JOHN J. THARP, Jr., District Judge.
For the reasons set forth in the Statement below, the defendants' Motion to Dismiss the plaintiff's Third Amended Complaint, Dkt. 43, is granted as to Count I and otherwise denied. Count I of the plaintiff's Third Amended Complaint, Dkt. 41, is dismissed without prejudice. A status hearing is set for June 10, 2015, at 9:00 a.m.
ABOUT U.S. Real Estate ("ABOUT") filed this action on June 16, 2014, against defendants CoreFact Corporation ("CoreFact") and its principal shareholder, Christopher Burnley. See Dkt. 1. Now before the Court is the defendants' second motion to dismiss the case pursuant to Fed. R. Civ. P. 12. Their first motion to dismiss asserted lack of personal jurisdiction over Burnley, lack of subject matter jurisdiction over one of ABOUT's claims, and failure to state a viable claim as to the other two, under Fed. R. Civ. P. 12(b)(1), (2), and (6), respectively. See Dkt. 17. The current motion seeks to dismiss Counts I and II of ABOUT's Third Amended Complaint ("Complaint" or "Compl.") for improper venue (based on a forum selection clause in the parties' "reseller agreement") pursuant to Fed. R. Civ. P. 12(b)(3), and to dismiss Count I for failure to allege a cognizable claim (though on a ground different from those asserted in the defendants' previous motion) pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. 43.
In response, ABOUT contends that the defendants' current venue defense was waived under Fed. R. Civ. P. 12(h)(1), and that their current failure-to-state-a-claim argument is precluded under Fed. R. Civ. P. 12(g)(2) and (h)(2), all as a result of the defendants' failure to include these defenses in their first motion to dismiss under Rule 12. The defendants, on the other hand, dispute any such waiver and contend that these new defenses were necessitated by ABOUT's new breach of contract claim in Count II of its current Complaint. Before addressing the parties' respective waiver arguments in connection with this motion, the Court first briefly recounts the procedural history in the case.
ABOUT's original complaint in this action contained three counts: breach of fiduciary duty (Count I), tortious interference (Count II), and declaratory judgment (Count III). See Dkt. 1. After the Court directed ABOUT to supplement its allegations regarding diversity jurisdiction, see Dkt. 4, an Amended Complaint followed on June 18, 2014, asserting the same three claims. See Dkt. 5. In broad terms, ABOUT's Amended Complaint alleged that Ray Sheppard and Gary Abrams formed ABOUT to provide marketing services in the real estate industry, id. at ¶¶ 7-8, and planned to do so through a business arrangement with Burnley and CoreFact. Id. at ¶ 9.
Based on these allegations, the Amended Complaint asserted claims for breach of fiduciary duty against Burnley (Count I), tortious interference against Burnley (Count II), and declaratory judgment against CoreFact, alleging that the recapitalization agreement was valid and enforceable (Count III), all of which the defendants moved to dismiss in July of 2014. See Dkt. 17. As noted above, the Court granted that motion in part on October 28, 2014, dismissing Count III for lack of subject matter jurisdiction and Count II for failure to allege a cognizable claim (both without prejudice). See Dkt. 30 at 9. At the same time, the Court denied Burnley's motion to dismiss for lack of personal jurisdiction and the defendants' motion to transfer the case to the Northern District of California pursuant to 28 U.S.C. § 1404(a). Id.
With leave of Court, see Dkt. 30 at 1, ABOUT filed a Second Amended Complaint on November 10, 2014, again asserting claims for breach of fiduciary duty and declaratory judgment, but omitting any claim for tortious interference. See Dkt. 31. The defendants' filed their Answer to the Second Amended Complaint and six Counterclaims by CoreFact—including one for breach of the parties' reseller agreement—on December 8, 2014. See Dkt. 34, at 18-31. Notably for present purposes, the defendants' Answer admitted "that venue is proper with respect to CoreFact," id. at ¶ 7, and raised no venue defense (among the twelve affirmative defenses asserted), id. at 16-17; CoreFact's Counterclaims likewise alleged that venue "with respect to these Counterclaims is proper in this District." Id. at 18, ¶ 5.
