United States District Court

for the

Southern District of Florida

High Tech National, LLC and 

Automotive Key Controls, LLC, 

Plaintiffs,

v.

Jay Wiener and others, 

Defendants.

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Civil Action No. 20-22857-Civ-Scola

Order on Motion to Dismiss

Now before the Court is Defendant Sonia Wiener’s motion to dismiss 

Count XLV of the Plaintiffs’ second amended complaint. The Defendant filed 

her motion on November 5, 2020, and the Plaintiffs filed their response on 

November 19, 2020. The Defendant did not file a reply. For the reasons set 

forth below, the Court denies the Defendant’s motion. (ECF No. 137.) 

1. Background

Sonia Wiener, the now ex-wife of Jay Wiener, is one of the over 30 

Defendants the Plaintiffs have sued for playing some role in Mr. Wiener’s 

alleged scheme to defraud the Plaintiffs, High Tech National, LLC (“HTL”) and 

Automotive Key Controls, LLC (“AKC”). The Plaintiffs allege that in December 

2013, Jay Wiener sold his companies HTL and AKC to KAR Auction Services, 

Inc. (ECF No. 92, at ¶ 5.) Following this sale, Mr. Weiner stayed on as CEO of 

both companies and while in that position allegedly “began a scheme to harm 

HTL and AKC through a pattern of fraud, self-dealing, and misappropriation of 

corporate assets.” (ECF No. 92, at ¶¶ 6-7.) Mr. Wiener was terminated as CEO 

of HTL and AKC on April 23, 2019. (ECF No. 92, at ¶¶ 11, 75.) 

Sonia Wiener was married to Jay Wiener from 2013 through June 8, 

2020. (ECF No. 142, at 1.) On November 17, 2016, Ms. Wiener filed for divorce 

from her husband and their divorce became final on June 8, 2020 after the 

Wieners entered into a non-public settlement agreement. (ECF No. 92, at ¶¶ 

77, 81.) During the pendency of the divorce, HTL and AKC sought to intervene

in the Wiener’s divorce proceedings in an attempt to “protect their assets from 

being included as part of the marital estate and distributed to S[onia] Wiener.” 

(ECF No. 92, at ¶ 79.) The divorce court judge overseeing the Wiener’s divorce 

proceedings did not allow HTL and AKC to intervene, but according to 

Plaintiffs, “acknowledged that HTL and AKC would be entitled to sue S[onia] 

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Wiener for disgorgement once an allocation was made.” (ECF No. 92, at ¶ 80.) 

As further support for their claims that Ms. Wiener may have received property 

belonging to HTL and AKC, the Plaintiffs note that on “August 19, 2019, S[onia] 

Wiener filed an Amended Petition for Dissolution of Marriage and added A[llan] 

Wiener as a third-party defendant, alleging that [Jay] Wiener was using A[llan] 

Wiener’s corporations to hide assets.” (ECF No. 92, at ¶ 78.)

Based on the above, the Plaintiffs have asserted a claim for unjust 

enrichment against Sonia Wiener, Count XLV of the Plaintiffs’ second amended 

complaint. In support of their claim, the Plaintiffs further allege that: Ms. 

Wiener “received assets that rightfully belong to HTL and AKC” as a result of 

her divorce settlement, she was aware of this fact even if she was otherwise 

contemporaneously unaware of her ex-husband’s alleged wrongdoing as a 

result of HTL and AKC’s attempts to intervene in the Wiener’s divorce 

proceedings, and she voluntarily accepted and retained these assets. (ECF No. 

92, at ¶¶ 708-710.) On that basis, the Plaintiffs conclude that Ms. Wiener has 

been unjustly enriched at the Plaintiffs’ expense.

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as 

true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under Federal Rule of Civil 

Procedure 8, a pleading need only contain “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The 

plaintiff must nevertheless 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 (2007). “A 

claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action” will 

not survive dismissal. Id.

In applying the Supreme Court’s directives in Twombly and Iqbal, the 

Eleventh Circuit has provided the following guidance to the district courts:

In considering a motion to dismiss, a court should 1) eliminate any 

allegations in the complaint that are merely legal conclusions; and 

2) where there are well-pleaded factual allegations, assume their 

veracity and then determine whether they plausibly give rise to an 

entitlement to relief. Further, courts may infer from the factual 

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allegations in the complaint obvious alternative explanation[s], 

which suggest lawful conduct rather than the unlawful conduct the 

plaintiff would ask the court to infer.

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th 

Cir. 2011) (citations omitted). “This is a stricter standard than the Supreme 

Court described in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which held 

that a complaint should not be dismissed for failure to state a claim ‘unless it 

appears beyond doubt that the plaintiff can prove no set of facts in support of 

his claim which would entitle him to relief.’” Mukamal v. Bakes, 378 F. App’x 

890, 896 (11th Cir. 2010). These precepts apply to all civil actions, regardless 

of the cause of action alleged. Kivisto, 413 F. App’x at 138.

3. Analysis

Ms. Wiener first seeks to defeat Count XLV of the complaint by alleging it 

is an impermissible shotgun pleading. As support for this claim, Ms. Wiener 

argues that the Plaintiffs’ second amended complaint asserts mere conclusory 

statements which lump Ms. Wiener in with other Defendants. The Eleventh 

Circuit has identified “four rough types . . . of shotgun pleadings.” Wilson v. 

