Med-Stop, Inc. v. Vandutch, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-21875-ALTMAN/Reid

MED-STOP, INC.,

Plaintiff,

v.

VANDUTCH, INC., et al.,

Defendants.

_________________________/

ORDER GRANTING MOTION TO DISMISS

Our four remaining Defendants—Vandutch, Inc. (“VDI”), Vandutch USA (“VDUSA”),

Jacobus Mast, and Reed Nicol—have moved to dismiss the Plaintiff’s Complaint. See Motion to

Dismiss (“MTD”) [ECF No. 115]. The MTD has been fully briefed and is ripe for adjudication. See

Plaintiff’s Memorandum Response to Motion to Dismiss (“Response”) [ECF No. 116]; Reply in

Support of Motion to Dismiss (“Reply”) [ECF No. 117]. After careful review, we GRANT the

Defendants’ Motion to Dismiss because all of the Plaintiff’s claims are barred by Florida’s

“independent tort doctrine,” and because—to the extent that doctrine might not apply—the Plaintiff

has failed to state a claim against the Defendants.

THE FACTS

Looking to purchase a yacht, our Plaintiff, Med-Stop, Inc., contracted with VDI, “a Florida

corporation conducting a yacht brokerage, sales, and distribution business[.]” Complaint [ECF No. 1]

¶ 2. Med-Stop negotiated with Reed Nicol—VDI’s “past vice-president and COO”—to purchase “a

new forty (40) foot VanDutch yacht[.]” Id. ¶¶ 5, 10. Med-Stop and VDI executed a “New Purchase

Agreement” (the “Contract”), providing that “the Yacht would be manufactured in Italy by [Cantiere

del Pardo, S.p.A. (‘CDP’)]” and that the Yacht would be delivered “on or before October 29, 2021.”

Id. ¶ 12.1 Jacobus Mast, the president of VDI, “directed and approved” the “entry of the Contract

with Med-Stop.” Id. ¶ 19. The Contract listed a “stated purchase price of the Yacht [at] $751,925.00”

and required Med-Stop to put down a $150,385.00 “initial deposit.” Id. ¶¶ 13, 17. The Contract

specified that Med-Stop was to wire the initial deposit to VDI’s Bank of America account in New

York. See id. ¶ 15 (“The wire transfer instructions within the Contract identified a [VDI] account . . .

at Bank of America, N.A. in New York to accept the deposit.”). Med-Stop wired the deposit to VDI

“[o]n the morning of March 24, 2021,” and Nicol confirmed that the wire was received “the same day

through a 5:29 p.m. text message . . . to Med-Stop.” Id. ¶¶ 17–18.

Unfortunately for Med-Stop, it never received its yacht. According to Med-Stop, VDI, Mast,

and Nicol all knew at the time the Contract was executed that CDP “was not honoring any new or

existing yacht contracts originated by [VDI]” and that at least fifteen other VDI customers hadn’t

received their deposits back even though CDP “had not even begun” manufacturing their yachts. Id.

¶¶ 29, 31. This dispute between CDP and VDI arose because Mast apparently refused to comply with

a 2020 Distribution Agreement between the parties, which required that “all VanDutch yacht orders

were to [be] submitted to CDP through [VDUSA], together with a 20% down payment, not through

[VDI] or some [other] intermediary.” Id. ¶ 37. On May 5, 2021, CDP’s board of directors terminated

the 2020 Distribution Agreement and told Mast that VDI would have to “do it themselves” to fulfill

their remaining orders. Id. ¶ 40. Mast predicted that CDP’s “refusal to honor the outstanding

VanDutch contracts” would cause “a direct bankruptcy” of VDI and would be “3x Hiroshima.” Id. ¶

39.

1 CDP “is an Italian joint-stock company engaged in the manufacture, sale, and distribution of luxury

yachts,” and which entered into a “distribution agreement” with VDUSA “lasting from June 8, 2020

through May 7, 2021.” Complaint ¶ 6. VDUSA is a “dissolved” corporation that shared the same

officers (Mast and Nicol) with VDI. Id. ¶ 3. CDP was previously a Defendant in this action, but we

dismissed CDP from the case after it reached a settlement with Med-Stop. See Order of Dismissal

[ECF No. 93].

On June 28, 2021, Med-Stop asked Nicol about “the progress being made on the manufacture

of its Yacht.” Id. ¶ 43. Nicol—who had since “resigned as an officer of both [VDI] and [VDUSA]”—

directed Med-Stop to contact Mast. Id. ¶¶ 42, 44. Mast promised Med-Stop “to either close the deal,

or return Med-Stop’s deposit, within the next two weeks.” Id. ¶ 45. That promise was never honored,

and neither Mast nor Nicol told Med-Stop that “CDP has not even begun manufacture of Med-Stop’s

Yacht[.]” Id. ¶¶ 46, 48. Med-Stop has since made “repeated demands for the return of its deposit[,]”

but it has not, “to date, . . . received a return of any of its deposit monies.” Id. ¶ 50.

In its Complaint, Med-Stop asserts nine claims against the Defendants. Count I alleges fraud

in the inducement against VDI, Mast, and Nicol for obtaining the Contract “through knowingly false

and reckless misrepresentations and omissions[.]” Id. ¶ 54. Count II is a civil-theft claim against VDI,

Mast, and Nicol for “knowingly obtaining $150,385.00 belonging to Med-Stop with the intent to

appropriate these funds for their own use[.]” Id. ¶ 62. Count IV alleges that VDI, Mast, and Nicol

refusal “to return Med-Stop’s deposit despite repeated demands constitutes conversion.” Id. ¶ 79.

