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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:20-cv-21865-FAM

PALM SPRINGS MILE ASSOCIATES, 

LTD., a Florida limited partnership, and 

PHILIPS LAKE WORTH LLC, a Florida 

limited partnership,

Plaintiffs,

v.

ROSS DRESS FOR LESS, INC., a 

Virginia corporation, and ROSS STORES, 

INC., a Delaware corporation,

Defendants.

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’

AMENDED COMPLAINT AND SUPPORTING MEMORANDUM OF LAW

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TABLE OF CONTENTS

Pages

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................2

I. The Governing Leases Contain Numerous Conditions Precedent that Must Be 

Satisfied Before a Party May File Suit ................................................................................2

II. Landlords Prematurely File Suit and Ignore Ross’ Rights Under the Governing 

Leases...................................................................................................................................5

ARGUMENT...................................................................................................................................9

I. Landlords’ Amended Complaint Must be Dismissed Under Rule 12(b)(1) for 

Lack of Subject Matter Jurisdiction.....................................................................................9

A. Subject Matter Jurisdiction and the Rule 12(b)(1) Standard ...................................9

B. All of Landlords’ Claims Are Premature...............................................................10

1. Landlords Failed to Satisfy the Conditions Precedent Before Filing 

Suit.............................................................................................................10

2. Landlords’ Claims for Breach and Anticipatory Repudiation Are 

Unripe for Additional Reasons ..................................................................12

C. Landlords’ Claim for Declaratory Judgment Lacks a Case or Controversy 

Because Ross Has Not Invoked the Force Majeure Clause...................................13

II. Landlords’ Amended Complaint Must Be Dismissed Under Rule 12(b)(6) for 

Failing to State a Claim Upon Which Relief May Be Granted..........................................14

A. The Rule 12(b)(6) Standard ...................................................................................14

B. Landlords Fail to Allege a Valid Claim for Accelerated Rent...............................15

C. Landlords Fail to Allege Sufficient Facts to Support a Claim for

Anticipatory Repudiation.......................................................................................16

III. Should the Court Grant the Motion, Ross is Entitled to and Fully Intends to Seek 

Attorneys’ Fees from Landlords........................................................................................17

CONCLUSION..............................................................................................................................17

CERTIFICATE OF SERVICE ......................................................................................................19

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TABLE OF AUTHORITIES

Page(s)

Cases

Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co.,

68 F.3d 409 (11th Cir. 1995) ...................................................................................................14

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).................................................................................................................15

Charles v. Deutsche Bank Nat’l Trust Co.,

No. 1:15-cv-21826-KMM, 2016 WL 950968 (S.D. Fla Mar. 14, 2016).................................12

Elend v. Basham,

471 F.3d 1199 (11th Cir. 2006) ...............................................................................................10

Fed. Deposit Ins. Corp. v. Univ. Anclote, Inc.,

764 F.2d 804 (11th Cir. 1985) .................................................................................................17

Fla. Power & Light Co. v. Bellsouth Telecomms., LLC,

Case No. 19-81043-CIV-ROSENBERG/REINHART, 2020 U.S. Dist. LEXIS 

21536 (S.D. Fla. Jan. 31, 2020) ...............................................................................................11

Gill as Next Friend of K.C.R. v. Judd,

941 F.3d 504 (11th Cir. 2019) .................................................................................................15

Harvey v. United States,

No. 15-CV-24438-ALTONAGA, 2017 U.S. Dist. LEXIS 4152 (S.D. Fla. Jan. 

10, 2017) ....................................................................................................................................5

IVX Animal Health, Inc. v. Burger,

475 F. Supp. 2d 1264 (S.D. Fla. 2007) ......................................................................................9

Mori v. Matsushita Elec. Corp. of Am.,

380 So.2d 461 (Fla. 3d DCA 1980).........................................................................................16

Moynihan v. W. Coast Life Ins., Co.,

607 F. Supp. 2d 1336 (S.D. Fla. 2009) ....................................................................................12

Oxford Asset Mgmt., Ltd. v. Jaharis,

297 F.3d 1182 (11th Cir. 2002) ...............................................................................................15

Palm Beach Int’l, Inc. v. Salkin,

No. 10-60995-CIV, 2010 WL 5418995 (S.D. Fla. Dec. 23, 2010)..........................................16

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PTA-FLA, Inc. v. ZTE USA, Inc.,

No. 3:11-cv-510-J-32JRK, 2011 WL 5024647 (M.D. Fla. Oct. 21, 2011)..............................10

Slaughter v. Barnett,

114 Fla. 352 (1934)..................................................................................................................16

Trianon Condo. Ass’n, v. QBE Ins. Corp.,

741 F. Supp. 2d 1327 (S.D. Fla. 2010) ..............................................................................13, 14

Other Authorities

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ...........................................1, 9, 10, 14, 15

28 Fla. Jur. 2d Guaranty and Suretyship § 13 (2020)....................................................................17

Office of the Governor Executive Order No. 20-52 ........................................................................5

Office of the Governor Executive Order No. 20-89 ........................................................................5

Office of the Governor Executive Order No. 20-112 ......................................................................5

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Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendants Ross 

Dress for Less, Inc., and Ross Stores, Inc. (collectively, “Ross” or “Defendants”) bring this 

motion to dismiss (the “Motion”) the Amended Complaint [ECF No. 13] (the “Amended 

Complaint” or “Am. Compl.”) filed by Plaintiffs Palm Springs Mile Associates, Ltd. and Philips 

Lake Worth LLC (collectively, “Plaintiffs” or “Landlords”) and in support state the matters set 

forth below.

