at 9.) The Court is not persuaded that Bluestar has

entirely failed to meet its burden.

Fraud claims are indeed subject to a heightened pleading standard: “In

alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To satisfy

this standard, both parties acknowledge fraud claims “must allege: (1) the

precise statements, documents, or misrepresentations made; (2) the time and

place of and person responsible for the statement; (3) the content and manner

in which the statements misled the Plaintiffs; and (4) what the Defendants

gained by the alleged fraud.” Leon v. Cont’l AG, 301 F. Supp. 3d 1203, 1213

(S.D. Fla. 2017) (Williams, J.) (citations omitted). “Allegations of date, time or

place satisfy the Rule 9(b) requirement that the circumstances of the alleged

fraud must be pleaded with particularity, but alternative means are also

available to satisfy the rule.” Durham v. Bus. Mgmt. Associates, 847 F.2d 1505,

1512 (11th Cir. 1988) (emphasis in original); see also Colonial Penn Ins. Co. v.

Value Rent-A-Car Inc., 814 F. Supp. 1084, 1093 (S.D. Fla. 1992) (Moreno, J.)

(recognizing that the Eleventh Circuit is not as strict as other circuits when it

comes to pleading specific times, dates, and places).

Indeed, in evaluating Bluestar’s complaint, the Court is mindful that the

application of Rule 9(b)’s particularity requirement “must not abrogate the

concept of notice pleading.” Durham, 847 F.2d at 1511. In light of this

standard, the Court finds Bluestar has met its burden with respect to, at a

minimum, the comfort letter. While Bluestar may not have detailed the exact

place “each” fraudulent statement was made, or the precise moment “each” was

issued, Bluestar has identified the specific letter, dated July 28, 2020,

containing the allegedly fraudulent statements. Bluestar has sufficiently

alleged that Enis and R&T procured the letter, which was drafted by Srivastava

and Abbas, on behalf of Soleil. And, based on the misrepresentations in the

letter that, as alleged in the complaint, Enis or R&T had the necessary $250

million in cash or credit to move forward with the Wish contract, Bluestar was

induced into parting with $300,000.00 by wiring it to the Trust. These

allegations sufficiently state a claim under Rule 9(b): they alert the “defendants

to the precise misconduct with which they are charged [while] protecting [them]

against spurious charges of immoral and fraudulent behavior.” Durham, 847

F.2d at 1511 (cleaned up). Without more, the Defendants’ sweeping claims that

the complaint “fails in its entirety to meet the rigorous pleading standards of

Rule 9(b)” is overbroad and, as presented, falls far short of supporting

dismissal of all the complaint’s fraud-based claims.

Similarly lacking is the Defendants’ indiscriminate argument that all the

fraud-based claims must be dismissed because they “lump[] together all six

Defendants, in varying capacities,” making it “impossible for each of the

Defendants to know what they, individually, are alleged to have

misrepresented” or “their unique role in the purported fraud.” (Def.’s Mot. at 9.)

The Defendants appear to encourage the Court to do their work for them,

directing it to sift through each of the ten fraud claims itself to see if and how

their defendant-lumping argument fits each claim. The Court declines the

invitation but notes, as a general matter, that Bluestar appears to have

supplied enough specificity to enable each Defendant to appreciate at least

some aspect of their alleged roles in the various fraud claims: Srivastava and

Abbas, on behalf of Soleil, composed the fraudulent comfort letter; Enis, on his

own behalf and on behalf of R&T, procured and adopted the letter, providing it

to Bluestar; and then Enis, on behalf of the Trust, directed Bluestar to wire

$300,000 to the Trust.

B. The Defendants’ argument that Bluestar cannot satisfy the

justifiable-reliance element in support of either its fraudulent or

negligent misrepresentation claims fails.

Regarding the misrepresentation claims set forth in counts one and two,

the Defendants argue that Bluestar could not possibly have justifiably relied on

the allegedly fraudulent comfort letter, to its detriment, because Bluestar

admitted “it received and had an opportunity to review [the] letter before it

entered into the Wish contract.” (Defs.’ Mot. at 10 (emphasis in original).)

According to the Defendants, since Bluestar knew Soleil was the bank issuing

the letter, and that the letter itself represented that funds could be available

through a “letter of credit,” Bluestar “could not have reasonably relied on any

purported misrepresentations from Defendants about the reputation of Soleil or

whether Wish might ultimately accept the letter.” (Id.) The Court finds

Defendants’ position flawed.

First, as Bluestar points out in opposition, and as the Defendants

acknowledge in reply, justifiable reliance is not a necessary element for a

fraudulent misrepresentation claim under Florida law. Butler v. Yusem, 44 So.

3d 102, 105 (Fla. 2010). Second, as to Bluestar’s negligent misrepresentation

claim, the Court is left unconvinced by the Defendants’ suggestion that Soleil’s

reputation and the falsity of the letter should have been “obvious” to Bluestar

and, therefore, Bluestar should have known better than to rely on any of the

alleged misrepresentations. Indeed, the Defendants’ characterization of

Bluestar’s appreciation of the misrepresentations in the comfort letter is at

odds with the complaint’s allegations. While the Defendants might ultimately

come forward with evidence showing that Bluestar was well aware, or should

have been well aware, of Soleil’s reputation and that the comfort letter was a

sham, the Defendants point to nothing in the complaint itself that would lead

the Court to this inference.

In sum, the Defendants’ attempt to dismiss either of Bluestar’s

misrepresentation claims, based on their justifiable-reliance arguments, falls

short.

C. Bluestar fails to state a claim for fraudulent conveyance.

Among the Defendants’ arguments supporting dismissal of Bluestar’s

fraudulent-conveyance claim, as set forth in count five, lodged against all six

Defendants, is that any allegations regarding the transfer of the funds at issue

are purely speculative. (Defs.’ Mot. at 11.) In response, Bluestar does not

dispute that that it hasn’t alleged a specific transfer but instead maintains it

need not do so. Instead, says Bluestar, it “may properly direct its fraudulent

conveyance action against the transaction of the $300,000.00 to the Trust” and

that “[a]ny person involved in that transaction will be liable to return such

funds upon a judgment from this Court.” (Pl.’s Resp. at 8 (emphasis in

original).) The Court disagrees with Bluestar’s analysis and finds the

complaint’s allegations lacking.

