Appendix — Armenis v. Cramer

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APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-2111

Non-Argument Calendar

D.C. Docket No. 94-624-CIV-ORL-22

SPIRO ARMENIS

Plaintiff-Appellant,

PASCALL GROUP, INC., a corporation,

Plaintiff.

versus

ALBERT CRAMER,

Defendant-Appellee

WARSTEINER BRAUERE! HAUS CRAMER GMBH & CO. KG, a

German limited Partnership, et al..

Defendants.

Appeal from the United States District Court

for the Middle District of Florida

Decided and Filed January 20, 1998.

Before: BIRCH. DUBINA and HULL. Circuit Judges.

PER CURIAM:

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The issue presented in this appeal is whether the district

court erred in entering summary judgment in favor of

appellee Albert Cramer ("Cramer") and against appellant

Spyridon Armenis ("Armenis") on Armenis’ claims for

breach of contract, tortious interference with business

relationship, and breach of fiduciary duty.

This court reviews the district court's grant of a motion for

summary judgment de novo, applying the same legal

standards used by the district court. Parks v. City of Warner

Robbins, Ga., 43 F.3d 609, 612-13 (11th Cir. 1995).

"Summary judgment is appropriate when there are no

genuine issues of material fact and the movant is entitled to

judgment as a matter of law. The court reviewing the motion

must consider the evidence in the light most favorable to the

nonmoving party." Jaques v. Kendrick, 43 F.3d 628, 630

(11th Cir. 1995).

After reviewing the record in this case, we conclude that

Armenis received proper summary judgment notification and

the district court did not err in finding that: (1) Cramer and

Armenis never entered a joint venture agreement; (2) there

was no breach of the agreement and therefore no fiduciary

duty; (3) filing a state court complaint does not constitute

tortious interference with business relations: and (4) the

district court correctly denied Armenis’ Rule 59(e) motions.

Moreover, we conclude that the remaining arguments

presented by Armenis in this appeai were either not presented

in the district court or are meritless. Accordingly, we affirm

the district court's grant of summary judgment in favor of

Cramer and against Armenis.

AFFIRMED.

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APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 94-624-Civ-Orl-22

SPIRO ARMENIS, etc., et al.,

Plaintiffs,

VS.

ALBERT CRAMER, et al.,

Defendants.

MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

Submitted June 20, 1995

TO THE UNITED STATES DISTRICT COURT:

This cause is before this Court pursuant to Order of

Reference dated November 21. 1994 [Document #44}. In

accordance therewith this Court was directed to make report

and recommendation on the Defendants’ Motion to Dismiss

and Motion to Strike, filed September 26, 1994 [Document

#20]. The Plaintiffs filed their Brief in Opposition to the

Defendants’ Motion on October 11, 1994 [Document #33). A

\. conference was held on this Motion on February 2. 1995

[Document #50]. At this conference the Plaintiffs requested

ast eae

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additional time to conduct jurisdictional discovery so as to

file evidence in support of their opposition to the Defendants’

Motion to Dismiss. The Court granted the requested relief

[Document #51]. In addition, the Court allowed the Defend-

ants to file a Reply to the Plaintiffs’ opposition [Documents

#51, 52]. Subsequently, the Plaintiffs requested an additional

extension to conduct jurisdictional discovery and submit

evidence [Document #53]. The Court again granted the

requested relief, allowing the Plaintiffs until April 14, 1995

[Document #54]. No evidentiary submissions have been

made.' Accordingly, the Defendants’ Motion is at issue, and

for the reasons set forth hereafter it is respectfully recom-

mended that the Motion to Dismiss be granted in part and

denied in part and the Motion to Strike be granted.

ALLEGATIONS

The Plaintiffs Spiro Armenis (Armenis) and Pascall

Group, Inc. (Pascall) brought suit against the Defendants on

June 6, 1994, for breach of contract, breach of fiduciary duty,

and interference with business relationships regarding real

estate development in Florida.” The Plaintiffs allege that the

breach of contract occurred on or about June 15, 1989. As to

the fiduciary duty and business relationships claims the

Plaintiffs allege that the Defendants misconduct occurred up

through June 7, 1990. Defendant, Albert Cramer, is a Ger-

man citizen. No dispute as to personal jurisdiction exists as

to this Defendant. Defendant Warsteiner Brauerei Haus

| The Plaintiffs have had the period from December 20, 1994, through

April 14, 1995, within which to conduct such discovery and submit

evidence [Documents #49, 51, 54]. This is clearly an adequate period.

2 There is a state court action by Cramer against Armenis and others

alleging misappropriation of funds advanced on this real estate venture.

The Te

OIE Noe ree PE Re ee eat Te

SEP E Se Nate IRT ad ee

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Cramer GmbH & Co. KG, (Warsteiner). is a German corpo-

ration which brews beer. Haus Cramer GmbH (Haus Cram-

er), is a German corporation and is a partner of Defendant

Warsteiner. Haus Cramer Hotelbeteiligungs-Und Verwal-

tungs GmbH (HCHV), is also a German corporation.

Collectively, these are the business Defendants.

The business Defendants have moved to dismiss the action

as it relates to them on the basis of lack of personal jurisdic-

tion. The business Defendants have filed affidavits contest-

ing the Plaintiffs’ jurisdictional allegations [Documents #20,

exhibits A-C].‘ The affiants therein deny that they do

business in Florida. maintain offices or bank accounts in

Florida. or own or control real estate in Florida. Defendant

Warsteiner also denies being engaged in the importation OF

sale of beer in Florida.

In response to the Defendants’ motion and affidavits the

Plaintiffs have filed affidavits [Documents #30-32]. By these

affidavits Cramer is alleged to have entered into a joint

venture agreement with the Plaintiffs. Armenis and Pascall.

to develop real property in Florida. These business Defend-

ants are alleged to own operate and control real property in

Florida, have bank accounts and maintain offices, and are

alleged also to have engaged in the aforementioned joint

venture through corporate "fronts" of Aquarina Develop-

ments. Inc.. and Transnation Holdings, Inc. In addition, it is

3 This company was previously known as Haus Cramer Management

GmbH.

4 These affidavits were filed by Rolf Dietrich, a director of Haus

Cramer, Peter Sommer, a director of HCHV, and Joachim Bongard, the

Chief Administrator and CFO of Warsteiner. These affidavits deny

various allegations contained in the Complaint of the Plaintiffs. These

affidavits, however, provide little information to the Court as to the

functions and relationships of the business Defendants amongst them-

selves and with Defendant Cramer.

