United States District Court

for the

Southern District of Florida

The Genterra Group, LLC, Plaintiff,

v.

Sanitas USA, Inc., Defendant.

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Civil Action No. 20-22402-Civ-Scola

Order on Motion to Dismiss

This matter is before the Court upon the motion filed by Defendant 

Sanitas USA, Inc. (“Sanitas”) to dismiss the amended complaint filed by 

Plaintiff The Genterra Group LLC (“Genterra”) for breach of contract. (Def.’s 

Mot., ECF No. 15; Pl.’s Compl., ECF No. 6.) Genterra contends that Sanitas 

breached its right of first refusal over certain development opportunities by 

contracting with third parties to construct medical facilities without first 

notifying Genterra of the business opportunities. Additionally, Genterra asserts

that Sanitas breached the restrictive covenants set forth in the agreement by 

directly employing Genterra’s subcontractor to construct the new facilities, in 

violation of the non-solicitation and no hire clauses of their agreement, and by 

disclosing Genterra’s proprietary information, in violation of the confidentiality 

clause. Genterra has responded to the motion (Pl.’s Resp., ECF No. 28) and 

Sanitas has filed a reply (Pl.’s Reply, ECF No. 30). Having reviewed the record, 

the parties’ briefing, and the relevant legal authorities, the Court grants in 

part and denies in part Sanitas’s motion. (ECF No. 15.)

1. Background.1

Genterra is in the business of finding, developing, and managing real 

property. (ECF No. 3 at 2.) Sanitas is in the business of operating medical 

facilities. (Id.) On February 14, 2017, Genterra entered into a multi-year master 

development agreement (“MDA”) with Sanitas. (ECF No. 15 at 1.) The MDA 

allowed Sanitas to engage Genterra on a preference basis to acquire real 

property, and to design and build medical facilities according to Sanitas’s

specifications, and to lease such property and improvements to Sanitas. (Id. at 

2.) 

1 The Court accepts Sanitas’s factual allegations as true for the purposes of evaluating Genterra’s

motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th 

Cir. 1997).

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The MDA contained a right of first refusal clause that required Sanitas to 

present to Genterra business opportunities to operate a medical facility under 

the trade name “Clinisanitas” if the opportunity required the engagement of 

development services. (ECF No. 6-1 at 3, § 2.) The MDA describes development 

services as the acquisition, entitlement, design and building of a particular 

project. (Id. at 3, § 1.4.) Sanitas was responsible for identifying geographical

areas in the United States within which it would seek to develop contractual 

arrangements with third party payors and managed care plans and operate 

medical facilities that deliver health care services to patients. (Am. Compl., ECF 

No. 6 at ¶12.) Once Sanitas identified a suitable area, Sanitas was required to 

deliver written notice to Genterra specifying the geographical boundaries, the 

number of facilities, timelines and completion dates, and proposed rental rates. 

(Id. at ¶ 13.) Genterra could then accept or decline to build and lease the 

facilities within thirty days of receiving the notice. (Id. at ¶ 14.) If Genterra

timely accepted, Genterra was required to conduct an inspection of the area to 

identify specific areas for facilities and prepare and submit to Sanitas a 

preliminary report and analysis. (Id. at ¶ 15.) Once Genterra delivered the

preliminary report to Sanitas, the MDA allegedly required Genterra to develop a 

definitive proposal for the acquisition, entitlement, design, building, and 

leasing of the completed project. (Id. at ¶ 16.) The obligations of both parties 

through this process were collectively referred to as development services. (Id. 

at ¶ 17.)

Between the summer of 2017 and February 2019, Sanitas and Genterra 

worked together to build two facilities. (Id. at ¶ 28.) Genterra had also begun 

preparing proprietary information for Sanitas in connection with a third facility 

(together the “Initial Facilities”). (Id.) Since the completion of the Initial 

Facilities, Sanitas has developed and constructed at least twelve new operating 

medical facilities in Texas, Florida, and elsewhere in the United States 

(collectively the “New Facilities”). (Id. at ¶ 31.) However, Genterra alleges 

Sanitas cut Genterra out by failing to provide Genterra with notice of the 

business opportunity to provide development services for the New Facilities. (Id. 

at ¶ 32.) According to the amended complaint, Sanitas instead offered the

business opportunities to third parties, in breach of the right of first refusal 

and the restrictive covenants provided by the MDA. (Id.)

