ORDER re: Defendants' Motion to Dismiss for Lack of Personal Jurisdiction [17] and Motion to Dismiss for Failure to State a Claim [18]

RONALD S.W. LEW, Senior District Judge.

Plaintiff Nocher Enterprises, Inc. ("Plaintiff") filed the instant Action against Defendants Aventus Outreach, LLC ("Outreach"); Aventus Health, LLC ("Health"); Oliver Dawoud ("Dawoud"); and Aventus Bio Labs, Inc. ("Bio Labs") (collectively, "Defendants"), for damages arising from an alleged breach of contract and negligent misrepresentation. Currently before the Court is Defendants' Motions to Dismiss for (a) lack of personal jurisdiction [17] and (b) failure to state a claim [18]. Having reviewed all papers submitted pertaining to these Motions, the Court NOW FINDS AND RULES AS FOLLOWS:

I. BACKGROUND

A. Factual Background

Plaintiff is a California corporation doing business in California. First Am. Compl. ("FAC") ¶ 1, ECF No. 13. Defendants Outreach and Health are Florida limited liability companies, Bio Labs was a Florida corporation,1 and Dawoud is an individual and the principal/owner of Outreach. Id. ¶¶ 2-5. The nature of Defendants' business is "testing medical specimens from all over the United States at their Florida laboratories." Defs.' Mot. to Dismiss re Personal Jurisdiction ("Jurisdiction Mot.") 1:13-14, ECF No. 17. Defendants "held themselves out as one and [the] same entity" and under the "same banner and trade name of Aventus Biolabs a/k/a AventusBiolabs.com." FAC ¶ 7.

Plaintiff alleges that on April 19, 2017, Defendants invited Plaintiff to "enroll its accounts" with Defendants for the sale and service of "specimens" to Defendants as ordered by Defendants. Id. ¶ 12. At that time, Defendants promised to pay Plaintiff a specified percentage of the net payment that Defendants would receive from testing the specimens. Id. Defendants also promised to account for their collections by providing Plaintiff with summarized reports indicating the amount collected per claim, provider name, and claim date, and an access to an online portal to verify collection data. Plaintiff alleges that in reliance on Defendants' promises, it started delivering specimens to Defendants. Id.

According to Plaintiff, Defendants avoided doing business with California entities due to state laws but made an exception for Plaintiff because of the expected large volume of business it would generate for Defendants. Id. ¶ 11. The primary source of specimens provided by Plaintiff were from California providers2 (e.g., hospitals, doctors, and rehabilitation centers). Id. ¶ 13.

As of August 2017, Defendants paid Plaintiff $170,000 for approximately 600 specimens out of the 11,000 specimens Plaintiff provided, which Plaintiff alleges Defendants have collected millions of dollars from. FAC ¶¶ 17, 23. Defendants did not provide reports on collections to Plaintiff and denied Plaintiff access to the online portal. Id. ¶ 17. In November 2017, after Plaintiff repeatedly requested payment and an accounting, Defendants e-mailed Plaintiff an Excel spreadsheet "that was purportedly the amount of collection [D]efendants made on [P]laintiff's samples for September 2017." Id. ¶ 18. However, according to Plaintiff, Defendants had "materially falsified the amounts collected . . . to justify not paying [P]laintiff any money for the samples." Id. ¶ 19.

As a result, Plaintiff filed this Action against Defendants, alleging negligent misrepresentation, breach of implied contract, breach of oral contract, common counts, unjust enrichment, and accounting. See generally id.

B. Procedural Background

This case was Removed from Superior Court [1] to this Court on May 9, 2018. Plaintiff filed its FAC [13] on July 9, 2018. Defendants filed a Motion to Dismiss for Lack of Personal Jurisdiction [17] and a Motion to Dismiss for Failure to State a Cause of Action [18] on August 13, 2018. Plaintiff filed its Oppositions [19, 21] to the instant Motions on September 1, 2018. On September 11, 2018, Defendants filed their Replies [25, 27] to each Opposition as well as Objections to the Declaration of Jamie Nocher [26, 28].

II. DISCUSSION

A. Legal Standard

1. Personal Jurisdiction

When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the Court may properly exercise jurisdiction over the defendant. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Absent formal discovery or an evidentiary hearing, a plaintiff need only make a prima facie showing that jurisdiction is proper to survive dismissal. Id. at 1154.