Count VI avers that VDI, Mast, and Nicol “breached their fiduciary duty to Med-Stop through their

acts and omissions relating to the March 22, 2021 Yacht sale transaction.” Id. ¶ 85. Count VIII

advances a common law fraud claim against VDI, Mast, and Nicol for their “alleged acts,

misrepresentations, and omissions” during “the negotiation and sale transaction of Med-Stop’s

Yacht[.]” Id. ¶ 93. Finally, Counts III, V, VII, and IX all allege that VDUSA aided and abetted the

other Defendants’ civil theft, conversion, breach of fiduciary duty, and fraud (respectively) by failing

to inform VDI’s customers about this wrongdoing. See id. ¶¶ 74, 82, 90, 98.

THE LAW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “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.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

ANALYSIS

In their MTD, the Defendants advance five arguments. First, the Defendants say that Florida’s

“Yacht and Ship Brokers’ Act” (the “YSB Act”) “is inapplicable to this case,” and that, even if it were

applicable, it confers “no private right of action” on the Plaintiff. MTD at 4. Second, the Defendants

contend that Med-Stop’s claims—all nine of which sound in tort—are barred by Florida’s

“independent tort doctrine.” Id. at 7. Third, the Defendants argue that all nine counts fail to state a

viable claim under Florida law. See generally id. at 8–15. Fourth, the Defendants ask us to dismiss Med-

Stop’s claims against Mast and Nicol “because all of their actions were on behalf of VDI and/or

VDUSA, and not in their individual capacities.” Id. at 16. Fifth, the Defendants urge us to dismiss

Med-Stop’s Complaint as a shotgun pleading because “each count adopts all preceding paragraphs.”

Id. at 18.

Before we get to the MTD’s specifics, we’ll quickly address the issue of waiver. Our Local

Rules state that “each party opposing a motion shall file and serve an opposing memorandum of law[.]

. . . Failure to do so may be deemed sufficient cause for granting the motion by default.” S.D. FLA.

L.R. 7.1(c)(1); see also, e.g., Weeks v. Braddy, 2023 WL 2610290, at *1 n.1 (S.D. Fla. Mar. 23, 2023)

(Altman, J.) (“Because Weeks didn't file a Response, we GRANT the Defendants’ motions [to dismiss]

by default.”). And the Eleventh Circuit has repeatedly held “the failure to make arguments and cite

authorities in support of an issue waives it.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,

1319 (11th Cir. 2012); see also In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not

properly presented . . . are deemed waived.”). Although Med-Stop filed a Response to the MTD, that

Response “failed to rebut numerous legal arguments and authorities raised in the [MTD].” Reply at 8.

In these circumstances, we agree with the Defendants that we can (and should) “grant [the]

Defendants’ [MTD] on each ground for which [Med-Stop] failed to respond[.]” Reply at 8; see also Jones

v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (“A party’s failure to respond to any

portion or claim in a motion indicates such portion, claim or defense is unopposed. Also, when a party

fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim

abandoned.” (cleaned up)); Sanchez v. Bengoa Constr., Inc., 2024 WL 2797373, at *2 (S.D. Fla. Apr. 22,

2024) (Singhal, J.) (“Plaintiff failed to respond to Defendants’ Motion with respect to their arguments

that Plaintiff failed to state a claim for unjust enrichment (Count V) and that Plaintiff’s claims for

attorneys’ fees and punitive damages in relation to Counts IV and V should be stricken. . . .

Accordingly, Count V is dismissed as to both Defendants, and Plaintiffs’ request for attorneys’ fees

and punitive damages in relation to Counts IV and V are stricken.”); GolTV, Inc. v. Fox Sports Latin

Am. Ltd., 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. 2017) (Altonaga, J.) (“When a party fails to respond

to an argument or address a claim in a responsive brief, such argument or claim can be deemed

abandoned.”). In the interest of completeness, though, we’ll address each of the Defendants’

arguments on the merits.

I. Application of the Yacht and Ship Brokers Act

Med-Stop alleges that VDI, Mast, and Nicol “were acting as ‘persons,’ as defined in [the YSB

Act], engaged in the negotiation and sale transaction of a new forty (40) foot VanDutch yacht to Med-

Stop.” Complaint ¶ 20. Because these Defendants were acting as yacht brokers under Florida law,

Med-Stop says the Defendants should have (but did not) “maintain Med-Stop’s deposit in a trust

account with a financial institution located in the state of Florida, and to maintain a separate record

of all such monies received and the disposition thereof.” Id. ¶ 23. The Defendants respond that they

are not “yacht brokers” within the meaning of the YSB Act since they (1) don’t sell “yachts for other

persons” and (2) were selling “a new yacht.” MTD at 4. The Defendants also say that the YSB Act

“does not provide for any private right of action based upon alleged violations of the Act, other than

an action for damages upon the surety bonds that licensees are required to have for yacht brokerage

transactions pursuant to [FLA. STAT.] § 326.004(11).” Id. at 6.