INTRODUCTION

The Amended Complaint is filed in clear contravention of the Leases attached to it and 

fails to cure any of the fatal deficiencies in Landlords’ Original Complaint. Most importantly, 

Landlords ignore the fundamental reason why their lawsuit should be dismissed: the Leases by 

their very terms require that the parties address any disputes such as this one before any suit is 

filed and outside of court. Instead of following the Leases’ plain requirements, Landlords 

contravened them and went straight to the courthouse notwithstanding that the Leases provide 

for a number of steps that must occur before litigation could commence, such as notice, a cure 

period, and a mandatory mediation. Moreover, the additional exhibits attached to the Amended 

Complaint only further support dismissal. Therefore, pursuant to the plain language of the three 

operative leases, the Amended Complaint should be dismissed immediately for lack of 

jurisdiction and failure to state a claim.

In reality, this lawsuit—prematurely and recklessly filed in direct contravention of Ross’ 

pre-suit contractual rights and without Landlords making any requisite attempt whatsoever to 

comply with their pre-suit contractual obligations—is nothing more than a misplaced publicity 

stunt intended to gain an improper benefit and leverage against Ross. Specifically, the Amended

Complaint blatantly disregards and deprives Ross’ carefully bargained for rights under the 

governing leases: (1) to notice and a subsequent 10 business day cure period; (2) requiring the 

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parties to first try in “good faith” to resolve any disputes by mediation; (3) requiring the parties 

to refrain from filing suit until 60 days after either party sends a notice requesting mediation; and 

(4) permitting Ross to withhold rent in the event of a bona fide dispute between the parties. As 

discussed in detail herein, Landlords’ Amended Complaint contains numerous fatal pleading 

deficiencies under Rules 12(b)(1) and/or 12(b)(6), and Landlords are not entitled to any of the 

relief sought in their Amended Complaint under the facts or law as pled. Simply put, Landlords’

premature and improper lawsuit is a waste of this Court’s and Ross’ time and resources and 

should be summarily dismissed.

BACKGROUND

I. The Governing Leases Contain Numerous Conditions Precedent that Must Be

Satisfied Before a Party May File Suit

Ross and Landlords entered into the “511 Lease,” the “1345 Lease,” and the “5296 

Lease” (collectively, the “Leases”), under which Ross has the right to operate its Ross Dress for 

Less and/or dd’s Discounts retail stores in Landlords’ shopping centers. See Am. Compl. ¶¶ 15,

20, 25. These three Leases (attached to the Amended Complaint as Exhibits 1, 3, and 5) all 

include the following highly relevant provisions governing the parties’ rights and obligations—

but which Plaintiffs inexplicably failed to bring to this Court’s attention in either their Original 

or Amended Complaints.

1

 See Am. Compl. ¶¶ 16, 21, 26.

First, a tenant “default” under the Leases for failure to pay rent cannot occur “within ten 

(10) business days after Tenant’s receipt of a written notice from Landlord specifying such 

failure.” Leases § 20.1.1(a). In other words, Ross bargained for and is entitled to written notice 

 1 This Motion quotes provisions from the 511 Lease (Exhibit 1 to the Amended Complaint). The 1345 Lease and 

the 5296 Lease contain provisions with substantially the same language and conferring the same rights, with only 

minor and non-substantive differences. 

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and a full 10 business day cure period before Landlords can attempt to invoke the tenant default 

provisions for failure to pay rent.

2

 Landlords have deprived Ross of that contractual right. 

Second, this same provision also expressly provides Ross the right to withhold rent 

pursuant to a bona fide dispute: 

In the event Tenant withholds Rent pursuant to a bona fide dispute between 

Landlord and Tenant, and in accordance with the terms of this Lease, Tenant shall 

not be deemed in [sic] default under the provisions of this Lease. Tenant, 

however, agrees to pay any undisputed amount in the event of a bona fide dispute.

Leases § 20.1.1(a) (emphasis added). The Leases also contain a similar “Disputed Sums”

provision that expressly provides Ross the right to withhold all other charges in the event of a 

bona fide dispute: 

Disputed Sums. Under the terms of this Lease numerous charges are and may be 

due from Tenant to Landlord and vice versa, including without limitation, real 

estate Taxes, Common Area Charges, casualty and liability insurance premium 

reimbursements and other items. In the event that at any time during the Term a 

bona fide dispute arises with respect to the amount due for any of such charges 

claimed by a party to be due, that portion of the amount which is undisputed shall 

be paid by Tenant or Landlord, as the case may be, pending the resolution of the 

dispute between the parties by litigation or otherwise, and the disputed portion 

may be withheld pending resolution. Tenant’s withholding of a disputed amount 

in the event of a bona fide dispute shall not be deemed in [sic] default by Tenant 

under the terms of this Lease. Upon resolution, the obligated party shall pay to 

the other the remaining sum liquidated as due (if any) with interest thereupon at 

the Legal Rate.