This latest amendment by ABOUT asserted (without objection by the defendants) what ABOUT contended was a compulsory counterclaim—a claim for breach of the same reseller agreement at issue in Count I of CoreFact's Counterclaims. See Pltf. Opp., Dkt. 51, at 3-4. But rather than file this new claim as a counterclaim to CoreFact's Counterclaims, ABOUT, at the Court's direction, included its new breach of contract claim based on the parties' reseller agreement in an amended complaint (the current Third Amended Complaint) filed on January 15, 2015. See Dkt. 41; Pltf. Opp., Dkt. 51, at 4. ABOUT's Complaint thus now includes claims for breach of fiduciary duty by Burnley (Count I), breach of the reseller agreement by CoreFact (Count II), and declaratory judgment against CoreFact (Count III). See Dkt. 41.
Seizing upon ABOUT's filing of a new complaint (though done at the Court's direction), the defendants responded with a new motion to dismiss all three of ABOUT's claims (not merely new Count II). See Dkt. 43. This motion seeks to dismiss Counts I and II for improper venue (relying on the forum selection clause in the parties' reseller agreement) pursuant to Fed. R. Civ. P. 12(b)(3), to dismiss Count I for failure to state a claim (on a newly asserted ground) pursuant to Fed. R. Civ. P. 12(b)(6), and to dismiss Count III pursuant to the Court's discretion to decline to hear a declaratory judgment claim. Id. In addition, should the Court grant these requests, CoreFact asks that all six of its counterclaims be voluntarily dismissed without prejudice pursuant to Fed. R. Civ. P. 41. ABOUT responds that the defendants waived their venue defense by omitting it from their first Rule 12(b) motion, and that their failure-to-state-a-claim argument against Count I is an improper "successive motion" under Rule 12(b)(6) and therefore prohibited by Fed. R. Civ. P. 12(g)(2) and (h)(2). See Pltf. Opp., Dkt. 51, at 4-9.
For the following reasons, the Court agrees with ABOUT that the defendants waived their venue defense, and the defendants' motion to dismiss Counts I and II of the Complaint pursuant to Fed. R. Civ. P. 12(b)(3) is therefore denied. As explained below, however, the Court agrees with the defendants that Count I of the Complaint fails to allege adequately a claim for breach of fiduciary duty, and therefore dismisses Count I of the Complaint without prejudice.
The defendants' current venue defense (as opposed to their previous transfer request under 28 U.S.C. § 1404) relies on the following forum selection clause in the parties' reseller agreement: "Any action relating to or arising out of this Agreement shall be brought in the courts of Alameda County, California." See Def. Mot., Dkt. 43, ¶ 1; Compl. Ex. C, Dkt. 41-3, at 6.
One way to waive a venue defense based on a forum selection clause is by omitting it from a motion filed under Rule 12, as the defendants did here. This is because Rules 12(g)(2) and 12(h)(1)(A) provide in combination that a party waives any Rule 12(b)(3) defense for "improper venue" by "omitting it from a motion" under Rule 12, so long as the venue defense "was available to the party" when the "earlier motion" was filed. Since the defendants here already filed a Rule 12 motion, and their current venue defense was then available to them, they waived that defense by omitting it from their "earlier motion." See Fed. R. Civ. P. 12(g)(2) and (h)(1)(A). In addition, a venue defense based on a forum selection clause is waived also by failing to "include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course." Fed. R. Civ. P. 12(h)(1)(B)(ii). The defendants fall under this provision too, having failed to include their current venue defense in their Answer to ABOUT's Second Amended Complaint after their first motion to dismiss was granted. See Dkt. 34, at 16-17. Indeed, that Answer admitted that venue in this district is proper as to CoreFact, see id. at ¶ 7, alleged that venue in this district is proper for CoreFact's Counterclaims (including a claim for breach of the reseller agreement), id. at 18, ¶ 5, and omitted any mention on behalf of either defendant of the forum selection clause that they now assert. The defendants thus waived their current venue defense based on the parties' forum selection clause in two ways: (1) under Rule 12(h)(1)(A), by omitting it from their earlier Rule 12(b) motion, and (2) under Rule 12(h)(1)(B), by omitting it from their subsequent Answer to ABOUT's Second Amended Complaint. The defendants' current motion attempts to overcome each waiver, but fails as to both.
