United States District Court,

M.D. Louisiana.

Larry DELOACH, et al

v.

HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, et al.

 

Civil Action No. 13–33–BAJ–SCR.

Jan. 10, 2014.

 

Corey J. Hebert, Charles R. Moore, Moore, Thompson & Lee, APLC, Baton Rouge, LA, for Larry Deloach, et al.

 

Jean E. Lavidalie, Jr., Guy D. Perrier, Perrier & Lacoste, New Orleans, LA, for Hartford Accident and Indemnity Insurance Company, et al.

 

RULING ON MOTION FOR SANCTIONS

STEPHEN C. RIEDLINGER, United States Magistrate Judge.

*1 Before the court is the Motion for Sanctions Filed by Plaintiffs. Record document number 14. The motion is opposed.FN1

 

FN1. Record document number 16.

 

Defendant Heavenly Trucking Corporation removed the case to this court on January 14, 2013, and although defendant Alvaro Castillo had not yet been served he consented to the removal.FN2 Defendant Castillo waived service and then filed an answer on April 3, 2013.FN3 At that time and since then defendant Castillo has been represented by the same attorney of record.

 

FN2. Record document number 1, Petition for Removal, ¶ 13.

 

FN3. Record document numbers 6 and 7, respectively.

 

Plaintiffs sought to depose Castillo, and to that end, over the course of more than five months, attempted to schedule his deposition. With the fact discovery completion deadline nearing, the plaintiffs noticed the defendant’s deposition for October 17, 2013. But because the defendant’s attorney could not find his client, the defendant’s attorney notified the plaintiffs’ attorney that the defendant would not appear for his deposition. Plaintiffs again noticed the defendant’s deposition, this time for December 2, 2013, but this time the plaintiffs also sent a notice of the deposition to the defendant by certified mail. The mail was received November 18, 2013.FN4 Defendant again failed to appear.

 

FN4. The certified mail receipt was not signed by the defendant. Record document number 14–4, p. 4. The relationship of the person signing the receipt, Claudia Hernandez, to the defendant is not explained. However, according to the plaintiffs, the address to which the mail was sent is the address for the defendant provided by his current employer. Record document number 14–1, supporting memorandum, p. 3, n. 5.

 

Plaintiffs have done more than what Rule 30, Fed.R.Civ.P., required of them to obtain the defendant’s deposition. Defendant’s failure to appear—twice—without even an explanation, much less an acceptable excuse, warrants the imposition of sanctions under Rule 37(d), Fed. R.Civ.P. That the defendant’s attorney cannot find his client is no reason to excuse the defendant’s failure to appear. It is clearly the defendant’s responsibility to keep in touch with his attorney regarding proceedings in this case and to cooperate in discovery.

 

Defendant argued that if a sanction is imposed, it should be some sanction less than the severe sanction of prohibiting the defendant from testifying. Defendant argued that there are lesser sanctions that are more appropriate, but the defendant did not suggest any particular lesser sanction which he contends would be appropriate.

 

Plaintiffs argued that the defendants alleged that plaintiff Larry Deloach created an emergency situation, thereby making him solely or partially at fault in causing of the accident.FN5 Therefore, plaintiffs argued, defendant Castillo’s testimony would be relevant to this defense.

 

FN5. See record document number 7, Answer to Petition for Damages filed by defendant Alvaro Castillo, ¶ 20; record document number 8, Answer to Petition for Damages filed by defendants Heavenly Trucking Corporation and Hartford Accident and Indemnity Company, ¶ 20. See also record document number 15–1, defendants’ List of Contested Facts, no. 2 (contesting that plaintiff Deloach safely changes lanes and then stopped safely).

 

A lesser sanction than prohibiting the defendant from testifying would not be effective. The court considered striking defendant Castillo’s comparative fault defense as a sanction.FN6 While such a sanction would be an effective sanction to him, it would leave open the possibility that defendant Castillo could appear at the trial to offer testimony in support of the comparative fault defense asserted by the other defendants. Permitting defendant Castillo to testify in support of the other defendants’ comparative fault defense would be grossly unfair and seriously prejudicial to the plaintiffs. This is so because even if the plaintiffs would obtain a judgment against defendant Castillo in the absence of a comparative fault defense as to him, they might not be able to obtain a judgment, or obtain only a reduced judgment, against the other defendants who would still have their comparative fault defense-supported by defendant Castillo’s trial testimony.

