UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22987-BLOOM/Louis

DR. JUAN SARDINAS,

Plaintiff,

v.

MIAMI VETERINARY SPECIALISTS, P.A.,

Defendant.

________________________________/

ORDER

THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss, ECF No. [9] 

(“Motion”). Plaintiff filed a response in opposition, ECF No. [16] (“Response”), to which 

Defendant filed a reply, ECF No. [22] (“Reply”). The parties also filed further briefing with leave 

of Court, including a sur-reply, ECF No. [25] (“Sur-Reply”) and a sur-sur-reply, ECF No. [30] 

(“Sur-Sur-Reply”). The Court has considered the Motion, all opposing and supporting 

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the 

reasons set forth below, the Motion is granted in part and denied in part.

I. BACKGROUND

This action arises out of Defendant’s alleged failure to comply with the terms of a

Stockholders’ Agreement, ECF No. [1-3] (the “Agreement”), which governs the relationship 

between Defendant and its “Stockholders,” Plaintiff and Dr. Alvaro Larín (“Dr. Larín”). According 

to the Complaint, ECF No. [1], Defendant operates a veterinary medical practice that is co-owned 

by Plaintiff and Dr. Larín, each of whom owns fifty-percent of the company. Id. at ¶ 9. Under the 

Agreement, Defendant shall purchase all of the shares of a Stockholder if the Stockholder’s

employment with Defendant is terminated “for any reason other than death or disability.” Id. at 

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¶ 11 (quoting ECF No. [1-3] at § 4(c)).1 The purchase price is calculated based on a formula,2 with

the date3for calculating the company’s value and the corresponding method4for valuation dictated 

by the Agreement. Id. at ¶¶ 12-14. In this regard, the Agreement directs that should the selling 

Stockholder elect that the purchase price be the “Stockholder’s proportionate share of the fair 

1 The Agreement provides that “[u]pon the occurrence of an event listed herein, the Corporation 

shall purchase all of the shares of a Stockholder, at the price determined in accordance with Section 

5 hereof, payable in accordance with Section 7 hereof: . . . termination of the Stockholder’s 

employment with the Corporation for any reason other than death or disability.” ECF No. [1-3] at 

§ 4(c).

2 The Agreement states that the “purchase price of a Stockholder’s stock in the Corporation for 

purposes of the purchase and sale of said stock . . . shall be equal to the amount set forth in the 

Certificate of Agreed Value . . . multiplied by a fraction, the numerator of which is the number of 

shares being sold, and the denominator of which is the number of issued and outstanding shares of 

the Corporation’s stock prior to the sale.” ECF No. [1-3] at § 5(a).

3 The Agreement provides that the “value of a Stockholder’s stock shall be determined and the 

purchase shall be deemed to have occurred as of the following dates . . . depending upon which 

event has occurred to cause his stock to be purchased: . . . termination of employment for any 

reason other than death – the last day of the month immediately preceding the date of termination 

of employment.” ECF No. [1-3] at § 6(d).

4 The Agreement states as follows:

If, at any time, it becomes necessary to determine the value of the Corporation and 

the Certificate of Agreed Value is dated less than one (1) year before the date on 

which the value is to be determined, the agreed value set forth in such Certificate 

shall be conclusive as to the value and shall be accepted as the value as of the date 

on which the value is to be determined, and no other determination of value shall 

be required or made. In the event a Certificate of Agreed Value is dated more than 

one (1) year prior to the date on which the value is to be determined, at the option 

of the selling Stockholder . . . the purchase price shall be the Stockholder’s 

proportionate share of the fair market value of the Corporation. In such event, the 

Transferor Stockholder and the Corporation shall attempt in good faith to agree 

upon such fair market value. In the event the Transferor Stockholder and the 

Corporation cannot agree upon the fair market value within thirty (30) days after 

the date of the event Transferor Stockholder’s or the Corporation’s exercise of his 

or its option to purchase or the date of the event creating the purchse obligation, 

whichever is applicable, the Transferor Stockholder or the Corporation, by written 

notice to the other, may elect to have the fair market value determined by appraisal.

