LANCE M. AFRICK, District Judge.
Plaintiff has filed a motion
Plaintiff's complaint alleges that it suffered damages in the amount of $100,000.00 as the result of defendants' actions as well as "lost profits due to [plaintiff's] inability to utilize the Engines [that were the subject of plaintiff's contract with defendants]" and consequential damages.
This proposed order cannot be granted by the Clerk. The proposed judgment awards plaintiff attorney's fees without determining the amount of those fees. The Clerk cannot enter judgment as to that undetermined amount because it is not a "sum certain." See Fed. R. Civ. P. 55(b)(1); Duncan v. Tangipahoa Par. Council, No. 08-3840, 2009 WL 2514150, at *2 (E.D. La. Aug. 12, 2009) (Engelhardt, J.) (holding that the Clerk's entry of a default judgment that contained "no specific assessment of damages" was "improvidently entered and should be set aside"); C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2683 at 416 (3nd ed. 2015) (the Clerk cannot enter a judgment for reasonable attorney's fees).
Furthermore, even with respect to the $300,000.00 requested by plaintiff, the Court concludes that entry of judgment in that amount by the Clerk would be improper. See Dahill Mgmt. LLC v. Moore, No. 09-CV-10934-DT, 2009 WL 1664559, at *2 (E.D. Mich. June 15, 2009) (holding that a request for treble damages and attorney's fees was not a request for a "sum certain" and so could not be granted by the Clerk); Volstad v. Collings, 983 F.2d 1080 (Table), 1993 WL 7251, at *2 (9th Cir. Jan. 13, 1993) (Rule 55(b)(1) "carefully limits the clerk's authority to those cases where the entry of judgment is purely a ministerial act, since sound policy dictates that the clerk should not be invested with discretionary power") (internal quotation marks, notations, and citations omitted).
While the Court must accept pleaded facts as true, it retains the obligation to determine whether those facts state a claim upon which relief may be granted. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001); see also Lindsey, et al. v. Prive Corp., et al., 161 F.3d 886, 893 (5th Cir. 1998) (entry of default judgment is completely within the Court's discretion). Because, for the reasons set forth below, the Court concludes that the factual allegations in plaintiff's complaint do not state a claim for treble damages pursuant to Fla. Stat. § 772.11, a default judgment in the amount of $300,000.00 is not warranted.
The facts alleged in the complaint, which are deemed admitted,
Three weeks later, on Monday, July 20, 2015, when the engines had still yet to be received, Hasselman again informed plaintiff that he expected "delivery to the freight forwarder by Wednesday."
Despite being served,
Accepting as true the allegations of fact in the complaint, the Court finds that plaintiff has sufficiently established that defendants are liable for the $100,000.00 they were advanced by plaintiff.
Under Florida's civil theft statute, "[a]ny person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained" as well as for "reasonable attorney's fees and court costs." Fla. Stat. § 772.11.
Plaintiff claims that "Hasselman's and/or [International Marine]'s failure to return to [plaintiff], and continued unlawful possession of, the Advance Payments constitutes theft or grand theft in the second degree pursuant to F.S.A. § 812.014(1)(a) and (2)(a)(1)."
In order to establish an action pursuant to either statute, "the claimant must prove the statutory elements of theft, as well as criminal intent." Rhodes v. O. Turner & Co., LLC, 117 So.3d 872, 875 (Fla. 4th Dist. Ct. App. 2013) (citing Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th Dist. Ct. App. 2000)). "[I]ntent may be shown by circumstantial evidence." Aspen Investments Corp. v. Holzworth, 587 So.2d 1374, 1376 (Fla. 4th Dist. Ct. App. 1991). However, "a contract claim standing by itself will never support an award of treble damages." Trend Setter Villas of Deer Creek v. Villas on the Green, Inc., 569 So.2d 766, 767 (Fla. 4th Dist. Ct. App. 1990). "Where the property at issue is also the subject of a contract between the parties, a civil theft claim requires additional proof of an intricate sophisticated scheme of deceit and theft." Gersh, 769 So. 2d at 409 (quoting Trend Setter Villas, 569 So.2d at 767). Finally, "[i]t is well-established law in Florida that a simple debt which can be discharged by the payment of money cannot generally form the basis of a claim for conversion or civil theft." Deforest v. Johnny Chisholm Glob. Events, LLC, No. 3:08CV498MCREMT, 2010 WL 1792094, at *12 (N.D. Fla. May 4, 2010) report and recommendation adopted, No. 3:08CV498/MCR/EMT, 2010 WL 2278356 (N.D. Fla. June 4, 2010) (citations omitted).