Moreover, during the development of the Initial Facilities, Genterra 

allegedly employed an architect, Daniel Perez and his firm, as a subcontractor.

(Id. at ¶ 34.) Once the relationship between Genterra and Sanitas began to 

deteriorate, Genterra alleges Sanitas continued to communicate with Perez, 

propositioned Perez to circumvent Genterra and provide development services 

to Sanitas directly, and hired him for the New Facilities in violation of the

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MDA’s non-solicitation and no hire clauses. (Id. at ¶ 36.) Sanitas alleges Perez’s

website proves this as it lists Sanitas as a direct client as of 2018. (Id. at ¶ 38; 

ECF No. 28 at 6.)

Genterra further alleges that Sanitas utilized Genterra’s proprietary 

information for its own general benefit in engaging other developers, including 

Perez, for development services on the New Facilities, in violation of the MDA’s 

restrictive covenants. (ECF No. 6 at ¶ 40.) Particularly, Genterra alleges it 

developed proprietary information for four of the New Facilities located in 

Florida (“Florida Facilities”) and delivered the proprietary information to 

Sanitas in anticipation of providing development services for the Florida 

Facilities. (Id. at ¶ 49.) On June 26, 2018, Sanitas sent an email to Genterra 

and Perez stating “[b]ased on our conversation attached please find the 

drawings, please advise if you have these, or you already worked on these.” (Id. 

at ¶ 43.) The email contained blueprints for the Florida Facilities in Orlando.

(Id.) Perez allegedly responded to the email, stating “we will review these 

programs and do code analysis.” (Id.) On July 3, 2018, Sanitas sent Genterra 

and Perez another blueprint and included the street addresses for all four of 

the Florida Facilities. (Id. at ¶ 45.) On July 10, 2018, Genterra sent an email to 

Sanitas stating “[w]e are moving forward with design and permits for . . . 

Florida Projects as directed and discussed in our meeting today.” (Id. at ¶ 47.) 

Without Genterra’s knowledge or consent, Sanitas purportedly utilized 

Genterra’s proprietary information and employed third parties instead of 

Genterra to develop the Florida Facilities. (Id. at ¶ 57.)

Genterra now complains that Sanitas breached the right of first refusal

by providing business opportunities to third parties without first notifying and 

making them available to Genterra. Additionally, Genterra alleges that by 

disclosing proprietary information to third parties and directly employing Perez 

for the construction of the New Facilities, Sanitas breached the following 

restrictive covenants set forth in the MDA: (i) confidentiality clause, (ii) nonsolicitation clause, (iii) no hire clause, (iv) non-circumvention clause, and (v) 

right of injunction clause.

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). 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). “[T]he pleading standard Rule 8 announces does 

not require detailed factual allegations, but it demands more than an 

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 3 of 13
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). 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 (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.” Iqbal, 556 U.S. at 678. “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a 

sheer possibility that a defendant has acted unlawfully.” Id. “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. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable 

and generous departure from the hyper-technical, code-pleading regime of a 

prior era, but it does not unlock the doors of discovery for a plaintiff armed 

with nothing more than conclusions.” Iqbal, 556 U.S. at 679. 

Yet, where the allegations “possess enough heft” to suggest a plausible 

entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. 

“[T]he standard ‘simply calls for enough fact to raise a reasonable expectation 

that discovery will reveal evidence’ of the required element.” Rivell v. Private 

Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a 

well-pleaded complaint may proceed even if it strikes a savvy judge that actual 

proof of those facts is improbable, and ‘that a recovery is very remote and 

unlikely.’” Twombly, 550 U.S. at 556.

3. Discussion

A. Count I—Breach of Contract

a. Breach of Right of First Refusal

In the complaint, Genterra alleges Sanitas breached the right of first 

refusal by offering business opportunities to other developers, including the 

subcontractor, without first presenting the business opportunities to Genterra.

(ECF No. 6 at ¶ 59.) In its motion, Sanitas maintains the right of first refusal 

only requires Sanitas to present Genterra with business opportunities that 

involve the engagement of development services as described in Section 1.4 of 

the MDA. (ECF No. 15 at 4.) After a careful review of the record and the 

applicable law, the Court finds Genterra has sufficiently alleged a breach of the 

right of first refusal clause in the MDA. 