ECF No. [1-3] at § 5(c).

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market value” of Defendant, ECF No. [1-3] at § 5(c), the selling Stockholder and Defendant “shall 

mutually appoint a certified public accountant or certified business appraiser . . . to perform the 

appraisal.” Id. at § 5(d). The Agreement provides a mechanism to conduct an appraisal if an 

agreement cannot be reached on appointing an appraiser. ECF No. [1] at ¶ 15 (quoting ECF No. 

[1-3] at § 5(d)). Specifically, 

If the Transferor Stockholder and the Corporation fail to agree on the identity of 

the appraiser within ten (10) days, each shall appoint an appraiser and the fair 

market value shall be the average of the two appraisals, unless the two appraisals 

vary by more than five percent (5%), in which event the appraiser of the Transferor 

Stockholder and the appraiser of the Corporation shall select a third appraiser 

within forty (40) days of their appointment. . . . In the event that either party or his 

appraiser shall fail to timely take any action hereunder, the fair market value shall 

be established by the non-defaulting party’s appraiser.

ECF No. [1-3] at § 5(d).

In the event of a purchase and sale of a Stockholder’s shares, “twenty percent (20%) of the 

purchase price shall be paid by the purchasing party to the selling Stocholder, as a down payment” 

at the transaction’s closing. ECF No. [1] at ¶ 16 (quoting ECF No. [1-3] at § 7(a)). The purchase 

price’s balance is then paid in “equal consecutive monthly installments, with interest at the prime 

rate published by the Wall Street Journal,” and the purchasing party’s obligation to the selling 

Stockholder “shall be evidenced by a non-negotiable promissory note[.]” Id. at ¶ 17 (quoting ECF 

No. [1-3] at §§ 7(a) and (b)).5

Plaintiff alleges that he resigned from Defendant on November 21, 2018, which in turn 

triggered Defendant’s obligation under section 4(c) of the Agreement to purchase his stock in the 

company. Id. at ¶ 19 (citing ECF No. [1-4]). On December 13, 2018, Defendant formally notified 

Plaintiff that it intended to buy-out Plaintiff’s stock in accordance with the Agreement, and that 

5 Additionally, if “any litigation aris[es] by virtue of this Agreement, the prevailing party shall be 

entitled to an award of all Court costs, litigation expenses and attorneys’ fees at both trial and 

appellate levels.” Id. at ¶ 18 (quoting ECF No. [1-3] at § 23).

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October 31, 2018 would be the date used for determining the purchase price of Plaintiff’s stock. 

Id. at ¶ 20 (citing ECF No. [1-5]). According to Plaintiff, the parties were unable to agree on a 

purchase price or jointly select one appraiser, so they agreed to appoint individual appraisers to 

complete an appraisal of Defendant as of October 31, 2018. Plaintiff selected Dr. Richard Goebel 

and Defendant selected Thomas Garland. Id. at ¶¶ 21-22. Dr. Goebel completed his appraisal on

June 3, 2019. Plaintiff later notified Defendant’s counsel requesting proposed dates to mutually 

exchange appraisals; however, Defendant “did not proceed with the mutual exchange of appraisal, 

despite numerous follow-ups[.]” Id. at ¶¶ 23-26 (citing ECF Nos. [1-6] and [1-7]). As of July 20, 

2020, Defendant had not bought out Plaintiff’s interest in Defendant. Id. at ¶ 27. In Plaintiff’s 

view, due to Defendant’s alleged “failure to timely perform its obligations under the Agreement,” 

“the fair market value of [Defendant] for purposes of determining the price at which [Defendant] 

is required to purchase [Plaintiff’s] stock is conclusively established by [Plaintiff’s] appraiser, Dr. 

Goebel.” Id. at ¶ 28 (citing ECF No. [1-3] at § 5(d)).