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alleged that Warsteiner has imported beer into Florida.

ISSUES AND ANALYSIS

Jurisdiction

This Court may exercise jurisdiction over non-resident

Defendants to the extent permitted by the Florida long-arm

statute, Florida Statute section 48.193. Jet Charter Service,

Inc. v. Koech, 907 F.2d 1110, 1112 (11th Cir. 1990). This

statute provides that a non-resident can be subjected to

personal jurisdiction through performing certain enumerated

acts’ for actions arising out of the doing of said act, or

through engaging in substantial and not isolated activities

within the state, whether or not the claim arises from that

activity.

In terms of due process, there are two types of personal

jurisdiction, general and specific. Helicopteros Nacionales

de Columbia S.A. v. Hall, 466 U.S. 408 (1984). General

jurisdiction arises as a result of the Defendant's contacts with

the forum state that are unrelated to the litigation. The test

for general jurisdiction is whether the defendant had "contin-

uous and systematic" general business contacts within the

state. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437

(1952). Specific jurisdiction is based on the Defendant's

contacts in the forum state and the litigation arises out of or

relates to these activities. The test for specific jurisdiction is

in two parts: 1) were the Defendant's contacts with the forum

State so substantial that it could reasonably be expected to be

haled into court there; 2) would the exercise of jurisdiction by

the forum state offend the traditional notions of "fair play and

5 Most relevant herein are subsections (1)(b) committing a tort and

(1)(g) breaching a contract.

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substantial justice." Burger King Corp. v. Rudzewicz, 471

U.S. 462 (1985).

When a Defendant raises by affidavit or documents a

meritorious challenge to personal jurisdiction, the burden

shifts to the Plaintiff to prove jurisdiction by affidavits,

testimony or documents. Jet Charter Service, Inc. v. Koeck,

907 F.2d 1110, 1112 (11th Cir. 1990). Jurisdictional facts

alleged in the complaint must be accepted as true unless

controverted by the Defendant's affidavits, and where the

jurisdictional affidavits and other evidence are in conflict all

reasonable inferences must be construed in favor of the

Plaintiff. Cable/Home Communication v. Network Produc-

tions, 902 F.2d 829, 855 (11th Cir. 1990).

As mentioned heretofore, the evidence of record contains

the affidavits of the corporate Defendants denying their

involvement in the failed real estate development which lead

to this action or their having any substantial contacts with the

state of Florida.

In response, the Plaintiffs have filed affidavits which refer

to the Florida corporations directly involved in the joint

venture as being "fronts" for the Defendants. There is no

record evidence supporting this allegation and, thus, this

court disregards same. The Plaintiffs’ evidence does, howev-

er, contain a number of letters signed by Cramer or Dr. Horst

Liebich® negotiating the terms of the joint venture, written on

HCH stationery. Further, the first draft of the joint venture

agreement reflects HCH as being a joint venturer.

There is also substantial evidence that Warsteiner's beer is

sold in Florida. However, the evidence of record reflects that

Warsteiner is imported into the state through Warsteiner

Importers Agency. Though Armenis asserts that this agency

6 Dr. Liebich, according to the Plaintiffs’ affidavits, was the CFO of

Warsteiner from 1987 to 1992 as well as the CFO of Haus Cramer.

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is not a separate legal entity, as appears on its letterhead, the

affiant alleged to have determined same, Grossmann, made

no such representation in his affidavit. The record also

reflects a $300,000 letter of credit from Warsteiner to Florida

National Bank on behalf of EGYB, Inc.’ The record reflects

that these funds were to be used for this joint venture.

As to Haus Cramer it appears to have performed no acts in

Florida. However, it is the general partner of Warsteiner,

Cramer is its president and Liebich is its CFO. Both Cramer

and Liebich actively negotiated with the Plaintiffs regarding

the joint venture in Florida.

In that the record is in dispute, this Court is required to

make all reasonable inferences in favor of the Plaintiffs.

Accordingly, this Court finds that it is reasonable to infer that

HCH was a party to the negotiation of the joint venture

agreement. It is also reasonable to infer that Warsteiner was

the Defendants source of financing for the proposed real

estate ventures. Further, there is no reason to believe that

Warsteiner was not acting on behalf of its general partner,

Haus Cramer.

Given these inferences, it appears that HCH and Warstein-

er have engaged in acts within the state from which the

causes of action in this case have arisen. Further, Haus

Cramer, as a general partner, may be subjected to the juris-

diction of this court as a result of the action o’ ‘s partner.

Colodny v. Iverson, Yoakum, Papiano & Hatch, 658 F.Supp.

572, 575 (M.D.Fla. 1993); Kelly v. State Dept. of Insurance,

597 So.2d 900, 901 (Fla. 3d DCA 1992). Further. and again

in light of these inferences, the Defendants should reasonably

have anticipated being hauled into court in Florida by becom-

ing involved in a real estate joint venture in this state. Nor

7 EGYB, Inc., is not a party to this action, but is a Defendant in the

State action by Cramer for recovery of funds advanced, apparently this

particular $300,000.

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are traditional notions of fair play offended by the exercise of

such jurisdiction.

Thus this Court recommends that the Motion to Dismiss

on jurisdictional grounds be denied.

Failure to State a Claim

The Defendants have also moved to dismiss the Plaintiffs’

action on the basis that the Plaintiffs’ claims for breach of

contract, breach of fiduciary duty, and defamation are barred

by the statute of limitations as asserted by the Defendants in

their affirmative defenses. As a general rule, an affirmative

defense will not support a rule 12(b)(6) motion to dismiss

unless the complaint's allegations clearly indicate on its face

the existence of such defense. Fortner v. Thomas, 983 F.2d

1024, 1028 (11th Cir. 1993).

Regarding the breach of contract claim, the Defendants

argue that such claim is barred by the Florida four year

statute of limitations on oral contracts. Fla. Stat. 95.11(3)(k)

(1993). The Plaintiffs have responded by asserting that their

contract claim is founded on a written instrument and, thus,

their claim was timely filed within the five year limitations

period. Fla. Stat. 95.11(2)(b) (1993). The complaint does

not allege whether the contract was oral or written. Thus, the

application of the asserted affirmative defense does «ot

appear on the face of the complaint and, as such, the Motion

must be denied on this point.

As to the breach of fiduciary duty claim, the second count

of the complaint, the business Defendants assert that the

allegations referring to them occurred outside the applicable

four year statute of limitations. Fla. Stat. 95.11(3)(p) (1993).