The MDA’s right of first refusal clause provides:

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In the event that Sanitas USA identifies a business opportunity to 

operate a medical facility under the trade name “Clinisanitas” within 

the United States of America (the “Business Opportunity”), that 

requires the engagement of the Development Services as described 

in Section 1.4 herein, then Sanitas USA shall first present such 

Business Opportunity and requirement for Services to Genterra by 

providing written notice. Such written notice (a “Requirement for 

Services Notice”) that shall include: (i) the Catchment Area, and (ii) 

a right of first opportunity to permit Genterra to undertake the 

Services for such Business Opportunity.

(ECF No. 6-1 at 3–4, § 2.)

According to Sanitas, it was only obligated to present a business 

opportunity to Genterra if that business opportunity (1) required Genterra to 

purchase the subject property, (2) construct a medical facility on the property, 

and (3) lease the developed property to Sanitas. (ECF No. 15 at 5.) Sanitas

argues the amended complaint fails to allege that any of the New Facilities were 

opportunities that required Genterra’s development services. (Id.) Sanitas

contends by failing to allege that any of the New Facilities required 

development services, Genterra has not sufficiently pled a breach of the MDA.

(Id.)

The Court finds Sanitas’s argument unavailing. Under Florida law, 

the elements required to establish a breach of contract claim are: (1) the 

existence of a contract; (2) a material breach of that contract; and (3) damages 

resulting from the breach. Kennedy v. Deschenes, No. 17-60110-CIV, 2017 WL 

2223050, at *5 (S.D. Fla. May 19, 2017) (Scola, J.). Here, it is alleged that 

Sanitas owed a duty to inform Genterra of business opportunities that required

development services. According to the amended complaint, Sanitas has 

developed and constructed at least twelve new operating medical facilities 

around the United States, including in Florida. (ECF No. 6 at ¶ 31.) Although 

Genterra did not expressly allege that each of the twelve projects required 

development services, Genterra has adequately pled that Sanitas breached the 

contract by failing to inform Genterra of any of these business opportunities.

(Id. at ¶ 32.) Moreover, Genterra’s allegation that Sanitas developed the medical 

facilities necessarily implies that the properties did not have medical facilities, 

which means that Genterra, if given the opportunity, might have chosen to 

develop the medical facilities. As a result, Genterra has adequately alleged that 

it suffered damages by losing out on its bargained-for right for a first 

opportunity to develop medical facilities on the property.

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b. Breach of Restrictive Covenants

In its motion, Sanitas asks the Court to dismiss Genterra’s amended 

complaint because Genterra failed to plead a legitimate business interest 

justifying the restrictive covenants set forth in the MDA. Under Florida law, 

restrictive covenants are valid restraints of trade or commerce if they are set 

forth in a writing signed by the party against whom enforcement is sought, the 

contractually specified restraint is supported by at least one legitimate 

business interest justifying the restraint, and the restrictive covenants are

reasonably necessary to protect that interest. Fla. Stat. § 542.335. 

Here, the MDA contains five restrictive covenants, one of which provides:

Non-Solicitation. During the term of this Agreement, and for a 

period of one (1) year thereafter, the Parties will not directly or 

through others, solicit, divert or take away from Genterra (or 

affiliates), or attempt to divert or to take away from Genterra (or its 

affiliates), the business or patronage of any clients, suppliers, 

contractors, subcontractors, vendors, referral sources or other 

business relationships of Genterra (or its affiliates) that were utilized 

in connection any of the selection, acquisition, entitlement, design, 

development, management or leasing services contemplated by this 

Agreement.

(ECF No. 6-1 at 8, § 5.2(a).) Next, the no hire clause provides:

No Hire. During the term of this Agreement, and for a period of one 

(1) year thereafter, neither Party or its affiliates will directly or 

through others (a) hire any individual who provided services to the 

other Party or its affiliates as an employee, consultant, or 

independent contractor of the Party or its affiliates during the term 

of this Agreement, or (b) solicit or induce any individual who 

provided services to the other Party or its affiliates as an employee, 

consultant or independent contractor of the Party or its affiliates 

during the term of this Agreement to terminate his or her 

relationship with the Party and/or such affiliate in order to become 

an employee, consultant or independent contractor of any other 

person or entity.

