The response to the Florida lawsuit
CASE NO.: 552025CA001054A000MX
AMANDA ELIZABETH BROWN, DRYER
VENT SUPERHEROES OF NORTHEAST
FLORIDA f/k/a DRYER VENT
SUPERHEROES OF JACKSONVILLE, and
JAAM JAX, LLC
PLAINTIFFS,
VS.
DRYER VENT SUPERHEROES
FRANCHISING, LLC, THOMAS SCOTT,
LISA SLATE, & AARON SLATTERY
DEFENDANTS.
___________________________________
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR DAMAGES
Defendants, DRYER VENT SUPERHEROES FRANCHISING, LLC (“DVSF”), and THOMAS SCOTT (“Scott”) (collectively, the “Defendants”), by and through their undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140(b), hereby file their Motion to Dismiss Plaintiff’s Complaint for Damages (“Complaint”), and as grounds thereof state as follows:
1. DVSF is a Tennessee limited liability company that licenses and sells the franchise to companies to operate on its behalf in several states.
2. Scott is an individual and resident of Tennessee and is the founder and CEO of DVSF.
3. On or about March 14, 2025, Brown entered into the Dryer Vent Superheroes of Jacksonville Franchise Agreement (the “Franchise Agreement”) with DVSF. A true and correct copy of the Franchise Agreement is attached to the Complaint as Exhibit A.
4. The Franchise Agreement provided the following provision concerning the method of payment:
6.7 Method of Payment. Franchisee shall, together with the submission of the Gross Revenue Report, pay Franchisor the Royalty Fee, Technology Fee, and the Brand Fund Contribution, then due. At Franchisor’s request, Franchisee must execute documents that allow Franchisor to automatically take the Royalty Fee and Technology Fee due as well as other sums due Franchisor, from business bank accounts via electronic funds transfers. Franchisee’s failure to allow electronic funds transfers on an ongoing basis is a material breach of this Agreement.
5. The Franchise Agreement also provided the following provision, in relevant part, concerning curable defaults,
17.3 Curable Defaults. Franchisee shall be deemed to be in material default and Franchisor may, at its option, terminate this Agreement and all rights granted hereunder, if Franchisee fails to cure the default within the time period set forth in this Section 17.3, effective immediately upon notice to Franchisee, if Franchisee, or any Principal, as the case may be: 17.3.1 fails to pay when due any amounts due to Franchisor under this Agreement or any related agreement and does not correct the failure within ten (10) days after written notice . . . .
6. In addition, the Franchise Agreement provided, in relevant part, the following concerning dispute resolution:
20. DISPUTE RESOLUTION
20.1 Internal Dispute Resolution. Franchisee shall first bring any claim, controversy or dispute arising out of or relating to this Agreement [by] providing notice [in writing, and [] delivered personally or by certified mail or courier.] Franchisee must exhaust this internal dispute resolution procedure before Franchisee may bring Franchisee’s dispute before a third party. This agreement to first attempt resolution of disputes internally shall survive termination or expiration of this Agreement.
20.2 Mediation. At Franchisor’s option, any claim, controversy or dispute that is not resolved pursuant to Section 20.1 hereof shall be submitted to non-binding mediation. Franchisee shall provide Franchisor with written notice of Franchisee’s intent to pursue any unresolved claim, controversy or dispute, specifying in sufficient detail the nature thereof, prior to commencing any legal action. Franchisor shall have up to thirty (30) days following receipt of Franchisee’s notice to exercise Franchisor’s option to submit such claim, controversy or dispute to mediation. Mediation shall be conducted through a mediator or mediators in accordance with the American Arbitration Association Commercial Mediation Rules. Such mediation shall take place in the then- current location of Franchisor’s corporate headquarters. . . .
20.3 Arbitration.
20.3.2 All issues relating to arbitrability or the enforcement of the agreement to arbitrate contained in this Article 20 will be governed by the Federal Arbitration Act (9 U.S.C. §1 et seq.) and the federal common law of arbitration. All hearings and other proceedings will take place in Nashville, Tennessee, or the offices of the American Arbitration Association . . . .