The Complaint asserts four counts: breach of contract (Count I); breach of the implied 

covenant of good faith and fair dealing (Count II); declaratory judgment (Count III); and specific 

performance (Count IV). Regarding Count I, Plaintiff alleges that Defendant breached sections 5 

and 7 of the Agreement. Id. at ¶¶ 34-35. Regarding Count II, Plaintiff contends that Defendant 

breached the Agreement’s implied covenants of good faith and fair dealing by “not exchanging 

appraisals with [Plaintiff], delaying the process required for determining the price at which 

[Defendant] is required to purchase [Plaintiff’s] stock and failing to purchase [Plaintiff’s] stock 

and pay him what he is owed.” Id. at ¶ 41. Regarding Count III, Plaintiff seeks a declaration that 

Defendant breached the Agreement and that, consequently, the purchase price will be based on Dr. 

Goebel’s appraisal as of October 31, 2018. Id. at ¶ 49 Wherefore clause. Finally, in Count IV, he 

seeks a judgment “directing [Defendant] to specifically perform pursuant to the terms of the 

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Agreement by buying [Plaintiff’s] stock at a price to be determined based on Dr. Goebel’s appraisal 

of [Defendant] as of October 31, 2018, plus accrued interest on that amount, at the prime rate 

published by the Wall Street Journal, until paid.” Id. at ¶ 54 Wherefore clause.

Defendant now moves to dismiss the Complaint in its entirety. ECF No. [9]. It makes five 

overarching arguments. First, Count I fails to allege a breach of the Agreement’s terms because 

Plaintiff himself has not provided his appraisal to Defendant, and thus, Plaintiff has not satisfied a 

condition precedent for a breach of contract claim, making Count I premature and depriving the 

Court of subject matter jurisdiction. Id. at 7-10. See also ECF No. [22] at 2-5 (arguing that the 

Agreement does not require Defendant to provide its appraisal before Plaintiff provides his). It 

adds that the Agreement is silent as to the specific time period for the parties to exchange their 

appraisals, and that mutual exchange of appraisals is not required. ECF No. [9] at 4-5, 8. Second, 

and relatedly, Count I cannot be founded upon anticipatory repudiation by silence and/or inaction 

in the form of Defendant’s alleged failure to “follow up” with exchanging appraisals. Id. at 10-11.

Third, Count II fails because the Complaint does not allege a specific contract provision in the 

Agreement that Defendant breached, and such a cause of action cannot stand independently. Id. at 

11-13. See also ECF No. [22] at 6-7 (arguing that Plaintiff is not a “non-defaulting party” under 

section 5(d) of the Agreement). Fourth, Count III fails because declaratory relief is inappropriate 

where the issue is whether a contract has been breached, and Plaintiff seeks an advisory opinion 

that the Defendant breached the Agreement. ECF No. [9] at 13-17. And fifth, Count IV fails 

because the Complaint does not allege that Plaintiff has no adequate legal remedy, and because 

Plaintiff purportedly has not performed under the Agreement, he is not entitled to equitable relief. 

Id. at 17-18. See also ECF No. [22] at 9-10 (arguing that Count IV is untimely).

Plaintiff responds that that the premise of Defendant’s argument that it did not breach the 

Agreement because there is no express deadline to exchange Defendant’s appraisal is flawed 

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because Defendant failed to perform altogether, not simply failed to timely perform, and that both 

parties have proceeded on the basis of mutual exchanges of appraisals since June 2019. ECF No. 

[16] at 2. Plaintiff raises four main arguments. First, Count I adequately sets forth a claim for 

breach of contract in which Defendant’s breach is its alleged failure to obtain the required appraisal 

and to purchase Plaintiff’s stock pursuant to sections 5 and 7 of the Agreement, rather than a failure 

to “follow up” or repudiation by silence and/or inaction. Id. at 6-7. Relatedly, the Complaint alleges 

that all conditions precedent are satisfied and that the Court has subject matter jurisdiction. Id. at 

7-10. Second, as to Count II, the Complaint adequately states that Defendant breached the implied 

covenant of good faith and fair dealing by failing to perform its obligations under sections 4 

through 7 of the Agreement, rather than by failing to “follow up.” Id. at 10-12. Third, Count III 

can proceed even though Plaintiff also seeks a breach of contract claim, and Count III “does not 

seek a determination that [Defendant] breached the Agreement.” Id. at 12-15. Fourth, Count IV is 

adequately stated, and specific performance is an available remedy for breach of a stock purchase 

agreement. Id. at 15-17.

