TUCKER v. BLACKFISK MARINE LLC (2023)

ORDER ON DEFENDANT BLACKFISK MARINE, LLC'S MOTION FOR LEAVE TO AMEND ITS MOTION TO DISMISS TO INCLUDE A DEFENSE OF IMPROPER VENUE

THIS CAUSE is before the Court upon Defendant Blackfisk Marine, LLC's Motion for Leave to Amend its Motion to Dismiss to Include a Defense of Improper Venue (the “Motion”) [DE 79], filed on January 17, 2023. The Court has carefully considered the Motion, Plaintiff's Response [DE 84], Defendant Jean Traynor's Response ¹ [DE 90], notes that no timely Reply was filed, and is otherwise fully advised in the premises.

On October 20, 2022, Plaintiff filed the instant action against Defendants Blackfisk Marine, LLC (“Blackfisk”) and Jean Traynor (“Traynor”) arising out of a promissory note and security agreement between Plaintiff and Defendants. See [DE 1]. In the Complaint, Plaintiff brings claims against both Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud in the inducement. See id. Plaintiff also brings claims against Blackfisk only for foreclosure of security interest in personal property and replevin. See id.

On November 11, 2022, Traynor filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).² See [DE 21]. On December 12, 2022, Blackfisk also filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See [DE 35]. Both Motions were fully briefed by the parties.³ On January 17, 2023, Blackfisk filed the instant Motion, requesting to amend its Motion to Dismiss to include an improper venue defense based on the promissory note's forum selection clause. Blackfisk asserts that such amendment is proper because: (1) the case is at the early stages of litigation, and the Court has not yet ruled on its Motion to Dismiss; (2) little time as passed, as Blackfisk's Motion to Dismiss was filed only a little over a month ago; (3) Blackfisk inadvertently omitted its improper venue defense in the original Motion to Dismiss; and (4) Blackfisk has not acted in bad faith.

Plaintiff argues that Blackfisk's Motion should be denied for numerous reasons. First, Plaintiff asserts that there is no mechanism, federal rule, or local rule by which Blackfisk can seek to amend a motion to dismiss. But even if such mechanism existed, Plaintiff argues, Blackfisk has waived its right to challenge venue because: (1) Blackfisk has substantially participated in this litigation for three months, including by attending at least three hearings and filing numerous briefs; and (2) Blackfisk failed to raise its improper venue defense in its original Motion to Dismiss. Second, Plaintiff contends that amendment is futile as the most obvious forum for this dispute is this Court, where both Defendants are located, where the property subject of this dispute is located, where the majority of witnesses are located, and where the facts giving rise to this dispute arose.

Traynor opposes Blackfisk's Motion on grounds that entertaining a transfer to Arizona would be a waste of judicial resources and increase the parties’ fees.

Federal Rule of Civil Procedure 12(h)(1) provides that a party may waive any defense listed under Rule 12(b)(2)-(5), including improper venue, by omitting the defense from the party's first Rule 12 motion or responsive pleading. See Fed. R. Civ. P. 12(h)(1), (g)(2); see also Booth v. Carnival Corp., 522 F.3d 1148, 1153 (11th Cir. 2008) (recognizing that “defendants can, and often do, waive their defense of improper venue”). Because it is undisputed that Blackfisk's original Motion to Dismiss did not raise the defense of improper venue, the issue is whether Blackfisk should be permitted to fix its omission by amending its original Motion to Dismiss. The Court finds the analysis in Vanslambrouck v. Fairfield Indus. Inc. instructive. Like the instant case, that case involved a defendant who sought leave to amend its prior motion to dismiss to add the defense of lack of personal jurisdiction, another waivable defense. See Vanslambrouck v. Fairfield Indus. Inc. No. 2:11-CV-76-FTM-29SPC, 2011 WL 2435947, at *1 (M.D. Fla. June 15, 2011). The district court found that defendant waived the defense by not raising it in its first Rule 12 motion. See id. Nevertheless, the district court exercised its inherent authority and allowed defendant to amend the motion to dismiss, finding that:

The Court ․ has found no procedural rule specifically addressing amendments to motions to dismiss. The Federal Rules of Civil Procedure, however, are to “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. A district court possesses inherent authority to control its proceedings, Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002), as well as authority under 28 U.S.C. § 1651.

