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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No. 20-cv-22967-BLOOM

OPTIMUS MSO II INC., 

Plaintiff, 

vs. 

SIMPLY HEALTHCARE PLANS, INC., 

Defendant. 

___________________________________________/

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Plaintiff, OPTIMUS MSO II INC. (“Plaintiff”), by and through undersigned counsel, 

hereby files this RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

(the “Response”) and in support thereof states as follows:1

STANDARD OF REVIEW

A “motion to dismiss tests whether a plaintiff has alleged a good cause of action in his 

or her complaint.” Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000). “The function of a 

motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts 

alleged to state a cause of action.” Chaires v. N. Florida Nat. Bank, 432 So. 2d 183, 184 (Fla. 

1st DCA 1983). The Federal Rules provide that a complaint must only contain a statement 

calculated to give the defendant fair notice of the plaintiff’s claim and the grounds upon which 

1 Plaintiff does not waive, and indeed expressly retains, the right to seek to remand the present action to 

the Circuit Courts of the State of Florida on grounds that federal subject matter jurisdiction is lacking. 

Specifically, Defendant has not actually allegedy any defenses to the present action that would allow for 

Defendant to seek removal as a “Federal Officer” pursuant to 28 U.S.C. § 1442(a)(1). On the contrary, 

Defendant has merely sought a dismissal without presenting any affirmative defenses. To the extent 

Defendant does not ultimately have any defenses as a “Federal Officer,” this matter will ultimately have to 

be remanded for want of subject matter jurisdiction.

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it rests. U.S. v. Baxter Intern., Inc., 345 F.3d 866, 881 (11th Cir. 2003) (“We have observed 

that the threshold of sufficiency to which a complaint is held at the motion-to-dismiss stage 

is ‘exceedingly low.’”)

Under Florida law, “[a] motion to dismiss under rule 1.140(b) tests whether the 

plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial.” Lonestar 

Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 2009 WL 1457029, 

*2 (Fla. 3d DCA May 27, 2009) (citing Meadows Cmty. Ass’n v. Russell- Tutty, 928 So.2d 1276, 

1280 (Fla. 2d DCA 2006)).2

In ruling on a motion to dismiss, the Court must confine itself strictly to the 

allegations within the four corners of the complaint. See Biscayne Investment Group, Ltd. v. 

Guarantee Management Servs., 903 So. 2d 251, 253 (Fla. 3d DCA 2005); Kest v. Nathanson, 

216 So. 2d 233, 235 (Fla. 4th DCA 1968); Pizzi v. Central Bank and Trust Co., 250 So. 2d 895, 

897 (Fla. 1971); Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3d DCA 1981). 

The Court must accept the allegations in the complaint as true. Nero v. Continental 

Country Club R.O., Inc., 979 So. 2d 263, 267 (Fla. 5th DCA 2007); see also Popwell v. Abel, 

226 So.2d 418, 420 (Fla. 4th DCA 1969). All reasonable inferences arising out of the 

allegations must be construed in favor of the plaintiff. Simon v. Tampa Elec. Co., 202 So. 2d 

209, 211 (Fla. 2d DCA 1967).

2 The standard applicable to a Court's consideration of a motion to dismiss is well settled: “The trial court 

is bound by the four corners of the complaint and attachments, and all ambiguities and inferences drawn 

from ‘the recitals in the complaint, together with the exhibits attached,’ must be construed in the light most 

favorable to the plaintiff.” Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, 

LLC, 10 So.3d 1169, 1172 (Fla. 3d DCA 2009), quoting, in part, Vienneau v. Metro. Life Ins. Co., 548 So. 

2d 856, 858 (Fla. 4th DCA 1989); United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101 

(Fla. 3d DCA 2010).

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LEGAL ARGUMENT

Defendant’s Motion to Dismiss Counts II, III, IV, and V should be denied entirely for 

the reasons set forth herein below.

I. DEFENDANT’S MOTION TO DISMISS COUNT II FOR AN “ACCOUNTING” SHOULD 

BE DENIED.