“[I]n order to establish a ‘fraudulent conveyance’ under Florida law, [a]

creditor . . . must demonstrate that there was (i) a creditor to be defrauded; (ii)

a debtor intending fraud; and (iii) conveyance of property that could have been

applicable to payment of the debt due. In re PSI Indus., Inc., 306 B.R. 377, 387

(Bankr. S.D. Fla. 2003). Even if Bluestar’s allegations were sufficient to survive

dismissal as to the first two elements,3 its allegations regarding the third

element fall far wide of the mark. As to this element, Bluestar alleges “Enis

[and] R&T made unjustified payments or transfers of Bluestar’s funds to the

Trust or to unknown third parties, with the actual intent to hinder, delay, or

defraud Bluestar.” (Compl. ¶ 51.) These allegations fail for a couple of reasons.

First, Bluestar is incorrect that it “may properly direct its fraudulent

conveyance action against the transaction of the $300,000.00 to the Trust.”

(Pl.’s Resp. at 8.) To clarify, Bluestar’s payment to the Trust is the transaction

that allegedly created the debt that Bluestar now claims rendered it a

creditor—that is not the transaction that is the target of Florida’s Uniform

Fraudulent Transfer Act. The proper target of a fraudulent-conveyance action

by Bluestar would, instead, be any transferee that thereafter received funds,

improperly, from the Trust. Bluestar could also include the Trust in such an

action, but the relevant transaction would still be the transfer from the Trust,

not Bluestar’s initial transfer to the Trust.

The problem with Bluestar’s approach, here, is that it appears to conflate

the Trust as the alleged debtor, with the Trust as the alleged transferor.

Bluestar’s broad pronouncement that “[a]ny person” involved in Bluestar’s

payment of the $300,000 to the Trust “will be liable to return such funds” (Pl.’s

Resp. at 8) under the UFTA is simply an incorrect statement of the law:

instead, the focus of the UFTA is a transfer by a debtor of assets or obligations

3 As to the first element, Bluestar submits it became a “creditor” when R&T failed to transfer

the $250 million to Soleil, thus entitling Bluestar to the return of the $300,000 it had paid to

the Trust to cover Bluestar’s share of the transfer fees. (Compl. ¶ 49.) Bluestar further alleges,

generally, that, as to the second element, “[a]t all relevant times, Enis, R&T, and the Trust were

‘debtors,’ as that term is defined in § 726.102(7).” (Compl. ¶ 50.)

“that could have been applicable to payment of the debt due,” separate and

apart from the transaction that resulted in the debt in the first place. In re PSI

Indus., Inc., 306 B.R. at 387; see also Fla. State. § 726.105(1)(a) (“A transfer

made or obligation incurred by a debtor is fraudulent as to a creditor, whether

the creditor’s claim arose before or after the transfer was made or the

obligation was incurred, if the debtor made the transfer or incurred the

obligation . . . [w]ith actual intent to hinder, delay, or defraud any creditor of

the debtor; or [w]ithout receiving a reasonably equivalent value in exchange . . .

.”); Edwards v. Airline Support Group, Inc., 138 So. 3d 1209, 1211 (Fla. 4th DCA

2014) (“In general, actions under section 726.108 are brought against a

recipient or transferee of assets or property, and not a transferor.”). In other

words, Bluestar has not adequately alleged a conveyance of Trust assets—or

any entity’s assets for that matter—that could have otherwise gone towards

satisfying the debt Bluestar claims to be owed. Oginsky v. Paragon Properties of

Costa Rica LLC, 784 F. Supp. 2d 1353, 1370 (S.D. Fla. 2011) (King, J.) (noting

that to state a claim for fraudulent conveyance, “a plaintiff must allege,” among

other things, “a conveyance of property which could have been available to

satisfy the debt”).

Secondly, Bluestar fails to set forth any actual facts supporting its claim

that all six Defendants made or received payments out of Bluestar’s $300,000

payment to the Trust. Instead, Bluestar simply alleges that Enis and R&T made

“unjustified payments or transfers . . . to the Trust or to unknown third

parties.” These allegations are far too vague and speculative to survive

dismissal even under Rule 8(a), never mind under Rule 9(b). See Oginsky, 784

F. Supp. 2d at 1370 (finding allegations insufficient to state a claim where the

plaintiff failed to differentiate between debtors, creditors, transferors, or

transferees).

In sum, then, the Court grants the Defendants’ motion to dismiss count

five, for fraudulent conveyance, based on Bluestar’s failure to state a claim.

D. Bluestar fails to state a claim for fraudulent conversion.

In count six, Bluestar seeks to recover against Enis, R&T, and the Trust

under a Florida Statutes provision that provides:

[a]ny conversion by a debtor of an asset that results in the

proceeds of the asset becoming exempt by law from the claims of

a creditor of the debtor is a fraudulent asset conversion as to the

creditor, whether the creditor's claim to the asset arose before or

after the conversion of the asset, if the debtor made the

conversion with the intent to hinder, delay, or defraud the

creditor.

Fla. Stat. § 222.30(2). The Defendants argue this statute section is inapplicable

to the facts of this case. The Court agrees.

Although Bluestar generally alleges that Enis, R&T, and the Trust

“changed or disposed of . . . funds which have now become immune or exempt

by law from claims of potential creditors,” Bluestar provides no facts

supporting its vague claim. Under the statute section that Bluestar relies on, a

“conversion” is defined as the act of “changing or disposing of an asset” such

that it is rendered “immune or exempt by law” from creditor claims. Fla. Stat. §

222.30(1).

Without facts identifying any assets that were converted, such that those

assets were rendered “immune or exempt” from creditors, Bluestar’s claims

don’t make it out of the gate.

E. Bluestar fails to state a claim for either intentional or negligent

breach of a fiduciary duty.