7. Further, the Franchise Agreement provided the following concerning venue:
20.4 Governing Law and Venue. This Agreement is made in, and shall be substantially performed, in the State of Tennessee. Any claims, controversies, disputes or actions arising out of this Agreement shall be governed, enforced and interpreted pursuant to the laws of the State of Tennessee. Franchisee and its Principals, except where specifically prohibited by law, hereby irrevocably submit themselves to the sole and exclusive jurisdiction of the state and federal courts in Tennessee. Franchisee and its Principal(s) hereby waive all questions of personal jurisdiction for the purpose of carrying out this provision.
8. The Franchise Agreement provides the following concerning the contract itself and any oral statements:
23.6 Entire Agreement. This Agreement, including all attachments, is the entire agreement of the parties, superseding all prior written or oral agreements of the parties concerning the same subject matter, and superseding all prior written or oral representations made to Franchisee, except that nothing herein is intended to disclaim any representations made to Franchisee in Franchisor’s Franchise Disclosure Document. No agreement of any kind relating to the matters covered by this Agreement and no amendment of the provisions hereof shall be binding upon either party unless and until the same has been made in writing and executed by all interested parties.
9. To further support the Entire Agreement provision above, Attachment 9 of the Franchise Agreement in the Franchise Closing Acknowledgement contains the following: Was any oral, written or visual claim, statement, presentation or representation made to you on which you relied in making your decision to sign the Franchise Agreement that contradicted the disclosures in the FDD? Check one: (__) Yes (X) No. . . .
10. After entering the Franchise Agreement, Brown assigned the franchise rights to JAAM Jax.
11. Shortly after entering the Franchise Agreement, DVSF terminated the Franchise Agreement for cause, most significantly, for Brown’s refusal to sign the ACH Authorization Form, which is the only permitted method for royalty and technology fee payments under the Franchise Agreement as provided in the Method of Payment section quoted above.
12. Before the Franchise Agreement was terminated, Scott made several attempts to resolve disputes between the Parties amicably, one of which is attached as Exhibit F to the Complaint, but these efforts were ultimately unsuccessful.
13. As provided in Exhibit G of the Complaint, on July 9, 2025, DVSF terminated the Franchising Agreement.
14. On July 31, 2025, Plaintiffs filed the Complaint in this action, in which they allege nine causes of action against Scott and DVSF: declaratory judgment fraudulent inducement to invalidate the arbitration provision (Count I), fraud in the inducement (Count II), violation of Florida’s unfair and deceptive trade practices act (Count III), fraud in the performance of the franchise agreement (Count IV), failure to induce/execute Florida disclosure statement (Count V), prohibited actions under the sale of business opportunities act (Count VI), in the alternative – breach of contract (Count VII), unjust enrichment (Count VIII), and tortious business interference (Count IX).
15. Of note, no written communications were attached to the Complaint that Brown, or any Plaintiff, putting Defendants on notice of any claim, controversy, or dispute under the Franchise Agreement.
MEMORANDUM OF LAW
It is well settled that a motion to dismiss is used to determine whether the complaint has alleged a cause of action upon which relief can be granted. Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996). A motion to dismiss under Rule 1.140(b)(6) of the Florida Rules of Civil Procedure tests the legal sufficiency of a complaint. See McWhirter, Reeves, et al. v. Weiss, 704 So. 2d 214 (Fla 2d DCA 1998); Brock v. Bowein, 99 So. 3d 580, 585 (Fla. 2d DCA 2012). In ruling on a motion to dismiss, a court is required to confine its analysis to the four corners of the complaint, including the attached exhibits, treat all of the complaint’s well-pleaded allegations as true, and resolve all inferences drawn from those allegations in favor of the plaintiff. See Johnson v. Jarvis, 74 So. 3d 168, 170 (Fla. 1st DCA 2011) (citing Sobi v. Fairfield Resorts, Inc., 846 So. 2d 1204, 1206–07 (Fla. 5th DCA 2003)); Thurston v. United States, 760 So. 2d 744, 746 (Fla. 5th DCA 2000).
I. Plaintiffs Failed To Submit Their Claims To Mediation Or Arbitration.
Generally, the three fundamental elements that must be considered when determining whether a dispute is required to proceed to arbitration are: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Arbitration provisions are contractual in nature and remain a matter of contractual interpretation. Id. The intent of the parties to a contract, as manifested in the plain language of the arbitration provision and contract itself, determines whether a dispute is subject to arbitration. Id. Courts generally favor such provisions, and will try to resolve an ambiguity in an arbitration provision in favor of arbitration.