We agree with the Defendants that the YSB Act doesn’t apply here. By their own terms, the

Act’s escrow regulations apply only to “brokers.” See FLA. STAT. § 326.005(1) (“A broker shall place

any funds received pursuant to a transaction into a trust account in a savings and loan association,

bank, trust company, or other financial institution located in this state . . . until he or she disburses

such funds.”).2 The YSB Act defines a “broker” as a person (or entity) “who, for or in expectation of

compensation: sells, offers, or negotiates to sell; buys, offers, or negotiates to buy; solicits or obtains

2 The Defendants’ belief that the YSB Act doesn’t “apply to any transaction involving the sale of a

new yacht” is incorrect. MTD at 4 (cleaned up). This “new yacht” exception only governs the Act’s

licensing requirements. See FLA. STAT. § 326.004(3)(d) (“A license is not required for . . . [a] transaction

involving the sale of a new yacht.”). The Act’s other, non-licensing requirements plainly apply to all

brokers, even if they’re selling a new yacht. See Response at 6–7 (“Here, even if Movants were entitled

to a licensing exemption, it is a leap of logic to contend that (as non-dealers) they would be continuing

to act as anything other than unlicensed brokers or salespersons. Such a limited license exemption

does not swallow the statutory definitions of ‘Broker’ and ‘Salesperson,’ and does not automatically

absolve Movants from the remaining statutory obligations imposed upon ‘Brokers’ and

‘Salespersons.’”).

listings of; or negotiates the purchase, sale, or exchange of, yachts for other persons.” Id. § 326.002(1)

(emphasis added). The statute’s language here is “plain and unambiguous,” so “there is no need for

further inquiry.” United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002). Since VDI, Mast, and

Nicol were “not selling the Van Dutch yacht ‘for other persons,’” they aren’t “brokers” under the

YSB Act. MTD at 5 (quoting FLA. STAT. § 326.002(1)).

Still resisting, Med-Stop claims that “the Agreement concerns the purchase and sale of a (yet

to be manufactured) yacht for another person—i.e. Med-Stop.” Response at 6. This is absurd. Under

Florida law, a broker is “an intermediary between a principal and a third person in the matter of

business transactions[.]” State ex rel. Davis v. Rose, 122 So. 225, 230 (Fla. 1929); see also Gerber v. Keyes

Co., 443 So. 2d 199, 200 (Fla. 3d DCA 1983) (“When acting as an intermediary between a seller and a

prospective buyer a broker is under a duty to deal fairly and honestly with both parties.”). This is

consistent with the commonly understood role of a “broker.” See, e.g., Broker, MERRIAM-WEBSTER

ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/broker (last visited Jan. 2,

2025) (“[S]omeone who acts as an intermediary: such as . . . an agent who negotiates contracts of

purchase and sale[.]”). The Defendants cannot be brokers in our case because they sold their yacht

directly to Med-Stop. See Complaint ¶ 10 (“Med-Stop signed [the Contract] with [VDI] for the purchase

of a new forty (40) foot VanDutch yacht[.]”); Reply at 4 (“The agreement is clear that Plaintiff

purchased a new yacht from VanDutch Inc. VDI was not a broker—it was the seller of a new yacht[.]

(cleaned up)). Since the Defendants were not “brokers” under the YSB Act, they weren’t required to

abide by the Act’s requirements.

That said, all nine of Med-Stop’s counts are based on violations of Florida tort law—which is

another way of saying that none purport to state a claim under the YSB Act. See generally Complaint at

12–22; see also Response at 5 n.6 (“Indeed, regardless of [the YSB Act’s] applicability to Movants,

Florida’s common law is sufficient to sustain Plaintiff’s fraudulent inducement, breach of fiduciary

duty, conversion, and fraud claims.” (citing Gochnauer v. A.G. Edwards & Sons, Inc., 810 F.2d 1042,

1051 (11th Cir. 1987))).3 So, after reviewing the Complaint’s allegations, we find that the YSB Act is

relevant in only two respects. One, Med-Stop suggests that the Defendants’ failure to comply with the

YSB Act is evidence that they breached their fiduciary duty to Med-Stop. See Complaint ¶ 25 (“Neither

[VDI, Mast, nor Nicol] complied with [the] statutory deposit requirements of the [YSB Act]—nor

even informed Med-Stop of their fiduciary duty to do so.”); but cf. id. ¶¶ 27–28 (also alleging that VDI,

Mast, and Nicol were operating as “yacht ‘merchant[s]’ as defined in section 672.104 of the Florida

Statutes” which meant they owed Med-Stop “an additional statutory duty of good faith”). Two, Med-

Stop alleges that the YSB Act required the Defendants “to maintain [Med-Stop’s] deposit in an escrow

or trust account in bank located in Florida[.]” Id. ¶ 62. We’ll discuss the relevance of these two issues

later on in this Order. See infra Section III. For now, though, we’ll simply disregard any part of the

Complaint which indicates that, in their dealings with Med-Stop, the Defendants acted as “yacht

brokers” under the YSB Act.

II. Med-Stop’s Claims are Barred by the Independent Tort Doctrine

Which brings us to the “independent tort doctrine”—“a general principle of law that provides

‘a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach

of contract.’” Costa Invs., LLC v. Liberty Grande, LLC, 353 So. 3d 627, 632 (Fla. 4th DCA 2022) (quoting

Un2jc Air 1, LLC v. Whittington, 324 So. 3d 1, 3 (Fla. 4th DCA 2021)); see also BluestarExpo, Inc. v. Enis,

568 F. Supp. 3d 1332, 1353 (S.D. Fla. 2021) (Scola, J.) (“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.” (cleaned up)). This doctrine “only applies, however, to the parties to the

3 Since Med-Stop doesn’t purport to assert a cause of action under the YSB Act, we needn’t (and

won’t) address the Defendants’ argument that the YSB Act “does not provide for any private right of

action based upon alleged violations of the Act, other than an action for damages upon the surety

bonds that licensees are required to have for yacht brokerage transactions pursuant to § 326.004(11).”