(ECF No. 6-1 at 8, § 5.3.)

Sanitas argues the amended complaint does not allege a legitimate 

interest justifying any of the restrictive covenants or any allegation that the 

restrictive covenants are reasonably necessary to protect a legitimate business 

interest. (ECF No. 15 at 5.) Further, Sanitas argues that Genterra has not

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shown a legitimate business interest to justify precluding Sanitas from 

soliciting and hiring Perez to construct the New Facilities. (Id. at 6.) Therefore, 

according to Sanitas’s motion, Genterra has not sufficiently alleged that 

Genterra had a legitimate business relationship with Perez. Even if Genterra 

sufficiently pled a legitimate business interest, Sanitas contends that it did not 

violate the restrictive covenants set forth in the MDA. This contrasts with 

Genterra’s allegation of a breach of the non-solicitation and no-hire clauses 

based on Sanitas having sent Perez blueprints relating to the construction of 

the Florida Facilities. (ECF No. 6 at ¶¶ 45, 76.) However, according to Sanitas, 

the non-solicitation clause only precludes Sanitas from taking away or 

attempting to divert or take away from Genterra the “business or patronage” of 

its “client, supplier, contractor, subcontractor, vendor, referral source, or other 

business relationships of Genterra (or its affiliates).” (ECF No. 15 at 8.) Sanitas 

maintains that Genterra has not alleged sufficient facts to show that Perez ever 

worked for Genterra or that Perez’s “business or patronage” on any particular 

project was taken away because Perez was working for Sanitas. (Id.)

The Court disagrees. Genterra alleges that during the development of the 

Initial Facilities, Genterra employed the services of Perez as a subcontractor. 

(ECF No. 6 at ¶ 34.) Genterra further alleges that Sanitas solicited, took away,

and hired Perez, thereby breaching the non-solicitation and no-hire clauses.

(Id. at ¶ 76.) In particular, the amended complaint emphasizes that when the 

relationship between Genterra and Sanitas began to deteriorate, Sanitas 

engaged in communication with Perez, and propositioned Perez to directly 

provide development services to Sanitas. (Id. at ¶¶ 36–37.) Moreover, Genterra 

argues the parties expressly agreed that the restrictive covenants “are 

necessary for the protection of the business and goodwill of the Parties and the 

Parties agree they are reasonable for such purposes.” (ECF No. 6-1 at 7.) In its 

response, Genterra underscores that an ongoing business’s reputation and 

goodwill are expressly defined in the examples of legitimate business interests 

provided by the Florida legislature. (ECF No. 28 at 9; see Fla. Stat. §

542.335(1)(b)(4)(a) (including “Customer, patient, or client goodwill associated 

with: an ongoing business or professional practice, by way of trade name” as a

delineated legitimate business interest.).) In further support of its claim, 

Genterra points to White v. Mederi Caretenders Visiting Servs. of S. Fla., LLC, 

226 So. 3d 774 (Fla. 2017)—a case in which the Florida Supreme Court held 

that the determination of whether an activity qualifies as a protected legitimate 

business interest under the statute is inherently a factual inquiry, which is 

heavily industry and context-specific.

In light of the record and the fact-intensiveness of Sanitas’s argument, 

the Court finds that Genterra’s allegations that Sanitas breached the nonCase 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 7 of 13
solicitation and no hire restrictive covenants are sufficient to survive a motion 