 2 The full clause in the Leases (section 20.1.1, titled “Tenant’s Default”) provides as follows: 

(a) Breach. The occurrence of either of the following shall constitute a default by Tenant pursuant 

to this Lease: (i) a failure by Tenant to pay Rent within ten (10) business days after Tenant’s 

receipt of written notice from Landlord specifying such failure; or (ii) a failure by Tenant to 

perform obligations pursuant to this Lease, other than as specified in (i) above, within thirty (30) 

days after Tenant’s receipt of written notice from Landlord specifying such failure or, if it 

reasonably would require more than thirty (30) days to cure such failure, within a time reasonably 

necessary to cure such failure after Tenant’s receipt of such written notice provided, that Tenant 

has commenced curing same within the thirty (30) day period and is diligently attempting to cure 

same, and provided further that such cure period shall not exceed ninety (90) days after Tenant’s 

receipt of such notice. In the event Tenant withholds Rent pursuant to a bona fide dispute between 

Landlord and Tenant, and in accordance with the terms of this Lease, Tenant shall not be deemed 

in [sic] default under the provisions of this Lease. Tenant, however, agrees to pay any undisputed 

amount in the event of a bona fide dispute.

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511 Lease (Am. Compl. Ex. 1) § 6.4.3 (emphasis added).3

Third, the Leases contain a mandatory mediation provision that requires the parties to (a) 

first try in “good faith” to resolve any disputes by mediation, and (b) refrain from filing suit until 

60 days after either party sends a notice requesting mediation:

The parties shall first try in good faith to settle the Dispute by mediation

pursuant to the provisions as set forth below. . . . The party commencing the 

Mediation shall first give a written notice (a “Mediation Notice”) to the other 

party setting forth the nature of the Dispute. . . . If the Dispute or any part 

thereof has not been resolved by mediation as provided above within sixty (60) 

days after receipt of the Mediation Notice, or if a party fails to participate in 

Mediation, then at the option of either party by written notice, the Dispute shall 

be determined by suit or action in court, unless it is a matter for Arbitration as 

described in Section 20.2.1. above.

Leases § 20.2.2 Mediation (emphasis added). Thus, only after mandatory mediation has failed 

may a party proceed to court for resolution of a dispute. See id. 

Moreover, this mandatory mediation provision applies to any disputes between the parties 

that exceed a monetary value of $50,000 (as does the dispute here):

Means of Resolution. In the event that any controversy or dispute (“Dispute”) shall arise 

under this Lease and in the event that the parties have been unable to resolve such 

Dispute within thirty (30) days, the Dispute shall be resolved as provided in this Section 

20.2. All Disputes, the monetary value of which exceeds Fifty Thousand Dollars 

($50,000), or which involve an equitable remedy, shall require the utilization of 

Mediation as provided in Section 20.2.2 below. All Disputes, the monetary value of 

which is less than Fifty Thousand Dollars ($50,000) shall be settled by Arbitration as 

discussed in Section 20.2.3 below.

Leases § 20.2.1 Alternative Dispute Resolution (emphasis added). Landlords flagrantly 

disregarded these mandatory mediation requirements by initiating this lawsuit when and how 

they did.

 3 The Disputed Sums clause in the 1345 Lease and the 5296 Lease appears in section 6.3.3.

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Fourth, under section 20.1.1(c) in the Leases, titled “Prohibition Against Landlord 

Accelerating Rent,” Landlords have no right to accelerate Ross’ monthly rent obligations unless 

Landlords also seek to terminate the Leases (which Landlords have not sought to do): 

(i) Except as provided in Section 20.1.1(c)(2) [sic] below, and whether or not 

Landlord terminates this Lease, Tenant shall have no obligation to pay Rent until 

the date it would otherwise be due in the absence of Tenant’s default. Landlord 

shall have no right to accelerate Rent which would become due except as 

provided hereafter. 

(ii) In the event Landlord terminates this Lease due to a default by Tenant, 

Landlord may recover from Tenant the balance of the Rent payable by Tenant for 

the remainder of the Term, minus the fair market rental value of the Store for such 

period, each discounted to present value using a discount rate of the Federal 

Reserve Bank of San Francisco at the time of the award, plus one percent (1%) 

per annum, together with costs and expenses proximately caused by Tenant’s 

breach of the Lease.

Leases § 20.1.1(c) (emphasis added). Therefore, there is no basis for Landlords to claim 

accelerated rent. 

II. Landlords Prematurely File Suit and Ignore Ross’ Rights Under the Governing

Leases

As Landlords acknowledge in their Amended Complaint, countless individuals and 

businesses around the globe have suffered and continue to suffer from the devastating personal 

and financial hardships caused by the ongoing COVID-19 pandemic. See Am. Compl. ¶ 4. 

Governor DeSantis has issued executive orders declaring a state of emergency and restricting 

public access to, and the operations of, non-essential businesses to protect the health and safety 

of the public.