Defendant’s Motion to Dismiss argues that Count II, which seeks an “Accounting,” 

should be dismissed because “Count II is an equitable claim that is not available to Plaintiff 

and thus fails to state a claim.” See Motion to Dismiss at 3. Defendant’s arguments

misconstrue the law regarding actions for an “Accounting” and the Motion to Dismiss should 

therefore be denied.

Much of Defendant’s argument regarding the action for an “Accounting” is premised 

upon the decision of Zaki Kulaibee Establishment v. McFliker, 771 F.3d 1301 (11th Cir. 

2014)). See Motion to Dismiss at 4. Contrary to the erroneous conclusions within the Motion 

to Dismiss, an action for an “Accounting” is properly alleged and a dismissal would be 

improper. 

“An accounting is grounded in equity and best understood as a remedy for a cause of 

action, not as a cause of action in its own right.” Cox Television Jacksonville, LLC v. Florida 

Cable, Inc., 5:16-CV-6-OC-32PRL, 2016 WL 11578269, at *6 (M.D. Fla. July 13, 2016)3 (citing 

Zaki Kulaibee Establishment v. McFliker, 771 F.3d 1301, 1310 n.21 (11th Cir. 2014)). To 

survive a Motion to Dismiss, Plaintiff need merely allege (i) ultimate facts showing a basis 

for a “complicated transaction” and (ii) that there may be an “inadequate remedy at law.” Id.

3 Under Florida law, to be entitled to an equitable accounting “a party must show either (1) a sufficiently 

complicated transaction and an inadequate remedy at law or (2) the existence of a fiduciary relationship. 

Id. at 1311. In other words, “there can be grounds for an equitable accounting where the contract demands 

between litigants involve extensive or complicated accounts and it is not clear that the remedy at law is as 

full, adequate and expeditious as it is in equity.” Trenton Int’l, Ltd. v. Trenton Int’l, Inc., No. 2:05XCV581 

FTM29SPC, 2006 WL 3201869, at *4 (M.D. Fla. 2006) (quoting Chiron c. Isram Wholesale Tours and Travel 

Ltd., 519 So. 2d 1102, 1103 (Fla. Dist. Ct. App. 1988)).

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a. COMPLEXITY OF THE TRANSACTIONS

As to complexity, transactions are deemed “sufficiently complicated to warrant an 

equitable accounting when a jury would not be reasonably able, based on the time and effort 

required, to assess the evidence and reach an accurate value of the amount owed.” Blitz 

Telecom Consulting, LLC v. Peerless Network, Inc., No. 614CV307ORL40GJK, 2015 WL 

9269413, at *9 (M.D. Fla. Dec. 21, 2015) (citing Managed Care Solutions, Inc. v. Essent 

Healthcare, Inc., 694 F. Supp. 2d 1275, 1279–81 (S.D. Fla. 2010) ). “[T]he determination of 

whether a series of transactions is sufficiently complex to warrant equitable accounting is 

fact specific.” Traditions Senior Mgmt., Inc. v. United Health Adm’rs, Inc., No. 8:12-CV-2321-

T-30MAP, 2013 WL 3285419, at *5 (M.D. Fla. 2013) (citing Managed Care Solutions, Inc., 

694 F. Supp. 2d at 1281).

It is clear from the Complaint that the transactions at issue in this litigation are highly 

complex. Defendant does not even attempt to argue that such transactions are not highly 

complex in nature, as such an argument would be absurd. In any event, the “complexity” of 

the transactions is not subject to a motion to dismiss because the issue of “complexity” is 

inherently “fact specific.” See Traditions Senior Mgmt., 2013 WL 3285419, at *5.

b. INADEQUATE REMEDY AT LAW

As to the issue of “the adequacy of the remedy,” when a “breach of contract claim does 

not—as a practical matter—provide an adequate remedy at law, an equitable accounting 

is warranted.” See Zaki Kulaibee Establishment, 771 F.3d at 1315 (finding an equitable 

accounting warranted where it was necessary to prove the damages element of a breach of 

contract claim); see also Cox Television Jacksonville, LLC v. Florida Cable, Inc., 5:16-CV-6-

OC-32PRL, 2016 WL 11578269, at *6 (M.D. Fla. July 13, 2016) (finding same).