to dismiss. As alleged in the amended complaint, Perez was once employed by 

Genterra. (ECF No. 6 at ¶ 34.) This allegation, in context and at this stage of 

the proceedings, is sufficient to support the claims that Sanitas violated the 

non-solicitation and no-hire clauses of the MDA, which expressly preclude 

Sanitas from hiring or soliciting, during the term of the MDA, any individual 

who has provided services to Genterra. Additionally, Genterra has adequately 

pled that it has a legitimate business interest to support the restrictive 

covenants. Specifically, the amended complaint alleges “the various breaches 

by Sanitas have caused, and continue to cause, irreparable injury to the 

goodwill and reputation of Genterra with Prospective Partners and the

development and construction industry as a whole.” (Id. at ¶ 76.) Sanitas 

argues that the Court cannot find that restrictive covenant breach allegations 

under Count I are validly supported by the allegation that Genterra’s business 

goodwill has been harmed because the business goodwill allegation only 

appears under Count II (and not Count I also). The Court disagrees for two 

reasons. First, Sanitas has not offered any authority supporting its argument, 

which asks the Court to exalt form high above substance. Second, and more 

importantly, Count I of the complaint incorporates by reference the Restrictive 

Covenants provision of the MDA (ECF No. 6 at ¶ 68), which memorializes the 

parties’ agreement that the restrictive covenants “are necessary for the 

protection of the business and goodwill of the Parties and the Parties agree they 

are reasonable for such purposes” (ECF No. 6-1 at 8, § 5.5 (emphasis added)).

Finally, as Genterra points out, whether an activity qualifies as a 

protected legitimate business interest is a question of fact that should not be 

determined at this stage of the litigation. See Visiting Servs. of S. Fla., LLC, 226 

So. 3d 774.

c. Breach of Confidentiality: Disclosure of Proprietary Information

Genterra alleges that Sanitas breached the confidentiality clause in the 

MDA by disclosing Genterra’s proprietary information to third parties, 

including Perez, to be used in the development services for the New Facilities.

(ECF No. 6 at ¶ 40.) In its motion, Sanitas contends that there are no fact 

allegations identifying: (a) what specific information was disclosed by Sanitas, 

(b) how that information was disclosed, (c) how the information was 

proprietary, (d) on which of the facilities the information was utilized, or (e) how 

the information was utilized in connection with development and construction 

of any of the New Facilities. (ECF No. 15 at 7.) In response, Genterra points to

Section 5 of the MDA which describes restrictive covenants between the 

parties. Particularly, Genterra points to the confidentiality clause, which states

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 8 of 13
that [e]ach Party . . . agrees to keep strictly confidential all Proprietary

Information received by it from a Disclosing Party and to use such Proprietary 

Information solely as necessary to carry out its duties and obligations under 

this Agreement.” (ECF No. 6-1, § 5.1.) 

Under the MDA, proprietary information includes:

[T]he Disclosing parties past, present, and potential future 

processes, procedures, policies, strategies, services, technology, 

specifications, programs, models, financial information and 

projections, data, know-how, developments, designs, improvements, 

software programs, products, marketing plans, patient records, 

physician and vendor lists, referral sources, referral arrangements, 

references and other business information and opportunities . . . as 

well as any Preliminary Report, Definitive Proposal delivered in 

connection herewith, or any other definitive agreement, negotiations 

or transaction between the Parties or their respective affiliates.

(ECF No. 6-1, § 5.1.)

Such proprietary information is subject to protection from disclosure 

outside of the parties to the MDA. (ECF No. 28 at 2.) In the amended

complaint, Genterra alleges that Sanitas violated the confidentiality clause 

when it disclosed the proprietary information of Genterra to third parties, 

including Perez, to be utilized in the development services for the New 

Facilities. (ECF No. 6 at ¶ 69.) Like the other allegations within Count I, 

Genterra has met its pleading requirements. Genterra alleges that it provided 

Sanitas with proprietary information it developed in anticipation of providing 

development services for the Florida Facilities that Sanitas had initially 

informed Genterra about. (Id. at ¶¶ 43, 49.) Genterra claims that it sent an 

email to Sanitas stating “[w]e are moving forward with design and permits for . 

. . Florida Projects as directed and discussed in our meeting today.” (Id. at ¶

47.) Genterra allegedly then developed proprietary information for the Florida 

Facilities and delivered the information to Sanitas in anticipation of providing 

development services for the Florida Facilities. (Id. at ¶ 49.) According to 

Genterra, Sanitas utilized Genterra’s proprietary information and instead 

employed third parties to develop the Florida Facilities. (Id. at ¶ 57.) Genterra’s

allegations are sufficient to suggest a plausible entitlement to relief for breach 

of the confidentiality clause.

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 9 of 13
B. Count II—Injunction.

Sanitas argues that Count II, which is for injunctive relief, is not a cause 

of action. The Court agrees with Sanitas and therefore dismisses Count II.