In its claims for breach of a fiduciary duty (counts nine and ten) against

Enis, Bluestar alleges “Enis became a fiduciary to Bluestar” “by promising to

ensure that Enis would deliver Bluestar’s half of the transfer fee to Soliel” and

“by promising to ensure that R&T would pay the transfer fee on Bluestar’s

behalf by delivering the funds to Soleil for the transfer of the $250 [million].”

(Compl. ¶¶ 73, 77.) In opposing the Defendants’ position that Bluestar has not

sufficiently pleaded facts establishing the existence of a fiduciary relationship,

Bluestar insists (1) it has “cleanly set forth . . . facts establishing Enis as a

fiduciary . . . since Enis agreed to act as a trusted conduit to facilitate the

payment to Soleil” and (2) it has properly pleaded its claim for breach of a

fiduciary duty in the alternative to its breach of contract claim. (Pl.’s Resp. at

10.) The Court disagrees as to both points.

“The elements of a claim for breach of fiduciary duty are: the existence of

a fiduciary duty, and the breach of that duty such that it is the proximate

cause of the plaintiff's damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla.

2002). “A fiduciary relationship may be either express or implied.” Maxwell v.

First United Bank, 782 So. 2d 931, 933 (Fla. 4th DCA 2001). “Express fiduciary

relationships are created by contract . . . or can be created by legal

proceedings.” Id. An implied fiduciary relationship, on the other hand, can be

inferred from “the circumstances surrounding the transaction and the

relationship of the parties and may be found when confidence is reposed by

one party and a trust accepted by the other.” Id. at 933–34 (cleaned up).

Regardless of whether the fiduciary relationship is express or implied, a

plaintiff must, of course, do more than set forth conclusory allegations or

merely recite the definition of a fiduciary relationship. See Hogan v. Provident

Life & Acc. Ins. Co., 665 F. Supp. 2d 1273, 1287 (M.D. Fla. 2009) (finding

allegations that the plaintiff “placed trust in [the defendant] and that [the

defendant] accepted that trust” amounting to nothing more than “conclusory

allegations” and a mere recitation of the definition of a fiduciary relationship).

Bluestar doesn’t specify whether it believes the parties’ fiduciary

relationship was express or implied. Regardless, the Court agrees with the

Defendants that Bluestar’s allegations fall short. Bluestar’s allegation that

“Enis invited Bluestar’s trust and confidence” is simply a regurgitation of the

definition of a fiduciary relationship. (Compl. ¶¶ 73, 77.)

Bluestar’s additional allegations, that Enis assured Bluestar that if

Bluestar provided $300,000, “R&T would pay Bluestar’s half of the transfer

fee,” fare no better. (Id. ¶¶ 73, 77.) Instead, these allegations do no more than

allege an agreement or business arrangement, through which Enis and

Bluestar engaged in an arm’s-length, commercial transaction. Such dealings do

not amount to a fiduciary relationship. Hogan, 665 F. Supp. 2d at 1287

(“[W]hen parties deal at arm’s length, a fiduciary relationship does not exist

because there is no duty imposed on either party to protect or benefit the

other.”). Accordingly, the Court agrees with the Defendants that Bluestar’s

claims, based on Enis’s breach of a fiduciary duty, should be dismissed.

F. The Defendants’ argument that Bluestar has not properly alleged

causation with respect to its FDUTPA claim fails.

Next, the Defendants argue Bluestar fails to allege, in count sixteen,

lodged under FDUTPA, that Solis, Enis, or R&T’s deceptive acts or unfair

practices caused Bluestar’s damages. In support, they point to Bluestar’s

allegations that Wish declined to accept Soleil’s comfort letter because of

Soleil’s “dishonorable reputation, and because [Soleil] is subject to many

lawsuits alleging similar fraudulent misconduct.” (Defs’ Mot. at 13 (quoting

Compl. ¶ 17.) The Court is not persuaded.

FDUTPA generally prohibits “[u]nfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or practices in

the conduct of any trade or commerce.” Fla. Stat. § 501.204(1). “In order to

assert a claim for damages under FDUTPA, the plaintiff must establish: (1) a

deceptive act or unfair practice; (2) causation; and (3) actual damages.” Baptist

Hosp., Inc. v. Baker, 84 So. 3d 1200, 1204 (Fla. 1st DCA 2012) (cleaned up). To

satisfy the causation element, a plaintiff must “prove that an objectively

reasonable person would have been deceived” by the deception or unfair act.

Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1283 (11th Cir. 2011). As best the

Court can parse it, the Defendants’ argument seems to be that, because Wish

was not at all conned by the sham comfort letter, there could not, therefore,

have been deception. The Defendants miss the mark: they fail to connect, on

the one hand, Wish’s appreciation of Soleil’s suspect reputation and the

spurious claims in its comfort letter with, on the other, how an “objectively

reasonable person” might have been deceived by not only the comfort letter but

also by Enis and R&T’s alleged deceptions as well. Without more, then, the

Court denies the Defendants’ request to dismiss Bluestar’s FDUTPA claim on

this basis.

G. Bluestar has failed to supply allegations supporting its request for

injunctive relief under FDUTPA.

On the other hand, the Court agrees that Bluestar has not sufficiently

alleged its entitlement to injunctive relief. “Article III requires that a plaintiff

seeking injunctive relief allege a threat of future harm.” Lombardo v. Johnson &

Johnson Consumer Companies, Inc., 13-60536-CIV, 2014 WL 10044838, at *6

(S.D. Fla. Sept. 10, 2014) (Scola, J.). Bluestar argues it has standing to pursue

injunctive relief by virtue of FDUTPA’s providing that “anyone aggrieved by a

violation of this part may bring an action . . . to enjoin a person who has

violated, is violating, or is otherwise likely to violate this part.” Fla. Stat. §

501.211(1). This provision, though, does not, by itself, bestow Article III

standing on a plaintiff who cannot otherwise satisfy its demands. FDUTPA

simply “cannot supplant [c]onstitutional standing requirements. Article III of

the Constitution requires that a plaintiff seeking injunctive relief allege a threat

of future harm.” Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D.

