BB In Technology Co. v. JAF, LLC

242 F.R.D. 632, 2007 U.S. Dist. LEXIS 29792, 2007 WL 1203008
CourtDistrict Court, S.D. Florida
DecidedMarch 30, 2007
DocketNo. 06-22592-CIV-UNGARO
StatusPublished
Cited by15 cases

This text of 242 F.R.D. 632 (BB In Technology Co. v. JAF, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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BB In Technology Co. v. JAF, LLC, 242 F.R.D. 632, 2007 U.S. Dist. LEXIS 29792, 2007 WL 1203008 (S.D. Fla. 2007).

Opinion

ORDER ON DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT AND ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT AND COMBINED MOTION TO STRIKE

UNGARO, District Judge.

THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Amended Complaint and Alternative Motion for More Definite Statement and Combined Motion to Strike, filed February 6, 2007. (D.E.24.) Plaintiff filed its response on February 21, 2007. (D.E.29.) Defendants have not filed a reply. The matter is ripe for disposition.

THE COURT has considered the motion and the pertinent portions of the record and is otherwise fully advised in the premises.

By way of background, this is an action arising out of an agreement-allegedly entered between Plaintiff BB In Technology Co. (“BIT”) and Defendant JAF, LLC (“JAF”)-to purchase two Boeing 737-200 aircraft for $7,000,000.00 (the “Contract”), and the false and fraudulent statements Defendants JAF, Aerospace, and Allan Jirón allegedly made to induce BIT to enter into the [634]*634Contract and agree to its subsequent amendments. (Am.Compl.U 1.) Plaintiff has brought a claim for breach of contract against JAF (Count I), and claims for fraudulent inducement (Count II), and negligent misrepresentation (Count III) against JAF, Aerospace, and Alan Jirón. (Am.Compl.U 3.) Plaintiff seeks to recover actual damages, punitive damages, incidental damages, interest, and attorneys’ fees. (Am. Compl. 114.)

FACTS

The Court recites the following facts taken from Plaintiffs amended complaint and accepted as true for the purpose of deciding Defendants’ motion to dismiss. Plaintiff is a shareholder of TransGlobal Airways Corp. (“TransGlobal”) and the designated principal entity in the Contract to purchase two B737-200 aircrafts. (Am.Compl.U 5.) TransGlobal is in the business of international air cargo transportation, and in early 2005, TransGlo-bal’s business growth necessitated the purchase of additional aircraft-speeifically B737-200 aircrafts-for its air cargo operations from the Philippines to several Asian countries. (Am.Compl.U 5.) Edgar Lim is the President of TransGlobal and BIT. (Am.Compl.U 5.)

Aerospace, a Florida corporation, is “a conglomerate of several related corporations including Summit Aerospace, Innovative Technologies, Avionics International, Aerospace Engineering Europe, and Air Operations.” (Am.Compl.U 6.) Aerospace was represented by Jirón and Manuel De Dios, who served as its agents at all relevant times. (Am. Compl.116.) JAF, a Florida limited liability corporation, is a shell entity created by Aerospace and Jirón specifically for the transaction giving rise to this lawsuit. (Am. Compl.H 7.) JAF was represented by Jirón and De Dios, who served as its agents at all relevant times. (Compl.H 7.) Jirón is the Vice President of Aerospace and the Vice-President and co-owner of JAF. (Compl.K 8.) Jirón acted as the authorized agent of Aerospace and JAF at all relevant times. (Compl.118.)

Plaintiff agreed to purchase two 737-220 aircraft from JAF and it entered into a Memorandum of Agreement, dated July 21, 2005 (“MOA”) and three subsequent amendments, the first dated September 19, 2005 (“First Amendment”), the second dated September 30, 2005 (“Second Amendment”), and the third dated December 20, 2005 (“Third Amendment”). (Am. Compl. U 12 & Exs. A, B, C.) Plaintiff characterizes the MOA and the three amendments thereto as constituting the Contract between it and JAF. (Am. Compl.H 12.) Plaintiff alleges that “JAF admitted that it failed to perform its obligations under the Contract and it memorialized that admission when it signed the Undertaking, dated May 4, 2006,” in which JAF “promised to pay BIT liquidated damages of $2,200 for each day after February 10, 2006 that JAF failed to deliver the second aircraft.” (Am. Compl.H 13.)