First, regarding Rule 12(h)(1)(A), the defendants insist that their current venue defense was not "available" when they filed their first Rule 12 motion, because ABOUT had not yet asserted "a cause of action for breach of the Reseller Agreement." Def. Reply, Dkt. 52, at 10. According to the defendants, they were unable to assert the forum selection clause in the parties' reseller agreement until ABOUT added a claim for breach of that agreement in its latest Complaint. Id. But the defendants' current motion to dismiss belies this argument, since it asserts the forum selection clause against
These are reasons that the defendants could have, and should have, asserted the forum selection clause against ABOUT's breach of fiduciary duty claim in this case two complaints ago. And it is not as though the defendants were oblivious to the impact of the reseller agreement (and its forum selection clause) on ABOUT's breach of fiduciary duty claim when they filed their last Rule 12 motion to dismiss (two complaints ago). Indeed, their memorandum in support of that motion asserted that "this case concerns" in "essence" whether CoreFact "breached" the reseller agreement and whether "Burnley is individually liable for CoreFact's breaches of the Reseller Agreement," Dismiss Mem., Dkt. 19, at 1, and, more specifically, that the breach of fiduciary duty claim against Burnley "is based on the Reseller Agreement" so directly that the Court should "consider that document" when construing ABOUT's First Amended Complaint. Id. at 13. Yet nowhere did the defendants ask the Court to consider the forum selection clause in that document, even while they asked the Court to transfer the case to California. See id. at 8-11. Instead, the defendants were content to argue that two
In addition to the defendants' prior Rule 12 motion, their subsequent Answer and Counterclaims similarly omitted any mention of the forum selection clause that they now assert, despite asserting twelve other affirmative defenses. See Dkt. 34, at 16-17. Even more telling, that pleading admitted that venue in this district is proper as to CoreFact (though it disputed venue as to its principal shareholder Burnley on grounds unrelated to the forum selection clause, see supra note 2), and affirmatively alleged that venue in this district is proper for CoreFact's Counterclaims, including a claim for breach of the same reseller agreement that contains the very forum selection clause that both defendants now assert. See Dkt. 34, at 3, 16-18. Failing even to acknowledge any of these omissions, admissions, or allegations in their Answer and Counterclaims, the defendants instead attempt to negate any implications for venue flowing from CoreFact's filing of a counterclaim for breach of the reseller agreement by arguing that it was "compulsory" and that its filing `in no way contradicts Defendants' position, asserted throughout this litigation, that California is the proper venue for this case." Def. Reply, Dkt. 52, at 1. But that is exactly what it did. See Counterclaim, Dkt. 34, at 18, ¶ 5 ("Venue with respect to these Counterclaims is proper in this District").
Nor does the defendants' insistence that CoreFact's counterclaim for breach of the reseller agreement was "compulsory" mitigate this allegation. If anything, it reinforces the conclusion that the reseller agreement has long been at issue in this case—rendering CoreFact's counterclaim for breach of that agreement compulsory—and thus underscores the length of the defendants' delay in asserting the forum selection clause contained in that agreement. But also, the parties' arguments that their respective counterclaims for breach of the reseller agreement were "compulsory"—as a means of establishing who first introduced the reseller agreement to the case—add little to the analysis. As the Seventh Circuit has observed, "no one is `compelled' to present a compulsory counterclaim" in an incorrect forum just to preserve its viability in the forum that a forum selection clause required it to be brought in the first place. See Publicis Comms. Inc. v. True N. Comms Inc., 132 F.3d 363, 365 (7th Cir. 1997) ("If the parties promise to litigate a dispute only in a particular forum, a party to the contract cannot seek to bar the litigation in that forum because the claim was not presented in some other forum.").
The defendants thus waived their current venue challenge based on the forum selection clause in the parties' reseller agreement not only by omitting that defense from their initial Rule 12 motion, but also by omitting it from their subsequent Answer. CoreFact's counterclaim for breach of the reseller agreement, admitting and alleging that suit on that agreement is proper in this district, did the same. "If the defendant tells the plaintiff that he is content with the venue of the suit, or by words or actions misleads the plaintiff into thinking this or the court into becoming involved in the case so that there would be wasted judicial effort were the case to be dismissed to another forum, or if he stalls in pleading improper venue because he wants to find out which way the wind is blowing, then conventional principles of waiver or equitable estoppel come into play and if invoked by the plaintiff block the challenge to venue." Am. Patriot, 364 F.3d at 888. These principles, in addition to waiver under Rule 12(h)(1), control here.