 

FN6. The court has also considered other sanctions, including lesser ones such as a fine or staying the case until he is deposed, as well as the more serious one of entering a default judgment against defendant Castillo. A fine would likely not be paid by the defendant and staying the case would be unfair to the plaintiffs since a stay would likely require the trial to be continued. Ordering the defendant to appear for a deposition would likely not be effective since there is no reason to believe he could be notified, and if notified that he would comply with the order. Entry of a default judgment would be effective as to defendant Castillo. But his failure to appear for his deposition twice, while a very serious matter, is not so egregious as to warrant entry of a default judgment. Moreover, the plaintiffs have already moved for summary judgment on the issue of liability. Record document number 14, Motion for Partial Summary Judgment on the Issue of Liability Filed by Plaintiffs.

 

*2 There is no suggestion that either of the other defendants had anything to do with defendant Castillo’s failure to appear for his deposition. But if some party is to be disadvantaged as a consequence of defendant Castillo’s failure to appear for his deposition, in the circumstances of this case the disadvantaged party should be defendants Heavenly Trucking Corporation, which was defendant Castillo’s employer, and Hartford Accident and Indemnity Company, which is his insurer.

 

Pursuant to Rule 37(d)(3), the plaintiffs also sought an award of expenses incurred in connection with defendant Castillo’s second noticed deposition and this motion. Such an award is appropriate since defendant Castillo’s failure to appear for his deposition was not substantially justified and no circumstances anything to support a particular amount of expense. Therefore, the plaintiffs will be given an opportunity to do so. The award will be entered against defendant Castillo personally, as there is no reason to impose it against the other defendants or their attorney.

 

Accordingly, the Motion for Sanctions Filed by Plaintiffs is granted. Defendant Alvaro Castillo shall not be permitted to supply any evidence at any trial or hearing, or on any motion.

 

Plaintiffs are awarded their reasonable expenses incurred in connection with the defendant’s attempted second deposition and this motion, the amount to paid by defendant Castillo. Plaintiffs shall have until January 21, 2014 to file an affidavit and documents sufficient to establish the amount of their expenses, and the defendant shall have seven days after the plaintiffs’ filing to file a response. Thereafter, a supplemental ruling as to the award of expenses will be issued.

United States District Court,

S.D. Florida.

TASTE TRACKERS, INC., a Florida corporation, Plaintiff,

v.

UTI TRANSPORT SOLUTIONS, INC., an Oregon corporation, Defendant.

 

No. 13–23377–CIV.

Jan. 14, 2014.

 

Michael Ira Bernstein, The Bernstein Law Firm, Miami Beach, FL, for Plaintiff.

 

Andrew Robert Spector, Robert Mark Borak, Spector Rubin, P.A., Miami, FL, for Defendant.

 

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

JAMES I. COHN, District Judge.

*1 THIS CAUSE is before the Court upon Defendant UTI Transport Solutions’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and More Definite Statement Pursuant to 12(e) [DE 16] (“Motion”). The Court has considered the Motion, Plaintiff’s Response [DE 19] (“Response”), Defendant’s Reply [DE 28], the record in the case, and is otherwise fully advised in the premises.

 

I. BACKGROUND

Plaintiff Taste Trackers, Inc. (“Plaintiff”) commenced this action against Defendant UTI Transport Solutions, Inc. (“Defendant”) on September 18, 2013. According to the Complaint, Defendant provides third party transportation services to its customers. Complaint [DE 1] ¶ 3. Plaintiff distributes wholesale perishable goods which must be delivered to its customers within a short time period. Id. ¶¶ 5, 7. Trade Link Capital, Inc. runs Plaintiff’s business operations, including arrangement of third-party transportation services. Id. ¶ 6. Plaintiff contends that it has utilized the services of Defendant to transport its goods since May 2011. Id. ¶ 9. These transportation services were arranged through Defendant’s agent, Van Logistics Worldwide, Inc. (“VLW”) Id. Defendant procured third-party trucking services to pick up and deliver Plaintiff’s goods. Id. ¶ 11. Defendant was paid after delivery of the goods. Id. ¶ 12.

 

According to Plaintiff, on or about August 6, 2013, Plaintiff’s managing director Israel Fellig, contacted Jason Lewis of VLW to arrange transport for two freight loads from Miami, Florida, to Gibbstown, New Jersey. Id. ¶ 16. Day Logistics, LLC (“Day”) was selected as the trucking company to transport both freight loads. Id. ¶ 18. Both loads were picked up on August 12, 2013, but neither load reached the New Jersey destination as scheduled on August 13, 2013. Id. ¶ 21. On or about August 11, 2013, Mr. Fellig contacted Mr. Lewis to arrange transport of a third freight load from Miami, Florida, to Gibbstown, New Jersey. Id. ¶ 28. Day was also selected to transport this load. Id. ¶ 30. On August 13, 2013, a driver from Day picked up the third freight load. Id. ¶ 32. The goods were never delivered to the warehouse in New Jersey as scheduled on August 14, 2013. Id. ¶ 33.

