WIAND
v.
MONTIE, III
Defendant. ________________________________/
ORDER DENYING “DEFENDANT, RAYMOND P MONTIE, III’S MOTION TO DISMISS THE AMENDED COMPLAINT”
This matter is before the Court on “Defendant, Raymond P Montie, III’s Motion to Dismiss the Amended Complaint and Memorandum of Law,” filed by counsel on July 27, 2020. (Doc. 24). On August 17, 2020, Plaintiff Burton W. Wiand filed a response in opposition to the motion. (Doc. 27). After reviewing the motion, response, court file, and the record, the Court finds that the Receiver has satisfied his pleading burden as to each of his claims. See, e.g., Wiand v. EFG Bank, No. 8:10-cv-241-T-17MAP, 2012 WL 750447, at *6 (M.D. Fla. Feb. 8, 2012), report and recommendation adopted, 2012 WL 760305 (M.D. Fla. Mar. 7, 2012) (finding Rule 9(b) heightened pleading standard inapplicable to fraudulent transfer claim); In re Burton Wiand Receivership Cases Pending in the Tampa Div. of the Middle Dist. of Fla., Nos. 8:05-cv-1856-T-27MSS et al., 2008 WL 818504, at *6 (M.D. Fla. Mar. 26, 2008) (applying Rule 8 pleading standard to unjust enrichment claims); Mehlenbacher ex rel. Asconi Corp. v. Jitaru, No. 6:04-ev-1118-Orl-22KRS, 2005 WL 4585859, at *4 (M.D. Fla. June 6, 2005) (explaining that Rule 9(b)’s particularly requirement does not apply to a breach of fiduciary claim). The Court notes that “a motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int'l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.). Defendant’s motion to dismiss is denied. Defendant is directed to file an answer on or before November 16, 2020. DONE and ORDERED in Chambers, in Tampa, Florida, this 2nd day of November, 2020.
oF -TOMBARBER assists
UNITED STATES DISTRICT JUDGE
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Am. Home Assurance Co. v. Weaver Aggregate Transp., Inc., 773 F. Supp. 2d 1317 (M.D. Fla. 2011)…il ‘the time the facts giving rise to the cause of action were discovered or should have been discovered.’ ” In re Burton Wiand Receivership Cases Pending in the Tampa Division of the Middle District of Florida, Case No. 8:05-cv-1856-T-27-MSS, 2008 WL 818504 at *8 (M.D.Fla. Mar. 26, 2008) (quoting Fla. Stat. § 95.031(2) (a)). American Home has alleged that it did not discover the fraud until October 2006 when it completed its audit (Doc. 1, ¶¶ 63-70), and that it had no reason to be aware of any fraudul…
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Wiand v. Montie, III, 2012 WL 750447 (M.D. Fla. 2020)…60305 (M.D. Fla. Mar. 7, 2012) (finding Rule 9(b) heightened pleading standard inapplicable to fraudulent transfer claim); In re Burton Wiand Receivership Cases Pending in the Tampa Div. of the Middle Dist. of Fla., Nos. 8:05-cv-1856-T-27MSS et al., 2008 WL 818504, at *6 (M.D. Fla. Mar. 26, 2008) (applying Rule 8 pleading standard to unjust enrichment claims); Mehlenbacher ex rel. Asconi Corp. v. Jitaru, No. 6:04-ev-1118-Orl-22KRS, 2005 WL 4585859, at *4 (M.D. Fla. June 6, 2005) (explaining that Rule 9(b)’s p…1 / 3
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Vyas v. Polsinelli, PC (M.D. Fla. 2022)…g application of the defense at the motion-to- dismiss stage because “to the extent the parties dispute the existence of innocent management, shareholders, and investors, these are factual issues”); Wiand v. EFG Bank, No. 810-cv-241-EAK-MAP, 2012 WL 750447, at *6 (M.D. Fla. Feb. 8, 2012), report and recommendation adopted, 2012 WL 760305 (M.D. Fla. Mar. 7, 2012) (finding that application of the defense would require the court to wade into factual inquiries that are not appropriately considered…1 / 3
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- Wiand v. Montie, III, 2012 WL 750447 (M.D. Fla. 2020)