Motion at 6.

contract.” Costa Invs., 353 So. 3d at 632. Similarly, “the independent tort doctrine does not bar claims

where the plaintiff has alleged conduct that is independent from acts that breached the contract and

does not itself constitute breach of the contract at issue.” Matonis v. Care Holdings Grp., LLC, 423 F.

Supp. 3d 1304, 1311 (S.D. Fla. 2019) (Ungaro, J.); accord HTP, Ltd. v. Lineas Aereas Costarricenses, S.A.,

685 So. 2d 1238, 1239 (Fla. 1996) (“Where a contract exists, a tort action will lie for either intentional

or negligent acts considered to be independent from acts that breached the contract.”). In short, the

independent tort doctrine requires a plaintiff to “plead a tortious action committed separate and apart

from the breach of contract.” Perez v. Scottsdale Ins. Co., 2020 WL 607145, at *2 (S.D. Fla. Feb. 7, 2020)

(Gayles, J.).

The Defendants believe that all nine of Med-Stop’s claims are barred by the independent tort

doctrine. In the Defendants’ view, “the substance of Plaintiff’s claim[s] is a breach of contract,” and

(the Defendants continue) Med-Stop failed to “allege any tort damages that are independent, separate

and distinct from the damages sustained from the contract’s breach, as required to maintain separate

tort claims against the Defendants.” MTD at 7. Med-Stop musters three arguments in response: (1)

the independent tort doctrine doesn’t apply when “the contract itself was procured through fraudulent

inducement separate from a mere breach of contract”; (2) the doctrine “has been relegated to product

liability cases since 2013”; and (3) Florida law “provides for an election of remedies . . . in fraudulent

inducement cases[.]” Response at 8–9. Finding none of these responses persuasive, we conclude that

the independent tort doctrine applies here.

To begin with, Med-Stop, Nicol, and Mast all “share contractual privity with one another

through the contract at issue[.]” Yuken Corp. v. Gedcore LLC, 2022 WL 3701233, at *3 (S.D. Fla. June

21, 2022) (Altonaga, C.J.).4 On the one hand, VDI is the only Defendant who was a party to the

4 Conversely, since VDUSA was not a party to the Contract, the independent tort doctrine doesn’t

apply to Med-Stop’s claims against it. See generally Complaint at 23–28 (indicating that the Contract was

between Med-Stop and VDI).

Contract between it and Med-Stop (although Nicol signed the Contract on behalf of VDI). See

Complaint at 28 (showing signature page). But “courts also recognize that where a tort claim against

a company would be barred by the [independent tort doctrine] because it is based on the same conduct

giving rise to the claim for breach, claims against the company’s officers or employees based on the

same conduct are likewise barred.” HW Aviation LLC v. Royal Sons, LLC, 2008 WL 4327296, at *5

(M.D. Fla. Sept. 17, 2008) (Merryday, J.); see also, e.g., Luigino’s Int’l, Inc. v. Miller, 311 F. App’x 289, 294

(11th Cir. 2009) (“We recognize that contractual privity may not be required when a tort action is

barred against a corporation under the economic loss rule and its corporate employee is being sued

for the same tortious conduct.”); Ben-Yishay v. Mastercraft Dev., LLC, 553 F. Supp. 2d 1360, 1371 (S.D.

Fla. 2008) (Moore, J.) (applying independent tort doctrine to non-signatory employees to avoid

“incongruous result that the [doctrine] would bar applicable tort claims against a corporation, but not

against the directors or officers who negotiated the agreement”); Vesta Constr. & Design, LLC v.

Lotspeich & Assocs., Inc., 974 So. 2d 1176, 1180 (Fla. 5th DCA 2008) (“Given that a corporation can

only act through its employees, . . . it would completely undermine the contractual privity economic

loss rule to allow any party which contracts with a corporation to avoid the rule by simply bringing its

tort claim directly against the corporate officers or employees tasked with performing the contract on

behalf of the corporation.”). Since Med-Stop is suing VDI, Nicol, and Mast “for the same tortious

conduct,” Luigino’s Int’l, 311 F. App’x at 294; see generally Complaint at 12–22, these three Defendants

and Med-Stop are all in contractual privity with one another for purposes of the independent tort

doctrine.

We also agree with the Defendants that the independent tort doctrine must apply here because

“the substance of Plaintiff’s claims amounts to a breach of contract—and nothing more.” MTD at 7.

Med-Stop contends that “the Complaint properly alleges that the contract itself was procured through

fraudulent inducement separate from a mere breach of contract[.]” Response at 8. And it’s true that,

under Florida law, claims sounding in fraud (such as fraudulent inducement) “do[ ] not altogether run

afoul of the independent tort doctrine,” so long as the plaintiff alleges that the fraud concerns “pre-

contract misrepresentations”—as opposed to representations that “concern the heart of the parties’

agreement[.]” Yuken Corp., 2022 WL 3701233, at *5 (quoting Hotels of Key Largo, Inc. v. RHI Hotels, Inc.,

694 So. 2d 74, 77–78 (Fla. 3d DCA 1997)); see also Glob. Quest, LLC v. Horizon Yachts, Inc., 849 F.3d

1022, 1031 (11th Cir. 2017) (holding that a fraudulent-inducement claim can survive the independent

tort bar where “the fraud allegations are separate and distinct from defendants’ performance under

the contract”); Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., 2014 WL 2215770, at *5 (S.D. Fla. May 29,

2014) (Rosenbaum, J.) (“In assessing whether fraud in the inducement is distinct from a claim arising

under a contract, the critical inquiry focuses on whether the alleged fraud is separate from the

performance of the contract.”).