The adequacy of the remedy at law, in the context of the current action for an 

“Accounting,” is therefore subject to a factual dispute that does not lend itself to a dismissal 

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as a matter of law. See Novak v. Ackley, Ackley & Wise, D.M.D.’s, P.A., No. 8:06-CV-1673-T27, 2006 WL 3313852, at *2 (M.D. Fla. 2006) (denying a motion to dismiss an accounting 

claim and stating “[a]t this stage of the litigation, the [c]ourt is not able to conclude that it 

appears beyond doubt that [p]laintiff can prove no set of facts in support of his claim”); see 

also Cox Television Jacksonville, 2016 WL 11578269, at *7 (M.D. Fla. July 13, 2016) (denying 

a motion to dismiss action for an “Accounting” for precisely the same reason). Thus, the 

adequacy of the remedy at law in the instant case is a factual matter and is not subject to 

dismissal.

For the foregoing reasons, Defendant’s Motion to Dismiss as to Count II should be 

denied entirely.

II. DEFENDANT’S MOTION TO DISMISS COUNT III FOR “FRAUD” SHOULD BE 

DENIED.

Defendant’s Motion to Dismiss argues that Count III, an action for “Fraud,” should be 

dismissed because “Count III fails to state a claim because it is not pleaded with sufficient 

particularity under Rule 9(b).” See Motion to Dismiss at 5. Plaintiff has adequately alleged 

an action for fraud and, as a result, the Motion to Dismiss should be denied with respect to 

Count III.

In order to state a cause of action for fraud in the inducement, a plaintiff must allege 

that 1) the representor made a misrepresentation of a material fact, 2) the representor knew 

or should have known of the falsity of the statement, 3) the representor intended that the 

representation would induce another to rely and act on it, and 4) the plaintiff suffered injury 

in justifiable reliance on the representation. Biscayne Inv. Group, Ltd. v. Guarantee 

Management Services, Inc., 903 So. 2d 251(Fla. 3rd DCA 2005). If the fraud occurs in 

connection with misrepresentations, statements or omissions which cause a party to enter 

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into a transaction, then such fraud is fraud in the inducement and survives as an independent 

tort. Allen v. Stephan Co., 784 So. 2d 456, 457 (Fla. 4th DCA 2000).

Contrary to the conclusory assertions within the Motion to Dismiss, specific instances 

of “fraud” are alleged throughout the Complaint. See Complaint at ¶¶ 24-32, 45-48, 54-60. 

In particular, the Complaint alleges specifically that Defendant defrauded Plaintiff with 

respect to premiums for “Medicare “Stop- Loss” protection for the first thousand (1,000) of 

Optimus’ ‘members.’” Id. at ¶ 24.

Plaintiff has therefore adequately alleged a cause of action for “fraud” against 

Defendant. Defendant may attempt to deny Plaintiff’s allegations as to Defendant’s 

fraudulent conduct, but Defendant is not entitled to a dismissal of Count III.

III. DEFENDANT’S MOTION TO DISMISS COUNT IV FOR “VIOLATION OF FLORIDA’S 

DECEPTIVE AND UNFAIR TRADE PRACTICES ACT” SHOULD BE DENIED.

Defendant’s Motion to Dismiss argues that Count IV, an action for “Violation Of 

Florida’s Deceptive and Unfair Trade Practices Act,” should be dismissed because “Count IV 

fails to state a claim because the Complaint has not adequately asserted facts showing 

consumer injury or detriment.” See Motion to Dismiss at 8. Plaintiff has adequately alleged 

an action for violation of Florida’s Deceptive and Unfair Trade Practices Act and, as a result, 

the Motion to Dismiss should be denied with respect to Count IV.

Defendant’s argument in support of its Motion to Dismiss amounts to a blind assertion 

that “Count IV does not assert any facts showing consumer injury or detriment; instead, it 

merely alleges in a conclusory fashion that Plaintiff is a ‘consumer’ under the expanded 

statutory definition.” See Motion to Dismiss at 10. However, Defendant’s focus upon the 

term “consumer” in the Motion to Dismiss is erroneous under current applicable law.