4

 Ross, therefore, was forced to temporarily close all of its stores beginning on 

 4 See Office of the Governor Executive Order No. 20-52 (March 9, 2020 Order declaring a state of emergency for 

the entire State of Florida); No. 20-89 (March 30, 2020 Order restricting public access to non-essential businesses); 

No. 20-112 (May 4, 2020 Order restricting retail stores from operating at more than 25% of their building 

occupancy); see also Harvey v. United States, No. 15-CV-24438-ALTONAGA, 2017 U.S. Dist. LEXIS 4152, at *23 

(S.D. Fla. Jan. 10, 2017) (in ruling on a motion to dismiss, the court may take judicial notice of certain facts and 

public records because they are capable of accurate and ready determination). 

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March 20, 2020,5 and nearly all of its stores (including store numbers 511, 1345, and 5296 

referred to in Landlords’ Amended Complaint) will remain closed through at least late May 

2020.

6

In light of these unprecedented circumstances, Ross has made (and will continue to 

make) repeated efforts to engage in good faith negotiations with all of its landlords (including the 

Landlords in this case) about a mutually beneficial path forward in the face of this pandemic. 

See Am. Compl. Exs. 7–11. Indeed, and notwithstanding the temporary closure of its stores, Ross 

ensured at the outset of this unanticipated crisis that Landlords received April rent payments to 

assist them with weathering this storm and stabilizing their cash flow with respect to smaller 

tenants—while reserving all rights. See March 31, 2020 Ltr. (Am. Compl. Ex. 7). Such actions 

clearly belie Landlords’ claim that Ross implemented a “predetermined, national policy of 

refusing to pay rent when due.” Am. Compl. ¶ 34. 

Ross subsequently sent a proposal to Landlords on April 9 for temporary rent abatement 

and reduction, the terms and conditions of which were intended to serve as a starting point for 

negotiations between the parties. See April 9, 2020 Letter ¶ 11 (Am. Compl. Ex. 8) (“terms and 

conditions are intended to serve as the basis for negotiating and drafting a definitive lease 

amendment incorporating the terms and conditions stated herein as well as others to be 

determined.”) (emphasis added). And while Landlords’ counter-proposal sent on April 22 was 

not acceptable, Ross never made (and Landlords fail to plead that Ross has ever made) any 

 5 See March 20, 2020 press release, available at: https://investors.rossstores.com/news-releases/news-releasedetails/ross-stores-provides-additional-covid-19-related-update; April 2, 2020 press release, available at: 

https://investors.rossstores.com/news-releases/news-release-details/ross-stores-provides-additional-covid-19-

business-update. 

6 The contractual requirements in the Leases that render the Landlords’ Amended Complaint unripe and premature 

still apply and support dismissal even though the stores at issue in this suit re-opened in late May (at 50% capacity 

as required by local government orders). 

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unequivocal or absolute statements cutting off and/or refusing to engage in further negotiations

with Landlords. See Am. Compl. Exs. 9-10. To the contrary, Ross’ April 30 Letter expressly 

invites and encourages Landlords to contact any of Ross’ four authorized senior real estate 

executives to “get this issue resolved promptly.” See Am. Compl. Ex. 11. In sum, all of the 

correspondence attached to Landlords’ Amended Complaint actually undermines their 

allegations that further negotiations were supposedly “cut off” and/or “futile.” See Am. Compl.

¶ 43.

Notwithstanding the bona fide dispute evidenced by the correspondence attached to the 

Amended Complaint, Landlords allege that Ross breached the Leases by failing to pay Rent and 

other charges due on May 1, 2020.7

 Am. Compl. ¶¶ 5, 41. Noticeably absent from the Amended

Complaint, however, are any sufficient allegations confirming that Landlords satisfied all of the 

required conditions precedent before they filed suit on May 4, 2020 (because they did not do so 

and, therefore, cannot make such allegations). For example, Landlords fail to allege that they 

provided Ross with a notice of default on or after May 1 for not paying May rent or afforded

Ross its right to a 10 business day cure period after receiving such notice from Landlords. 

Indeed, it is impossible for Landlords to have provided the required 10 business day cure period 

here given that they filed suit only three days (and on the next business day) after they claim rent 

was due on May 1, 2020. Moreover, Landlords fail to allege that they made a good faith attempt 

to mediate this dispute prior to filing suit, as required under the governing Leases. Furthermore, 

Landlords expressly allege that they are not seeking to terminate the Leases in this action—

which is a requirement for seeking accelerated Rent. See Am. Compl. ¶ 70 n.2. Landlords’

 7 For the avoidance of doubt, Ross disputes that it breached the Leases by withholding May rent and reserves all 

rights to later raise its arguments on the merits should the Court decline to grant its Motion to Dismiss the Amended 

Complaint based on the significant pleading deficiencies discussed in this Motion. 

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representation to the Court in their Amended Complaint that “[a]ll conditions precedent to the 

filing of this action have been fulfilled, satisfied, waived, excused, or are futile” is, therefore, 

facially inaccurate and fatally deficient. 