Med-Stop’s fraudulent-inducement and fraud claims are all premised on one key omission5—

that “CDP was not honoring any new or existing yacht contracts originated by [VDI].” Complaint ¶

31. At first glance, this omission could be “separate from the essence of the agreement” because the

identity of a product’s manufacturer isn’t necessarily central to “the performance of the contract.”

Yuken Corp., 2022 WL 3701233, at *6. But Med-Stop admits that the Contract between it and VDI

“provided that the Yacht would be manufactured in Italy by CDP[.]” Complaint ¶ 12; see also id. at 24

(“Buyer agrees to purchase from [VDI] a VanDutch yacht manufactured by [CDP].”). Since the

Contract expressly provides that CDP would manufacture Med-Stop’s yacht, the Defendants’ alleged

failure to inform Med-Stop that CDP was no longer manufacturing yachts for VDI is the type of

fraudulent misrepresentation that’s “inseparably embodied in the parties’ [written] agreement.” Hotels

of Key Largo, 694 So. 2d at 77; see also Kaye, 2014 WL 2215770, at *5 (“While the initial promise may

5 “Florida law recognizes that fraud can occur by omission.” ZC Ins. Co. v. Brooks, 847 So. 2d 547, 551

(Fla. 4th DCA 2003).

have been fraudulent, the terms of the purported fraud were memorialized in the License Agreement.

As a result, any failure to comply with those terms results in an action for breach of contract.”);

Monsoon, Inc. v. Bizjet Int’l Sales & Support, Inc., 2017 WL 747555, at *10 (S.D. Fla. Feb. 27, 2017) (Marra,

J.) (“In this case, the alleged pre- and post-contract misrepresentations relate exclusively to the

Defendant’s performance of the contract and cannot therefore be said to give rise to an independent

cause of action in tort.”). And, because the Defendants’ alleged fraud is inextricably intertwined with

the Defendants’ performance on the Contract, the independent tort doctrine applies.

Med-Stop’s civil theft, conversion, and breach of fiduciary duty claims are also entwined with

the Defendants’ alleged breach of contract and, therefore, must likewise be dismissed. The Plaintiff’s

civil-theft and conversion claims are premised on the Defendants’ purported refusal to refund Med-

Stop its $150,385.00 deposit. See Complaint ¶¶ 62, 79. Of course, the only reason the Defendants

received Med-Stop’s deposit in the first place was because the contract demanded it, see id. ¶ 17 (“On

the morning of March 24, 2021, Med-Stop wired its $150,385.00 initial deposit as instructed in the

Contract.”), so the conversion and civil-theft claims can’t be independent from the breach of the

contract, see Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008) (“This is not to say that

there can never be a claim for civil theft or conversion if there is a contractual relationship between

the parties, but rather that the civil theft or conversion must go beyond, and be independent from, a

failure to comply with the terms of a contract.”). Similarly, “[a] breach of fiduciary duty claim is

independent when the duty or relationship arises outside of, or independent from, the contract.” Sch.

Bd. of Osceola Cnty., Fla. v. Gallagher Benefit Servs., Inc., 2022 WL 19914514, at *6 (M.D. Fla. June 22,

2022) (Conway, J.). And Med-Stop itself concedes that the Defendants only owed it a duty after they

“engaged in the sale transaction of a new forty (40) foot VanDutch yacht to Med-Stop.” Complaint ¶

27. None of Med-Stop’s claims, in short, are “independent” from the Defendants’ alleged breach of

contract.

Med-Stop’s other counterarguments are equally unavailing. First, Med-Stop incorrectly

suggests that the independent tort doctrine “has been relegated to product liability cases since 2013.”

Response at 9 (citing Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Co., Inc., 110 So. 3d 399, 407 (Fla.

2013)). But, as we’ve previously explained, “the independent-tort doctrine creates a ‘separate hurdle’

Tiara ‘left intact,’ which requires ‘a party to demonstrate that the tort is independent of any breach of

contract claim.’” Rife v. Newell Brands, Inc., 632 F. Supp. 3d 1276, 1308 (S.D. Fla. 2022) (Altman, J.)

(cleaned up) (quoting Lamm v. State St. Bank & Tr., 749 F.3d 938, 947 (11th Cir. 2014))). And, as

Magistrate Judge Strauss recently explained, Florida courts “have reaffirmed [the use of] Florida’s

independent tort doctrine” in non-products-liability cases. Inspirations Nev. LLC v. Med Pro Billing, Inc.,

2021 WL 2156677, at *5 (S.D. Fla. May 26, 2021) (Strauss, Mag. J.) (first citing Peebles v. Puig, 223 So.

3d 1065, 1069 (Fla. 3d DCA 2017); then citing Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300

So. 3d 1236, 1239 (Fla. 3d DCA 2020); and then citing Prewitt Enters., LLC v. Tommy Constantine Racing,

LLC, 185 So. 3d 566, 569 (Fla. 4th DCA 2016)). “Whatever the label,” in short, “the principle that

the breach of a contractual duty establishes only a breach-of-contract claim remain[s] the governing

law.” Travelers Indem. Co. of Conn. v. Richard McKenzie & Sons, Inc., 326 F. Supp. 3d 1332, 1346 (M.D.