Rule 12(h) also bears on the defendants' new Rule 12(b)(6) argument that ABOUT's breach of fiduciary duty claim against Burnley (Count I) fails to state a claim upon which relief can be granted under Florida law (which, in turn, looks to Delaware law). See Def. Mem., Dkt. 44, at 9-10.
The defendants counter with the Seventh Circuit's decision in Ennenga v. Starns, 677 F.3d 766 (7th Cir. 2012)—a decision that ABOUT failed to cite in its Opposition.
ABOUT's attempt to distinguish Ennenga—because the defendants' initial Rule 12(b)(6) motion in that case was dismissed in its entirety on substantive grounds, because the plaintiffs' amended complaint thereafter raised new issues, and because the plaintiffs there incorrectly argued that the defendants' new failure-to-state-a-claim defense had been "waived" altogether— misses the point. Ennenga merely clarified that Rule 12(g)(2) and (h)(2) preserve a Rule 12(b)(6) failure-to-state-a-claim defense that was omitted from a prior Rule 12 motion, and thus affirmed the district court's order granting a motion that asserted such a preserved defense. While Rule 12(h)(2) would ordinarily require such a motion to be brought under Rule 12(c), as other courts have noted, a district court retains the discretion to view a successive Rule 12(b)(6) motion as a motion under Rule 12(c) where the interests of judicial economy and efficiency would be served by doing so. See Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty, Colo., 771 F.3d 697, 702-03 (10th Cir. 2014).
The Court is mindful that Rule 12(h)(2) "arguably limits a party to presenting those arguments in a pleading, a motion for judgment on the pleadings, or at trial," and makes no reference to a motion brought under Rule 12(b)(6)—a consideration that prompted the Tenth Circuit to characterize the Seventh Circuit's approach in Ennenga as "problematic." See Albers, 771 F.3d at 702-03. But as Albers also acknowledged, because "the district court properly accepted all facts alleged in the [complaint] as true," it was "as if [the defendant] had filed an answer admitting all of the "plaintiffs' factual allegations and then filed its motion pursuant to Rule 12(c), instead of Rule 12(b)(6)"; and thus, "whether the district court dismissed the complaint based on a motion under Rule 12(b)(6) or Rule 12(c) makes no difference for purposes for our review." Id. at 704 (citing Walzer v. Muriel Siebert & Co., 447 Fed. Appx. 377, 379 (3d Cir. 20110) (unpublished)). Considerations of judicial economy and efficiency have similarly prompted many other courts to address the grounds asserted in a successive Rule 12(b)(6) motion, without requiring the defendant to refile the motion under Rule 12(c). See, e.g., Shield Techs. Corp. v. Paradigm Positioning, LLC, 908 F.Supp.2d 914, 917 (N.D. Ill. 2012) ("in the interests of avoiding unnecessary delay, we will deny the defendants' motion as untimely but address their substantive arguments on our own motion"); Kruska v. Perverted Justice Found. Incorporated.Org, No. CV-08-00054-PHX-SMM, 2010 WL 4791666, *3 and n.3 (D. Ariz. Nov. 18, 2010) (allowing second Rule 12(b)(6) motion where it would "expedite final disposition of the case" and was "warranted" to address new Supreme Court authority); Tofsrud v. Potter, No. CV-10-090-JLQ, 2010 WL 3363431, *1 (E.D. Wash. Aug. 23, 2010) (allowing second Rule 12(b)(6) motion in response to amended complaint); Butler v. Fairbanks Cap., No. Civ.A. 04-0367(RMU), 7, 18, 2005 WL 5108537, 2 (D.D.C. Jan. 3, 2005) (citing cases where "concepts of fairness and judicial economy" justified a supplement motion). Although this approach may be the exception rather than the rule, it is faithful to the Seventh Circuit's approach in Ennenga and the Court therefore adopts it here.