Landlords also allege that Ross committed an anticipatory repudiation, citing to the 

Leases’ force majeure provisions to support their claims. See Am. Compl. ¶¶ 79-81. But Ross’ 

prior correspondence to Landlords never invokes or even refers to the Leases’ force majeure 

provisions. See generally Am. Compl. Exs. 7, 8, 10, 11, 14. Instead, and as discussed, Ross 

advanced April rent and encouraged Landlords to negotiate with it in good faith amid the current 

crisis, while giving notice of circumstances giving rise to a bona fide dispute. See April 30

Letter (Am. Compl. Ex. 11). As for May rent, Ross informed Landlords that: “unless we can 

come to an agreement, Ross does not intend to advance rent or additional charges for the month 

of May 2020 or possibly thereafter . . . .” See id. However, Ross’ April 30 Letter contains no 

definitive statements that Ross intended to or did waive any of its rights under the Leases, 

including those discussed herein regarding notice, withholding disputed sums, cure periods, or 

mediation. See id. Landlords also do not allege in their Amended Complaint that Ross 

otherwise informed them that it intended to waive such rights. See id. To the contrary, Ross’

April 30 Letter represented Ross’ clear effort to engage Landlords in a discussion regarding the 

rent dispute, which should have led to a number of steps, including, but not limited to, notice, a 

cure period, and mediation provided for in the Leases. 

In response to Ross’ April 30 Letter, Landlords unfortunately did not attempt to negotiate 

in good faith nor honor Ross’ contractual right to a 10 business day cure period—as required 

under the governing Leases. Rather, Landlords prematurely and brazenly filed their Original 

Complaint on May 4, 2020. ECF No. 1. That same day, Landlords sent Ross a letter from their 

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counsel demanding payment of May rent. See Am. Compl. Ex. 12. Then, on May 5, 2020—in a 

deficient attempt to make up for one of their fatal mistakes in rushing to the courthouse and 

violating Ross’ rights under the Leases—Landlords sent Ross an untimely letter raising the 

possibility of mediation. See Am. Compl. Ex. 13. Because Landlords had already violated the 

pre-suit mediation requirements in the governing Leases, Ross thus responded on May 13: (a) 

declining to respond to Landlords’ untimely request at this time, (b) informing Landlords that it 

would file an appropriate response in this litigation, and (c) reminding Landlords that a bona fide 

dispute exists regarding rent payments pursuant to section 21.2.2 of the Leases. See May 13, 

2020 Letter (Am. Compl. Ex. 14). 

In sum, Landlords committed a number of fatal errors in filing the Original Complaint as 

they did, none of which were (or even could be) cured in their Amended Complaint. 

ARGUMENT

I. Landlords’ Amended Complaint Must be Dismissed Under Rule 12(b)(1) for Lack 

of Subject Matter Jurisdiction

A. Subject Matter Jurisdiction and the Rule 12(b)(1) Standard

When a defendant asserts a 12(b)(1) factual attack on subject matter jurisdiction, the 

court is permitted to take into account extrinsic evidence in incorporated documents and in such 

instances does not need not presume the truthfulness of the allegations set forth in the complaint.

See IVX Animal Health, Inc. v. Burger, 475 F. Supp. 2d 1264, 1266 (S.D. Fla. 2007) (citing 

Morrison v. Amway Corp., 323 F. 3d 920, 925 n. 5 (11th Cir. 2003)). As the Eleventh Circuit 

has upheld, “[b]ecause at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its 

very power to hear the case—there is substantial authority that the trial court is free to weigh the 

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evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citing Lawrence 

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)).8

Here, Ross asserts a factual attack rather than a facial attack because it does not challenge 

subject matter jurisdiction based solely upon the allegations in the Amended Complaint. Instead, 

Ross relies upon the clear language of the Leases (which, notably, belie the allegations in the 

Amended Complaint), as well as the underlying factual circumstances evidenced by the

correspondence attached to the Amended Complaint (from which Landlords only highlight 

cherry-picked and out-of-context statements). 

B. All of Landlords’ Claims Are Premature

A motion to dismiss under Rule 12(b)(1) is the proper vehicle for challenging a 

premature claim for breach of contract. See Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 

2006); PTA-FLA, Inc. v. ZTE USA, Inc., No. 3:11-cv-510-J-32JRK, 2011 WL 5024647, at *1 

(M.D. Fla. Oct. 21, 2011). Here, the Amended Complaint must be dismissed under Rule 

12(b)(1) because: (1) Landlords have not, and could not have possibly, satisfied the conditions 

precedent to filing suit, and (2) Landlords’ claims are not ripe for judicial review. 

1. Landlords Failed to Satisfy the Conditions Precedent Before Filing Suit

As described above, the Leases impose conditions precedent to Landlords filing suit 

against Ross—none of which Landlords have satisfied. Most significantly, the Leases required 

Landlords to first try in “good faith” to resolve any disputes with Ross involving more than 

$50,000 in monetary value (as the instant dispute seeking a multi-million dollar damages award 

clearly does) by mediation and refrain from filing suit until 60 days after the date of a written 

mediation notice. See Leases §§ 20.2.1, 20.2.2. Landlords, however, fail to allege in their 

 8 Should the Court instead apply a Rule 12(b)(6) standard in analyzing the arguments in this section, Ross contends 

that the arguments equally apply and warrant dismissal under both Rules 12(b)(1) and 12(b)(6). 