Fla. 2018) (Merryday, J.).

Second, Med-Stop’s reliance on Mazzoni Farms, Inc. v. E.I. Dupont De Nemours & Co., 761 So. 2d

306 (Fla. 2000), is misplaced. Med-Stop appears to cite Mazzoni Farms for the proposition that it can

“elect” to seek damages sounding in tort instead of pursuing a breach-of-contract claim. See Response

at 9 (“The allegations of Movant’s intentional misrepresentations, omissions of material fact, and

Plaintiff’s justifiable reliance—all contained within the Complaint as identified above—form the basis

for Med-Stop’s independent torts and Plaintiff is entitled to seek any and all attendant remedies in its

Complaint.”). But, as the Defendants rightly observe, it “is unclear how Mazzoni Farms has any

relevance to this case[.]” Reply at 6. After all, Mazzoni Farms said nothing at all about the independent

tort doctrine. Instead, the case merely reaffirmed the uncontroversial proposition that, if a plaintiff

successfully alleges a fraudulent-inducement claim, that plaintiff has the right to seek either “rescission,

whereby the party repudiates the transaction, or damages, whereby the party ratifies the contract.” 761

So. 2d at 313. Needless to say, the question of what remedies are available to a plaintiff in a fraudulent-

inducement case has nothing to do with the salient issue here—viz., whether Med-Stop can advance a

fraudulent-inducement claim without violating the independent tort doctrine. We find that it cannot.6

The Defendants, in sum, have convincingly shown that “[t]his case should be nothing more

than a straight-forward, garden variety breach of contract case arising from a written agreement to sell

a yacht to the Plaintiff.” MTD at 1. We therefore DISMISS Med-Stop’s claims against VDI, Nicol,

and Mast.7

6 Med-Stop could also be suggesting—though its Response doesn’t clearly articulate this argument—

that a breach-of-contract action against the Defendants would be legally inadequate. See Complaint ¶

60 (“Med-Stop’s remedy at law is inadequate and, in any event, section 672.721 of the Florida Statutes,

which applies to the sale of goods in Florida, specifically provides that [n]either rescission or a claim

for rescission of the contract for sale shall bar or be deemed inconsistent with a claim for damages.”

(cleaned up)). But, if this is what Med-Stop is saying, this argument makes little sense since, even

without its fraud claims, Med-Stop could still recover compensatory damages in a breach-of-contract

action. See R.D.M.H., Inc. v. Dempsey, 618 So. 2d 794, 794–95 (Fla. 5th DCA 1993) (“An award of

compensatory damages for both breach of contract and fraud is erroneous where the plaintiff fails to

establish that he sustained compensatory damages based on fraud which were in any way separate or

distinguishable from the compensatory damage award for breach of contract.”).

7 The Defendants also suggest that Med-Stop cannot assert any claim against Nicol and Mast—

whether the independent tort doctrine applies or not—“because all of their actions were on behalf of

VDI and/or VDUSA[.]” Motion at 16. We disagree. “Individual officers and agents of a corporation

are personally liable where they have committed a tort even if such acts are performed within the

scope of their employment or as corporate officers or agents.” Littman v. Commercial Bank & Tr. Co.,

425 So. 2d 636, 640 (Fla. 3d DCA 1983); see also White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So.

2d 659, 661 (Fla. 1st DCA 1986) (“However, there is substantial authority that Day may be sued for

tortious acts or derelictions of duty in which he is alleged to have personally participated. Individual

officers and agents of a corporation are personally liable where they have committed a tort even if

such acts are performed within the scope of their employment or as corporate officers or agents.”).

And the Defendants’ reliance on “piercing the corporate veil” cases are inapposite since Med-Stop

only brought tort claims and doesn’t allege that Nicol or Mast “ignor[ed] corporate formalities or

us[ed] [the] corporation for the stockholder’s personal interest[.]” Century Sr. Servs. v. Consumer Health

Benefit Ass’n, Inc., 770 F. Supp. 2d 1261, 1265 (S.D. Fla. 2011) (Martinez, J.).

III. Med-Stop Also Fails to State a Claim

But here’s the thing. Even if the independent tort doctrine didn’t apply here, we’d still find

that Med-Stop has failed to state a viable claim against any of the Defendants.

A. The Fraud Claims (Counts I and VIII)

In Count I, Med-Stop asserts a fraudulent-inducement claim—and, in Count VIII, Med-Stop

advances a claim of common-law fraud. See Complaint ¶¶ 54, 93. “The essential elements of common-

law fraud are: (1) a false statement of fact; (2) known by the person making the statement to be false

at the time it was made; (3) made for the purpose of inducing another to act in reliance thereon; (4)

action by the other person in reliance on the correctness of the statement; and (5) resulting damage to

the other person.” Gandy v. Trans World Computer Tech. Grp., 787 So. 2d 116, 118 (Fla. 2d DCA 2001).8

The Defendants contend that Med-Stop’s fraud claims fail for three reasons: (1) because Med-Stop

failed to plead “any of the . . . elements to state a cause of action for fraud in the inducement against

VDI and Mast,” MTD at 8; (2) because Counts I and VIII “are actually claims for fraud in the

performance” and are therefore “barred as a matter of law,” id. at 19; and (3) because Med-Stop

“fail[ed] to allege fraud with particularity” as required by FED. R. CIV. P. 9(b), id. at 11. We agree with

the Defendants’ third argument that Med-Stop failed to plead fraud with particularity.