NCL Bahamas, 18-25203-Civ, 2019 WL 2106470 (S.D. Fla. May 14, 2019) 

(Goodman, Mag. J.) (quoting Weiland v. Palm Beach County Sheriff’s Office, 792 

F.3d 1313, 1321-23 (11th Cir. 2015)). Among such impermissible pleadings are 

where a plaintiff commits “the venial sin” of having a complaint “replete with 

conclusory, vague, and immaterial facts not obviously connected to any 

particular cause of action” or where a plaintiff asserts “multiple claims against 

multiple defendants without specifying which of the defendants are responsible 

for which acts or omissions, or which of the defendants the claim is brought 

against.” Id. Upon review of the complaint, the Court finds that Plaintiffs’ 

allegations to be neither vague nor conclusory and notes that Count XLV of the 

complaint is clearly alleged against Sonia Wiener and that Ms. Wiener is not 

lumped in with other defendants in other counts of the Plaintiffs’ complaint.

Indeed, the first sentence of the introduction of Ms. Wiener’s motion notes that 

the Plaintiffs’ second amended complaint contains “45 causes of action” and 

“only one count . . . is against Sonia.” (ECF No. 137, at 1.) Moreover, Count 

XLV incorporates by references only those paragraphs which pertain to the 

Plaintiffs’ single claim against Ms. Wiener. (See ECF No. 92, at ¶ 707 (“HTL and 

AKC incorporate Paragraphs 36 and 76-81 by reference as if fully set forth 

herein.”.) Simply put, the Plaintiffs’ complaint is far from a shotgun pleading. 

Contrary to the Defendant’s assertions, the Court finds the Plaintiffs’ complaint 

is well-plead. 

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As the Court finds the Plaintiffs’ complaint is not an impermissible 

shotgun pleading, the Court proceeds to adjudicate the merits of the Plaintiffs’ 

claim for unjust enrichment with respect to Sonia Wiener under the familiar 

Rule 12(b)(6) standard. To plead a claim for unjust enrichment a plaintiff must 

allege the following elements: “(1) the plaintiff has conferred a benefit on the 

defendant; (2) the defendant has knowledge of the benefit; (3) the defendant 

has accepted or retained the benefit conferred; and (4) the circumstances are 

such that it would be inequitable for the defendant to retain the benefit.” 

Fibertex v. New Concepts Distributors Int’l, LLC, No. 20-20720-Civ, 2020 WL 

7059358, at *3 (S.D. Fla. Dec. 2, 2020) (Scola, J.). Claims for unjust 

enrichment are “equitable in nature” and are intended to provide “restitution 

where one person has been unjustly enriched at the expense of another.” Duty 

Free World, Inc. v. Miami Perfume Junction, Inc., 253 So. 3d 689, 693-94 (3d 

Fla. Dist. Ct. App. 2018). 

Here, the second amended complaint alleges that HTL and AKC assets

held by Jay Wiener were distributed to Ms. Wiener pursuant to the Wiener’s 

non-public divorce settlement. As Ms. Wiener received certain of her exhusband’s assets from her divorce, the Plaintiffs claim that Ms. Wiener is now 

in possession of and benefitting from assets that rightfully belong to HTL and 

AKC. That the HTL and AKC assets Ms. Wiener is now allegedly in possession 

of passed to her through her ex-husband does not prevent the Plaintiffs’ unjust 

enrichment claim. See Absolute Activist Value Master Fund Limited v. Devine, 

2:15-cv-328-FtM-29DNF, 2015 WL 12838168, at *22 (M.D. Fla. July 1, 2015) 

(“[t]he fact that the benefits conferred on [the defendant] by the [plaintiff] 

passed through [a third-party] does not preclude plaintiffs’ unjust enrichment 

claim”); see also Williams v. Wells Fargo Bank, N.A., No. 11-21233-Civ, 2011 

WL 4901346, at *5 (S.D. Fla. Oct. 14, 2011) (Altonaga, J.) (“[i]t would not serve 

the principles of justice and equity to preclude an unjust enrichment claim 

merely because the ‘benefit’ passed through an intermediary before being 

conferred on a defendant”). Taking the second amended complaint’s allegations 

as true, the Court finds that the Plaintiffs have adequately stated a claim for 

unjust enrichment. Specifically, the Plaintiffs’ allegations that: they conferred a 

benefit upon Jay Wiener that flowed to Ms. Wiener as a result of her divorce 

settlement with her now ex-husband, she had knowledge of such benefit given 

HTL and AKC’s attempted intervention in the Wiener’s divorce proceedings, and 

she accepted or retained such benefit are sufficient to support the Plaintiffs’ 

claim against Ms. Wiener for unjust enrichment. The Court agrees with the 

Plaintiffs that if Mr. Wiener indeed committed the fraud the Plaintiffs allege, it 

would be inequitable for Ms. Wiener to be allowed to keep his ill-gotten gains to 

the detriment of the Plaintiffs.

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4. Conclusion

In sum, the Court denies the Defendant Sonia Wiener’s motion to 

dismiss. (ECF No. 137.)

Done and ordered, in chambers at Miami, Florida, on January 7, 2020.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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