“Any motion or suit for either a preliminary or permanent injunction must 

be based upon a cause of action. . . . There is no such thing as a suit for a 

traditional injunction in the abstract. For a traditional injunction to be even 

theoretically available, a plaintiff must be able to articulate a basis for relief 

that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6) (failure to state a 

claim).” Alabama v. United States Army Corps of Engineers, 424 F.3d 1117, 

1127 (11th Cir. 2005) (citing Klay v. United Healthgroup, Inc., 376 F.3d 1092, 

1097 (11th Cir. 2004)); Blue Water Innovations, LLC v. Fettig, No. 18-60671-

CIV, 2019 WL 1904589, at *2 (S.D. Fla. Mar. 8, 2019) (Scola, J.) (same). “An 

injunction is a ‘remedy potentially available only after a plaintiff can make a 

showing that some independent legal right is being infringed—if the plaintiff's 

rights have not been violated, he is not entitled to any relief, injunctive or 

otherwise.’” Alabama, 424 F.3d at 1127 (quoting Klay, 376 F.3d at 1098).

Count II is insufficiently pled as there are no “independent legal rights” 

that serve as a basis for the injunctive relief sought. To the extent that 

Genterra seeks injunctive relief in connection with the alleged breaches of the 

MDA, that request for relief is already set forth in the complaint’s prayer for 

relief. (ECF No. 6 at 17.) Thus, Count II is dismissed with prejudice.

C. Count III—Breach of the Implied Covenant of Good Faith and Fair 

Dealing.

Genterra has procedurally abandoned its claim in Count III for breach of 

the implied covenant of good faith and fair dealing by failing to respond to 

Sanitas’s arguments for dismissal of that claim. (ECF No. 30 at 5 (“Genterra 

fails to rebut or even address the first argument and therefore concedes the 

same.”).) In moving to dismiss Count III, Sanitas plainly argued that “the 

Eleventh Circuit has rejected the contention that an independent cause of 

action exists for breach of the implied covenant of good faith and fair dealing.” 

(ECF No. 15 at 9 (citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1316 

(11th Cir. 1999) (“We hold that no independent cause of action exists under 

Florida law for breach of the implied covenant of good faith and fair dealing.”)).)

Genterra did not respond to this argument at all.

The rules of this Court provide that "each party opposing a motion shall 

serve an opposing memorandum of law" and that "[f]ailure to do so may be 

deemed sufficient cause for granting the motion by default." See Local R. 7.1(c). 

"Failure to respond to arguments in a motion to dismiss is a sufficient basis to 

dismiss such claims by default under this Local Rule." A1 Procurement, LLC v. 

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 10 of 13
Hendry Corp., No. 11-23582-CIV, 2012 WL 6214546, at *3 (S.D. Fla. Dec. 13, 

2012) (Altonaga, J.); see also Bute v. Schuller Int'l Inc., 998 F.Supp. 1473, 1477 

(N.D. Ga. 1998) ("Because plaintiff has failed to respond to this argument or 

otherwise address this claim, the Court deems it abandoned."). A party who 

aspires to oppose a motion "must spell out his arguments squarely and 

distinctly, or else forever hold his peace." Siegmund v. Xuelian, Case No. 12-

62539, 2016 WL 3186004, at *3 (S.D. Fla. June 8, 2016) (Gayles, J.). Failing to 

respond to an argument in a motion to dismiss is equal to conceding that 

argument. See GolTV, Inc. v. Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 

1311 n.7 (S.D. Fla. 2017) (Altonaga, J.). This is an important rule because it 

gives teeth to the adversarial litigation process. The Court dismisses Count III 

because Genterra failed to respond to Sanitas’s argument that it cannot be a 

standalone cause of action.

D. Count IV—Fraudulent Inducement.

Sanitas moves to dismiss Count IV based on the independent tort 

doctrine. (ECF No. 15 at 11–12.) Genterra argues that it has sufficiently alleged 

Count IV in a manner that is distinct from the underlying breach of contract 

claim such that Count IV is not precluded by the independent tort doctrine. 

(ECF No. 28 at 12.) Upon careful review, the Court agrees with Sanitas.