To satisfy this burden, a plaintiff can rely on the allegations in his complaint to the extent they are not controverted by the moving party. Barantsevich v. VTB Bank, 954 F.Supp.2d 972, 982 (C.D. Cal. 2013). If defendants adduce evidence controverting the allegations, however, the plaintiff must "come forward with facts, by affidavit or otherwise, supporting personal jurisdiction." Id. at 982 (citation omitted). "Conflicts between parties over statements contained in affidavits [or declarations] must be resolved in the plaintiff's favor." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

"The general rule is that personal jurisdiction over a defendant is proper if it is permitted by a long-arm statute and if the exercise of that jurisdiction does not violate federal due process." Pebble Beach, 453 F.3d at 1154-55. California authorizes jurisdiction to the full extent permitted by the Constitution. See Cal. Code Civ. Proc. § 410. Therefore, the only question the Court must ask is whether the exercise of jurisdiction over defendants would be consistent with due process. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003).

Due process requires that a defendant must have such "minimum contacts" with the forum state that "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Minimum contracts requires that the defendant must have purposefully availed itself of the privilege of conducting activities within the foreign jurisdiction, thereby invoking the benefits and protections of the foreign jurisdiction's laws. See Asahi Metal Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 109 (1987).

There are two recognized bases for exercising jurisdiction over a nonresident defendant: (1) "general jurisdiction," which arises where defendant's activities in the forum are sufficiently "substantial" or "continuous and systematic" to justify the exercise of jurisdiction over him in all matters; and (2) "specific jurisdiction," which arises when a defendant's specific contacts with the forum give rise to the claim in question. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 (1984).

2. Failure to State a Claim

Federal Rule of Civil Procedure ("FRCP") 12(b)(6) allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. A complaint must contain sufficient facts, accepted as true, to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). Dismissal is warranted for a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).

"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citation omitted). A court must presume all factual allegations to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). The question is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence to support the claims. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). While a complaint need not contain detailed factual allegations, a plaintiff must provide more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

B. Discussion

1. Personal Jurisdiction

a. Defendants' Evidentiary Objections

Defendants filed objections to paragraphs six, ten, and eighteen, in the Declaration of Jamie Nocher [22] filed by Plaintiff. See Defs.' Objs. to Decl., ECF No. 26. Defendants' objections to paragraphs six and ten are OVERRULED as Moot because the Court does not rely on the evidence. Defendants' objection to paragraph eighteen is OVERRULED as Moot with respect to the first sentence,3 as it is not relied on by the Court. With respect to the subsequent sentences,4 the objection is OVERRULED because Nocher, the principal manager, operator, and owner of Plaintiff, has personal knowledge and there is no inadmissible hearsay.

b. Defendants Bio Labs, Outreach, and Health

i. General Jurisdiction

The Court cannot exercise general jurisdiction over Defendants Bio Labs,5 Outreach, and Health (hereinafter "Corporate Defendants"). General jurisdiction over a foreign corporation is appropriate when the corporation' "affiliations with the State are so `continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing Int'l Shoe, 326 U.S. 310, 317 (1945)).

Corporate Defendants were all organized in Florida and have their principal places of business there. Jurisdiction Mot. at 11:19-21. Plaintiff did not oppose Defendants' argument that Corporate Defendants do not regularly conduct business in California. Id. at 4:6-10. Nor did Plaintiff oppose Defendants' assertion that they do not have employees, nor any place of business, in California. Id. at 4:6-10. Thus, Corporate Defendants contacts with California are not substantial enough to render them "at home" in California.

ii. Specific Jurisdiction

The Ninth Circuit employs a three-part test to determine whether a court has specific jurisdiction over a defendant:

Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1227-28 (9th Cir. 2011) (citations omitted). Plaintiff bears the burden of proving the first two prongs, and if the Plaintiff does so, the burden shifts to the Defendants to prove a "compelling case" the exercise of jurisdiction would be unreasonable. Id. at 1228.

