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Page 1
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
United States District Court,
S.D. Florida.
Jorge Eduardo Pimienta BONILLA, a sole proprietorship d/b/a Creagraf, Plaintiff
v.
CRYSTAL GRAPHICS EQUIPMENT, INC., Defendant.
No. 11–21470–Civ.
Feb. 2, 2012.
Lissette M. Carreras, Law Office of Alexis Gonzalez, P.A., Alexis Gonzalez, Miami, FL, for Plaintiff.
I. BACKGROUND
This action arises from one disputed transaction for the sale of goods. The facts set forth here are taken from the
Plaintiff's Complaint (ECF No. 1). FN1 Plaintiff, Jorge Eduardo Pimienta Bonilla, is the sole proprietor of CRE-
AGRAF, a company organized under the laws of the country of Uruguay. Defendant, Crystal Graphics Equipment,
Inc., is a now-inactive New York corporation that was doing business in Florida.
except for the fourth printing tower, which was damaged.
On around June 11, 2010, Plaintiff paid Defendant $95,000 for the purchase of the printing press. Plaintiff has
attached to his Complaint Defendant's signed invoice reflecting this payment. (ECF No. 1–3). On July 12, 2010,
Defendant shipped the machine to Plaintiff in Montevideo, Uruguay. The shipment arrived on September 3, 2010.
Upon inspection, Plaintiff discovered that the printing press was missing certain parts. Plaintiff informed De-
machine. Despite these efforts, the printing press remains inoperable.
On April 27, 2011, Plaintiff brought this lawsuit, which asserts causes of action for breach of contract, fraudu-
lent misrepresentation, negligent misrepresentation, breach of implied covenant of good faith and fair dealing,
Page 2
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
breach of exp ress warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for
claim upon which relief can be granted.
II. LEGAL STANDARDS
A complaint “must contain ... a short and plain statement of the claim showing that the pleader is entitled to re-
lief.” Fed.R.Civ.P. 8(a)(2). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v.
When considering a motion to dismiss filed under Rule 12(b)(6), the court must accept all of the plaintiff's alle-
gations as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282,
1284 (11th Cir.2008). A court's consideration when ruling on a motion to dismiss is limited to the complaint and any
incorporated exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000).
III. ANALYSIS
Fla. Stat. § 672.201(1).
A contract that does not satisfy the writing requirement may nonetheless be enforceable “[w]ith respect to goods
for which payment has been made and accepted or which have been received and accepted.” Fla. Stat. §
672.201(3)(c). Plaintiff alleges in his Complaint that he paid for the ADAST printing press in full. Plaintiff attaches
to this Complaint the invoice, which is stamped “paid” and contains Defendant's stamp and a signature. These alle-
received.
Fla. Stat. § 672.201(2). This is known as the “merchant exception.” Pursuant to this provision, an oral agree-
ment to sell goods worth over $500 is enforceable where the agreement “is evidenced by a writing which (1) evi-
dences a contract for the sale of goods, (2) is signed by the party to be charged, and (3) specifies a quantity.” Topp,
Inc. v. Uniden Am. Corp., 483 F.Supp.2d 1187, 1214 (S.D.Fla.2007). Additionally, “the writing must be received
Page 3
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
2010 WL 1410558, at *5 (S.D.Fla. Mar.31, 2010).
Plaintiff has sufficiently alleged that he and Defendant are both merchants, as that term is understood under
Florida's UCC. The invoice evidences a contract for the sale of the ADAST printing press, it contains Defendant's
stamp and signature, it specifies the quantity (i.e., 1 used ADAST printing press), and it is dated June 17, 2010, six
however, I must accept all well-pleaded facts as true, including allegations made through incorporated doc-
uments.
B. Fraudulent and Negligent Misrepresentations (Counts II and III)
Plaintiff asserts fraudulent and negligent misrepresentation claims based on Defendant's statements that the
breach of duty apart from a breach of contract.” Id. at 537 (citing Electronic Sec. Sys. Corp. v. Southern Bell Tel. &
Tel. Co., 482 So.2d 518, 519 (Fla.Dist.Ct.App.1986)). There are certain exceptions where a tort action will lie de-
spite the existence of a contract. “Where a contract exists, a tort action will lie for either intentional or negligent acts
considered to be independent from the acts that breach the contract.” HTP, Ltd. v. Lineas Aereas Costarricenses,
S.A., 685 So.2d 1238, 1239 (Fla.1996).
predicated solely upon the failure to perform a promise.” (internal quotation marks omitted)).
C. Breach of Implied Covenant of Good Faith and Fair Dealing (Count IV)
“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its en-
forcement.” Restatement (Second) of Contracts § 205 (1981); see also In re Checking Account Overdraft Litig., 694
D. Breach of Express Warranty, Implied Warranty of Merchantability, and Implied Warrant of Fitness for
Page 4
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Particular Purpose (Counts VI through V)
Plaintiff raises claims for the breach of express warranties, implied warranty of merchantability, and implied
contract outside the Statute of Frauds because he alleges that he paid for the goods and the agreement falls under the
merchant exception. Defendant argues that the inclusion of a disclaimer in the invoice stating that the machine is
sold “as is” precludes these claims.