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Amended Complaint that they satisfied any of these requirements. Nor could they have, as they

rushed to file their Original Complaint three days (and on the next business day) after rent was 

allegedly due on May 1 and did not initiate discussions regarding mediation until the day after

filing their Original Complaint. 

Moreover, Landlords’ new allegation that mediation would have been “futile” based on

correspondence exchanged after the Landlords violated Ross’ pre-suit rights misses the point. 

See Am. Complaint §§ 47–49. Ross made clear in its pre-suit correspondence that it was and 

remained willing to engage in good faith negotiations with the Landlords to resolve this bona 

fide dispute. And Ross looks forward to continuing those good faith negotiations and/or 

participating in a mandatory mediation after this improvidently-filed lawsuit is dismissed. 

Furthermore, this Court should not entertain Landlords’ odd new allegation that 

mediation was supposedly not a precondition to filing an action for damages, when even a 

cursory reading of the relevant provisions in the governing Leases shows that such a statement is 

unsupported and unsupportable. See Am. Compl. ¶ 47, n.1.9

 On this basis alone, the Court 

should dismiss the Amended Complaint in its entirety. See Fla. Power & Light Co. v. Bellsouth 

Telecomms., LLC, Case No. 19-81043-CIV-ROSENBERG/REINHART, 2020 U.S. Dist. LEXIS 

21536, at *15 (S.D. Fla. Jan. 31, 2020) (“[W]here the parties’ agreement requires mediation as a 

condition precedent to arbitration or litigation, the complaint must be dismissed.”) (citing 

Mullales v. Aspen Am. Ins. Co., No. 18-23661-CIV-MORENO, 2018 WL 6270974, at *1 (S.D. 

 9 See Leases § 20.2.1 (“In the event that any controversy or dispute (“Dispute”) shall arise under this Lease and in 

the event that the parties have been unable to resolve such Dispute within thirty (30) days, the Dispute shall be 

resolved as provided in this Section 20.2. All Disputes, the monetary value of which exceeds Fifty Thousand 

Dollars ($50,000), or which involve an equitable remedy, shall require the utilization of Mediation as provided in 

Section 20.2.2 below”); § 20.2.2 (emphasis added) (“The parties shall first try in good faith to settle the Dispute by 

mediation pursuant to the provisions as set forth below.”) (emphasis added); § 20.3 (separately providing that 

Landlord agrees not to file, prosecute, or maintain a proceeding for evictions, unlawful detainer, or termination of 

the Lease during the alternative dispute resolution process set forth in section 20.2). 

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Fla. Nov. 29, 2018) (dismissing plaintiff’s complaint for failing to satisfy the required mediation 

before filing suit).

Landlords also similarly failed to comply with the required notice and cure provisions 

under the Leases. They did not send Ross a notice letter alleging default until May 4. In 

addition, section 20.1.1 in the Leases provides that nonpayment of rent is not a default until 10

business days after Ross’ receipt of a written notice of default. Therefore, a default has not yet 

even occurred, and the Amended Complaint should be dismissed for permanently depriving Ross 

of its cure rights. See Charles v. Deutsche Bank Nat’l Trust Co., No. 1:15-cv-21826-KMM, 

2016 WL 950968, at *3–4 (S.D. Fla Mar. 14, 2016) (dismissing plaintiff’s complaint for failing 

to allege compliance with the contract’s pre-suit notice and cure requirements). 

2. Landlords’ Claims for Breach and Anticipatory Repudiation Are Unripe

for Additional Reasons

A claim for breach of contract is not ripe for judicial review when the defendant’s 

conduct falls within the defendant’s rights afforded by the contract and the prospect of a breach 

resulting from that conduct remains speculative. See Moynihan v. W. Coast Life Ins., Co., 607 F. 

Supp. 2d 1336, 1339 (S.D. Fla. 2009) (granting motion to dismiss because plaintiffs’ claims

against an insurance company for withholding payment while the company was conducting a 

contractually permitted investigation were not ripe). 

Here, Landlords allege that Ross breached the Leases by failing to pay rent and other 

charges due on May 1, 2020. Am. Compl. ¶¶ 5, 41. But as previously discussed, the Leases 

expressly provide that (1) Ross has the right to withhold rent and other charges pursuant to a 

bona fide dispute and (2) such withholding shall not constitute a default by Ross. 511 Lease

(Am. Compl. Ex. 1) §§ 6.4.3, 20.1.1(a). In other words, as of the date the Amended Complaint

was filed, Ross could not possibly have been in breach of the Leases for simply exercising its 

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contractual right to withhold rent—particularly when the parties had also not yet satisfied their 

obligation to first try in good faith to resolve this dispute through mediation. In fact, Ross

addressed the bona fide dispute existing with respect to its rent in its April 30 Letter. See Am. 