The Plaintiffs have responded by referring to events which

were not pleaded but which transpired within four years of

the filing the complaint. Thus, it appears appropriate to

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dismiss this count with leave granted the Plaintiffs to replead.

The third count of the complaint alleges tortious interfer-

ence with the Plaintiffs’ business relationships’ with respect

to projects other than those encompassed by the alleged joint

venture agreement. Accordingly, the Florida legal principle

that a Defendant cannot be sued for tortious interference in a

business relationship in which that Defendant” is a party is

inapplicable.

As to the Defendants’ Motion to Strike Plaintiffs’ claims

for punitive damages same should be granted. There is

presently no adequate evidentiary record to support such

claim. Accordingly, it may not be pleaded at this time.

768.72 Fla. Stat. (1993).

The remaining claims relating to the sufficiency of the

complaint and real parties in interest are more properly

addressed by motion for summary judgment. Thus, they

should be denied.

Accordingly, it is respectfully recommended that the

Defendants’ Motion to Dismiss be Granted without prejudice

as to Count II, with leave granted the Plaintiffs to replead

within twenty (20) days. The Motion to Dismiss should be

otherwise denied. As to the Defendants’ Motion to Strike it is

recommended that same be granted without prejudice, and

the Plaintiffs’ claims for punitive damages be stricken.

Failure to file written objections to the proposed findings

and recommendations contained in this report within ten (10)

days of the date of its filing shall bar an aggrieved party from

attacking the factual findings on appeal.

8 The Defendants discussion regarding malicious prosecution and

defamation is inapplicable. Though count 3 is certainly no model of

clarity in pleading, it does not appear to this court to plead such causes of

action.

9 Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla. 3rd. DCA

1980).

Katt (ip tee tenia.

lla

Respectfully submitted at Orlando, Florida, this 20th day

of June, 1995.

/s/ D.P. Dietrich

D. P. DIETRICH

United States Magistrate Judge

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APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 94-624-CIV-ORL-22

SPIRO ARMENIS, and PASCALL GROUP, INC..,

Plaintiffs,

VS.

ALBERT CRAMER,

Defendant.

ORDER

Submitted and Filed November 18, 1996

Il INTRODUCTION

Spiro Armenis and Pascall Group, Inc. have sued Albert

Cramer.. The Amended Complaint (Dkt. 73) alleges three

| The initial Complaint (Dkt. 1) also named as defendants Warsteiner

Brauerei Haus Cramer GMBH & Co. KG, a German limited partnership;

Haus Cramer GMBH, a German corporation; and Haus Cramer Hotelbe-

teiligungs-Und Verwaitungs GMBH, also a German corporation. These

defendants were dismissed for lack of personal jurisdiction on September

11, 1995. See Dkt. 71.

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claims: breach of a joint venture agreement, breach of

fiduciary duties, and tortious interference with business

relationships. Cramer seeks summary judgment on all of

these claims. Upon considering the parties’ summary judg-

ment submissions, the Court determines that Cramer is

entitled to summary judgment on each of the Plaintiffs’

claims.

IL SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the Court is

satisfied "that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter

of law." Rule 56(c), Federal Rules of Civil Procedure. In

making this determination, the Court must view all of the

evidence in a light most favorable to the non-moving party.

Samples on Behalf of Samples v. City of Atlanta, 846 F.2d

1328. 1330 (11th Cir. 1988). The moving party has the

initial burden of establishing the absence of a genuine issue

of fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Next.

the "non-moving party...bears the burden of coming forward

with sufficient evidence of every element that he or she must

prove." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528

(11th Cir. 1987). To that end, the nonmoving party must "go

beyond the pleadings and by her own affidavits, or by the

‘depositions, answers to interrogatories. and admissions on

file’, designate ‘specific facts showing that there is a genuine

issue for trial."" Celotex, 477 U.S. at 324.

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IIL FACTS

Cramer is a German citizen and a resident of Warstein,

Germany. He and Transnation Properties, Inc. ("Transna-

tion") are the owners (20% and 80%, respectively) of the

shares of Aquarina Development, Inc., a Florida corporation

which owns a condominium development in Brevard County,

Florida, known as "Aquarina." Cramer owns 100% of the

shares of Transnation. Ex. 1, Cramer Aff., § 2 and 3.’

In late 1987, Armenis, through an intermediary, ap-

proached Cramer to discuss the possibility of their companies

entering into a joint venture agreement to further develop

Aquarina by building, developing and selling a time share

and hotel resort there and on several adjacent properties

known as the Scogna property, the Orange Grove property,

and an unnamed 80-acre tract. Ex. 2, Liebich Aff., § § 6 and

7. In a letter dated March 3, 1988, Armenis formally pro-

posed that his and Cramer's companies enter into a joint

venture for the purpose of developing this property. In his

March 3rd letter, Armenis described the purpose of the

contemplated joint venture:

2 This statement of facts is based primarily on the “Statement of

Material Facts Not in Dispute” set forth in Cramer's Motion for Summary

Judgment. Dkt. 81] at 2-8. In some instances, Cramer's statements of fact

are repeated verbatim herein. Cramer has supported his statements of

fact with affidavits and other documents attached to his motion for

summary judgrnent. Although Plaintiffs maintain that the material facts

are in dispute, they have not identified specific evidence controverting

Cramer's fact statements. Accordingly, the Court accepts as undisputed

the facts stated by Cramer, except as modified by the Court herein.

3 All citations to exhibits in this statement of facts refer to exhibits

attached to Cramer's Motion for Final Summary Judgment (Dkt. 81).

4 The Scogna property was also known as the "Scognia” property and

the "Hammock" property.

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to create a major destination resort containing, among

other things, a golf course, a major hotel franchise, one

or more time-share projects, various classes of residen-

tial properties, a marina and a tennis complex.

Ex. 6, 9 5. Armenis offered specific terms for the joint

venture. Ex. 2. § 8; Ex. 6. Cramer (through his assistant, Dr.

Horst Liebich) responded to Armenis' proposal by expressing

interest in a letter in a letter dated March 16, 1988, but

countering with different terms. Ex. 2, ¢ 9; Ex. 7. Armenis

responded with his own counteroffer in a letter dated March

20, 1988. Ex. 2, § 10; Ex. 8.

Cramer did not respond in writing to that counteroffer.