Fla. 2015) (Cooke, J.). Because Bluestar has not pleaded any facts indicating a

likelihood of future harm, the Court dismisses its claim for injunctive relief

under FDUTPA.

H. Bluestar fails to state a claim for conversion against Enis, R&T,

Srivastava, Abbas, and Soleil.

In its conversion claim, set forth in count three, Bluestar alleges Enis,

R&T, Srivastava, Abbas, and Soleil all made false statements to induce

Bluestar into paying them $300,000, purportedly for the cost of transferring

$250 million to Soleil. (Compl. ¶ 38.) In opposing the Defendants’ motion to

dismiss, Bluestar insists its allegations are sufficient “because the funds were

(a) delivered in one act and in one mass, and (b) . . . were delivered to a trust

account.” (Pl.’s Resp. at 14.) The Court finds Bluestar misconstrues the nature

of a conversion claim.

“Under Florida law, a conversion is an unauthorized act which deprives

another of his property permanently or for an indefinite time.” Fogade v. ENB

Revocable Tr., 263 F.3d 1274, 1291 (11th Cir. 2001) (cleaned up) (quoting

Florida law). Accordingly, “in order to state a claim of conversion, one must

allege facts sufficient to show ownership of the subject property and facts that

the other party wrongfully asserted dominion over that property.” Indus. Park

Dev. Corp. v. Am. Exp. Bank, FSB, 960 F. Supp. 2d 1363, 1366 (M.D. Fla. 2013)

(citing Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011)).

Further, “[i]n order for money to be an appropriate subject for a conversion

claim, there must be an obligation for the receiver to keep intact or deliver the

specific money at issue.” Indus. Park, 960 F. Supp. 2d at 1366. Importantly, “a

debt that can be discharged by the payment of money cannot be the subject of

a conversion claim under Florida law.” Tikiz Franchising, LLC v. Piddington, 17-

CV-60552, 2017 WL 8780761, at *6 (S.D. Fla. Aug. 1, 2017) (Bloom, J.).

As Bluestar sets forth in its complaint, it wired $300,000 to the Trust on

July 28, 2020, which Bluestar understood was to pay for part of the costs of

Soleil’s transfer fee (Compl. ¶ 16), as well as the comfort letter (id. ¶ 19).

Bluestar does not, however, supply any factual allegations regarding what

happened to the $300,000 after it was wired to the Trust. While Bluestar

alleges Enis told it that the $300,000 was delivered to Soleil, Bluestar also

recounted Enis’s inability to provide proof of that transfer. (Id. ¶ 18.) What is

missing from Bluestar’s complaint are any factual allegations that Enis, R&T,

Srivastava, Abbas, or Soleil ever had dominion over the $300,000 or that, even

if they had dominion at some point, that any of them had any obligation “to

keep intact or deliver the specific money at issue.” To state a claim for

conversion, Bluestar would have to allege facts showing that it entrusted the

$300,000 to Enis, R&T, Srivastava, Abbas, and Soleil, to keep intact for

Bluestar’s benefit or to later deliver back to Bluestar. See Tikiz Franchising,

2017 WL 8780761 at *6 (finding a plaintiff failed to state a claim for conversion

where “there [were] no allegations . . . that [the defendant] was obligated to

keep the monies intact for [the plaintiff’s] benefit or . . . required to deliver the

money to [the plaintiff]”). “Although [a] specific amount of money may be

identifiable in the sense that [an] identifiable [amount was] paid . . . , this

standing alone does not create a tort cause of action for conversion.” Id.

In sum, without more, the complaint simply fails to supply facts that

would support a conversion claim against Enis, R&T, Srivastava, Abbas, or

Soleil.

I. The Court agrees with the Defendants that Bluestar’s unjust-

enrichment claim should be dismissed as to Enis, R&T, Srivastava,

Abbas, and Soleil but not as to the Trust.

As set forth in the complaint, Bluestar wired $300,000 to the Trust.

(Compl. ¶ 16.) According to Enis, that amount was to cover Bluestar’s share of

the transfer fee charged by Soleil for the $250 million transaction with Wish.

(Id. ¶¶ 15, 18–19, 65.) Those fees, however, were never incurred because the

transaction never went forward. (Id. ¶¶ 18, 65.) The Defendants argue

Bluestar’s unjust-enrichment claims, set forth in count seven, against Enis,

R&T, Srivastava, Abbas, and Soleil fail because Bluestar neglects to allege facts

showing that any of them received any part of the $300,000 wired to the Trust.

Further, the Defendants argue Bluestar’s claim fails for the additional reason

that it is premised on the complaint’s fraud claims. While the Court agrees with

the Defendants’ first point, it finds the second lacking.

“A claim for unjust enrichment under Florida law requires showing that:

(1) plaintiff has conferred a benefit on defendant; (2) defendant voluntarily

accepted and retained that benefit; and (3) the circumstances are such that it

would be inequitable for defendant to retain it without paying the value

thereof.” OJ Commerce, LLC v. Ashley Furniture Indus., Inc., 817 F. App’x 686,

692 (11th Cir. 2020). As the Defendants point out, the complaint is devoid of

any facts showing that any Defendant other than the Trust received any

portion of the $300,000. Instead, Bluestar’s allegation that Enis, R&T,

Srivastava, Abbas, or Soleil “received a direct benefit from Bluestar” is purely

speculative. (Compl. ¶ 66.) Indeed, Bluestar acknowledges as much in its

response, referring to “which[]ever one” of the Defendants who may have

received the $300,000 from the Trust. (Pl.’s Resp. at 16.) Bluestar’s further

argument, that the Defendants are collectively implicated in its unjust-

enrichment claim because the Defendants “control” the Trust, is also devoid of

factual support. (Id.) Even Bluestar’s specific allegations regarding Enis’s

“control” and close relation to the Trust are unavailing—Bluestar fails to

provide any legal or factual support that would prompt the Court to infer, as

Bluestar urges, “that no meaningful distinction exists between Enis and the

Trust.” (Compl. ¶ 4.) In short, the Court agrees with the Defendants that

Bluestar has failed to state a claim for unjust enrichment against any

Defendant except for the Trust.