 

Plaintiff brings claims against Defendant for breach of oral contract and negligence. Both claims are premised on the theory that VLW was acting as Defendant’s agent. Defendant has now moved to dismiss the Complaint on the grounds that it fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for failure to join indispensable parties. Alternatively, Defendant seeks a more definite statement pursuant to Rule 12(e). Plaintiff opposes the Motion.

 

II. DISCUSSION

A. Legal Standard.

Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue of law, the factual allegations of the complaint cannot support the asserted cause of action.   Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.2006). Indeed, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

 

*2 Nonetheless, a complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiff’s favor. Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Id. Accordingly, a well pleaded complaint will survive a motion to dismiss “ ‘even if it appears that a recovery is very remote and unlikely.’ ” Id. at 556.

 

Federal Rule of Civil Procedure 12(e) provides that a party “may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). “A Rule 12(e) motion is appropriate if the pleading is so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith, without prejudice to [itself].” Ramirez v. FBI, No. 8:10–cv–1819–T–23TBM, 2010 WL 5162024, at *2 (M.D.Fla. Dec.14, 2010) (quoting Sun Co., Inc. O & M) v. Badger Design & Constr., Inc., 939 F.Supp. 365, 368 (E.D.Pa.1996) (internal quotation marks omitted)). Such a motion “is intended to provide a remedy for an unintelligible pleading, rather than a vehicle for obtaining greater detail.” Id. (quoting Aventura Cable Corp. v. Rifkin/Narragansett S. Fla. CATV Ltd. P’ship, 941 F.Supp. 1189, 1195 (S.D.Fla.1996) (internal quotation marks omitted)).

 

B. Plaintiff’s Failure to Adequately Plead Agency Warrants Dismissal of the Complaint.

Defendant first argues that inconsistencies and contradictions in the Complaint warrant dismissal or a more definite statement. Motion at 4. Specifically, Defendant argues that the Complaint fails to allege any facts supporting an agency relationship with VLW or details regarding the role of Trade Link Capital in this litigation.FN1 Id. In opposition, Plaintiff contends that “the Complaint unequivocally and explicitly states that VLW is Defendant’s agent.” Response at 5 (emphasis omitted). Plaintiff also states that it has not made any claims of apparent agency against Defendant. Id. at 9.FN2 For the reasons discussed below, the Court disagrees and will dismiss the Complaint for failure to adequately allege agency.

 

FN1. Defendant additionally alleges that Plaintiff’s failure to bring suit against Day justifies dismissal of the Complaint. Motion at 4. This argument will be analyzed in Section II.E, infra.

 

FN2. Because Plaintiff concedes that it is not making an argument for apparent agency, the Court will not address this issue.

 

Under Florida law, to plead a claim for actual agency, a complaint must allege: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Fernandez v. Fla. Nat’l Coll., Inc., 925 So.2d 1096, 1101 (Fla.Dist.Ct.App.2006) (quoting Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990)). Here, the Complaint’s sole reference to agency is Paragraph 16’s statement that VLW is Defendant’s agent. Compl. ¶ 16. Under Florida law, this conclusory allegation is insufficient to establish agency. As the Eleventh Circuit stated in Virgilio v. Ryland Group, Inc., 680 F.3d 1329 (11th Cir.2012), “the critical element of an agency relationship [is] that the principal exercised, or had the ability to exercise, control over the agent.” Id. at 1336. Here, the Complaint contains no allegation that Defendant controlled VLW. Accordingly, because both counts of the Complaint are premised upon an agency theory, the Complaint must be dismissed for failure to state a claim.FN3

 

FN3. Although dismissal of the Complaint is proper based on Plaintiff’s failure to adequately address agency, the Court has also considered Defendant’s other arguments in favor of dismissal so that Plaintiff may cure any additional pleading defects in an amended complaint.

 

C. Plaintiff Has Failed to Plead All Elements Essential for a Breach of Oral Contract Claim.

*3 Defendant also argues that Plaintiff fails to state a claim for breach of an oral contract because Plaintiff failed to allege the specifics of the oral agreement such as mutual formation, consideration, and breach. Motion at 4–5. Plaintiff argues that the plain language of the Complaint supports that it has adequately stated a claim for breach of an oral contract. Response at 7.

 

Under Florida law, “[t]o prove the existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms.” Uphoff v. Wachovia Sec., LLC, No. 09–80420–CIV, 2009 WL 5031345, at *2 (S.D.Fla. Dec.15, 2009) (citing St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla.2004)). Furthermore, “[t]o state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain and definite proposition’ and left no essential terms open.” W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 299 (Fla.Dist.Ct.App.1999) (citation omitted). Here, the Complaint, as currently drafted, fails to reflect all material terms of the alleged oral agreement. For example, the Complaint is devoid of any mention of the compensation Defendant was to receive for arranging the transport of Plaintiff’s goods. Additionally, as Defendant points out, it is unclear whether Plaintiff conveyed the delivery schedule to VLW for any of the loads. See Motion at 5. Thus, Plaintiff’s failure to identify material terms of the alleged oral contract mandates dismissal of this claim.