A. Purposeful Availment

"A purposeful availment analysis is most often used in suits sounding in contract." Schwarzenegger, 374 F.3d at 802. This suit sounds primarily in contract because the alleged fraud arises out of Corporate Defendants' false representations that they would pay Plaintiff a reasonable amount of money and provide Plaintiff with accurate accounts, which are also the grounds for Plaintiff's breach of contract claims. FAC ¶¶ 12, 19, 30-36. See HK China Group, Inc. v. Beijing United Auto & Motorcycle Mfg. Corp., 417 Fed. App'x. 664, 665 (9th Cir. 2011) ("Suits that include both a breach of contract claim and a fraud claim may `sound primarily in contract' when the alleged fraud is merely the representations in the contract that gave rise to the breach."). Thus, a purposeful availment analysis is proper.

"An out-of-state party does not purposefully avail itself of a forum merely by entering into a contract with a forum resident." HK China Group, Inc., 417 F. App'x. at 666 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985)). "[P]rior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing" are considered. Burger King, 471 U.S. at 479.

1. Prior Negotiations

Corporate Defendants argue that they did not purposefully avail themselves of California because Plaintiff initiated negotiations and met with Corporate Defendants in Florida. Dawoud Decl. ¶¶ 15, 16, 20. While such activity weighs against purposeful availment, it is not determinative. See Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1480 (9th Cir. 1986) ("[T]he fact that contract negotiations. . . occurred outside of California is not determinative."); LocusPoint Networks, LLC v. D.T.V., LLC, No. 3:14-cv-01278-JSC, 2014 WL 3836792, at *5 (N.D. Cal. Aug. 1, 2014) (finding that defendant solicited plaintiff's business even though plaintiff initiated contact). Plaintiff responds that negotiations also occurred via telephone, email, and text-message, but this fact is neutral since "use of the mails, telephone, or other international communications simply do not qualify as purposeful activity invoking the benefits and protection of the [forum] state." Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985)).

Nonetheless, the remaining circumstances surrounding negotiations support a finding of purposeful availment. Plaintiff alleges Corporate Defendants normally avoided doing business in California but made an exception for Plaintiff "because of the anticipated large volume of business it expected to generate . . . knowing full well that it was engaging a California business entity who had special relationships with California-based providers." FAC ¶ 11. Corporate Defendants knew the primary source of specimens plaintiff would procure were from California providers, and "California was the primary business-source [Corporate Defendants] targeted when it engaged [Plaintiff] to provide the samples." FAC ¶¶ 13, 15. As such, Corporate Defendants invited Plaintiff to enroll its accounts. Id. ¶ 12. See Vuori v. Grasshopper Capital LLC, No. 17-cv-06362-JCS, 2018 WL 1014633, at *13 (N.D. Cal. Feb. 22, 2018) (finding defendants solicited business in California by contracting with a plaintiff defendants knew was a California resident, and whose connections defendants sought to benefit from).

2. Future Consequences

When evaluating contemplated future consequences, "courts focus on whether the defendant, in entering the contract, created `continuing obligations between [itself] and residents of the forum.'" Calltek, Inc. v. Call Center Systems, LLC et al., No. 8:18-cv-00384-JLS-DFMx, 2018 WL 2264205, at *7 (C.D. Cal. April 25, 2018) (citing Corp. Inv. Bus. Brokers v. Melcher, 824 F.2d 786, 789 (9th Cir. 1987)). By contrast, where a contract merely involves a "lone transaction for the sale of one item" purposeful availment is not established. Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008).

Here, while Plaintiff did not allege a duration for the contractual relationship, the FAC supports at least more than a "lone transaction for the sale of one item." The sale of the specimens in this Action required ongoing involvement by both parties, and Plaintiff sent specimens to Corporate Defendants over at least a four-month period of time. Opp'n at 2:23-24. See LocusPoint Networks, LLC, 2014 WL 3836792, at *6 (finding the parties' continuing obligations to one another requiring "months of substantial coordination and joint effort" leaned in favor of purposeful availment). Thus, the Court can infer an ongoing contractual relationship with ties to California.

3. Terms of Contract

Because the contract is oral or implied, it is unclear precisely what its terms consist of. See FAC ¶¶ 29, 34. In such instances where "[n]either party addresses whether the terms of the parties' oral agreement favor a finding of purposeful availment in a meaningful way . . . . th[e] factor is neutral and does not weigh in favor or against a finding of purposeful availment. Vuori, 2018 WL 1014633, at *14.