As to the Defendants’ second point, they argue Bluestar cannot premise

its unjust-enrichment claim on wrongful conduct. In response, Bluestar

submits it has pleaded its unjust-enrichment claim in the alternative. (Pl.’s

Resp. at 16.) While Bluestar’s alternative pleading is not exactly clear, the

Court finds that, ultimately, in reading the complaint’s allegations in the light

most favorable to Bluestar, it has managed to state an unjust-enrichment

claim that is distinct from the fraud claims the Defendants point to. That is,

apart from the alleged wrongful conduct, Bluestar also alleges all three

elements of an unjust-enrichment claim: (1) Bluestar conferred a benefit—the

$300,000—on the Trust (Compl. ¶ 16), and (2) the Trust accepted and retained

that amount (id. ¶ 18), (3) even though no transfer fee was ever incurred (id.).

The Court cannot conclude, then, as the Defendants urge it to, that Bluestar’s

unjust-enrichment claim is wholly “shrouded with allegations of fraudulent and

wrongful activity.” (Defs.’ Reply at 7.) Accordingly, the Court denies the

Defendants’ motion to dismiss Bluestar’s unjust-enrichment claim with respect

to the Trust.

J. The Defendants’ argument that the complaint fails to allege that

Enis and R&T materially breached the parties’ contract is

unpersuasive.

The Defendants next assert Bluestar falls short of setting forth a material

breach, in count eight, because “[t]he facts as alleged by Bluestar fail to

establish that the comfort letter was invalid.” (Defs.’ Mot. at 17.) As the

Defendants portray it, the only problem with the comfort letter was that Wish

declined to accept it. (Id.) The complaint’s allegations, however, clearly

undermine the Defendants’ characterization of the facts as well as Bluestar’s

breach-of-contract claim. The Court has no trouble concluding that Bluestar’s

factual allegations, if true, establish that the comfort letter was a sham: the

letter represented that R&T had either “cash funds and/or [a] credit line . . . of

USD 250,000,000.00” (Compl. ¶ 14) which Bluestar repeatedly and explicitly

alleges was never true (id. ¶¶ 14 (“The representations . . . in the comfort letter

are false. Enis does not have $250,000,000.00 in cash funds or valid credit . . .

.”) (“Soleil does not have $250,000,000.00 by which it can extend credit to R&T

. . . .”), 18 (“Enis does not have the $250,000,000.00 necessary to complete the

transaction and the letter from Soleil is a fraudulent misrepresentation.”), 23

(“Enis/R&T does not have $250,000,000.00 in cash funds/credit”), 31 (same),

37 (noting the “fraudulent comfort letter . . . purporting that R&T has

$250,000,000.00 of cash funds and/or credit, when it did not”), 41 (describing

the “fraudulent comfort letter” as “purporting that R&T has $250,000,000.00 of

cash funds and/or credit”), 81 (same), 89 (same), 109 (same)). The Defendants’

argument, therefore, that Bluestar’s breach-of-contract claim should be

dismissed on this sole basis, fails.

K. The Court is not persuaded by the Defendants’ argument that

Bluestar fails to state a claim for a civil conspiracy.

The Defendants argue Bluestar fails to state a claim, in count eleven, for

civil conspiracy. They maintain, first, that the complaint neglects to set forth

facts establishing an agreement among the Defendants. Second, the

Defendants complain that the complaint fails to plead any specific tort as the

basis for the civil-conspiracy claim. The Court finds the Defendants’ position

lacking on both bases.

To begin with, the Defendants’ argument that Bluestar has failed to set

forth any facts that would support an agreement among the Defendants is both

misleading and unworkably vague. As the Defendants describe it, Bluestar’s

civil-conspiracy claim consists of nothing more than Bluestar’s conclusory

allegation that the Defendants “conspired with one another to perform the

unlawful act of defrauding Bluestar.” (Defs.’ Mot. at 19 (quoting Compl. ¶ 81).)

Characterizing the complaint this way, though, ignores all the other allegations

that set forth facts related to Bluestar’s conspiracy claim. For example, the

Defendants disregard facts showing that (1) Enis and R&T procured a letter

from Soleil, signed by Srivastava and Abbas, (2) the letter misrepresented that

R&T either had $250 million in cash or credit, and (3) the letter, at least in

part, induced Bluestar into wiring $300,000 to the Trust. Without further

elaboration from the Defendants, the Court is hard pressed to conclude that

this was all done without any kind of agreement that plausibly supports a civil

conspiracy. By neglecting to acknowledge all the other facts alleged, the

Defendants fall far short of actually substantiating their argument that the

complaint contains “no factual assertions supporting the formation of an

agreement between any of the Defendants”; “Bluestar only pleads conclusory

and unsupported allegations of a conspiracy”; and “Bluestar fails to allege [the

agreement] element with any particularity whatsoever, let alone the

particularity required under Rule 9(b).” (Defs.’ Mot. at 19.)

The remainder of the Defendants’ argument is similarly lacking in

substance. They complain that “[n]o specific tort is pled as the basis for [the

conspiracy] claim.” (Defs.’ Mot. at 19.) While the Court recognizes that Florida

law “does not recognize civil conspiracy as a freestanding tort,” Banco de los

Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1136 (Fla. 3d DCA 2018), the

Defendants fail to persuade, without more, that Bluestar’s complaint is wholly

devoid of an underlying wrong. This is especially so in light of the Defendants’

incorrect presumption that all of Bluestar’s other claims “are subject to

dismissal.” (Defs.’ Mot. at 19.) In sum, the Defendants fail to support their

arguments that Bluestar’s civil-conspiracy claim should be dismissed.

L. The Court agrees with the Defendants that Bluestar’s civil-theft

claim should be dismissed as to Enis, R&T, Srivastava, Abbas, and

Soleil but not as to the Trust.

As an initial matter, the Court agrees with the Defendants that since

Bluestar has not stated a claim for conversion against Enis, R&T, Srivastava,

Abbas, or Soleil, as found in section H., then Bluestar’s claim for civil theft, as

presented in count four, against those particular Defendants must also fail.