In the Sur-Reply, ECF No. [25], Plaintiff represents that it provided Dr. Goebel’s appraisal 

to Defendant on October 20, 2020, mooting many of Defendant’s arguments. In the Sur-Sur-Reply, 

ECF No. [30], Defendant contends that Plaintiff’s exchange of the appraisal report is belated, 

Defendant provided its appraisal to Plaintiff on November 3, 2020, the Court lacks subject matter 

jurisdiction because Plaintiff had not perfected his claims at the time suit was filed, and Plaintiff 

cannot amend a pleading through a sur-reply. 

The Motion, accordingly, is ripe for consideration.

II. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and 

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

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Although a complaint “does not need detailed factual allegations,” it must provide “more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 

(2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 

(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on 

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). “Factual 

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555, 127 S.Ct. 1955. These elements are required to survive a motion brought under Rule 

12(b)(6), which requests dismissal for “failure to state a claim upon which relief can be granted.”

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the 

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor 

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 

F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, 

and courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). 

Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative 

explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would 

ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) 

(quoting Iqbal, 556 U.S. at 682, 129 S.Ct. 1937).

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A court considering a Rule 12(b)(6) motion is generally limited to the facts contained in 

the complaint and the attached exhibits, including documents referred to in the complaint that are 

central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 

2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] 

document outside the four corners of the complaint may still be considered if it is central to the 

plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 

1125, 1135 (11th Cir. 2002)). “[W]hen the exhibits contradict the general and conclusory 

allegations of the pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 

(11th Cir. 2007). 

It is through these lenses that the Court considers the Motion and the parties’ arguments.

III. DISCUSSION

Determining whether Defendant is entitled to dismissal of the Complaint raises three

overarching issues. The first is whether the Court can consider Exhibit A to the Sur-Reply, ECF 

No. [25-1], which reflects that Plaintiff provided Dr. Goebel’s appraisal to Defendant. The second 

issue, which is interrelated, is whether the Court has subject matter jurisdiction over this action. 

And third, whether the Complaint alleges plausible claims upon which relief can be granted. The 

Court will address each issue in turn. 

A. The Court may consider the Sur-Reply and its exhibit

In the Sur-Sur-Reply, Defendant alleges that Plaintiff improperly attempts to amend the 

Complaint by filing the Sur-Reply and that “as a matter of law,” the Court cannot consider Exhibit 

A to the Sur-Reply, which reflects that on October 20, 2020, Plaintiff transmitted Dr. Goebel’s 

appraisal to Defendant. See ECF No. [30] at 3-4. The Court is unconvinced.

First, the Court granted Plaintiff leave to file the Sur-Reply, which filing was included with 

the exhibit at issue in his motion for leave. See ECF Nos. [23] and [24]. Second, contrary to 

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Defendant’s argument, the Court is permitted at this stage to consider extrinsic materials where 

they are central to the plaintiff’s claims and are undisputed. See Maxcess, Inc., 433 F.3d at 1340 

(“[A] document outside the four corners of the complaint may still be considered if it is central to 

the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley, 304 F.3d at 1135 

(“[A] document attached to a motion to dismiss may be considered by the court without converting 

the motion into one for summary judgment only if the attached document is: (1) central to the 

plaintiff’s claim; and (2) undisputed. ‘Undisputed’ in this context means that the authenticity of 

the document is not challenged.”) (internal citation omitted)). Defendant does not dispute the 

authenticity of Exhibit A and, according to Defendant’s briefings, whether Plaintiff exchanged its 

appraisal report is central to the viability of Plaintiff’s lawsuit. Third, Defendant maintains the 

Court cannot consider that Plaintiff submitted its appraisal but nonetheless expressly invites the 

Court to also “be aware that on November 3, 2020 . . . Defendant provided its appraisal as provided 

in the Contract. As such, it cannot be said the Contract is in breach[.]” ECF No. [30 at 3 n.1.