Id.; see also Qubty v. Nagda, 817 So. 2d 952, 956 (Fla. 5th DCA 2002). Two basic types of arbitration provisions have emerged: (1) provisions with language and application narrow in scope, and (2) provisions with language and application broad in scope. Seifert, 750 So. 2d at 636-37. An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies "arising out of" the subject contract. Id. at 636. This type of provision limits arbitration to those claims that have a direct relationship to a contract's terms and provisions. Id. In contrast, an arbitration provision that is considered to be broad in scope typically requires arbitration for claims or controversies "arising out of or relating to" the subject contract. Id. at 637. The addition of the words "relating to" broadens the scope of an arbitration provision to include those claims that are described as having a "significant relationship" to the contract, regardless of whether the claim is founded in tort or contract law. Id. at 637-38.
A "significant relationship" between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Id. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a "contractual nexus" between the claim and the contract. See Id. at 638. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. Id.
Further, Florida courts routinely compel arbitration in cases where a party asserts fraudulent inducement or statutory violations, so long as the alleged fraud relates to the contract as a whole rather than to the arbitration provision itself. Seifert, 750 So. 2d at 636–38; Simpson v. Cohen, 812 So. 2d 588, 590–91 (Fla. 4th DCA 2002) (fraud claims compelled to arbitration where they bore a significant relationship to the contract containing the arbitration clause).
The Franchise Agreement contains a valid and mandatory multi-step dispute-resolution procedure that Plaintiffs contractually agreed to follow. The Franchise Agreement expressly requires written notice and internal escalation, provides for mediation at the Franchisor’s election, and mandates arbitration for disputes “arising out of or relating to” the Agreement, language the parties chose to govern the resolution of controversies between them.
The claims pleaded in the Complaint, even accepting them as true, plainly fall within the Agreement’s broad arbitration/mediation scope because they arise from and are inextricably linked to the parties’ franchise relationship and the Franchise Agreement itself. The Complaint repeatedly invokes the franchise relationship and alleges breaches and disputes that necessarily require reference to, interpretation of, or construction of the contractual documents and franchise obligations, the very types of disputes the parties committed to resolve through the Franchise Agreement’s alternative dispute resolution process. They do not allege any specific misrepresentation directed at the arbitration clause itself.
Notwithstanding the clear contractual prerequisites to judicial relief, Plaintiffs did not satisfy the Franchise Agreement’s mandatory pre-suit requirements. The Complaint alleges that Plaintiffs attempted to internally escalate their contentions, although their efforts are questionable and no written attempts were attached to the Complaint. Assuming for the sake of the argument that Plaintiffs did satisfy the internal dispute resolution precondition under Section 20.1, the Complaint contains no allegation that Plaintiffs participated in mediation or arbitration proceedings prior to filing this action. Instead, Plaintiffs elected to proceed directly to court without first completing the contractually mandated dispute- resolution sequence. This is in complete violation of Section 20.2, which allows Defendants “thirty days (30) days following receipt of Franchisee’s notice” to submit a claim to mediation and/or proceed with arbitration. Based on the allegations of the Complaint, Plaintiff cannot overcome this fatal flaw.
Because there is a valid written agreement to arbitrate and mediate, the claims asserted are arbitrable under the Franchise Agreement’s broad “arising out of or relating to” language. Plaintiffs failed to comply with the Agreement’s mandatory mediation and arbitration prerequisites, and this action is premature and must be stayed or dismissed until Plaintiffs substantially comply with the alternative dispute resolution provisions.
II. In the Alternative, the Complaint Should Be Dismissed For Improper Venue.
Contracting parties have the right to select the venue for their disputes. Baker v. Econ. Rsch. Servs., Inc., 242 So. 3d 450, 452 (Fla. 1st DCA 2018). When parties include a venue selection clause in their contract, that clause is considered mandatory when its plain language conveys the exclusivity of the chosen venue. Signtronix, Inc. v. Annabelle's Interiors, Inc., 260 So. 3d 1186, 1186 (Fla. 1st DCA 2018); Mgmt. Comput. Controls, Inc. v. Charles Perry Const., Inc., 743 So. 2d 627, 631 (Fla. 1st DCA 1999) (venue selection clause with the word "shall" was mandatory); Am. Boxing & Athletic Ass'n, Inc. v. Young, 911 So. 2d 862, 865 (Fla. 2d DCA 2005) ("Forum selection clauses stating that litigation 'must' or 'shall' be initiated in a particular forum are generally considered to be mandatory.").