4. Course of Dealing

With respect to actual course of dealing, "courts focus on whether the `substantial and continuing relationship' with the forum resident gave the defendant `fair notice that he might be subject to suit' in the forum." Calltek, Inc., 2018 WL 2264205, at *8 (citing Burger King, 471 U.S. at 463). Corporate Defendants knew Plaintiff was a California entity that would provide specimens predominantly from California providers, and entered into a contract with Plaintiff because of business volume it was anticipated to bring. FAC ¶¶ 11-13. Moreover, Corporate Defendants "systematically delivered the necessary supplies and equipment for the samples directly to the California entities as indicated by the medical necessity forms." Id. ¶ 16. Corporate Defendants' knowledge of and involvement in the procurement of California-sourced specimens, reveals their contacts with California were substantial and not random. See LocusPoint Networks, LLC, 2014 WL 3836792, at *7 (citing Burger King, 471 U.S. at 480) (reiterating that the "`quality and nature' of Defendant's relationship with the company in California" must be more than "random, fortuitous, or attenuated."). Thus, this factor supports purposeful availment.

Because all four factors weigh in favor of finding purposeful availment, the Court finds Corporate Defendants purposefully availed themselves of the benefits and protections of California's laws.

B. Claim Arises Out Of Forum-Related Contacts

The Ninth Circuit relies on a "`but for' test to determine whether a particular claim arises out of forum-related activities." Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Here, Plaintiff's claims for breach of contract and false misrepresentation arise out of its contractual relationship with Corporate Defendants. As discussed, Corporate Defendants purposefully availed themselves of California law through its contract with Plaintiff. "But for" the contract, this lawsuit would not have arisen. See Hirsch, 800 F.2d at 1480 ("Because this contract constitutes [defendant's] contacts with California, the [plaintiffs] satisfy this element of the jurisdictional test."). Thus, the claims arise out of Corporate Defendants' forum-related contacts.

C. Reasonableness

If a Plaintiff satisfies the first two elements of a personal jurisdiction analysis, the burden is on the defendant to prove a "compelling case" that jurisdiction would be unreasonable. Burger King, 471 U.S. at 477. Courts consider seven factors when evaluating reasonableness:

Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1088 (9th Cir. 2000) (citation omitted).

The only facts that favor Corporate Defendants are that it would be burdensome for them to defend in California, potential evidence is located in Florida, and an alternative forum exists in Florida. However, "modern advances in communications and transportation have significantly reduced the burden on litigating" in a different state. Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir. 1988). See also Roth, 942 F.2d at 623 ("[U]nless such inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction."). Moreover, the remaining factors lean in favor of finding jurisdiction reasonable. On balance, Corporate Defendants have not presented a "compelling case" that personal jurisdiction is unreasonable. Thus, the Court DENIES Defendants' Motion to Dismiss for Lack of Personal Jurisdiction as to Defendants Outreach, Health, and Bio Labs.

c. Defendant Dawoud

"For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile. . . ." Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Dawoud states that he is, and at all relevant times has been, a resident and citizen of Florida. Dawoud Decl. ¶ 4. Plaintiff does not dispute this fact, nor even allege that Dawoud has been to California. Plaintiff's allegations all are based on Dawoud's actions and status as a principal of Corporate Defendants. FAC ¶¶ 5,6. This is insufficient to establish general personal jurisdiction over Dawoud.

With respect to specific jurisdiction, Plaintiff has pleaded no facts to support an assertion that Dawoud purposefully availed himself of conducting business in California. The FAC alleges no acts specifically attributed to Dawoud, nor that Dawoud was a party to the alleged contract at issue. The only actions attributed to Dawoud are contract negotiations in which Dawoud acted as the agent and representative of Outreach, Health, and Bio Labs.6 Nocher Decl. ¶ 4. This is insufficient to establish that Dawoud, in his individual capacity, should be subject to personal jurisdiction in California. See Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir. 1989) (describing the fiduciary-shield doctrine—"a person's mere association with a corporation that causes injury in the forum state is not sufficient in itself to permit that forum to assert jurisdiction over the person"); Shimmick Const. Co., Inc./Obayashi Corp. v. Officine Meccaniche Galletti-O.M.G. S.R.L., No. 13-cv-2700-BAS (JLB), 2014 WL 5847440, at *4 (S.D. Cal. Nov. 12, 2014) (same as to a breach of contract claim). Thus, the Court GRANTS Defendants' Motion to Dismiss for Lack of Personal Jurisdiction as to Defendant Dawoud.