According to Plaintiff, “Aerospace offered to supply TransGlobal and/or BIT with one 737-200 airplane,” and to “convey the offer, Aerospace sent Jirón, its Vice President, to the Philippines to meet with Edgar Lim, President of BIT and TransGlobal.” (Am. Compl.H 14.) Plaintiff alleges that “to close the deal, Aerospace and Jirón invited Lim to inspect its facilities,” and “[d]uring that May 2005 visit, Jirón showed Lim Aerospace’s repair facilities,” and Jirón represented to Lim and BIT that “Aerospace had multiple sources for the acquisition of the B737-200 aircraft and that Aerospace’s repair and refurbishing facilities would ensure that the aircraft met TransGlobal’s specifications.” (Am.Compl.1i1l 15-16.) Plaintiff claims that “[t]hese representations were falsely and knowingly made to induce BIT into signing the Contract.” (Am.Compl.U 16.)

Jirón later “proposed that BIT purchase two aircrafts instead of one,” and he assured Lim that “buying two planes simultaneously would provide interchangeable functionality and ensure continuity of operations.” (Am. Compl.1l 18.) Plaintiff claims that, “[ijnduced by Aerospace and Jiron’s false representations and, in reliance thereon,” the parties “finalized their agreement by signing the MOA ... on July 21, 2005,” and that JAF, a shell entity created by Aerospace and Jirón, was the Seller and BIT the Buyer for the sale of two B737-200 cargo aircrafts, No. 20536 and No. 20575. (Am. Compl. H19 & Ex. A.) The MOA promised delivery of No. 20536 on August 25, 2005, and No. 20575 on [635]*635September 11, 2005. (Am.Compl.H 20.) According to Plaintiff, “BIT informed JAF, Aerospace, and Jirón that it was critical that JAF deliver the aircrafts on time.” (Am. Compl.H 20.)

Plaintiff alleges that JAF missed both the August and the September delivery deadlines designated in the July 21, 2005 agreement, and that subsequently, Jirón told BIT that “JAF would deliver the aircrafts without further delay.” (Am.Compl.H 21.) Plaintiff alleges that “[i]n reliance on Jiron’s false representations of immediate delivery,” BIT and JAF executed the First Amendment to the MOA on September 19, 2005, pursuant to which Lim and Jirón “agreed to extend the closing of the aircraft purchase to on or before December 1, 2005.” (Am. Compl. H21 & Ex. B.) According to Plaintiff, BIT paid in full for both aircraft. (Am. CompLHH 22-24.) However, despite BIT’s performance of its obligations under the Contract, JAF failed to deliver the first aircraft on time and failed to deliver the second aircraft all together. (Am.Compl.H 25.) Plaintiff alleges that Jirón told Lim that the first aircraft would be delivered soon and that he had to substitute another plane for the second aircraft, No. 20575. (Am. Compl.H 26.) Jirón told Lim that “[i]n lieu of No. 20575 ... Aerospance and JAF would deliver one of two alternative aircraft (either No. 21738 or No. 20917) at BIT’s choice.” (Am.Compl.H 26.) Plaintiff alleges that “Jir-ón represented that No. 21738 had already been paid for and secured by JAF and Aerospace,” but that “[t]hese representations were false and designed to induce BIT to enter into a third amendment.” (Am. Compl.H 27.)

Plaintiff alleges that on December 20, 2005, “induced by Jiron’s fraudulent statements, BIT entered into the Third Amendment with JAF.” (Am. Compl. H 28 & Ex. D.) According to Plaintiff, the parties agreed that: (1) JAF would deliver the first aircraft, No. 20536, by December 30, 2005; (2) JAF would deliver either the No. 21738 by February 10, 2006 or the No. 20917 by March 10, 2006; and (3) JAF would pay BIT a $2,200 a day penalty for each day after February 10, 2006 that it failed to deliver the aircraft. (Am.Compl.H 28.) Just a few days after signing the Third Amendment, Jirón informed Lim that the No.

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242 F.R.D. 632, 2007 U.S. Dist. LEXIS 29792, 2007 WL 1203008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bb-in-technology-co-v-jaf-llc-flsd-2007.