Ex. 1, 9 11. By letter of March 30, 1988, Armenis then

proposed to Cramer that they enter into an "Interim Joint

Venture” to at least buy the additional nearby properties

(Scogna, Orange Grove and the unnamed 80 acres) which

they contemplated developing. and in the meantime finish

negotiating with the goal of a written "Final Joint Venture

Agreement." Ex. 1. { 12: Ex. 2, § 12: Ex. 9. In his March

30th letter, Armenis wrote to Cramer:

Pursuant to discussion of March 30, 1988, your letter of

March 16. 1988 and our reply of March 20, 1988. the

following shall serve as our "Interim Joint Venture" to

be supplemented by a "Final Joint Venture Agreement”

to be completed and executed within 60 days.

Ex. 9 (emphasis supplied). Armenis further proposed that

they each put up $300,000 as deposit monies to buy those

additional properties. Ex. 1, § 12; Ex. 2.4 12; Ex. 9.

The March 30th letter from Armenis contained a section

for Cramer's acceptance. Cramer did not sign Armenis' letter.

Instead. Cramer and Liebich responded with a letter to

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Armenis dated March 31, 1988. Ex. 1, § 13; Ex. 2, § 13; Ex.

10. The letter stated:

We refer to your letter dated 3/30/88 which we fully

agree to.

As discussed in Orlando we would like to repeat our

following additional agreement:

If the proposed Aquarina Joint Venture does not

become effective then Albert Cramer shall have the

rignt to opt FFMC’ out at cost, and have the land

transferred to himself or one of his companies. If the

option is not executed the partnership shall continue.

Ex. 10.

By letter dated April 4, 1988 (Ex. 11), Armenis changed

the proposed properties to be purchased by substituting

another parcel, the "Next to the 80 Acre Property” (also

known as the Treetop property) for the unnamed 80 acres

referred to in the March 30, 1988 letter and Cramer's March

31, 1988 letter. Additionally, Armenis proposed that if the

"joint venture does not take place", Cramer should be al-

lowed to buy the Orange Grove property, and Armenis the

Treetop and Scogna parcels. Armenis also stated in his April

4th letter:

I suggest that myself [sic] concentrate immediately on

the drafting of the final Joint Venture Agreement for

our review, before it goes to the attorneys and Dr.

Liebich concentrate on the Eurodollar financing. The

5 Financial Futures Management Corporation. Armenis was the

President of FFMC. See Ex. 14 at 17.

Seth seh Bi

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sooner we complete the above two projects, the less

uncertainties we will have and the sooner we can Start

our joint venture.

Ex. 1] (emphasis supplied).

Cramer accepted Armenis' proposal and arranged for

$300,000 to be posted to cover Cramer's share of the deposits

on the Orange Grove, Scogna and Treetop properties. Ex. 1,

§ 15. Armenis was to withdraw the funds only with Cramer's

express approval and only when purchase contracts on the

three additional properties had been finalized. Ex. 2. 4 15;

Ex. 1, 4 15.

Through April and into May 1988, Cramer and Armenis

continued to negotiate the written final agreement for the

development of Aquarina and the other properties, but

without success. The parties never reached a final joint

venture agreement. Ex. 1, § 18; Ex. 3, Armenis Depo.., p.

319, lines 7-19.

By July 1988, Armenis and Cramer decided to cancel the

interim agreement for the Orange Grove, Scogna and Treetop

properties, and to substitute a new interim agreement to

purchase only the Treetop property. Ex. 1, § § 20 and 21; Ex.

2, § § 20 and 21. Both parties considered the purchase of the

Treetop property a "pilot program" to test whether the final

joint venture was feasible. Ex. 1, § 21; Ex 2, § 21. Their

"test case" involved only the Treetop property. Ex. | § 21;

Ex. 2, § 21; Exs. 12 and 13. Its success or failure would

determine whether a joint venture agreement for the develop-

ment of Aquarina and any other properties would become

effective. Ex. 1,921; Ex. 2.9 21; Exs. 12 and 13.

In December 1988, an "Operating Agreement” (Ex. 14)

was executed for the development of the Treetop property in

the event the Treetop property was purchased. Ex. 1, § 23.

The agreement was between FFMC and Transnation Proper-

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ties, Inc. Ex. 14. Cramer and Armenis executed the contract

on behalf of their respective companies, but neither signed

the document in their individual capacities. Ex. 14 at 17.

Neither the Aquarina, Orange Grove, Scogna, nor unnamed

80-acre parcels were the subject of the Operating Agreement.

Ex. 14.

To become effective, the Operating Agreement required

the parties to purchase the Treetop property, but that purchase

never took place. Ex. 1, § 25; Ex. 14, 9 4.1, at 10. Cramer's

$300,000 had not been used as a deposit on Treetop, as had

been agreed. Ex. 1, § 25. For this and additional reasons,

Cramer demanded Armenis return Cramer's $300,000. Ex. 1,

§ 26. Armenis refused, and in June 1989, Cramer terminated

all negotiations for the final agreement. Ex. 1, 4 4 26, 27; Ex.

15. One year later, in June 1990, Cramer filed a lawsuit in

state court in Brevard County, charging Armenis and several

of his companies with fraud and civil theft arising from their

alleged misrepresentations about the Treetop property and

their failure to return Cramer's $300,000 deposit monies.

Aquarina Development, Inc. still owns Aquarina. Neither

Cramer nor any company acting on his behalf ever purchased

the Orange Grove. Ex. 1, § 30. Accordingly to Armenis, the

Orange Grove was eventually purchased by a Japanese

investment group. Ex. 3, at p. 447, lines 3-7. That group was

not connected with Cramer. Ex. 1,30. The Scogna proper-

ty was purchased by Aquarina Development, Inc., more than

two years after the initial interim agreement was canceled and

the new interim agreement was substituted, and more than

one year after negotiations for a final agreement were termi-

nated by Cramer. Ex. 1, § 32. Cramer never implemented

"Armenis' timeshare concept" or used Armenis’ timeshare

plans at Aquarina. Ex. 3, p. 406, lines 12-19; Ex. 4, p. 124,

lines 1-7.

Pascall Group, Inc. was not a party to any of the negotia-

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tions between Cramer and Armenis, and was not a party to

the December 1988 Operating Agreement. Ex. 1, § { 16, 18,

23.