d. Request for Jurisdictional Discovery

Plaintiff in a footnote requests leave to conduct jurisdictional discovery "to resolve those issues to the Court's satisfaction." Opp'n at 8 n.8. Plaintiff does not provide details regarding what the discovery would establish. Because Plaintiff has failed to show more than speculative allegations of attenuated jurisdictional contacts "in the face of specific denials made by [D]efendants" thus far, "the Court need not permit even limited discovery." Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995); see Boschetto, 539 F.3d at 1020 (affirming the district court's jurisdictional discovery request denial "based on little more than a hunch that [discovery] might yield jurisdictionally relevant facts"). Thus, the Court DENIES Plaintiff's request as to Dawoud, and DENIES as moot Plaintiff's request as to Corporate Defendants.

2. Failure to State a Claim7

a. Defendants' Evidentiary Objections

Defendants object to the admissibility of the Declaration of Jamie Nocher filed by Plaintiff [20]. See Defs.' Objs., ECF No. 28. In ruling on a 12(b)(6) motion the court only considers allegations in the pleadings, exhibits attached to the complaint, and judicially noticed matters. Swartz, 476 F.3d at 763. Thus, the Court SUSTAINS Defendants' objection.

b. Choice of Law

A federal court sitting in diversity applies the choice-of-law rules of the forum state. Coneff v. AT & T Corp., 673 F.3d 1155, 1161 (9th Cir. 2012). Thus, the Court applies California's choice-of-law rules. Here, the parties did not include a choice of law provision in their alleged Agreement. Therefore, the Court applies California Civil Code section 1646 and section 188 of the Restatement (Second) of Conflict of Laws. Rutherford v. FIA Card Services, N.A., Case No: 11-cv-04433 DDP MANX, 2012 WL 993885, at *2 (C.D. Cal. Mar. 23, 2012) (citing Arno v. Club Med Inc., 22 F.3d 1464, 1469 n. 6 (1993)).

California Civil Code section 1646 requires that "[a] contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." Cal. Civ. Code § 1646.

The alleged Contract at issue consisted of the following: (1) Plaintiff had to enroll itself for an account with Defendants, (2) Defendants were to order specimens from Plaintiff and direct Plaintiff to have the specimens sent to their laboratories for testing, (3) Defendants were to compile and provide Plaintiff with summarized reports, (4) Defendants had to upload test results to Defendants' online portal, and (5) Defendants were to pay Plaintiff a specified portion of the revenue received by Defendants in Florida. See FAC ¶¶ 12-13. Because Defendants' principal place of business is in Florida, these circumstances indicate that the parties expected most of these obligations to be performed in Florida.8 Thus, this weighs in favor of applying Florida law. See Welles v. Turner Entertainment, 503 F.3d 728, 738 (9th Cir. 2007) ("When the contract does not expressly specify a place of performance . . . the place of performance is the jurisdiction in which the circumstances indicate the parties expected or intended the contract to be performed.").

Moreover, the majority of the factors courts consider pursuant to section 188 of the Restatement (Second), Conflict of Laws favor Florida law.9 First, contract negotiations predominantly occurred in Florida. Plaintiff initiated negotiations with Defendants and had its representatives meet with Defendants in Florida, while Defendants never traveled to California.10 Second, as discussed above, the Court can infer that the parties expected the bulk of contractual duties to be performed in Florida. Further, even if Defendants knew Plaintiff would procure most specimens from California providers, the location from which the specimens were procured was merely a secondary concern to Plaintiff's primary task.11 Lastly, the parties' domicile and place of incorporation is neutral, since Plaintiff is a California corporation doing business in California, and Defendants are Florida entities. FAC ¶¶ 1-4.

In conclusion, these factors support a finding that Florida has the most significant relationship to the transaction.12 Thus, Florida law applies to the contractual claims at issue, which include Plaintiff's claims for: (1) breach of implied contract, (2) breach of oral contract, (3) common counts, (4) unjust enrichment, and (5) accounting.