For starters, Med-Stop never responded to this argument, so it has forfeited any right to

challenge it. See Jones, 564 F. App’x at 434 (“A party’s failure to respond to any portion or claim in a

motion indicates such portion, claim or defense is unopposed.”). More importantly, Med-Stop’s

allegations fail to identify “the circumstances constituting fraud . . . with particularity.” FED. R. CIV. P.

9(b). Rule 9(b) requires a plaintiff alleging fraud to show: “(1) the precise statements, documents, or

8 The elements of fraudulent inducement and common-law fraud are very similar. See Prieto v. Smook,

Inc., 97 So. 3d 916, 917 (Fla. 4th DCA 2012) (“The elements of a claim for fraudulent inducement are:

(1) a false statement of material fact; (2) the maker of the false statement knew or should have known

of the falsity of the statement; (3) the maker intended that the false statement induce another’s reliance;

and (4) the other party justifiably relied on the false statement to its detriment.” (cleaned up)).

misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content

and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the

alleged fraud.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010) (cleaned up). Med-

Stop comes nowhere close to meeting any of these requirements. Instead, it says only—in general and

perfunctory terms—that the Defendants made “false and reckless misrepresentations and omissions.”

Complaint ¶ 54; see also id. ¶¶ 93–94 (“The alleged acts, misrepresentations, and omissions of [the

Defendants] regarding the negotiation and sale transaction of Med-Stop’s Yacht were done knowingly,

intentionally, and willfully. These alleged acts, misrepresentations, and omissions were fraudulent.”).

Although Med-Stop’s Complaint references certain events that we could construe as relevant “acts,

misrepresentations, and omissions[,]” see generally id. ¶¶ 10–50, Med-Stop never clearly identifies “the

precise . . . misrepresentations made” by the Defendants or “the content and manner in which” Med-

Stop was misled by the Defendants’ statements, Am. Dental Ass’n, 605 F.3d at 1291. The Complaint’s

failure to alert the Defendants “to the precise misconduct with which they are charged” means that

Med-Stop failed to satisfy Rule 9(b)’s heightened pleading requirement. Ziemba v. Cascade Int’l, Inc., 256

F.3d 1194, 1202 (11th Cir. 2001) (cleaned up). Accordingly, Counts I and VIII are DISMISSED.

B. The Civil Theft and Conversion Claims (Counts II and IV)

As for Med-Stop’s civil-theft and conversion claims, the Defendants say that “a simple

monetary debt generally cannot form the basis of a claim for conversion or civil theft.” MTD at 11.

Although this is a correct statement of Florida law, see Gasparini, 972 So. 2d at 1055 (“It is well-

established law in Florida that a simple debt which can be discharged by the payment of money cannot

generally form the basis of a claim for conversion or civil theft.”), Florida law creates an exception for

situations in which the theft or conversion goes “beyond, and [is] independent from, a failure to

comply with the terms of a contract,” so long as “there [is] an obligation to keep intact or deliver the

specific money in question, so that money can be identified.” Ibid. (quoting Futch v. Head, 511 So. 2d

314, 320 (Fla. 1st DCA 1987)). This exception doesn’t apply here. The Defendants wrongfully retained

Med-Stop’s $150,385.00, if at all, in direct violation of the terms of the Contract. See Complaint ¶ 17

(“Med-Stop wired its $150,385.00 initial deposit as instructed in the Contract.”). And, because the

YSB Act doesn’t govern this transaction, “VDI had no contractual or legal obligation to hold [Med-

Stop’s] deposit in escrow.” MTD at 12; see also FLA. STAT. § 326.005(1) (“A broker shall place any funds

received pursuant to a transaction into a trust account in a savings and loan association, bank, trust

company, or other financial institution located in this state having a net worth in excess of $5 million

until he or she disburses such funds.” (emphasis added)). Since this kind of “simple monetary debt”

is insufficient to state a claim for civil theft and conversion under Florida law, Counts II and IV are

DISMISSED.

C. The Breach of Fiduciary Duty Claim (Count VI)

“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). Med-Stop says that the Defendants’ duty arises from two

different sources: the YSB Act and FLA. STAT. § 672.104. See Complaint ¶ 24 (“Moreover, operating

as a yacht broker in Florida, [VDI] owed a fiduciary duty to their buyer, Med-Stop[.]”); id. ¶ 28

(“Operating as, or on behalf of, a yacht merchant in Florida, [the Defendants] owed an additional

statutory duty of good faith . . . and fair dealing to their buyer, Med-Stop.”). The Defendants argue

that Med-Stop’s breach-of-fiduciary duty claim fails because it “is predicated upon its false

characterization of [the Defendants] as ‘yacht brokers’” and because “[a] fiduciary relationship does

not exist in an arms’ length transaction.” MTD at 14. We agree.