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, 

and unfair or deceptive acts or practices in the conduct of any trade of commerce.” § 

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501.204(1), Fla. Stat. The purpose of the act is to “protect the consuming public and 

legitimate business enterprises from those who engage in unfair methods of competition, or 

unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or 

commerce.” § 501.202(2). 

The term “trade or commerce” is defined to mean the “advertising, soliciting, 

providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or 

service, or any property, whether tangible or intangible, or any other article, commodity, or 

thing of value, wherever situated.” § 501.203(8). To achieve its goal of protecting consumers 

and businesses from unfair, unconscionable, or deceptive acts or practices, FDUTPA must be 

“construed liberally.” § 501.202.

Prior to 2001, FDUTPA provided, in part, as follows:

In any individual action brought by a consumer who has suffered a loss as a result of 

a violation of this part, such consumer may recover actual damages, plus attorney's 

fees and court costs as provided in s. 501.2105 . . ..

§ 501.211(2), Fla. Stat. (2000) (emphasis added).

After the 2001 amendment to section 501.211(2), the statute now reads as follows:

In any action brought by a person who has suffered a loss as a result of a violation of 

this part, such person may recover actual damages, plus attorney's fees and court 

costs as provided in s. 501.2105 . . ..

§ 501.211(2), Fla. Stat. (2001) (emphasis added).

The amendment specifically changed who could bring an action from “a consumer” to 

“a person.” Additionally, during the same session, the Legislature also amended section 

501.203(7), Florida Statutes, to change the definition of “consumer” to include a “business” 

and “commercial entity.” Compare § 501.203(7), Fla. Stat. (2000) (“‘Consumer’ means an 

individual; child, by and through its parent or legal guardian; firm; association; joint venture; 

partnership; estate; trust; business trust; syndicate; fiduciary; corporation; or any other 

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group or combination.”), with § 501.203(7), Fla. Stat. (2001) (“‘Consumer’ means an 

individual; child, by and through its parent or legal guardian; business; firm; association; 

joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any 

commercial entity, however denominated; or any other group or combination.”) (emphasis 

added).

This Court has considered the change in language and has concluded that the 2001 

amendments broadened the scope of FDUTPA such that non-consumers may maintain 

actions under the act. Analyzing the different lines of cases on the issues, this Court in Kelly 

v. Palmer, Reifler, & Associates, P.A., 681 F. Supp.2d 1356, 1373 (S.D. Fla. 2010) concluded 

as follows:

Applying a liberal construction to § 501.211(2), as we are compelled to do when 

construing the provisions of FDUTPA, see § 501.202, we see no reason not to conclude 

that replacing the term “consumer” with “person” served to broaden the reach of the 

statute so that more than just consumers could avail themselves of the protection of 

this statute. We agree with the line of cases that so hold as a matter of standing to 

sue. Concluding that a non-consumer may maintain an action for damages under 

FDUTPA, we find that the Palmer Law Firm is not entitled to summary judgment merely 

because Plaintiffs are non-consumers.

The Kelly decision was subsequently considered by the Florida Fourth District Court 

of Appeal when confronted with the issue in Caribbean Cruise Line, Inc. v. Better Business 

Bureau of Palm Bach County, Inc., 169 So. 3d 164 (Fla. 4th DCA 2015). In that decision, the 

Fourth District considered the 2001 amendment to FDUTPA, the reasoning employed in 

Kelly, and concluded that the legislative change from “consumer” to “person” broadened the 

scope of FDUTPA such that the act is no longer intended to apply only to traditional 

conceptions of “consumers.” 169 So. 3d at 169; see also BPI Sports, LLC v. Labdoor, Inc., 

2016 WL 739652 (S.D. Fla. Feb. 25, 2016) (concluding that FDUTPA is not limited to cases 

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where the plaintiff is a traditional consumer or which involved a traditional consumer 

transaction).4

Considering that this Court’s role is to determine what position Florida courts would 

take on the issue, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 

(1938), and considering that the Fourth District Court of Appeal has squarely addressed the 

issue, the analysis should end there. 