The Court will exercise its authority to allow the motion to dismiss to be amended. The request to amend the motion was filed a mere ten days after the original motion was filed, and prior to the time to respond had expired. The Court finds no bad faith, or intent to manipulate the court proceedings, and no prejudice to plaintiffs.

See id. at *1–2. The Court agrees with the above authority and finds that it possesses the inherent authority to grant Blackfisk's Motion to Amend. The question becomes whether allowing such amendment would be futile.

Plaintiff argues amendment would be futile because: (1) Blackfisk waived its right to challenge venue; and (2) the proper forum for this dispute is in this Court. Whether a defendant waived their right to invoke a forum selection clause turns on whether it (1) “substantially participate[d] in [the] litigation to a point inconsistent with an intent to enforce the forum selection clause, and (2) whether that participation prejudiced [the opposing party].” Se. Power Grp., Inc. v. Vision 33, Inc., 855 F. App'x 531, 535 (11th Cir. 2021) (citation omitted). For example, in Se. Power Grp., Inc., the Eleventh Circuit reversed a district court's order granting a motion to dismiss, finding that a defendant's filing of a motion to dismiss—in which it sought to invoke a choice of law clause, but not a forum selection clause found in the very same sentence—along with defendant's propounding discovery requests was inconsistent with an intent to enforce the forum selection clause. Id. at 536–37. The Eleventh Circuit also found that plaintiff was prejudiced by defendant's failure to raise the forum selection clause, causing plaintiff “to expend resources needlessly by forcing it to respond to substantive motions ․, begin discovery, and schedule mediation.” Id. at 538.

Upon careful review of the parties’ arguments and the relevant authority, the Court will exercise its inherent authority and grant Blackfisk leave to amend without prejudice to the parties raising all relevant arguments against Blackfisk's improper venue defense in their respective responses to Blackfisk's Amended Motion to Dismiss. Blackfisk's Motion to Dismiss was ripe for less than three weeks when Blackfisk sought leave to amend, and the Court had not yet ruled on the Motion to Dismiss. Moreover, this case is at its infancy, having been filed only three months ago. Plaintiff and Traynor have not demonstrated that they would be significantly prejudiced by the Court granting Blackfisk leave to amend at this early stage in the litigation. While the Court acknowledges that this case has been heavily litigated since its inception, causing the parties and this Court to expend a fair number of resources, no scheduling order deadlines have been set and no discovery has been propounded. Thus, this case is distinguishable from Se. Power Grp., Inc., an action that involved litigation far more progressed than the instant matter. Id. at 533, 538 (noting that the case had already been set for trial and referred to mediation, with the parties having engaged in discovery for roughly two months, when the district court sua sponte raised the forum selection clause). And unlike Se. Power Grp., Inc., the content of Blackfisk's original Motion to Dismiss does not evidence an intent to “holster [its] forum selection clause arguments” in the hopes of achieving a better result in a different forum. Id. at 537. Though Plaintiff raises a number of reasons why the forum selection clause is unenforceable and why venue is proper in the Southern District of Florida, the Court finds it best to address any arguments regarding proper venue in ruling on the Amended Motion to Dismiss.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Blackfisk's Motion for Leave to Amend its Motion to Dismiss to Include a Defense of Improper Venue [DE 79] is GRANTED.

2. Blackfisk shall separately electronically file its Amended Motion to Dismiss on or before February 3, 2023.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 31st day of January, 2023.

FOOTNOTES

1.   Pursuant to the deadlines set forth in the Court's Order Expediting Briefing on Motion, Defendant Jean Traynor's Response was untimely. See [DE 80]. Nevertheless, the Court will consider it.

2.   The Motion to Dismiss was filed on behalf of both Defendants but Attorney Chris Kleppin has since withdrawn from representing Blackfisk. See [DE 66].

3.   Blackfisk elected not to file a timely reply to its Motion to Dismiss.

WILLIAM P. DIMITROULEAS, United States District Judge