Compl. Ex. 11. That letter stated “[y]ou are a landlord who we have yet to reach an agreement 

with in good faith amid the crisis” and “we have been unable to engage in constructive 

discussions with you with respect to rent payments amid these unforeseen and unanticipated 

circumstances.” Id. It was a clear step in what should have been a series of steps involving at 

the very least, notice, a cure period, and mediation pursuant to the parties’ rights under the 

Leases. But Landlords did not engage. Indeed, Ross provided even further information 

regarding the bona fide dispute existing with respect to rent in its May 13 Letter, because 

Landlords deprived Ross of its right to respond to Landlords’ May 4 Default Letter during a 10-

business day cure period and before Landlords filed suit on May 4. See Am. Compl. Ex. 14. 

Simply put, Landlords deprived Ross of any right to follow-up on its April 30 Letter and refused 

to participate in good faith negotiations as required under the Leases. Accordingly, as in 

Moynihan, the Amended Complaint here fails to plausibly allege the existence of a justiciable 

controversy. But even if a justiciable controversy existed (it does not as demonstrated by the 

context of the April 30 Letter), the statements allegedly constituting Ross’ anticipatory 

repudiation in the April 30 Letter also do not even come close to the “distinct, unequivocal, and 

absolute” statements or actions required for an anticipatory breach. See Section II.C infra.

C. Landlords’ Claim for Declaratory Judgment Lacks a Case or Controversy Because 

Ross Has Not Invoked the Force Majeure Clause

The law is well-settled that a court may not render an opinion on the enforceability of a 

contractual provision that is not in dispute between the parties. See, e.g., Trianon Condo. Ass’n,

v. QBE Ins. Corp., 741 F. Supp. 2d 1327, 1331 (S.D. Fla. 2010) (“The present case is no 

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different than a lawsuit which may have been brought by Plaintiff immediately after the parties 

entered into the contract. If [defendant] never takes any action to enforce the [challenged 

provision], a judicial determination as to the enforceability of the [challenged provision] in 

question is purely advisory.”). Indeed, even if a plaintiff suspects that a defendant may later 

invoke a provision, that suspicion alone does not create a justiciable controversy. See e.g., 

Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 415 (11th Cir. 1995) (“Regardless 

of how well-founded AGL’s concerns about its insurers may have been, speculation based on the 

insurance companies’ dealings with other insureds does not present a concrete case or 

controversy.”). 

Plaintiffs once again raise a red herring by pointing to the inapplicability of any force 

majeure provision in their Amended Complaint and stating “since the provision is not applicable, 

and the Tenant’s failure to pay rent is not excused, there is no contractual basis for the Tenant to 

avoid its obligation to pay rent.” Am. Compl. ¶ 32. The actual correspondence attached to the

Amended Complaint, and upon which Landlords’ allegation is based, does not invoke or even 

mention the force majeure provision in the Leases. See Am. Compl. Exs. 7–11. Ross is not 

arguing the force majeure provision in the Leases is a basis for dismissal of the Amended 

Complaint. Accordingly, Landlords’ declaratory relief claim concerning enforceability of the 

force majeure provision in the Leases must be dismissed at this stage as seeking an improper 

advisory opinion. See Atlanta Gas Light Co., 68 F.3d at 414; Trianon, 741 F. Supp. 2d at 1331.

II. Landlords’ Amended Complaint Must Be Dismissed Under Rule 12(b)(6) for Failing 

to State a Claim Upon Which Relief May Be Granted

A. The Rule 12(b)(6) Standard 

While the court accepts a plaintiff’s well-pleaded facts as true in deciding a 12(b)(6) 

motion, it need not accept “conclusory allegations, unwarranted deductions of fact, or legal 

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conclusions masquerading as facts” as is well-established under the Iqbal and Twombly progeny. 

Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). In addition,

allegations that describe lawful conduct that might be part of unlawful activity fail to satisfy the 

pleading requirements under Rule 12(b)(6). See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–

57 (2007) (dismissing claim where allegations, taken as true, did not amount to unlawful conduct

without more, even though that conduct was consistent with the unlawful activity charged). In 

other words, factual allegations must rise above mere speculation. Id. Moreover, “when exhibits 

attached to a complaint ‘contradict the general and conclusory allegations of the pleading, the 

exhibits govern.’” Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511, 514 (11th Cir. 

2019) (citing Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (“Conclusory 

allegations and unwarranted deductions of fact are not admitted as true, especially when such 

conclusions are contradicted by facts disclosed by a document appended to the complaint. If the 

appended document ... reveals facts which foreclose recovery as a matter of law, dismissal is 

appropriate.”)).

Here, not only are Landlords’ allegations entirely conclusory, but they also fly in the face

of the clear language in the Leases and the correspondence attached as exhibits to Landlords’ 

Amended Complaint. For these reasons, their Amended Complaint fails to state a claim for any 

basis of relief.

B. Landlords Fail to Allege a Valid Claim for Accelerated Rent 

Landlords assert a claim for accelerated rent in their Amended Complaint “[p]ursuant to 

Article 20 of the Leases, and applicable Florida law.” Am. Compl. ¶¶ 62–70. However, 

section 20.1.1(c) in the Leases expressly prohibits Landlords from recovering accelerated rent 

unless they also terminate the Leases. And here, Landlords make clear in their Amended 

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Complaint that they are not seeking to terminate the Leases or Ross’ right to possession of the 

premises. See Am. Compl. ¶ 70 n.2. Nor could Landlords terminate the Leases even if they 

chose to do so. Landlords also fail to identify any Florida statutory or common law that would 

override the parties’ agreement or otherwise permit Landlords to recover accelerated rent without 

satisfying the condition of terminating the Leases. Landlords’ claim for accelerated rent, 

therefore, must be dismissed. 