The allegations in the complaint are not sufficient to permit this Court to conclude that International Marine and Hasselman "knowingly obtain[ed] . . . the property of [plaintiff] with intent to, either temporarily or permanently . . . [d]eprive [plaintiff] of a right to the property or a benefit from the property." See Fla. Stat. § 812.014(1)(a). While plaintiff's complaint clearly demonstrates that defendants violated their agreement with plaintiff, the circumstances alleged do not support the conclusion that defendants obtained plaintiff's money already intending not to follow through with their contractual obligations. Simply put, plaintiff has not alleged an "intricate sophisticated scheme of deceit and theft." Gersh, 769 So. 2d at 409. Accordingly, based on the showing made, treble damages—as well as costs and attorney's fees—are inappropriate under Fla. Stat. § 772.11.
For the foregoing reasons,
While the Court finds that Fla. Stat. § 772.11 does not entitle plaintiff to damages, defendants' breach of contract clearly entitles plaintiff to recover its $100,000.00 pursuant to Florida law. See Murciano v. Garcia, 958 So.2d 423, 423 (Fla. 3d Dist. Ct. App. 2007) (per curiam) (to prevail on a claim for breach of contract under Florida law, the plaintiff must prove "(1) a valid contract; (2) a material breach; and (3) damages"). Accordingly, the Court will enter judgment in favor of plaintiff in the amount of $100,000.00 pursuant to its claim under Florida contract law. The Court declines, however, to enter default judgment with respect to the other three causes of action contained in plaintiff's complaint.
Plaintiff's allegations here are sufficient for the Court to find that Hasselman was a "managerial employee" of International Marine and that his conduct was within the scope of his employment. Accordingly, plaintiff's claims for treble damages should be sustained against both defendants, or against neither defendant.
Specialized Transp. of Tampa Bay, Inc. v. Nestle Waters N. Am., Inc., 356 F. App'x 221, 230 (11th Cir. 2009). Furthermore, "Florida applies the demand requirement to determine the date of loss where no fixed sum was due and no fixed due date was set." Id.
In this case, plaintiff clearly suffered an out of pocket pecuniary loss. Therefore, the Court must only determine whether there was a fixed date of loss. After a series of exchanges, plaintiff contacted defendants on July 29, 2015, demanding a refund of the advance payments if the engines "could not be shipped by the end of the week." R. Doc. No. 1, at 4. On August 10, 2015, Hasselman wrote to plaintiff and agreed that International Marine would refund the advance payments. R. Doc. No. 1, at 4. No refund ever came. On September 25, 2015, counsel for plaintiff made a written demand for the return of the payments. The Court will treat September 25, 2015 as the fixed date of plaintiff's loss, and it will award prejudgment interest beginning on that date.
This being a diversity case, the Court finds that the applicable prejudgment rate of interest is that provided in Fla. Stat. § 55.03. See Boston Old Colony Ins. Co. v. Tiner Associates Inc., 288 F.3d 222, 234 (5th Cir. 2002) ("Under 28 U.S.C. § 1961(a), in diversity cases, post-judgment interest is calculated at the federal rate, while pre-judgment interest is calculated under state law."); Morris-Piard v. Piard, No. 2D13-5661, 2015 WL 7280167, at *1 (Fla. 2d Dist. Ct. App. Nov. 18, 2015) ("Courts [in Florida] apply the statutory judgment interest rate from the date of loss or entitlement under section 55.03 for purposes of calculation of prejudgment interest.") (citing Genser v. Reef Condo. Ass'n, 100 So.3d 760, 762 (Fla. 4th Dist. Ct. App. 2012)); Holston Investments Inc. B.V.I. v. Lanlogistics, Corp., No. 08-21569-CIV, 2010 WL 2495413, at *14 (S.D. Fla. June 18, 2010) (calculating the amount of prejudgment interest in a breach of contract claim under Florida law by using "the statutory rate of interest found in section 55.03 of the Florida Statutes").