To summarize these events, Armenis’ 1987 contact with

Cramer initiated a course of negotiations consisting of three

phases. In the first phase, the parties negotiated to create a

joint venture to develop Aquarina, the Scogna and Orange

Grove properties, and the unnamed 80 acres. These negotia-

tions were unsuccessful; the parties never executed a final

joint venture agreement. In phase two, the parties decided to

at least purchase (but not develop) the Scogna and Orange

Grove properties and the unnamed 80 acres while the nego-

tiations for the final joint venture continued. This agreement

to buy the additional properties, entered into in April 1988,

was named the "Interim Joint Venture" by Armenis. None of

these properties was ever purchased. In the third phase, the

parties canceled the initial interim joint venture to purchase

the three properties and replaced it with a new interim

agreement to purchase only the Treetop property. This

occurred in early July 1988. Later, in December 1988, a

written "Operating Agreement" for the development of

Treetop was executed by non-party corporations, but the

agreement never went into effect.

IV. BREACH OF ALLEGED JOINT VENTURE AGREEMENT

The Plaintiffs contend that Armenis and Cramer entered

into a joint venture to "build, develop, and sell a time share

and hotel resort on coast properties in South Melbourne

Beach. Florida.". Amended Complaint (Dkt. 73), 4 7, at 2;

see also Plaintiffs’ Brief in Opposition to Defendant's Motion

for Summary Judgment (Dkt. 100) at 5 (describing joint

venture agreement as relating to "development of the Aquari-

na properties in South Melbourne Beach, Florida"). The

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Plaintiffs further contend that the joint venture agreement

was in writing. /d. at 5-6. They maintain that the following

documents constitute the parties’ written joint venture agree-

ment:

1. March 3, 1988 letter from Armenis to Cramer

[Liebich] (Ex. 6);

2. March 16, 1988 letter from Cramer [Liebich] to

Armenis (Ex. 7);

3. March 20, 1988 letter from Armenis to Cramer

[Liebich] (Ex. 8);

4. March 30, 1988 letter from Armenis to Cramer

[Liebich] (Ex. 9);

5. March 31, 1988 letter from Cramer [and Liebich]

to Armenis (Ex. 10);

6. July 6, 1988 internal memorandum from Cramer

to Armenis (Ex. 12);

7. July 6, 1988 letter from Armenis to Cramer

[Liebich] (Ex. 13);

8. July 20, 1988 letter from Cramer, Liebich and Dr.

von Stechow to Armenis (Ex. 22 to Deposition of

Albert Cramer); and

9. December 30, 1988 Operating Agreement (Ex.

14).

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Dkt. 100 at 2 and 6-7."

For limitations purposes, it is important for the Plaintiffs

to succeed in their argument that these documents constitute

a written agreement; unless Plaintiffs’ breach of contract

claim is founded on a written instrument, it is time-barred

under Florida law. See Fla. Stat. § 95.11(2)(b) and (3)(k).

It is apparent as a matter of law from the documents upon

which the Plaintiffs rely that Cramer and Armenis never

reached an agreement to develop Aquarina and the adjacent

properties as joint venturers. Although the parties negotiated

toward that end, and they and their companies reached

separate agreements for smaller projects, the documents

reflect beyond dispute that Cramer and Armenis were not to

be bound as joint venturers on the entire development project

unless and until they executed a final, written joint venture

agreement. "Where the parties intend that there will be no

binding contract until the negotiations are reduced to a formal

writing, there is no contract until that time." Club Eden Roc,

Inc. v. Tripmasters, Inc., 471 So.2d 1322, 1324 (Fla. 3d DCA

1985), review denied, 482 So.2d 350 (Fla. 1986). The parties

had not reached agreement on the essential terms of a final

written joint venture contract at the time Cramer terminated

their relationship. "When essential matters of a contract are

left for further consideration, there is no meeting of the

parties’ minds and no enforceable contract." Mid-State

6 At page 2 of their opposition brief, Plaintiffs identify items 1-7 and 9

as constituting the written joint venture agreement. However, at pages 6-

7, they specify items 1-5 and 7-9. The Court will consider all of the

documents for summary judgment purposes.

7 The Plaintiffs claim that the following issue of material fact remains

unresolved: "Whether Cramer was the alter ego of the corporations and

partnerships owned and controlled by him including Aquarina and

Transnation.” Dkt. 100 at 3. However, Plaintiffs have not presented

evidence creating a jury question on this point.

22a

Federal Sav. Bank v. Marketing and Management Associates,

Inc., 570 So.2d 1016, 1018 (Fla. 5th DCA 1990), review

denied, 581 So.2d 1309 (Fla. 1991); see also Jacksonville

Port Authority, City of Jacksonville v. W.R. Johnson Enter-

prises, Inc., 624 So.2d 313, 315 (Fla. Ist DCA 1993) ("So

long as any essential matters remain open for further consid-

eration, there is no completed contract"), review denied, 634

So.2d 629 (Fla. 1994); Matter of T & B General Contracting,

Inc., 833 F.2d 1455, 1459 (11th Cir. 1987) ("A binding and

enforceable contract requires mutual assent to certain and

definite contractual terms. Without a meeting of the minds

on all essential terms, no enforceable contract arises" (apply-

ing Florida law)). Since the undisputed facts demonstrate

that Cramer and Armenis never entered into a joint venture

agreement to develop Aquarina and the adjacent properties,

let alone a written agreement to do so, Cramer is entitled to

summary judgment on the Plaintiffs’ claim of breach of a

written joint venture agreement.

V. BREACH OF FIDUCIARY DUTIES

The Plaintiffs' breach of fiduciary duties claim rests on the

proposition that Cramer owed Armenis fiduciary duties as a

result of their status as joint venturers on the Aquarina

project. As previously stated, the undisputed evidence

establishes that the two men never reached a joint venture

agreement with respect to the Aquarina project as a whole.

Nevertheless, Plaintiffs contend that Cramer breached

fiduciary duties by means of the following alleged conduct:

(1) during 1988 and 1989, secretly negotiating with third

parties to purchase the Orange Grove tract, to sell the Aquari-

na property, and to purchase the Atlantic Marina; (2) using

the joint venturers' attorneys to terminate the joint venture;

(3) wrongfully terminating the joint venture agreement; (4)

23a

on June 7, 1990, filing a civil suit against Armenis and others

in state court; (5) on September 27, 1990, purchasing the

Scogna property through Aquarina Development, Inc.; (6)

during 1988 and 1989, obstructing and failing to support

Armenis’ efforts on behalf of the joint venture, and (7)

appropriating Armenis’ time share and hotel resort plans for

use at Aquarina.

This action was commenced on June 6, 1994. Plaintiffs do

not dispute that their claim of breach of fiduciary duties is

subject to a four year statute of limitations. See Fla. Stat.