When a contract includes a mandatory venue clause, a trial court is bound to honor it unless there is "a showing that the clause is unjust or unreasonable." Travel Country RV Ctr., Inc. v. Baxter, 932 So. 2d 547, 548 (Fla. 1st DCA 2006). In determining whether a forum selection clause is unjust or unreasonable, the Court applies a three-part test requiring that: (1) the chosen forum not stem from unequal bargaining power by one of the parties; (2) enforcement of the agreement would not "contravene strong public policy enunciated by statute or judicial fiat in the forum where the litigation is required to be pursued or in the excluded forum"; and (3) "the clause does not transfer an essentially local dispute into a foreign forum." Land O'Sun Mgmt. Corp. v. Com. & Indus. Ins. Co., 961 So. 2d 1078, 1080 (Fla. 1st DCA 2007); see also Manrique v. Fabbri, 493 So. 2d 437 (Fla. 1986). Courts will also decline to enforce a forum selection clause when the clause results from fraud or is not sufficiently conspicuous in the contract. See Golden Palm Hosp., Inc. v. Stearns Bank Nat'l Ass'n, 874 So. 2d 1231, 1235 (Fla. 5th DCA 2004); Norwegian Cruise Line, Ltd. v. Clark, 841 So. 2d 547, 550 (Fla. 2d DCA 2003).
The filing of the Complaint with this Court is a clear violation of the clear and mandatory venue provision of the Franchise Agreement. As provided above, Section 20.5 of the Franchise Agreement expressly designates Tennessee as the exclusive forum for disputes arising from the Franchise Agreement, and requires the parties to submit to the “sole and exclusive jurisdiction” of Tennessee courts. This language is unambiguous and mandatory; the parties did not merely express a preference, they “irrevocably [submitted]” themselves to the jurisdiction of Tennessee state and federal courts. This kind of contractual language conveys exclusivity and makes venue in Tennessee the parties’ chosen and required forum. By filing suit in Palm Beach County, Plaintiffs have disregarded the parties’ contractual choice-of-forum and instead decided to initiate litigation in a forum the Franchise Agreement has excluded.
There is no allegation in the Complaint, nor anything about the nature of the parties, which would demonstrate that the venue provision of the Franchise Agreement was the result of coercion, deception, or other circumstances demonstrating unequal bargaining power. To the contrary, the Complaints pleads a commercial franchise relationship governed by a written, integrated franchise agreement between the parties, a typical arm’s-length commercial contract. There is no factual predicate alleged in the Complaint that the venue provision was imposed in a manner that deprived Plaintiffs of a meaningful choice, and therefore, the first prong of the Land O'Sun Mgmt. Corp test is not satisfied.
The venue provision’s requirement that disputes arising from the franchise relationship be adjudicated in Tennessee does not conflict with any public policy in Florida. See Am. Safety Cas. Ins. v. Mijares Holding Co., 76 So. 3d 1089, 1091 (Fla. 3d DCA 2011) (“Forum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices."). Plaintiffs assert contract-based causes of action arising from the Franchise Agreement Brown signed. These claims do not implicate any of the narrow categories of matters so tied to Florida’s public interests that this Court should feel compelled to override a contractual forum choice. Nothing in the Complaint suggests that Florida law or public policy would be thwarted by requiring this dispute to be adjudicated in Tennessee, and absent a clear showing that enforcement of the venue provision would result in such, the second prong of the Land O'Sun Mgmt. Corp test also fails.
The venue provision further does not improperly convert an essentially local dispute into a foreign forum. The claims in the Complaint arise from the franchise relationship between the parties. A franchise relationship is inherently multi-jurisdictional and is properly the subject of the parties’ designated forum, and the Complaint does not allege facts showing the dispute is essentially local to Palm Beach County in a way that Tennessee courts could not fairly adjudicate it. Aside from the express contemplation of Tennessee being the proper venue for any disputes arising out of the Franchise Agreement, DVSF is a Tennessee LLC and Scott is an individual residing in Tennessee. There is no basis for an argument that Tennessee is in some way a random jurisdiction in relation to the Franchise Agreement, and the claims raised by Plaintiffs are not properly classified as a dispute “local” to Palm Beach County. As such, the third prong of the Land O'Sun Mgmt. Corp test fails, and this action should be dismissed for improper venue.