Accordingly, the Court rejects Defendant’s argument and will consider the exhibit at this juncture.

B. The Court does not lack subject matter jurisdiction

The gravamen of Defendant’s argument regarding subject matter jurisdiction is that 

Plaintiff filed suit before having satisfied all conditions precedent, and thus, his claims are unripe 

and the Court lacks jurisdiction over this action. See ECF Nos. [9] at 7-10; [22] at 2-5; [30] at 2-

3. Upon review, the Court concludes that it does not lack subject matter jurisdiction over this 

lawsuit.

First, as reflected in the Sur-Reply, ECF No. [25], Plaintiff transmitted Dr. Goebel’s 

appraisal to Defendant on October 20, 2020. As such, whether a condition precedent has been 

satisfied is conceptually moot. Second, even if Plaintiff had not exchanged the appraisal and the 

Court were to focus solely on the allegations at the time of filing suit, which the Court must do, 

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ECF No. [30] at 2-3, the Complaint would still not be dismissed for lack of subject matter 

jurisdiction. 

Both parties agree that whether conditions precedent have been satisfied is “generally not 

adjudicated on a motion to dismiss.” See ECF Nos. [9] at 9 and [16] at 7. This is so because whether 

a party actually “fulfilled any necessary conditions precedent to filing suit is a question not suitable 

for disposition upon a motion to dismiss.” Tikiz Franchising, LLC v. Piddington, No. 17-CV60552, 2017 WL 8780760, at *2 (S.D. Fla. May 8, 2017) (citing Int’l Village Ass’n, Inc. v. AmTrust

N. Am., Inc., No. 15-80260-CIV, 2015 WL 3772443, at *4 (S.D. Fla. June 17, 2015) 

(“[Defendant’s] contrary assertion that Plaintiffs did not satisfy conditions precedent . . . raises an 

issue of fact inappropriate for resolution on a motion to dismiss.”)). Further, for pleading purposes, 

to withstand a motion to dismiss, “generally alleg[ing] that conditions precedent have been 

satisfied” is “sufficient.” Tikiz Franchising, LLC, 2017 WL 8780760, at *2 (citing Fed. R. Civ. P. 

9(c)); Vargas v. Fla. Crystals Corp., No. 16-81399-CIV, 2017 WL 11536186, at *5 (S.D. Fla. May 

30, 2017) (explaining that there is “no basis to find, at the pleading stage” that claims were 

premature where complaint alleged that all conditions precedent have been fulfilled).

Here, the Complaint expressly alleges that “[a]ll conditions precedent or other 

requirements for bringing this action occurred, were performed or were waived.” ECF No. [1] at 

¶ 31. This allegation is sufficient for pleading purposes. See, e.g., Krauser v. Biohorizons, Inc., 

No. 10-80454-CIV, 2010 WL 3468481, at *3 (S.D. Fla. Sept. 1, 2010) (concluding that allegation 

that “all conditions precedent to the institution of this action have occurred, been met or otherwise 

waived” was sufficient to plead compliance with a condition precedent under the contract)

(collecting cases). While Defendant challenges that the Complaint’s other allegations conflict with

this representation, the Court need not resolve at this juncture whether Plaintiff truly satisfied all 

conditions precedent before he filed suit. Such inquiry would necessitate a factual inquiry 

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inappropriate at this time (and would require examining whether any preconditions or terms were 

waived), and Plaintiff’s allegations are, in any event, taken as true and construed favorably to him.