C. Landlords Fail to Allege Sufficient Facts to Support a Claim for Anticipatory

Repudiation

An anticipatory breach of a contract requires an “absolute repudiation by one of the 

parties prior to the time when his performance is due under the terms of the contract.” Mori v. 

Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980). The repudiation must 

be “distinct, unequivocal, and absolute.” Palm Beach Int’l, Inc. v. Salkin, No. 10-60995-CIV, 

2010 WL 5418995, at *4–5 (S.D. Fla. Dec. 23, 2010) (citation omitted). A mere statement that a 

party does not intend to carry out his agreement before the time for performance does not give 

the other party an immediate cause of action for breach or anticipatory breach. Slaughter v. 

Barnett, 114 Fla. 352, 364 (1934).

In support of their anticipatory repudiation claim, Landlords allege that “Tenant, 

moreover, has further advised that is [sic] ‘withholding rent’ and that its non-payment of Rent 

will continue, which is an anticipatory repudiation and breach of its ongoing payment obligations 

under the Leases.” Am. Compl. ¶¶ 68, 76, 80. However, this conclusory allegation fails to 

identify any “distinct, unequivocal, and absolute” statements made by Ross. The reason is 

obvious: Ross never made any such statements to Plaintiffs, and Plaintiffs cannot credibly allege 

that Ross did. In reality, and as evidenced by Ross’ April 30 Letter attached to the Amended 

Complaint, Ross merely stated an intention to not advance rent and other charges for the month 

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of May and only “possibly thereafter” until its business has been re-established. See Am. Compl. 

Ex. 11 (emphasis added). Under Florida law, these statements—along with those such as “we’ll 

just go from here” made by Ross during prior negotiations—do not come close to the “distinct, 

unequivocal, and absolute” statements or actions required for an anticipatory breach. Nor do any 

statements in Ross’ May 13, 2020 Letter responding to a letter sent by Landlords after they filed 

suit. Instead, Ross’ May 13 letter simply reiterated that a bona fide dispute exists with respect to 

rent and further notified Landlords that Ross intended to file an appropriate response in the 

litigation to Landlords’ untimely mediation request. Therefore, Plaintiffs’ anticipatory 

repudiation claims—regardless of whether such claims are based on Ross’ pre or post-litigation 

correspondence—should be dismissed. 

For all of the reasons discussed in this Motion, Plaintiffs’ claims against Ross as 

guarantor should also be dismissed. Am. Compl. ¶¶ 71–77; see Fed. Deposit Ins. Corp. v. Univ. 

Anclote, Inc., 764 F.2d 804, 806 (11th Cir. 1985) (“A guarantor is liable only in the event and to 

the extent that his principal is liable.”) (citation omitted); 28 Fla. Jur. 2d Guaranty and Suretyship 

§ 13 (2020).

III. Should the Court Grant the Motion, Ross is Entitled to and Fully Intends to Seek 

Attorneys’ Fees from Landlords

Should the Court grant the Motion and dismiss the Amended Complaint, Ross reserves 

any and all of its rights to seek attorneys’ fees pursuant to the clear language in the Leases, the 

clear language in the guaranty, and Florida law.

CONCLUSION

For these reasons, Defendants respectfully request that the Court dismiss the Amended

Complaint with prejudice. Defendants further request all other relief, at law or in equity, to 

which they are justly entitled.

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Dated: May 26, 2020 Respectfully submitted,

/s/ Edward Soto

Edward Soto (Fla. Bar No. 0265144)

Edward.Soto@weil.com

Nicole Comparato (Fla. Bar No. 0293239)

Nicole.Comparato@weil.com

WEIL, GOTSHAL & MANGES LLP

1395 Brickell Avenue, Suite 1200

Miami, Florida 33131

Telephone: (305) 577-3100

Paul R. Genender (pro hac vice pending)

Paul.Genender@weil.com

Nathan White (pro hac vice pending)

Nathan.White@weil.com

WEIL, GOTSHAL & MANGES LLP

200 Crescent Court, Suite 300

Dallas, Texas 75201

Telephone: (214) 746-7700

Attorneys for Defendants 

Ross Dress for Less, Inc., and Ross Stores, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2020, I electronically filed the foregoing with the Clerk 

of the Court for the United States District Court for the Southern District of Florida by using the 

CM/ECF system. As such, the foregoing was served electronically upon all counsel of record.

/s/ Edward Soto 

Edward Soto (Fla. Bar No. 0265144)

Edward.Soto@weil.com

WEIL, GOTSHAL & MANGES LLP

1395 Brickell Avenue, Suite 1200

Miami, Florida 33131

Telephone: (305) 577-3100

Case 1:20-cv-21865-FAM Document 14 Entered on FLSD Docket 05/26/2020 Page 23 of 23