“A confirming writing that satisfies section 2–201 of the Uniform Commercial Code does not prove the terms
the circumstances to determine whether the disclaimer's language is sufficient to exclude or modify the implied war-
ranties. See Fla. Stat. § 672.316(2), (3).
E. Unjust Enrichment (Count VIII)
Plaintiff simultaneously alleges the existence of a contract and seeks equitable relief under the theory of unjust
See also ThunderWave, Inc. v. Carnival Corp., 954 F.Supp. 1562, 1566 (S.D.Fla.1997).
IV. CONCLUSION
For the reasons provided in this Order, the Defendant's Motion to Dismiss (ECF No. 18) is GRANTED in part
and DENIED in part, as follows:
1. Counts II and III are DISMISSED withoutprejudice.
END OF DOCUMENT
Page 2
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
breach of exp ress warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for
claim upon which relief can be granted.
II. LEGAL STANDARDS
A complaint “must contain ... a short and plain statement of the claim showing that the pleader is entitled to re-
lief.” Fed.R.Civ.P. 8(a)(2). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v.
When considering a motion to dismiss filed under Rule 12(b)(6), the court must accept all of the plaintiff's alle-
gations as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282,
1284 (11th Cir.2008). A court's consideration when ruling on a motion to dismiss is limited to the complaint and any
incorporated exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000).
III. ANALYSIS
Fla. Stat. § 672.201(1).
A contract that does not satisfy the writing requirement may nonetheless be enforceable “[w]ith respect to goods
for which payment has been made and accepted or which have been received and accepted.” Fla. Stat. §
672.201(3)(c). Plaintiff alleges in his Complaint that he paid for the ADAST printing press in full. Plaintiff attaches
to this Complaint the invoice, which is stamped “paid” and contains Defendant's stamp and a signature. These alle-
received.
Fla. Stat. § 672.201(2). This is known as the “merchant exception.” Pursuant to this provision, an oral agree-
ment to sell goods worth over $500 is enforceable where the agreement “is evidenced by a writing which (1) evi-
dences a contract for the sale of goods, (2) is signed by the party to be charged, and (3) specifies a quantity.” Topp,
Inc. v. Uniden Am. Corp., 483 F.Supp.2d 1187, 1214 (S.D.Fla.2007). Additionally, “the writing must be received
Page 3
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
2010 WL 1410558, at *5 (S.D.Fla. Mar.31, 2010).
Plaintiff has sufficiently alleged that he and Defendant are both merchants, as that term is understood under
Florida's UCC. The invoice evidences a contract for the sale of the ADAST printing press, it contains Defendant's
stamp and signature, it specifies the quantity (i.e., 1 used ADAST printing press), and it is dated June 17, 2010, six
however, I must accept all well-pleaded facts as true, including allegations made through incorporated doc-
uments.
B. Fraudulent and Negligent Misrepresentations (Counts II and III)
Plaintiff asserts fraudulent and negligent misrepresentation claims based on Defendant's statements that the
breach of duty apart from a breach of contract.” Id. at 537 (citing Electronic Sec. Sys. Corp. v. Southern Bell Tel. &
Tel. Co., 482 So.2d 518, 519 (Fla.Dist.Ct.App.1986)). There are certain exceptions where a tort action will lie de-
spite the existence of a contract. “Where a contract exists, a tort action will lie for either intentional or negligent acts
considered to be independent from the acts that breach the contract.” HTP, Ltd. v. Lineas Aereas Costarricenses,
S.A., 685 So.2d 1238, 1239 (Fla.1996).
predicated solely upon the failure to perform a promise.” (internal quotation marks omitted)).
C. Breach of Implied Covenant of Good Faith and Fair Dealing (Count IV)
“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its en-
forcement.” Restatement (Second) of Contracts § 205 (1981); see also In re Checking Account Overdraft Litig., 694
D. Breach of Express Warranty, Implied Warranty of Merchantability, and Implied Warrant of Fitness for
Page 4
Slip Copy, 2012 WL 360145 (S.D.Fla.)
(Cite as: 2012 WL 360145 (S.D.Fla.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Particular Purpose (Counts VI through V)
Plaintiff raises claims for the breach of express warranties, implied warranty of merchantability, and implied
contract outside the Statute of Frauds because he alleges that he paid for the goods and the agreement falls under the
merchant exception. Defendant argues that the inclusion of a disclaimer in the invoice stating that the machine is
sold “as is” precludes these claims.
“A confirming writing that satisfies section 2–201 of the Uniform Commercial Code does not prove the terms
the circumstances to determine whether the disclaimer's language is sufficient to exclude or modify the implied war-
ranties. See Fla. Stat. § 672.316(2), (3).
E. Unjust Enrichment (Count VIII)
Plaintiff simultaneously alleges the existence of a contract and seeks equitable relief under the theory of unjust
See also ThunderWave, Inc. v. Carnival Corp., 954 F.Supp. 1562, 1566 (S.D.Fla.1997).
IV. CONCLUSION
For the reasons provided in this Order, the Defendant's Motion to Dismiss (ECF No. 18) is GRANTED in part
and DENIED in part, as follows:
1. Counts II and III are DISMISSED withoutprejudice.
END OF DOCUMENT