Plaintiff's remaining claims for deceit/negligent misrepresentation are governed by FRCP 9(b), which applies to deceit and negligent misrepresentation claims in Florida and California. Lamm v. State St. Bank & Tr., 749 F.3d 938, 951 (11th Cir. 2014) ("Rule 9(b)'s heightened pleading standard applies to negligent misrepresentation claims"); Bosco Legal Servs. v. Hiscox Inc., No. EDCV 18-48-GW(SHKx), 2018 U.S. Dist. LEXIS 99384, at *21 (C.D. Cal. June 11, 2018) (citations omitted) ("It is well-established in the Ninth Circuit that both claims for fraud and negligent misrepresentation must meet Rule 9(b)'s particularity requirements.").13 As discussed below, Plaintiff fails to satisfy this federal pleading standard. Because the claim fails under either state's laws, the Court need not engage in a choice of law analysis for this claim.

c. Deceit/Negligent Misrepresentation

FRCP 9(b) requires that when "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Plaintiff alleges that in or around early November 2017, "Defendants" provided Plaintiff by e-mail an Excel spreadsheet indicating the amounts Defendant collected on Plaintiff's samples for September 2017, and that Defendants falsified the amounts in the spreadsheet.14 Id. ¶¶ 18-20. This conclusory allegation will not pass muster under Rule 9(b). See Midamerica C2L, Inc. v. Siemens Energy, Inc., No. 6:17-cv-171-Orl-40KRS, 2017 U.S. Dist. LEXIS 53595, at *9 (M.D. Fla. Apr. 7, 2017) ("[T]he plaintiff must identify . . . the time, place, and person responsible for each misrepresentation"); Saldate v. Wilshire Credit Corp., 686 F.Supp.2d 1051, 1065 (E.D. Cal. 2010) (citations omitted) ("[I]n a fraud action against a corporation, a plaintiff must "allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written."). Plaintiff does not identify who is responsible for the misrepresentations, from which email address the falsified spreadsheet was sent, or any other such relevant information. Thus, Plaintiff's allegations regarding Defendants' false representations fail to adequately state a claim under the Rule 9(b) heightened pleading standard.

d. Breach of Implied Contract15

A contract implied in fact exists where "a person performs services at another's request . . . and under circumstances' fairly raising the presumption that the parties understood and intended that compensation was to be paid." Commerce P'ship 8098 Ltd. P'ship, 695 So.2d at 386. Plaintiff alleges Defendants ordered Plaintiff to furnish approximately 11,000 specimens, and Defendants have only paid for 600 specimens. FAC ¶¶ 29-32. These facts sufficiently allege breach of an implied in fact contract.

With respect to Defendants' argument that the claim must be dismissed because Plaintiff fails to allege the absence of an express contract, even if ultimately "the law will not recognize an implied-in-fact contract where an express contract exists," Baron v. Osman, 39 So.3d 449, 451 (Fla. Dist. Ct. App. 2010), the Court is not aware of any Florida authority holding that a plaintiff must affirmatively plead the absence of an express contract in alleging breach of an implied in fact contract. Indeed, at the motion to dismiss stage, Plaintiff can plead inconsistent claims in the alternative. See id. (finding plaintiff's complaint contained "sufficient allegations to establish the existence of an express oral contract or, in the alternative, an implied-in-fact contract."). Thus, the Court DENIES Defendants' Motion as to this claim.

e. Breach of Oral Contract

A breach of contract claim requires "(1) a valid contract; (2) a material breach; and (3) damages." Friedman v. New York Life Ins. Co., 985 So.2d 56, 58 (Fla. Dist. Ct. App. 2008). To establish a valid oral contract, a plaintiff must allege "offer, acceptance, consideration and sufficient specification of essential terms." St. Joe Corp. V. Mclver, 875 So.2d 375, 381 (Fla. 2004). Here, Plaintiff fails to allege essential terms, such as the duration of the contract, the quantity of specimen Plaintiff was to procure, or the specific services Plaintiff was to provide. Further, Plaintiff pleads inconsistent facts regarding the price that Defendants were to pay under the contract.16 See Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313, 315 (Fla. Dist. Ct. App. 1993) ("[f]ailure to sufficiently determine quality, quantity, or price may preclude the finding of an enforceable agreement."). Thus, Plaintiff failed to plead the existence of a valid contract as is required for a breach of oral contract claim, and the Court GRANTS Defendants' Motion as to this claim.