ABOUT's reliance on Kramer v. Am. Bank & Tr., N.A., No. 11 C 8758, 2014 WL 3638852 (N.D. Ill. July 23, 2014), is therefore unpersuasive. Kramer, moreover, is distinguishable—unlike Ennenga and this case, it did not involve a second motion to dismiss after the filing of an amended complaint. Rather, in "piecemeal" fashion, the defendant in Kramer turned to a different ground under Rule 12 after its first Rule 12 motion was denied, without an intervening change in the plaintiff's pleading. Id. at *2. While ABOUT insists that this case is nevertheless closer to Kramer than to Ennenga because ABOUT's current Count I raises no "new issues," Pltf. Surreply, Dkt. 55-1, at 4, the Court concludes that the defendants' new defense against that claim has merit, and that the considerations of judicial economy underlying Ennenga (as opposed to the concerns over piecemeal litigation underlying Kramer) are therefore more applicable here. See Albers, 771 F.3d at 702-03 ("The Seventh Circuit's approach has the advantage of allowing district courts to consider meritorious arguments in successive pre-pleading motions to dismiss," and "in turn, allows district courts to resolve cases on their merits at the pleadings stage in the interest of efficiency.").
The defendants' new Rule 12(b)(6) defense asserts that ABOUT's breach of fiduciary duty claim against Burnley "is foreclosed as superfluous" by the reseller agreement between ABOUT and CoreFact and the parties' contractual rights thereunder. See Def. Mem., Dkt. 44, at 9-10. This argument relies on Florida's "fundamental contractual principles," which "delineate the general boundary between contract law and tort law." See Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL 2215770, *4 (S.D. Fla. May 29, 2014); Tulepan v. Roberts, No. 14-cv-80574, 2015 WL 235441, *6 (S.D. Fla. Jan. 16, 2015) ("fundamental contract principles continue to bar a tort claim where a defendant has not committed a breach of duty independent of his breach of contract"). Under Florida law, "to set forth a claim in tort between parties in contractual privity, a party must allege action beyond and independent of breach of contract that amounts to an independent tort." Kaye, 2014 WL 2215770, at *4.
As noted above, ABOUT made no response to this argument in its Opposition to the defendants' motion, and thus conceded the argument. See supra note 7. But even if the Court were to consider the untimely response included in ABOUT's surreply (purportedly filed for a different purpose), the outcome would be the same—ABOUT's breach of fiduciary duty claim is inadequately pled under Florida law. That claim alleges in summary fashion that "Burnley owed fiduciary duties to ABOUT" as "a director of ABOUT," that he "took multiple actions that were calculated to cause injury and loss to ABOUT and/or to benefit Burnley in his capacity as a principal shareholder of CoreFact," and that these actions "amounted to the improper usurpation by Burnley of ABOUT's business opportunities for his own benefit." Compl., Dkt. 41, ¶¶ 30-31. As the defendants correctly contend, these allegations fail to "describe the claim in sufficient detail" or "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a `speculative level." Def. Mem., Dkt. 44, at 9 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)).
Indeed, ABOUT's only argument to save this claim is the afterthought in its Surreply that the claim "is based on Burnley's individually wrongful conduct as a director of About by affirmatively steering business away from About and toward CoreFact." Dkt. 55-1, at 6. But the defendants again correctly note that ABOUT's allegations in the Third Amended Complaint
For all of the foregoing reasons, the Court denies the defendants' motion to dismiss Counts I and II of ABOUT's Third Amended Complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3), see Dkt. 43, ¶¶ 1-2, because the defendants waived the forum selection clause that forms the basis of that motion. The Court grants the defendants' motion to dismiss ABOUT's breach of fiduciary duty claim against defendant Burnley (Count II) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to allege a cognizable claim under Florida law, id. at ¶ 1, though because the defendants' argument as to Count I was new, the dismissal is without prejudice. Because the Court denies the defendants' motion as to Count II of ABOUT's Complaint, it also denies the defendants' request that the Court decline to hear ABOUT's declaratory judgment claim in Count III of the Third Amended Complaint pursuant to 28 U.S.C. § 2201, id. at ¶ 3, and the defendants' request to dismiss their own counterclaims without prejudice pursuant to Fed. R. Civ. P. 41. Id. at ¶ 4.