95.11(3)(p). However, Plaintiffs maintain that the acts upon

which their claim is based constitute a continuing course of

conduct. with the result that otherwise time-barred claims are

spared the limitations axe. Plaintiffs cite no legal authority

for the proposition that the discrete acts about which they

complain should be treated as continuing violations for

limitations purposes. The Court rejects this argument and

determines that each act of alleged wrongful conduct must be

examined independently for limitations purposes. Thus, even

assuming that Cramer owed Armenis fiduciary duties, the

acts set forth in items 1,2,3, and 6 are clearly time-barred.

Armenis has not presented any evidence to support his

allegation that Cramer used Armenis' time-share and hotel

resort concepts following termination of the parties’ relation-

ship (item 7). Armenis has also failed to present any legal or

factual support for his contention that Cramer's filing of the

lawsuit in 1990 was wrongful (item 4).

The final act of alleged misconduct is the purchase of the

Scogna property by Aquarina Development, Inc. in Septem-

ber 1990. The Court has already determined that a joint

venture with respect to the entire project never came into

being. The only agreement Cramer and Armenis ever entered

into that concerned the Scogna property was the initial

interim agreement. As previously noted, Cramer and Arme-

24a

nis voluntarily superseded the first interim agreement with a

second interim agreement, which did not concern the Scogna

tract. Aquarina Development, Inc. did not purchase the

Scogna property until more than two years after the initial

interim agreement was canceled.

Armenis has failed to demonstrate how the purchase of the

Scogna property more than two years after the parties volun-

tarily terminated their only agreement concerning that parcel

constitutes a breach of any fiduciary duties Cramer might

have owed Armenis. Even more basically, Armenis has not

demonstrated that under these circumstances Cramer owed

him any fiduciary duties at all concerning the Scogna tract."

Finally, as previously indicated, Armenis has not demonstrat-

ed any legal or factual basis for imputing the conduct of

Aquarina Development, Inc. to Cramer.

Based on the foregoing, the Court determines that Cramer

is entitled to summary judgment on the Plaintiffs' claims of

breach of fiduciary duties.

8 In light of these rulings, the Court need not decide the question of

whether a joint venturer's fiduciary duties to a co-venturer survive

termination of the joint venture. The Court notes only that Florida law

concerning the duration of fiduciary duties appears unsettled. See Rakita

v. Rose, 547 So.2d 154, 157 n.5 (Fla. 3rd DCA 1989) (in partnership

context, recognizing the existence of conflicting authority and absence of

Florida authority), review denied, 558 So.2d 19 (Fla. 1990); compare

Grossman v. Greenberg, 619 So.2d 406, 408 (Fla. 3rd DCA 1993)

(determining that former partner's duty to notify other partners of secret

profit he received did not end when he withdrew from partnership),

review denied, 629 So.2d 133 (Fla. 1993), with Parker v. Gordon, 442

So.2d 273, 276 (Fla. 4th DCA 1983) (rejecting former client's breach of

fiduciary duty claim against lawyer because alleged breach occurred after

attorney-client relationship ended).

ee

g

; 25a

VI. TORTIOUS INTERFERENCE

"Under Florida law, the elements of tortious interference

include: (1) the existence of an advantageous business

relationship under which the plaintiff has legal rights, (2) an

intentional and unjustified interference with that relationship;

and (3) damage to the plaintiff." Royal Typewriter Co., a

Div. of Litton Business Systems, Inc. v. Xerographic Supplies

Corp., 719 F.2d 1092, 1104-05 (11th Cir. 1983). Additional-

ly, to be actionable, the interference must be direct. Rosa v.

Florida Coast Bank, 484 So.2d 57, 58 (Fla 4th DCA 1986);

Lawler v. Eugene Wuesthoff Memorial Hosp. Ass 'n, 497

So.2d 1261, 1263 (Fla. Sth DCA 1986).

The Plaintiffs claim that Cramer tortiously interfered with

their business relations with third parties, in the following

respects: (1) Plaintiffs “logically presuppose” that "Cramer

was going around telling people that Armenis had been

making false representations as to the . . . prices [of two

contracts]" (Ex. 5, § 11(a), at 8); (2) Cramer filed a complaint

against Armenis in state court "setting forth sham accusations

of theft and fraud against Armenis" (Ex. 5, 11(b), at 8-9):

and (3) Cramer took further "abusive measures", including

attempts to serve Armenis with the state court complaint, and

attempts "to harass Armenis, his wife, his partner and his

employees by private investigators and electronic surveil-

lance and intimidation of a key witness" (Ex. 5, § 11(c), at 9).

Concerning the first item, Plaintiffs have not identified any

evidence supporting their bare allegation that Cramer told

third parties that Armenis had misrepresented the prices of

the two contracts. In that regard, Cramer has sworn that he

did not make "any false statements of any kind about Arme-

nis or any of his companies to any third party." Ex. 1, { 34.

Additionally, Plaintiffs’ claim of tortious interference is time-

barred with respect to this act of alleged misconduct. See

26a

Fla. Stat. 95.11(3)(o).

With respect to item 2, Plaintiffs have not demonstrated

the falsity of any allegation in the state court complaint.

Additionally, Plaintiffs have not presented any evidence that

Cramer published the complaint, or any alleged false state-

ments therein, to any third party with whom Plaintiffs had a

business relationship. In that regard, Cramer has denied

under oath, that he “or any of [his] agents or representatives

at [his] request ever contacted representatives with the

Broadwater Hotel and Resort or Dolphin Court Projects, or

any other third party that was involved in a business relation-

ship with either Armenis or Pascall Group, Inc." (Ex. 1, §

35). Moreover, even if the mere filing of the complaint

might be viewed as tortious, such conduct would not consti-

tute direct interference. Finally, "[t]he law in Florida has

long been that defamatory statements made in the course of

judicial proceedings are absolutely privileged, and no cause

of action for damages will lie, regardless of how false or

malicious the statements may be, so long as the statements

are relevant to the subject of inquiry." Fridovich vy.

Fridovich, 598 So.2d 65, 66 (Fla. 1992). "[A] plaintiff is not

permitted to make an end-run around a successfully invoked

defamation privilege by simply renaming the cause of action

and repleading the same facts." /d. at 69.

Concerning the "abusive measures" alleged in Item 3,

Plaintiffs have not supported these bare allegations with any

facts. Even if they had, the alleged acts could not constitute

direct interference with the Plaintiffs’ business relationships

with any third parties.