III. This Court Lacks Personal Jurisdiction.
A. There is No Personal Jurisdiction Over Dryer Venter Superheroes Franchising, LLC. It is well-established that two inquires must be made in determining whether a court may exercise personal jurisdiction over a defendant under Florida's long-arm statute. "'First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements.'" Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989) (quoting Unger v. Publisher Entry Serv., Inc., 513 So. 2d 674, 675 (Fla. 5th DCA 1987)). The constitutional minimum contacts prong "is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement" than the long-arm statute. Execu-Tech Bus. Sys. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000). Both prongs must be satisfied in order to exercise personal jurisdiction over a non-resident defendant. Rollet v. de Bizemont, 159 So. 3d 351, 356 (Fla. 3d DCA 2015).
Under the minimum contacts prong, the nonresident defendant must have "'purposefully availed' [themselves] of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws." Estes v. Rodin, 259 So. 3d 183, 194 (Fla. 3d DCA 2018) (quoting Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). [T]he plaintiff cannot be the only link between the defendant and the forum. . . . To be sure, a defendant's contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties. But the defendant's relationship to the plaintiff, standing alone, is an insufficient basis for jurisdiction. Estes, 259 So. 3d at 194 (quoting Waldon v. Fiore, 571 U.S. 277, 285-86 (2014)).
The Complaint does not, and cannot, establish the constitutionally required “minimum contacts” between DVSF and Florida. Under Florida’s two-step long-arm framework, the Court must first determine whether the pleadings fall within the statutory reach of the long-arm provision and then decide whether the defendant has constitutionally sufficient contacts with the forum. Here, the record shows (and the Complaint itself pleads) only a single, unilateral nexus: Brown is a Florida resident who purchased franchise rights from DVSF. The Complaint contains no allegation that DVSF regularly conducted business in Florida, maintained an office in Florida, solicited or operated a system of franchises in Florida beyond the one sold to Brown, or otherwise purposefully availed itself of Florida’s laws and market in a way that would make DVSF “at home” or subject it to specific jurisdiction for these claims.
The constitutional minimum-contacts inquiry demands purposeful availment. In other words, contacts by which the defendant “invoke[s] the benefits and protections” of the forum state and it is well settled that the plaintiff cannot be the only link between the defendant and the forum. Estes, 259 So. 3d at 194. DVSF’s mere sale of the right to operate a franchise to a Florida resident is, at best, a unilateral connection created by Brown. It does not establish that DVSF directed purposeful, forum-related activities into Florida such that adjudication here would comport with due process. In short, the Complaint pleads nothing showing that DVSF purposefully targeted Florida or that these claims arise out of any DVSF conduct purposefully directed at Florida rather than from Plaintiffs’ independent decision to do business here. Plaintiffs may attempt to rely on pre-contract communications, such as phone calls or provision of the Franchise Disclosure Document, as Florida contacts. However, such communications with a Florida resident, without more, are insufficient to constitute purposeful availment under the Due Process Clause. See Walden v. Fiore, 571 U.S. 277, 285–86 (2014) (relationship with a forum resident, standing alone, cannot support jurisdiction); see also Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1169–70 (11th Cir. 2005) (communications into forum incidental to contract formation do not establish jurisdiction absent further forum-directed activity).
Furthermore, DVSF specifically contracted for all claims related to the Franchise Agreement to be adjudicated in the state or federal courts of Tennessee, as shown by the venue provision of the Franchise Agreement. Accordingly, DVSF did not receive fair notice from theFranchise Agreement that it might be subject to suit in Florida. See Burger King v. Rudzewicz, 471 U.S. 462, 487 (1985). Because the minimum-contacts prong of the long-arm analysis is not satisfied, this Court lacks personal jurisdiction over DVSF.
B. There is No Personal Jurisdiction Over Thomas Scott. The corporate shield doctrine provides that personal jurisdiction cannot be exercised over a nonresident corporate employee sued individually for acts performed in a corporate capacity. Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993). "The rationale of the doctrine is 'the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer.'" Id. at 1006 (quoting Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956 (N.H.1987)).