See Heldenmuth v. Groll, 128 So. 3d 895, 896 (Fla. 4th DCA 2013) (“If there

was no factual basis to support a claim for conversion, there can be no cause

of action for civil theft.”). This argument, however, does not apply to the Trust

since Bluestar did not present a conversion claim against the Trust for the

Court to evaluate. Accordingly, the Defendants’ perfunctory claim that

“Bluestar has not pled a proper claim for conversion,” as it relates to the Trust,

without more, fails to persuade.

The Court is also not convinced by either of the Defendants’ other two

arguments that Bluestar’s civil-theft claim against the Trust should be

dismissed. The Defendants’ next argument is that Bluestar fails to present

factual allegations showing the Trust’s felonious intent. As the Defendants

point out, to establish civil theft, “it is necessary to show not only that [the]

defendant obtained or endeavored to obtain the plaintiff’s property, but that he

did so with felonious intent to commit theft.” (Defs.’ Mot. at 19 (quoting Palmer

v. Gotta Have It Golf Collectibles, Inc., 106 F. Supp. 2d 1289, 1303 (S.D. Fla.

2000) (Seitz, J.)).) According to the Defendants, Bluestar’s allegations with

respect to felonious intent are purely conclusory, solely consisting of its claims

that (1) the Defendants “made false statements to Bluestar”; and (2) the

Defendants “deprivation of Bluestar’s cash funds was criminal in nature.”

(Defs.’ Mot. at 19–20 (quoting Compl. ¶¶ 41, 44) (cleaned up).) As the

Defendants see it, “Bluestar merely relies on the fact that Wish would not

accept Soleil’s comfort letter and Mr. Enis did not provide proof that he

transferred funds to Soleil as a means to suggest the existence of wrongdoing.”

(Defs.’ Mot. at 20.) Once again, the Court disagrees with the Defendants’

characterization of the complaint’s allegations. The Court finds Bluestar has

explicitly alleged that Enis, acting on behalf of the Trust, made deliberately

false representations to Bluestar, with the intent to deprive Bluestar of its

property to which, according to the complaint, the Trust had no legal right. The

Court finds these allegations—of which the Defendants omit any mention—

enough to survive the Defendants’ arguments for dismissal.

Lastly, the Court does not find the Defendants’ arguments regarding

notice compelling. Florida Statutes section 772.11 provides that, “[b]efore filing

an action for damages [for civil theft], the person claiming injury must make a

written demand for $200 or the treble damage amount of the person liable for

damages.” Fla. Stat. § 772.11(1). The notice must provide “the person to whom

a written demand is made” an opportunity to comply with “such demand

within 30 days after receipt of the demand.” Id. The Defendants submit that

since Bluestar did not comply with the notice requirement, prior to initiating its

suit, its civil theft claim must be dismissed “without prejudice,” so that

Bluestar can then replead its claim “after complying with the statute.” (Defs.’

Mot. at 20; Reply at 9 (quotations in original omitted).) In response, Bluestar

says, and the Defendants do not dispute, Bluestar served all the Defendants

with the civil-theft notice on May 24, 2021. (Pl.’s Resp. at 22.) Since it appears,

then, that Bluestar’s failure to provide the notice has been cured, with no

response from any of the Defendants, the Court finds dismissal in this

particular case would serve no purpose.

M. The Court agrees with the Defendants, in part, that some of

Bluestar’s claims are barred by the independent-tort doctrine.

The Defendants argue that the independent-tort doctrine bars tort claims

between parties to a contract unless there is proof of a wrong that is

independent of the parties’ obligations under the contract. Because the Court

has dismissed Bluestar’s claims for conversion (count three), civil theft against

all but the Trust (count four), and intentional and negligent breach of fiduciary

duty (counts nine and ten), it only considers the Defendants’ argument with

respect to Bluestar’s claims for fraudulent and negligent misrepresentation

(counts one and two), civil theft as to the Trust (count four), civil conspiracy

(count eleven), and false information negligently supplied for the guidance of

others (count seventeen). After careful review, the Court agrees with the

Defendants, only in part, as follows.

“Under Florida’s independent tort doctrine, it is well settled that a

plaintiff may not recast causes of action that are otherwise breach-of-contract

claims as tort claims.” Altamonte Pediatric Associates, P.A. v. Greenway Health,

LLC, 8:20-CV-604-T-33JSS, 2020 WL 5350303, at *5 (M.D. Fla. Sept. 4, 2020)

(cleaned up). Here, the contract alleged in Bluestar’s breach-of-contract claim

required (1) Enis and R&T to provide a valid comfort letter stating R&T had

$250 million in cash funds available for the Wish transaction; (2) R&T’s

transfer of $250 million to Soleil to be used for the Wish transaction; (3)

Bluestar to split the profits from the sale of the latex gloves with Enis and R&T;

and (4) Bluestar to pay $300,000 for its share of the fee charged by Soleil for

handling the transfers. (Compl. ¶ 69.) Bluestar alleges Enis and R&T breached

that agreement by failing (A) to provide a valid comfort letter and (B) to transfer

the $250 million to Soleil. (Id. ¶ 70.)

As to Enis and R&T, the Court agrees with the Defendants that

Bluestar’s claims for fraudulent and negligent misrepresentation are both

simply recast versions of its breach-of-contract claim. At bottom, neither

misrepresentation claim is separable from the breach-of-contract claim. The

misrepresentation claims both allege that Enis and R&T failed to provide a

valid comfort letter and failed to transfer $250 million to Soleil. Further, the

damages stemming from the misrepresentation claims—the $300,000 transfer

fee and lost profits—are no different than the damages Bluestar claims in its

breach-of-contract claim. Finally, the Court is not persuaded by Bluestar’s

argument that it has pleaded its tort claims alternatively to its breach-of-

contract claims: “It would be contrary to the basic premise of the independent

tort doctrine to allow such pleadings in the alternative.” Altamonte Pediatric,

2020 WL 5350303 at *5. Accordingly, the Court agrees with the Defendants

that Bluestar’s fraudulent- and negligent-misrepresentation claims, as to Enis

and R&T, are indeed barred by the independent-tort doctrine. See Perez v.