For instance, although it is undisputed that Plaintiff did not provide his report until October 

2020, whether Plaintiff was required to do so until Defendant provided its report is disputed, 

especially given Plaintiff’s allegations that it sought to produce the reports by mutual exchange 

yet Defendant would not produce its report despite numerous email communications. ECF No. [1] 

at ¶¶ 21-26. Against this backdrop, while Defendant emphasizes that the Agreement does not set 

forth a specific deadline compelling it to act, the Agreement directs that “[i]n the event that either 

party or his appraiser shall fail to timely take any action hereunder, the fair market value shall be 

established by the non-defaulting party’s appraiser.” ECF No. [1-3] at § 5(d). Plaintiff’s report was 

completed in June 2019. Thus, the Court cannot conclude that conditions precedent were not 

waived or that Plaintiff otherwise did not satisfy conditions precedent before initiating this lawsuit.

The Complaint, moreover, adequately pleads that the Court has subject matter jurisdiction 

based on diversity of citizenship and that venue is proper in this district. ECF No. [1] at ¶¶ 4-8. 

Defendant does not challenge the Court’s subject matter jurisdiction on these grounds. 

Accordingly, dismissal for allegedly failing to satisfy conditions precedent, resulting in the Court 

lacking subject matter jurisdiction, is inappropriate, and the Motion is denied on this point.

C. Count I is adequately stated

Count I alleges a breach of contract claim. Id. at ¶¶ 32-37. Defendant moves to dismiss this 

Count because the Complaint does not allege that Defendant committed a breach. Specifically, 

according to Defendant, the Agreement neither requires mutual exchange of appraisals, Defendant 

to provide its appraisal before Plaintiff provides his, nor Defendant to exchange its appraisal by a 

specific deadline. ECF Nos. [ 9] at 7-10; [22] at 2-5. Defendant contends further that Plaintiff 

breached the Agreement by failing to turn over its appraisal to Defendant before February 19, 

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2019, ninety days after the November 21, 2018 termination, ECF No. [22] at 3-4, and it even 

suggests that its obligation to buy-out Plaintiff’s interest “is subject to waiver by the delayed 

actions of the Plaintiff[.]” ECF No. [9] at 9. Upon review, the Court finds that Plaintiff adequately 

alleges a claim for breach of contract in Count I.

Under Florida law, an “adequately pled breach of contract action requires three elements: 

(1) a valid contract; (2) a material breach; and (3) damages.” Friedman v. New York Life Ins. Co., 

985 So. 2d 56, 58 (Fla. 4th DCA 2008); Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 

So. 3d 1081, 1094-95 (Fla. 3d DCA 2014). Each of these elements is reflected in the Complaint’s 

allegations. See ECF No. [1] at ¶¶ 33-36. Further, even though Defendant has now provided its 

appraisal to Plaintiff, ECF No. [30] at 3 n.1, that does not mean that a breach did not occur or that 

Defendant has cured potential breaches. Indeed, the Complaint alleges that Defendant failed to 

perform its obligations pursuant to sections 5 and 7 of the Agreement, which relate to determining 

Defendant’s fair market value and Defendant then purchasing Plaintiff’s interest in the company. 

No such purchase and sale has occurred, all purportedly due to Defendant’s inactions. See ECF 

No. [1] at ¶¶ 25-29. Moreover, even if the Agreement does not provide an express deadline to 

provide appraisals, as Defendant concedes, contractual obligations are not to be held in perpetuity. 

ECF No. [9] at 11. And, in any event, the Agreement states that as to the parties’ obligations for 

obtaining and exchanging appraisals, the parties are to take actions in a “timely” manner. See ECF 

No. [1-3] at § 5(d). Based upon the Complaint’s allegations, that did not occur. 

Accordingly, the Court rejects Defendant’s argument that without a specific deadline, “a 

breach of contract claim simply cannot be stated.” ECF No. [9] at 2. The Motion to dismiss as to 

Count I is denied.

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D. Count II is adequately stated

In Count II, Plaintiff asserts a claim for breach of the implied covenant of good faith and 

fair dealing. According to Defendant, “[t]he facts, as pled, and the basis upon which the Plaintiff 

seeks relief under this cause of action, is inconsistent with Florida law.” ECF No. [9] at 12. In 

particular, Defendant maintains that the Complaint does not allege a breach of an express contract 

term, thus causing the claim to fail. Id. at 11-13; ECF No. [22] at 6-7. In essence, Defendant argues 

that because Count I allegedly fails to state a claim, Count II cannot survive independently. Upon 

review, the Court is unpersuaded.