The foregoing analysis demonstrates that Cramer is

entitled to summary judgment on the Plaintiffs’ claim of

tortious interference with business relationships.

27a

VII. CONCLUSION

Based on the foregoing, it is ORDERED as follows:

1. Defendant Albert Cramer's Motion for Final Summary

Judgment (Dkt. 81), filed April 25, 1996, is GRANTED.

2. The Clerk shall enter a final judgment providing that

the Plaintiffs, Spiro Armenis and Pascall Group, Inc., shall

take nothing on their claims against the Defendant, Albert

Cramer. The final judgment shall further provide that the

Defendant, Albert Cramer, shall recover his costs of action.

3. Any other pending motions are denied as moot.

4. The Clerk shall close this case.

DONE AND ORDERED in Chambers in Orlando,

Florida, this 18th day of November, 1996.

/s/ Anne C. Conway

ANNE C. CONWAY

United States District Judge

28a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Appellate Case No. 97-2111

Consolidated with No. 96-3801

D.C. Case No. 94-624-CIV-ORL-22

SPYRIDON ARMENIS

Plaintiff-Appellant,

VS.

ALBERT CRAMER, et al.,

Defendant.

SUGGESTION OF REHEARING EN BANC

PLAINTIFF-APPELLANT SPYRIDON ARMENIS PRO SE

Submitted February 5, 1998.

Jurisdiction is taken from the United States District Court

for the Middle District of Florida, Orlando Division. The

Appeal Brief is submitted by Plaintiff-Appellant Spyridon

(a/k/a "Spiro") Armenis pro se, c/o Grossmann & Partner,

Kaiserstrasse 12, 60311 Frankfurt am Main, Germany, Tel.:

(011-4969) 284692 or 283474.

This suggestion for en banc rehearing was prepared with

the assistance of Professor Judith Resnik (Yale Law School),

tel. (203) 432-1447.

29a

STATEMENT

I believe after diligent research that the panel decision is

contrary to the following precedents of this circuit and that a

second en banc consideration is necessary to secure and

maintain uniformity of decisions in this court:

McBride v. Sharpe, 981 F.2d 1234, 1236 (C.A. 11 Ga. 1993),

vacated on other grounds (habeas corpus considera-

tions) 25 F.3d 962; 29 Fed. R. Serv. 3d (Callaghan)

1200; 8 Fla. Law W. Fed. C 374 (C.A. 11 en banc)

Griffith v. Wainwright, 772 F.2d 822, 825 (C.A. 11 Fla.

1985)

Milburn v. U.S., 734 F.2d 762, 765 (C.A. 11 Fla. 1984)

STATEMENT OF THE ISSUE

1. The panel decision conflicts with the law of this

circuit. The panel held (appeal decision, January 20, 1998):

"After reviewing the record in this case, we conclude

that Armenis received proper summary judgment

notification ... ."

2. That decision violates the valid summary judgment

notification rules set forth by this circuit in McBride v.

Sharpe, 981 F.2d 1234, 1236 (C.A. 11 Ga. 1993), vacated on

other grounds (habeas corpus considerations) 25 F.3d 962;

29 Fed. R. Scrv. 3d (Callaghan) 1200; 8 Fla. Law W. Fed. C

374 (C.A. 11 en banc); Griffith v. Wainwright, 772 F.2d 822,

825 (C.A. 11 Fla. 1985); Milburn v. U.S., 734 F.2d 762, 765

(C.A. 11 Fla. 1984).

30a

It also violates the right of pro se appellant Armenis to

have the panel appoint an attorney for him to argue a techni-

cally intricate procedural issue on appeal, contrary to the

circuit's practice at McBride, 25 F.3d 962 (967).

3. The Rule of the 11th circuit R 35-3 states that an en

banc consideration may be suggested to bring to the attention

of the entire court a precedent-setting error of exceptional

importance, and, with specific reference to a suggestion of en

banc consideration upon rehearing, is intended to bring to the

attention of the entire court a panel opinion that is allegedly

in direct conflict with precedent of this circuit. This case,

which affects local rules and involves $680,000,000 fits that

rule.

COURSE OF PROCEEDINGS AND DISPOSITION OF CASE

4. When defendant Cramer filed his summary judgment

motion (April 25, 1996), plaintiff Armenis received no

notification from the district court.

5. On May 17, 1996, the district court filed a time

extension order giving Armenis until May 25, 1996 to

respond to the motion for summary judgment.

6. On August 8, 1996, the district court filed a "Case

Management Report,” which provided the following two text

blocks H and | from a standardized computer form:

"H. A motion for summary judgment shall be

accompanied by a memorandum of law, necessary

affidavits, and a concise statement of the material facts

as to which the moving party contends there is no

genuine issue to be tried. The papers opposing a

motion for summary judgment shall be in compliance

with Local Rule 3.01 (b) and shall include a memoran-

dum of law, necessary affidavits and a concise state-

a ee oe eee Se i a Le

)

3la

ment of the material facts as to which the opposing

party contends there exists a genuine issue to be tried.

All material facts set forth in the statement required to

be served by the moving party will be deemed admitted

unless controverted by the opposing party's statement.

"|. The parties are notified that the Court will take

motions for summary judgment under advisement 20

days from the date of filing. Until that date, the parties

may file affidavits and other documents within the

purview of Federal Rule of Civil Procedure 56 in

support of or in opposition to the motion. However,

any memorandum of law opposing the motion must be

filed within ten (10) days after service of the motion, as

provided in Local Rule 3.01 (b). No hearing will be

held on the motion. Milburn v. United States, 734 F.2d

762, 765 (11th Cir. 1984); See Griffith v. Wainwright,

772 F.2d 822, 825 (11th Cir. 1985) (per curiam); Fed.

R. Civ. P. 56(e). These requirements apply to pro se

litigants as well as parties represented by counsel."

7. The district court subsequently summarily dismissed

Armenis' claims.

8. Armenis appealed to this circuit. He pointed out the

foregoing facts and alleged, citing the following precedents,

that the district court had failed to give him express, ten-day

summary judgment notification.

9. On January 20, 1998, the appellate court panel of this

circuit affirmed, holding " ... that Armenis received proper

summary judgment notification ... .". The panel did not

appoint an attorney for Armenis. It indicated that parts of

Armenis' appeal argument were meritorious but could not be

considered because they had not been presented to the district

32a

court.