Scottsdale Ins. Co., 19-CV-22346, 2020 WL 607145, at *2 (S.D. Fla. Feb. 7,

2020) (Gayles, J.) (finding that, under Florida law, “[t]o bring a tort claim

concurrently with a contract claim, plaintiffs must plead a tortious action

committed separate and apart from the breach of contract” and “for an alleged

misrepresentation regarding a contract to be actionable, the damages

stemming from that misrepresentation must be independent, separate and

distinct from the damages sustained from the contract’s breach”) (cleaned up).

This conclusion, however, does not apply to any of the claims against

Srivastava, Abbas, Soleil, or the Trust. Bluestar does not allege a contract-

based claim against any of those Defendants and so the Court fails to see how

any of the tort claims against them would, in turn, be barred under the

independent-tort doctrine. See Un2jc Air 1, LLC v. Whittington, 46 Fla. L.

Weekly D1552 (Fla. 4th DCA June 30, 2021) (noting that the independent-tort

doctrine “only applies . . . to the parties to the contract”). The Court, therefore,

denies the Defendants’ motion to dismiss on this basis with respect to the

claims of fraudulent misrepresentation, in count one, against Srivastava,

Abbas, and Soleil; negligent misrepresentation, in count two, against Soleil;

civil theft, in count four, against the Trust; civil conspiracy, in count eleven,

against Srivastava, Abbas, Soleil, and the Trust; and false information

negligently supplied for the guidance of others, in count seventeen, against

Soleil.

Finally, regarding the civil-conspiracy claims against Enis and R&T, the

Defendants do not set forth any specific argument that Bluestar’s conspiracy

claim is indistinguishable from its breach-of-contract claim. And, upon the

Court’s own review, it indeed appears that the factual allegations in Bluestar’s

conspiracy claim, involving agreements among all six Defendants, go beyond

the breach-of-contract allegations which are limited to Enis and R&T’s failure

to uphold their end of the parties’ bargain.

In sum, then, of the remaining counts at issue, the Court finds the only

claims barred by the independent-tort doctrine to be the fraudulent- and

negligent-misrepresentation claims against Enis and R&T, as set forth in

counts one and two. The Court is not otherwise persuaded that the doctrine

applies to the other counts and/or Defendants.

N. The Court agrees with the Defendants that Bluestar’s claim for

negligent hiring should be dismissed but is not similarly persuaded

with respect to Bluestar’s claim for negligent retention.

Bluestar has alleged claims for both negligent hiring as well as negligent

retention against Soleil, regarding its employment of Srivastava and Abbas, in

counts fourteen and fifteen. The Defendants argue Bluestar has failed to state

a claim under either theory because it has not alleged (1) the acts complained

of were committed outside the scope of employment; (2) that a tort was

committed; or (3) that a duty was owed. While the Court readily concludes

Bluestar has failed to state a claim for negligent hiring, it finds the Defendants’

arguments regarding the negligent-retention claim wanting.

To state a prima facie case for negligent hiring, a plaintiff must allege

that:

(1) the employer was required to make an appropriate

investigation of the employee and failed to do so; (2) an

appropriate investigation would have revealed the unsuitability of

the employee for the particular duty to be performed or for

employment in general; and (3) it was unreasonable for the

employer to hire the employee in light of the information he knew

or should have known.”

Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002). The main difference between

negligent hiring versus retention “is the time at which the employer is charged

with knowledge of the employee’s unfitness.” Mumford v. Carnival Corp., 7 F.

Supp. 3d 1243, 1249 (S.D. Fla. 2014) (quotation omitted) (Lenard, J.). In

Bluestar’s negligent retention claim, it identifies four specific fraudulent letters

of credit that Srivastava and Abbas provided, involving multiple parties

unrelated to this case, implicating a combined total of over $9 million, all of

which went into default. (Compl. ¶ 104.) In comparison, Bluestar’s negligent

hiring claim is composed of nothing but a recitation of the elements of the

claim, devoid of any particularity or supporting facts. To illustrate, Bluestar

alleges only that (1) “[a]n appropriate investigation into Srivastava and Abbas

would have revealed that [they] participated in multiple frauds and that they

were not employees that should have been trusted”; and (2) “[i]t was completely

unreasonable of Soleil to hire Srivastava and Abbas in light of the information

that it knew or should have known about [them].” (Compl. ¶¶ 100 – 101.) The

Court readily concludes these conclusory allegations fall woefully short of

Bluestar’s burden of supplying “sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Am. Dental Ass’n, 605 F.3d

at 1289.

On the other hand, while Bluestar’s negligent retention claim is clearly

not as robust as it could be, the Court cannot say, based on the Defendants’

superficial and perfunctory argument, that Bluestar, regarding its negligent-

retention claim, has failed to at least submit enough factual content that would

“allow[] the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. There seems to be no

dispute that Soleil, as a banking institution, was required to make an

appropriate investigation into its employees’ suitability for their positions. And,

based on the fraudulent letters of credit Bluestar identifies, it would be

reasonable to infer that Soleil was, or should have been, well aware of

Srivastava and Abbas’s unsuitability. Lastly, based on this unsuitability, it is

certainly plausible that it was unreasonable for Soleil to retain Srivastava and

Abbas as employees. Without a more thorough argument from the Defendants,

the Court cannot say that Bluestar has failed to state a claim for negligent

retention.

O. The Court is not persuaded by the Defendants’ argument that

Bluestar fails to state a claim for false information negligently

supplied.

In urging dismissal of Bluestar’s claim for false information negligently

supplied for the guidance others, lodged against Soleil in count seventeen, the

Defendants’ argument is twofold. First, they submit that Bluestar fails to allege

that the comfort letter was the legal cause of Bluestar’s damages. Second, they

rely on the independent-tort doctrine as a bar to recovery. The Court finds both

arguments lacking.