 

D. Plaintiff Has Adequately Alleged that Defendant Owed Plaintiff a Duty.

Next, Defendant contends that Plaintiff’s negligence claim fails because Plaintiff fails to recite facts describing the source of the alleged duty Defendant owed Plaintiff. Motion at 6. In response, Plaintiff argues that it has adequately alleged the elements of a negligence claim, including duty. Response at 8.

 

“[T]o state a claim for negligence under Florida law, a plaintiff must allege that the [Defendants] owed the plaintiff a duty of care, that [Defendants] breached that duty, and that the breach caused plaintiff to suffer damages.”   Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir.2001). Under Florida law, a “duty can arise from four sources including (1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” See Insua v. JD/BBJ, LLC, 913 So.2d 1262, 1263 (Fla.Dist.Ct.App.2005) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003)). Here, the Complaint alleges that the selection of the third-party transportation company was left to Defendant’s discretion because it “specialize[d] in providing solutions for commercial shipping needs.” Compl. ¶ 48. The Complaint further states that Defendant owed Plaintiff a duty to conduct due diligence on the transportation company it selected to transport Plaintiff’s goods. Id. ¶ 49. The Court finds that these allegations sufficiently state that Defendant owed Plaintiff a duty under the facts of this case.FN4

 

FN4. As discussed above, however, the negligence claim must still be dismissed for failure to properly plead agency.

 

E. Dismissal of the Complaint is Not Warranted for Failure to Join Necessary and Indispensable Parties.

*4 Finally, Defendant moves to dismiss the Complaint based on Plaintiff’s failure to join all necessary parties. Motion at 6–8. Defendant argues that both Trade Link Capital and Day are necessary parties to this action because “the alleged misdelivery of cargo would affect one or all of the non-parties which have not been brought into this action.” Id. at 7. In opposition, Plaintiff contends that only Defendant is a necessary party to this action. Response at 9. The Court agrees. As the Eleventh Circuit, has explained:

 

Rule 19 states a two-part test for determining whether a party is indispensable. First, the court must ascertain under the standards of Rule 19(a) whether the person in question is one who should be joined if feasible. If the person should be joined but cannot be (because, for example, joinder would divest the court of jurisdiction) then the court must inquire whether, applying the factors enumerated in Rule 19(b), the litigation may continue.

 

Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir.1982). In making the first determination—i.e., whether the party in question “should be joined,” “ ‘pragmatic concerns, especially the effect on the parties and the litigation,’ control.” Id. (quoting Smith v. State Farm Fire & Cas. Co., 633 F.2d 401, 405 (5th Cir.1980)); see also In re Torcise, 116 F.3d 860, 865 (11th Cir.1997) (“[F]indings of indispensability must be based on stated pragmatic considerations, especially the effect on parties and on litigation.”).

 

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1280 (11th Cir.2003). Here, both Plaintiff’s causes of action are premised upon the actions or inactions of Defendant, acting through its agent VLW. Under the facts alleged in the Complaint, neither Trade Link Capital or Day FN5 are necessary to resolve these claims. Because the Court may afford complete relief without any additional parties, dismissal of the Complaint based upon failure to join indispensable parties is not warranted.

 

FN5. Although Defendant asserts that these parties are indispensable, in the Motion, Defendant also cites Rule 20 which involves permissive, not required joinder of parties. See Motion at 7. Under Rule 12(b)(7), only failure to join a necessary party under Rule 19 may result in dismissal of the Complaint. Fed.R.Civ.P. 12(b)(7). Defendant has failed to meet its burden of showing that the Court cannot accord complete relief without the joinder of an absent party or that the interest of any non-party will be impaired by their absence from this litigation. See Sparta Ins. Co. v. Poore, No. 1:13–CV–1692–VEH, 2013 WL 6243707, at *2 (N.D.Ala. Dec.3, 2013) (“The proponent of a motion to dismiss under 12(b)(7) has the burden of producing evidence showing the nature of the interest possessed by an absent party and that the protection of that interest will be impaired by the absence.”) (quotation omitted). Here, the Motion merely speculates regarding the interests of these non-parties.

 

III. CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:

 

1. Defendant UTI Transport Solutions’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and More Definite Statement Pursuant to 12(e) [DE 16] is GRANTED to the extent it seeks dismissal of the Complaint; and

 

2. Plaintiff shall file an Amended Complaint on or before January 24, 2014.

 

DONE AND ORDERED.