Under Florida law, every contract contains an implied covenant of good faith and fair 

dealing which protects “the reasonable expectations of the contracting parties in light of their 

express agreement.” QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So. 3d 541, 

548 (Fla. 2012) (quoting Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D. Fla. 

1996)); Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 

2005). The covenant is implied as a gap-filling default rule where the terms of the contract vest a 

party with substantial discretion, requiring that party to act in a commercially reasonable manner 

and limiting its ability to act capriciously to contravene the reasonable expectations of the contract 

counterparty. See Karp v. Bank of Am., N.A., 2013 WL 1121256, at *3 (M.D. Fla. Mar. 18, 

2013); Martorella v. Deutsche Bank Nat. Trust Co., 931 F. Supp. 2d 1218, 1225 (S.D. Fla. 2013). 

“A breach of the implied covenant of good faith and fair dealing is not an independent cause of 

action, but attaches to the performance of a specific contractual obligation.” Centurion, 420 F.3d 

at 1151. The implied duty of good faith must therefore “relate to the performance of an express 

term of the contract . . . [and] cannot be used to vary the terms of an express contract.” Burger

King Corp. v. Weaver, 169 F.3d 1310, 1316 (11th Cir. 1999) (quoting Hospital Corp. of America

v. Florida Med. Ctr., Inc., 710 So. 2d 573, 575 (Fla. 4th DCA 1998) and City of Riviera Beach v.

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John's Towing, 691 So. 2d 519, 521 (Fla. 4th DCA 1997)). Further, the covenant cannot “add an 

obligation to the contract which was not negotiated by the parties and not in the contract.” Hosp.

Corp. of Am. v. Florida Med. Ctr., Inc., 710 So. 2d 573, 575 (Fla. 4th DCA 1998). As such, “there 

are two limitations on such claims: (1) where application of the covenant would contravene the 

express terms of the agreement; and (2) where there is no accompanying action for breach of an 

express term of the agreement.” QBE, 94 So. 3d at 548 (citing Ins. Concepts & Design, Inc. v.

Healthplan Servs., Inc., 785 So.2d 1232, 1234 (Fla. 4th DCA 2001)).

Tthe Court agrees with Plaintiff that it has adequately stated a claim for breach of the 

implied covenant of good faith and fair dealing. As an initial matter, the premise of Defendant’s 

argument is without merit because the Court has not dismissed Plaintiff’s breach of contract claim. 

Thus, contrary to Defendant’s point, the basis for this claim is not inconsistent with Florida law. 

Regardless, the Complaint alleges that Defendant breached the implied covenant as it relates to 

sections 4 through 7 of the Agreement by “among other things, not exchanging appraisals with 

[Plaintiff], delaying the process required for determining the price at which [Defendant] is required 

to purchase [Plaintiff’s] stock and failing to purchase [Plaintiff’s] stock and pay him what he is 

owed, as contemplated by the Agreement.” ECF No. [1] at ¶¶ 39-42. Indeed, although these 

contractual obligations were triggered by Plaintiff’s termination on November 21, 2018 (and the 

Agreement contemplates a closing within ninety-days of termination), as of June 2019 Plaintiff 

requested Defendant to exchange appraisals so they could proceed to close, id. at ¶¶ 19-29, yet 

Defendant allegedly would not act, in turn precluding Plaintiff’s buy-out. This is so even though 

the Agreement requires actions related to appraisals to be made “timely.” ECF No. [1-3] at § 5(d). 