In support of their first argument, the Defendants’ position appears to be

that Bluestar’s claim, on the one hand, that it was swindled out of the

purported $300,000 transfer fee because of the fraudulent comfort letter, is

incompatible with, on the other, Bluestar’s allegations that the purpose of the

comfort letter was to facilitate the transaction with Wish. Without any

elaboration from the Defendants, the Court fails to appreciate any

inconsistency between these two premises that would warrant dismissal of the

claim.

The Defendants’ second argument is equally unconvincing and was

previously address in section M: the independent-tort doctrine does not apply

because Bluestar does not allege a breach-of-contract claim against Soleil.

Accordingly, then, the Court is not persuaded by the Defendants’

arguments that Bluestar’s false information claim should be dismissed.

P. Bluestar fails to state claims for declaratory relief.

In its request for declaratory relief, in counts twelve and thirteen,

Bluestar asks the Court to declare that the corporate veil may be pierced for

both R&T as well as Soleil, respectively. In essence, Bluestar asks the Court to

declare that it may recover damages from Enis for any judgment against R&T

and from Srivastava and Abbas for any judgment against Soleil. The Court

agrees with the Defendants that Bluestar has improperly sought this remedy

through declaratory relief.

Courts have wide discretion in deciding whether to entertain a

declaratory judgment action. Kerotest Mfg., Co. v. C-O-Two Fire Equip. Co., 342

U.S. 180, 183-84, (1952). A declaratory judgment is used to clarify legal

relations and not to make factual determinations. Medmarc Cas. Ins. Co. v.

Pineiro & Byrd PLLC, 783 F. Supp. 2d 1214, 1216 (S.D. Fla. 2011) (Marra, J.).

Moreover, “if a district court determines that a complaint requesting a

declaratory judgment will not serve a useful purpose, the court cannot be

required to proceed to the merits before dismissing the complaint.” Id. (cleaned

up).

Significantly, “a plaintiff seeking . . . declaratory relief must prove not

only an injury, but also a real and immediate threat of future injury in order to

satisfy the ‘injury in fact’ requirement.” Koziara v. City of Casselberry, 392 F.3d

1302, 1305 (11th Cir. 2004) (quotation omitted) (emphasis added); see also Am.

Ins. Co. v. Evercare Co., 699 F. Supp. 2d 1355, 1359 (N.D. Ga. 2010), aff’d, 430

F. App’x 795 (11th Cir. 2011) (unpublished) (“The Declaratory Judgment Act is

inappropriate to adjudicate past conduct.”) That is “[t]he Declaratory Judgment

Act, 28 U.S.C. § 2201, is designed to settle ‘actual controversies’ before they

ripen into breaches of contract or violations of law.” Bacardi USA, Inc. v.

Young’s Mkt. Co., 273 F. Supp. 3d 1120, 1127 (S.D. Fla. 2016) (Seitz, J.)

(emphasis added). “Past injuries alone generally do not establish declaratory

judgment jurisdiction.” Id. at 1128.

Here, Bluestar asks the Court to make factual determinations regarding

events that have already transpired. And although Bluestar vaguely claims it

has a present need for a declaration regarding whether R&T and Soleil’s

corporate veils may be pierced, those factual determinations, based on past

conduct that has already damaged Bluestar, would be an improper basis upon

which to base an action for declaratory relief.

That said, to the extent Bluestar seeks to pierce R&T and Soleil’s

corporate veils, the Court will consider the factual allegations in the declaratory

relief counts as they relate to Bluestar’s attempt to bind Enis, as to any

judgment against R&T, and Srivastava and Abbas, as to any judgment against

Soleil.

4. Conclusion

For the reasons set forth above, the Court grants in part and denies in

part the Defendants’ motion to dismiss. (ECF No. 37). The Court dismisses the

following counts in their entireties: three (conversion); five (fraudulent

conveyance); six (fraudulent-asset conveyance); nine (intentional breach of

fiduciary duty); ten (negligent breach of fiduciary duty); twelve and thirteen

(declaratory relief); and fourteen (negligent hiring). And the Court dismisses the

following counts as to some Defendants: one, as to Enis and R&T (fraudulent

misrepresentation); two, as to Enis and R&T (negligent misrepresentation);

four, as to Enis, R&T, Srivastava, Abbas, and Soleil (civil theft); and seven, as

to Enis, R&T, Srivastava, Abbas, and Soleil (unjust enrichment). The

aforementioned claims are dismissed for a failure to state a claim under Rule

12(b)(6) and are, therefore, dismissed with prejudice.

Further, the Court denies Bluestar’s request for leave to amend,

inserted as an afterthought, in a footnote, in the introductory pages of its

twenty-five-page opposition brief: the request is both procedurally defective and

lacking in substantive support. See Newton v. Duke Energy Florida, LLC, 895

F.3d 1270, 1277 (11th Cir. 2018) (“[W]here a request for leave to file an

amended complaint simply is imbedded within an opposition memorandum,

the issue has not been raised properly.”); Avena v. Imperial Salon & Spa, Inc.,

740 F. App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party

can await a ruling on a motion to dismiss before filing a motion for leave to

amend.”) (noting also that “a motion for leave to amend should either set forth

the substance of the proposed amendment or attach a copy of the proposed

amendment”) (cleaned up). The deadline for amending the pleadings has also

long since passed so Bluestar’s request is denied as untimely as well. (Sched.

Order, ECF No. 32, 1.)

The Defendants must respond to what remains of the complaint,

including the factual allegations within the declaratory judgment counts, on or

before November 5, 2021. By way of a summary, the following claims, as

alleged against the listed Defendants, endure:

Count Defendant

One: Fraudulent misrepresentation Srivastava, Abbas, and Soleil

Two: Negligent misrepresentation Soleil

Four: Civil theft The Trust

Seven: Unjust enrichment The Trust

Eight: Breach of Contract Enis and R&T

Eleven: Civil conspiracy All Defendants

Fifteen: Negligent retention

Sixteen: FDUTPA Soleil, Enis, and R&T

Seventeen: False information negligently Soleil

supplied

Done and ordered, at Miami, Florida, on October 25, 2021.

sabes N. Scola, 4

United States District Judge