ARGUMENT AND AUTHORITIES

10. This circuit requires express, ten-day summary

judgment notification, McBride v. Sharpe, 981 F.2d 1234,

1236 (11th Cir. Ga. 1993), vacated on other grounds (habeas

corpus considerations) 25 F.3d 962; 29 Fed. R. Serv. 3d

(Callaghan) 1200; 8 Fla. Law W. Fed. C 374 (C.A. 11 en

banc):

"Before entering summary judgment against a party, ...,

the district court must give that party ‘express, ten-day

notice of the summary judgment rules, of his nght to

file affidavits or other material in opposition to the

motion, and of the consequences of default.' Griffith v.

Wainwright, 772 F.2d 822, 825 (11th Cir. 1985)"

11. Oras set forth in Griffith v. Wainwright, supra:

"{2] For the fifth time in four years this Court is

forced to return to a busy district court a pro se case for

failure to adhere to the notice requirement of Rule

56(c). We have held repeatedly that this requirement of

notice will be deemed strictissimi juris and applies to

all parties litigant. Milburn v. United States, 734 F.2d

762, 766 (11th Cir. 1984) (...)"

"{3] While it is well settled in this Circuit that this

requirement does not of necessity require that such

notice be given at an oral hearing, Moore, 703 F.2d at

| Cf. the sentence in the appeals decision: "Moreover, we conclude that

the remaining arguments presented by Armenis in this appeal were either

not presented in the district court or are meritless."

33a

519, our jurisprudence requires at least this: that an

adverse party must be given express, ten-day notice of

the summary judgment rules, of his right to file affida-

vits or other material in opposition to the motion, and of

the consequences of default."

12. The essence of these rules applies regardless of

representation by counsel, Milburn v. United States (734 F.2d

762, 765 and 766 (11th Cir. Fl. 1984)):

"(6, 7] It is well settled in this circuit that Rule 56(c)

does not require an oral hearing. ‘Rather, 10-day

advance notice to the adverse party that the motion and

all materials in support of or in opposition to the motion

will be taken under advisement by the trial court as of a

certain day satisfies the notice and hearing dictates of

Rule 56.’ ... This circuit strictly enforces the 10-day

notice requirement for all litigants."

15. In the instant case, the district court did not give

Armenis such "express, ten-day" summary judgment notifica-

tion:

a) The district court did not give express, ten-day summary

judgment notification when (in its order filed May 17, 1996)

it imposed an eight (8) day filing deadline (until May 25,

1996). The district court also failed to give express notice of .

the summary judgment rules and of consequences of a default

in this order.

Nor did text blocks H and I’ of the August 8, 1996 "Case

Management Report” give express, ten-day summary judg-

> The text blocks do not take into account that a Motion for Summary

Judgment had previously already been filed. They failed to note that the

district court had ordered the non-moving plaintiff to file his defenses by

May 25, 1996 (and plaintiff had filed part of a defense on May 28, 1996).

34a

ment notification. Text block I even specified that the district

court will take a motion for summary judgment under advise-

ment 20 days from the day of its filing, and that defenses can

be filed only until such time. These deadlines had lapsed

months prior to this notification.

b) Citing Jones v. American Broadcasting Cos., 122

F.R.D. 270, 271 (M.D.Fla. 1988), aff'd, 893 F.2d 1342 (11th

Cir. 1989), cert. granted, judgment vacated on other grounds,

498 U.S. 892 (1990), defendant Cramer argued that the

existence of Florida Middle District Local Rule 3.01(b)’ is

"sufficient notice to satisfy the notice requirements" of FRCP

Rule 56(c).

aa) While this circuit has in earlier decision held that local

rules may serve the purpose of giving notice required by Rule

56 (Dunlap v. Transamerica Occidental Life Ins. Co., 858

F.2d 629, 632 (11th Cir. 1988)), its judicature is distinct from

the law of other circuits, where non-movants' Rule 56(c)

interests are automatically held to be "fully protected by local

rule" (e.g. Howell v. Tanner, 650 F.2d 610 (5th Cir. 1981)).

bb) Jones, supra, did not rely on local rule but on an

"Order of Procedure" dated April 27, 1987, wherein the court

specifically notified all parties that the non-moving party

would have ten (10) days to respond to the motion for

summary judgment. In the instant case, no such order exists.

Thus, in distinction from Jones, supra, Florida Middle

District Local Rule 3.01(b), in and for itself alone, is not

sufficient to satisfy this circuit's precedent, and has at no time

been held sufficient by this circuit.

(i) For example, Florida Middle District Local Rule

3 Middle District of Florida Local Rule 3.01(b) provides that "[e]ach

party Opposing any written motion or other application shall file and

serve, within ten (10) days after being served with such motion or

application, a brief or legal memorandum with citation of authorities in

opposition to the relief requested."

35a

3.01(b) does not mention summary judgment rules. In

McBride, supra (11th Cir. 1993), this circuit, in line with

long-standing circuit precedent, required of a summary

judgment notification that it include an express notice of

summary judgment rules. This must, mutatis mutandis, also

apply if the potential "notice" consists of a local rule.

(ii) Also, Florida Middle District Local Rule 3.01(b) omits

mentioning the right to file “affidavits or other material.” In

its valid precedent, McBride, supra, this circuit required of a

summary judgment notification that it also include express

notice of the right to file "affidavits or other material." All

the more so shall this requirement be upheld if the "notice"

consists of an abstract local rule. It would be a mere simple

step for the rule-makers to include such express notices once

and for all in their local rules.

(iii) Furthermore, there is no _ indication of the

consequences of a default in Florida Middle District Local

Rule 3.01(b). This also violates the strict standard set up by

this circuit and confirmed in McBride, supra.

16. In McBride, (cf. 25 F.3a 962 (967)), this circuit

appointed counsel to represent the pro se appellant on appeal,

presumably due to the technical intricacies of the argument.

In the instant case, the panel failed to take such a precaution-

ary measure, even though the argument is no less intricate

than in McBride, supra (which merited an en banc rehearing

once before).

CONCLUSION

The panel decision is in conflict with precedent of this

circuit.

WHEREAS, Plaintiff-Appellant Armenis suggests to this

Honorable Court of Appeals a Rehearing En Banc pursuant

to FRAP 35, 40.

36a

Respectfully submitted,

Date: February 5th, 1998 /s/Spyridon Armenis

SPYRIDON ARMENIS

c/o Grossmann & Partner

Kaiserstrasse 12

60311 Frankfurt am Main

Germany

(011 4969) 284692 or 283474

————— fe etige an LEER NET SISTER OTT