As a result, Plaintiff has adequately stated a cause of action under Florida’s Deceptive 

and Unfair Trade Practices Act. Defendant erroneously relies upon outdated law in its 

interpretation of the coverage of the Act, particularly with respect to the term “consumer.” 

As a result, the Motion to Dismiss should be denied with respect to Count IV.

IV. DEFENDANT’S MOTION TO DISMISS COUNT V FOR “TORTIOUS INTERFERENCE”

SHOULD BE DENIED.

Defendant’s Motion to Dismiss argues that Count V, an action for “Tortious 

Interference,” should be dismissed because “Count V fails to state a claim because the 

Complaint lacks factual support for the essential elements of a tortious interference cause of 

action.” See Motion to Dismiss at 10-11. Plaintiff has adequately alleged an action for 

Tortious Interference and, as a result, the Motion to Dismiss should be denied with respect 

to Count V.

4 FDUTPA has been routinely applied by the courts in Florida (state and federal) to disputes involving 

business-to-business dealings that do not involve purely “consumer” transactions in the traditional sense 

of the word.. See, e.g., Creative American Education, LLC v. The Learning Experience Systems, LLC, 2015 

WL 2218847 (S.D. Fla. May 11, 2015) (allowing a FDUTPA claim based on a franchisor’s actions in 

connection with the management of the franchise); KC Leisure, Inc. v. Haber, 972 So. 2d 1069 (5th DCA 

2008) (allowing a FDUTPA claim against a business and its principals for failing to provide disclosures as 

required by the Federal Trade Commission); Copans Motors, Inc. v. Porsche Cars North America, Inc., 2014 

WL 2612308, at *6 (S.D. Fla. June 11, 2014) (allowing a FDUTPA claim against a distributor alleged to have 

made misrepresentations to a dealer, and further noting that whether an act is “unfair or deceptive is a 

question for the fact finder”).

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The Motion to Dismiss argues, via purported examples that are misleading at best, that 

Plaintiff has not alleged sufficient ultimate facts to support a claim for tortious interference. 

This is simply untrue based on the four corners of the Complaint. 

Plaintiff’s Complaint clearly alleges ultimate facts regarding tortious interference with 

respect to Plaintiff’s MSO “members.” See Complaint at ¶¶ 78-80, 83-87 (wherein Plaintiff 

alleges how Defendant tortious interfered with Plaintiff’s MSO “members”). Plaintiff is not 

obligated to plead tortious interference with particularity; Defendant can take appropriate

discovery if it wishes to obtain more information/documents that support Plaintiff’s claim.

Plaintiff’s Complaint adequately alleges ultimate facts to support a claim for tortious 

interference. Defendant may deny such allegations, but Defendant is not entitled to a 

dismissal as a matter of law. As a result, the Motion to Dismiss should be denied with respect 

to Count V.

WHEREFORE, Plaintiff, OPTIMUS MSO II INC., respectfully requests that this Court 

enter an Order (i) denying Defendant’s Motion to Dismiss as to Count II; (ii) denying 

Defendant’s Motion to Dismiss as to Count III; (iii) denying Defendant’s Motion to Dismiss 

as to Count IV; (iv) denying Defendant’s Motion to Dismiss as to Count V; and (v) granting 

such other relief as is just and proper.

Dated: August 19, 2020. Respectfully submitted,

HIRZEL DREYFUSS & DEMPSEY PLLC

Counsel for Plaintiff

2333 Brickell Ave, Suite A-1 

Miami, Florida 33129-2497

Telephone: (305) 615-1617

By: /s/ Patrick G. Dempsey

 LEON F. HIRZEL

Florida Bar No. 085966

hirzel@hddlawfirm.com

PATRICK G. DEMPSEY

Florida Bar No. 27676

dempsey@hddlawfirm.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served via CM/ECF 

Notification to all parties registered to receive electronic notice on this 19th day of August, 

2020. 

By: /s/ Patrick G. Dempsey

PATRICK DEMPSEY

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