Although the corporate shield doctrine generally insulates any nonresident corporate officer acting on behalf of his employer, an exception exists "[w]here an individual, nonresident defendant commits negligent acts in Florida, whether on behalf of a corporate employer or not[.]" Kitroser v. Hurt, 85 So. 3d 1084, 1090 (Fla. 2012). In Kitroser, the complaint alleged that "while the [corporate] employees were personally in Florida, each engaged in some form of negligent conduct, either by training or supervision of [the employee] or both, which contributed to [the decedent]'s death." Id. at 1089. Because the torts were allegedly committed within the state, the Florida supreme court held that "[t]he corporate shield doctrine, therefore, is inapplicable and does not exclude the [corporate] employees from the exercise of personal jurisdiction by Florida courts." Id. The supreme court distinguished Doe, reasoning that in that case, the defendant's "out-of-state activities alone did not form a predicate for in-state jurisdiction." Id. at 1089 (emphasis added).
The Complaint contains no allegation that Scott was ever physically present in Florida or that he personally committed any negligent act here. Instead, the pleading attributes alleged wrongdoing to the franchisor and to system-wide franchise documents and policies. Under the corporate-shield doctrine, nonresident corporate officers sued for acts performed in a corporate capacity cannot be haled into a forum based solely on the corporation’s contacts. The narrow Kitroser exception, which permits jurisdiction where an individual defendant personally commits negligent acts in Florida, is therefore the only potential basis to defeat the corporate shield in this case. The Complaint pleads no such facts. Because Plaintiffs have not alleged that Scott was ever in Florida or that he personally engaged in in-state tortious conduct, the Kitroser exception does not apply and the corporate-shield doctrine bars the exercise of personal jurisdiction over him. Nor does the Complaint allege that Scott made any specific misrepresentation or omission in Florida or otherwise engaged in conduct purposefully directed at this forum in his personal capacity. Without allegations of in-state,personal tortious conduct, jurisdiction cannot be exercised over him individually. See Thompson, 620 So. 2d at 1006; Kitroser, 85 So. 3d at 1090.
Additionally, because the alleged wrongful acts consist of system-wide representations and corporate decisions implemented through DVSF, Plaintiffs have not pled any personal duty Scott owed to them apart from his corporate role. The absence of such allegations independently requires dismissal of all claims against him in his individual capacity. See White, 918 So. 2d at 358; E&A Produce, 864 So. 2d at 448. The Court should therefore dismiss Scott for want of personal jurisdiction.
IV. The FDUTPA Claim Fails Because This Is Not a Consumer Transaction.
To state a claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), a plaintiff must allege: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). FDUTPA is intended to protect consumers engaged in the purchase of goods or services for personal, family, or household purposes. Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So. 3d 164, 167 (Fla. 4th DCA 2015).
Courts have routinely declined to apply FDUTPA to purely commercial transactions between businesses where the goods or services are not primarily for personal consumption. See Off Lease Only, Inc. v. LeJeune Auto Wholesale, Inc., 187 So. 3d 868, 870–71 (Fla. 3d DCA 2016). The transaction alleged here, the sale of a commercial franchise to operate a business, is a business-to-business transaction outside the consumer marketplace. Plaintiffs do not allege that they purchased the franchise for any personal, family, or household use. Because the Complaint alleges a purely commercial dispute, Count III fails to state a cause of action under FDUTPA and should be dismissed with prejudice.
V. Plaintiffs’ Fifth and Sixth Causes of Action Fail as a Matter of Law Under the Sale of Business Opportunities Act.
Florida’s Sale of Business Opportunities Act under Sections 559.801–559.815, Florida Statutes (“SBOA”), excludes from its scope “the sale of a franchise as defined by 16 C.F.R. 436.1” where the franchisor complies with the FTC Franchise Rule and applicable state franchise laws. See Fla. Stat. § 559.802. The Complaint affirmatively alleges that Defendants provided a Franchise Disclosure Document governed by the Federal Trade Commission Franchise Rule. This alone brings the transaction within the statutory exemption and outside the reach of the SBOA.