f. Common Counts

Plaintiff alleges common counts, in an action for quantum valebant for the value of the goods provided or for indebitatus assumpsit for the balance due on specimens Plaintiff furnished to Defendants. The Court notes that these are two of the common counts in general assumpsit, which "have now become practically obsolete." Matthews v. Matthews, 222 So.2d 282, 285 (Fla. Dist. Ct. App. 2nd 1969). To the extent courts still recognize such claims, here they are dismissed because they are repetitive of Plaintiff's unjust enrichment claim, in which Plaintiff alleges the same essential facts and seeks the same relief. See Reliastar Life Ins. Co. v. Kiel, No. 3:08-CV-751-J-34MCR, 2010 WL 11507705, at *3 n.2 (M.D. Fla. July 29, 2010) (quoting Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. Dist. Ct. App. 1976)) ("The outcome is the same, whether one labels the claim `with the terminology of the old common count for money had and received (indebitatus assumpsit) or the more current restitution to prevent unjust enrichment.'"). Thus, the Court GRANTS Defendants' Motion as to common counts.

g. Unjust Enrichment

"A claim for unjust enrichment is equitable in nature, and thus, is not available when there is an adequate legal remedy." Reliastar Life Ins. Co., 2010 WL 11507705, at *3. Here, rather than plead in the alternative, Plaintiff incorporates its claim for breach of an express oral contract into its claim for unjust enrichment. See FAC ¶ 42; Spring Air Int'l, LLC v. R.T.G Furniture Corp., No. 8:10-cv-1200-T-33TGW, 2010 U.S. Dist. LEXIS 114490, at *6-7 (M.D. Fla. Oct. 19, 2010) (dismissing plaintiff's unjust enrichment claim because plaintiff incorporated the allegations of an express contract into its claim for unjust enrichment). As a result, the Court GRANTS Defendants' Motion as to the unjust enrichment claim.

h. Accounting

Plaintiff summarily states it is entitled to an accounting of all the monies and property defendants obtained and realized from the specimens. Id. ¶ 45. In Florida, "an accounting is best understood as a remedy for a cause of action, not as a cause of action in its own right." Zaki Kulaibee Establishment v. McFliker, 771 F.3d 1301, 1310 n.21 (11th Cir. 2014). Where a complaint alleges claims for breach of contract and accounting regarding the same facts, as is the case here, both causes of action can only be maintained "by showing `that the accounts between the parties' are of such a complicated nature that only a court of equity can satisfactorily unravel them.'" Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 694 F.Supp.2d 1275, 1279 (S.D. Fla. 2010)(quoting Dairy Queen, Inc. V. Wood, 369 U.S. 469, 478 (1962)). Here, Plaintiff does not argue the accounts are so complicated as to require an accounting. Thus, the Court GRANTS Defendants' Motion regarding this claim.

i. Leave to Amend

A plaintiff may amend the complaint once "as a matter of course" before a responsive pleading is served. Fed. R. Civ. P. 15(a). After that, the "party may amend the party's pleading only by leave of court or by written consent of the adverse party and leave shall be freely given when justice so requires." Id. "Rule 15's policy of favoring amendments to pleadings should be applied with `extreme liberality.'" United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (internal quotations and citation omitted).

While Plaintiff previously amended its Complaint, this was not in response to the Court finding the Complaint was deficient. Because the biggest issues with Plaintiff's allegations are that they do not contain sufficient facts or do not clarify that they are being pleaded in the alternative, there is a strong chance that amendment will cure these deficiencies. Accordingly, the Court GRANTS LEAVE TO AMEND.

III. CONCLUSION

Based on the foregoing, the Court GRANTS Defendants' Motion to Dismiss for Lack of Jurisdiction as to Dawoud and DENIES Defendants' Motion to Dismiss for Lack of Jurisdiction as to Defendants Outreach, Health, and Bio Labs. The Court also DENIES Plaintiff's request for judicial discovery as to Dawoud, and DENIES AS MOOT Plaintiff's request for judicial discovery as to Defendants Outreach, Health, and Bio Labs. The Court DENIES Defendants' Motion to Dismiss for failure to state a claim as to Plaintiff's breach of implied contract claim. Further, the Court GRANTS Defendants' Motion to Dismiss for failure to state a claim as to the following: (1) deceit/negligent misrepresentation, (2) breach of oral contract, (3) common counts, (4) unjust enrichment, and (5) accounting. Plaintiff is granted 21 days leave to file an Amended Complaint.

IT IS SO ORDERED.