Although Med-Stop forfeited its right to challenge the Defendants’ argument by failing to

respond to it, see Jones, 564 F. App’x at 434, the Defendants also happen to be right. Neither of these

statutes created a fiduciary duty flowing from the Defendants to Med-Stop. As we’ve said, the

Defendants aren’t “brokers,” so the YSB Act doesn’t apply. See ante, at 7. And FLA. STAT. § 672.104

merely defines a “merchant” as “a person who deals in goods of the kind or otherwise by occupation

holds himself or herself out as having knowledge or skill peculiar to the practices or goods involved

in the transaction[.]” Even if we assume that the Defendants are “merchants” within the meaning of

that statute, the Defendants’ status as “merchants,” standing alone, doesn’t give rise to a fiduciary

duty. Florida law is clear that there’s no fiduciary duty between a merchant and a buyer during an

arms’-length transaction. See Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla.

5th DCA 2003) (“When the parties are dealing 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.”); Stonepeak Partners,

LP v. Tall Tower Capital, LLC, 231 So. 3d 548, 552–53 (Fla. 2d DCA 2017) (“A fiduciary relationship

does not exist in an arms’ length transaction.”); see also Immediate Capital Grp., Inc. v. Spongetech Delivery

Sys., Inc., 2010 WL 1644952, at *2 (S.D. Fla. Apr. 22, 2010) (Huck, J.) (“Thus, an ordinary commercial

transaction generally does not give rise to a fiduciary relationship.”). Since the Defendants did not owe

Med-Stop a fiduciary duty, they could not have breached that duty. Count VI is therefore

DISMISSED.

D. The Aiding-and-Abetting Claims (Counts III, V, VII, and IX)

In addition to alleging that VDI, Mast, and Nicol engaged in tortious conduct, Med-Stop also

claims that VDUSA aided and abetted the civil theft, conversion, breach of fiduciary duty, and fraud.

See Complaint ¶¶ 66, 82, 90, 98. To assert a proper aiding-and-abetting claim, “a plaintiff must allege:

(1) an underlying violation on the part of the primary wrongdoer; (2) knowledge of the underlying

violation by the alleged aider and abetter; and (3) the rendering of substantial assistance in committing

the wrongdoing by the alleged aider and abettor.” Lawrence v. Bank of Am., N.A., 455 F. App’x 904,

906 (11th Cir. 2012); see also, e.g., Gilison v. Flagler Bank, 303 So. 3d 999, 1002 (Fla. 4th DCA 2020) (“To

successfully plead the claim of aiding and abetting fraud, the plaintiffs must allege the: (1) existence of

the underlying fraud; (2) knowledge of the fraud; and (3) the defendant provided substantial assistance

to the commission of the fraud.”). Since Med-Stop failed to allege “an underlying violation on the part

of [the other Defendants],” Lawrence, 455 F. App’x at 906, its aiding-and-abetting claims against

VDUSA fail as a matter of law, see MTD at 15 (“[E]ach of Plaintiff’s claims against VDUSA must be

dismissed because Plaintiff fails state a cause of action for the requisite underlying claim/violation on

the part of the alleged primary wrongdoers. If Plaintiff’s claims for civil theft, conversion, breach of

fiduciary duty and fraud are dismissed, then the aiding and abetting claims necessarily fail as well.”).

We therefore DISMISS Counts III, V, VI, and IX.

* * *

A dismissal under FED. R. CIV. P. 12(b)(6) is typically “on the merits and with prejudice.” White

v. Lemma, 947 F.3d 1373, 1377 (11th Cir. 2020). “A district court is not required to grant a plaintiff

leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed

a motion to amend nor requested leave to amend before the district court.” Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc); see also Anderson v. Ahluwalia, 2022 WL

3156409, at *4 (11th Cir. Aug. 8, 2022) (“If the district court had properly dismissed all of Plaintiffs’

Count I negligence claims for failure to state a claim, then, under our rule in Daewoo, it would not have

been required to sua sponte give Plaintiffs a chance to amend before dismissing with prejudice.”). And

Med-Stop has never asked us for an opportunity to amend its Complaint, see generally Docket; Response,

nor did it try to amend its complaint in response to the Defendants’ MTD, cf. Pitts v. Grant, 2022 WL

1117454, at *2 (11th Cir. Apr. 14, 2022) (“Under Federal Rule of Civil Procedure 15(a)(1)(B), Pitts

had an unchecked opportunity to amend his complaint in response to the officials’ motions. But he

didn’t take it. . . . [T]he district court [was not] required to propose the idea itself.”). We won’t be

giving Med-Stop a second opportunity it never requested. We therefore find that this case should be

dismissed with prejudice.

We note, however, that nothing in this Order should be construed as commenting on the

viability of any breach-of-contract claim Med-Stop might later assert against the Defendants, nor does

this with-prejudice dismissal harm Med-Stop’s substantive rights, because it may still bring a breach-

of-contract action in the appropriate forum. See Beck v. Lazard Feres € Co, LLC, 175 F.3d 913, 914

(11th Cir. 1999) (explaining that Florida has a “five-year breach of contract statute of limitations”

(citing FLA. STAT. § 95.11(2))).

CONCLUSION

Accordingly, we hereby ORDER and ADJUDGE that the Defendants’ Motion to Dismiss

[ECF No. 115] is GRANTED. The Complaint [ECF No. 1] is DISMISSED with prejudice. All

pending deadlines and hearings are TERMINATED, and any other pending motions ace DENIED

as moot. ‘The Clerk shall CLOSE this case.

DONE AND ORDERED in the Southern District “i

ROYK.ALTMAN ———s

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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