Moreover, Defendants satisfied all statutory prerequisites to the exemption by timely filing and maintaining their Annual Franchise Notice of Exemption with the Florida Department of Agriculture and Consumer Services for the relevant time period. See § 559.802, Fla. Stat. Because the SBOA does not apply to exempt franchise transactions, Counts V and VI are legally insufficient and should be dismissed with prejudice.
VI. All Claims Against Thomas Scott Individually Are Improper
“For individual liability to attach, however, the plaintiff must establish the corporate officer or agent was ‘actively negligent.’” Navarro v. Borges, 388 So. 3d 1044, 1047 (Fla. 3rd DCA 2024), (quoting White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. 1st DCA 2005). Even allegations of mere passive negligence are insufficient in supporting a cause of action which imposes individual liability. See White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. 1st DCA 2005). To establish liability, the complaining party must “allege and prove that the officer or agent owed a duty to the complaining party, and that the duty was breached through personal (as opposed to technical or vicarious) fault.” Id. “A corporate officer or agent must be alleged to have acted tortiously in his individual capacity in order to be individually liable.” White-Wilson Med. Ctr. V. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986).
If a plaintiff fails to plead that the employee acted outside the scope of his employment or constituted actively negligent conduct, the complaint should be dismissed. See E&A Produce Corp. v. Olmo, 864 So. 2d 447, 448 (Fla. 3rd DCA 2003) (affirming summary judgement in favor of corporate officer, holding the absence of competent evidence of wrongdoing that would make an employee personally or individually liable, the trial court was correct to enter Final Summary Judgement in the defendant’s favor). When no legal basis exists for individual liability, the trial court does not err in dismissing the individual employee from the case. Orlovsky v. Solid Surf, 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981).
The Complaint fails to plead the essential elements required to impose individual liability on a corporate officer because it contains no factual allegations that Scott was actively negligent and breached a duty owed to Plaintiffs through personal, tortious conduct rather than through the corporation’s acts or acts outside the scope of Scott’s employment. The Complaint’s allegations are directed at the franchisor and the franchise program as corporate entities, repeatedly relying on system-wide representations, disclosure documents, and the Franchise Agreement itself, and attributes wrongful conduct to the corporate franchisor rather than to any specific, personal acts by Scott. Nowhere does the Complaint allege that Scott personally directed or participated in the alleged wrongful conduct or otherwise assumed a personal duty to Plaintiffs that he breached through individual action. Because mere corporate titles, generalized reference to corporate decision-making, or allegations of corporate wrongdoing are insufficient to impose personal liability, the Complaint’s failure to plead Scott’s active negligence is fatal to any claim against him.
Throughout the course of Scott’s relationship with Plaintiffs, he merely acted as an officer of DVSF, and the Complaint fails to allege that Scott acted outside of the scope of that employment. In short, Plaintiffs pleads only passive or vicarious corporate conduct and not the kind of personal, tortious conduct required to hold an officer individually liable. The claims raised in the complaint would more properly be directed at DVSF alone. Therefore, Scott should be dismissed from this action in its entirety for failure to state a claim against him in his individual capacity.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Complaint should be dismissed. In the alternative, Causes of Action Three, Five, and Six should be dismissed as a matter of law against DVSF and all Causes of Action against Scott should be dismissed as a matter of law for the reasons provided above. Accordingly, Defendants respectfully request that this Court enter Order granting the same and awarding such other and further relief as the Court deems just and proper.
JIMERSON BIRR, P.A.
By: /s/ Curtis L. Campbell
Curtis L. Campbell
Florida Bar No. 1030744
ccampbell@jimersonfirm.com
701 Riverside Park Place
Jacksonville, FL 32204
Telephone: (904) 389-0050
Facsimile: (904) 212-1269
aprild@jimersonfirm.com
fileclerk@jimersonfirm.com
Attorney for Dryer Vent Superheroes Franchising, LLC and Thomas Scott
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing was furnished to the below recipients via e-mail or U.S. Mail on this 15th day of August 25.
BLACK LAW P.A.
Kelsey K. Black
kb@blacklawpa.com
Patrick Wier
pw@blacklawpa.com
1401 East Broward Boulevard
Victoria Park Centre, Suite 304
Fort Lauderdale, FL 33301
/s/ Curtis L. Campbell
Attorney
Comments
Post a Comment