“Florida's Third District Court of Appeals recently reaffirmed Florida's 

independent tort doctrine, stating, ‘[w]hen, as here, a contract has been 

breached, a tort action lies only for acts independent of those acts establishing 

the contract's breach.’” Dorvil v. Nationstar Mortg. LLC, No. 17-23193-CIV, 2019 

WL 1992932, at *17 (S.D. Fla. Mar. 26, 2019) (Martinez, J.) (quoting Peebles v. 

Puig, 223 So. 3d 1065, 1069 (Fla. 3d DCA 2017)). “The rule prohibits claims in 

tort for damages which are the same as those for breach of contract so as to 

prevent plaintiffs from recovering duplicative damages for the same 

wrongdoing.” Kelly v. Lee Cty RV Sales Co., No. 18-cv-424, 2018 WL 3126750, 

at *2 (M.D. Fla. June 26, 2018). This rule “applies to misrepresentations made 

during the performance of a contract but does not apply to misrepresentations 

made independently of the contract.” Id.

Genterra points to no independent action or damages outside of those 

relevant to the breach of contract. Rather, Genterra only asserts that Sanitas 

breached the right of first refusal in the MDA when “Sanitas falsely told 

Genterra that during the Term of the [MDA] Sanitas would not engage a third 

party to provide Development Services for any Facilities without first presenting 

the Business Opportunity to Genterra.” (ECF No. 6 at ¶ 89.) Thus, Genterra’s 

fraud count is “inextricably intertwined with the alleged breach of contract.”

See Temurian v. Piccolo, No. 18-cv-62737, 2019 WL 1763022 (S.D. Fla. April 

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 11 of 13
22, 2019) (Bloom, J.) (dismissing fraud claims as “inextricable intertwined” 

with the contract claim). Therefore, Count IV is dismissed.

E. Count V—Tortious Interference with a Contract or Business 

Relationship.

Lastly, Sanitas seeks to dismiss Count V based on the independent tort 

doctrine. (ECF No. 15 at 16.) Particularly, Sanitas asserts that, as a threshold 

matter, Count V should be dismissed because it fails to allege any tortious 

conduct independent from a breach of the non-solicitation clause and no hire 

clause of the MDA. In response, Genterra argues that its claim is proper as it 

was pled in the alternative to Count I. The Court disagrees with Genterra and 

finds that Count V is barred by the independent tort doctrine.

Genterra alleges that “Sanitas intentionally and unjustifiably interfered 

with the business relationship between Genterra and the Subcontractor by 

soliciting, taking away and hiring the Subcontractor to work for Sanitas 

directly.” (ECF No. 6 at ¶ 100.) Genterra’s allegations are directly governed by 

and arise from the express terms of the non-solicitation and no-hire clause in 

the MDA. Accordingly, this allegation cannot constitute the basis for a tort

claim. Moreover, Genterra’s argument that that its tortious interference claim 

can be pled in the alternative, despite the independent tort doctrine, is 

unavailing. (ECF No. 28 at 14–15.) Genterra cites to no legal authority to 

support such proposition. Indeed, it would defeat the basic premise of 

the independent tort doctrine if the Court were to allow Genterra to proceed 

with such a tort claim as a duplicative tort alternative to its surviving breach of 

contract claim. See Altamonte Pediatric Assocs., P.A. v. Greenway Health, LLC, 

No. 8:20-CV-604-T-33JSS, 2020 WL 5350303, at n.4 (M.D. Fla. Sept. 4, 2020)

(finding “[i]t would be contrary to the basic premise of the independent tort 

doctrine to allow such pleadings in the alternative.”). Accordingly, Count V is 

dismissed.

4. Conclusion.

For the foregoing reasons, the Court finds that Count I, for breach of the 

MDA, is adequately stated. The Court finds that Counts II, IV, and V are due to 

be dismissed. Finally, the Court notes that Genterra has either abandoned or 

failed to make any convincing arguments for Count III by failing to respond to 

Sanitas’s arguments for dismissal of that claim. For the reasons set forth 

above, the Court grants in part, as to Counts II, III, IV and V, and denies in 

part, as to Count I, Sanitas’s motion to dismiss (ECF No. 15).

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 12 of 13
Done and ordered, at Miami, Florida, on January 15, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22402-RNS Document 47 Entered on FLSD Docket 01/15/2021 Page 13 of 13