As Plaintiff argues, such alleged delay contravenes reasonable expecations. ECF No. [16] at 12

(citing Martorella, 931 F. Supp. 2d at 1226 (“[U]nder an agreement that appears by word or silence 

to invest one party with a degree of discretion in performance sufficient to deprive another party 

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of a substantial proportion of the agreement’s value, the parties’ intent to be bound by an 

enforceable contract raises an implied obligation of good faith to observe reasonable limits in 

exercising that discretion, consistent with the parties’ purpose or purposes in contracting. Thus, 

where the terms of the contract afford a party substantial discretion to promote that party’s selfinterest, the duty to act in good faith nevertheless limits that party’s ability to act capriciously to 

contravene the reasonable contractual expectations of the other party.”) (citation omitted)). 

Simply put, as set forth in the Complaint, over two years have passed since Plaintiff’s 

employment terminated with Defendant, but Plaintiff has been unable to sell his stock back to 

Defendant due to Defendant’s alleged inaction. Taken as a whole, the Complaint states a plausible 

claim in Count II. The Motion is denied as to this count.

E. Count III is duplicative of Count I

In Count III, Plaintiff seeks declaratory relief because, in his view, Defendant breached the 

Agreement “by repeatedly failing to comply with its obligations in connection with the purchase 

of [Plaintiff’s] stock,” there is a “justiciable controversy relating to the legal rights and/or 

responsibilities at issue under the Agreement,” and a declaratory judgment should issued that 

Defendant “breached the Agreement and as a result thereof, the purchase price of [Plaintiff’s] stock 

will be based on Dr. Goebel’s appraisal of [Defendant] as of October 31, 2018.” ECF No. [1] at 

¶¶ 44-49. According to Defendant, this claim fails because it effectively seeks an advisory opinion 

that Defendant breached the Agreement. See ECF No. [9] at 3, 13-17. Plaintiff responds that a 

declaratory judgment claim can proceed with a claim for breach of contract, and he does not seek 

a declaration that Defendant breached the Agreement but rather “a determination as to the relief to 

which [Plaintiff] is entitled as a result of [Defendant] not providing its appraisal and purchasing 

[Plaintiff’s] stock.” ECF No. [16] at 5, 12-15.

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“Declaratory judgment claims may properly coexist with breach of contract claims when 

they provide the plaintiff a form of relief unavailable under the breach of contract claim. Such 

claims for declaratory judgment must be forward-looking, rather than retrospective, as any 

retrospective declaration would be equally solved by resolution of 

the breach of contract claim.” Garcia v. Scottsdale Ins. Co., No. 18-20509-CIV, 2018 WL 

3432702, at *2 (S.D. Fla. July 16, 2018) (internal citation omitted). Declaratory judgment claims 

that functionally seek adjudication on the merits of a breach of contract claim are duplicative and 

cannot stand. See Miami Yacht Charters, LLC v. Nat'l Union Fire Ins. Co., No. 11-21163-CIV, 

2012 WL 1416428, at *2 (S.D. Fla. Apr. 24, 2012); Ministerio Evangelistico Int'l v. United

Specialty Ins. Co., No. 16-25313-CIV, 2017 WL 1363344, at *2 (S.D. Fla. Apr. 5, 2017); ABC

Univ. Shops, LLC v. Scottsdale Ins. Co., No. 18-60562-CIV, 2018 WL 3672265, at *3-4 (S.D. Fla. 

July 24, 2018), report and recommendation adopted, No. 18-CV-60562, 2018 WL 4409851 (S.D. 

Fla. Aug. 16, 2018).

Contrary to Plaintiff’s representation that he does not seek a determination that Defendant 

breached the Agreement, the Complaint expressly alleges that the Court issue a declaratory 

judgment that Defendant breached section 5(d) of the Agreement, and that consequently, Dr. 

Goebel’s appraisal will be used as the purchase price for Plaintiff’s stock. ECF No. [1] at ¶ 49 

Wherefore clause. Not only is declaratory relief unavailable where the issue for the Court’s 

determination is whether an unambiguous contract has been breached, Cent. Magnetic Imaging

Open MRI of Plantation, Ltd. v. State Farm Mut. Auto. Ins. Co., 789 F. Supp. 2d 1311, 1318 (S.D. 

Fla. 2011), the relief requested in Count III is already entirely subsumed within Count I. See ECF 

No. [1] at ¶¶ 28, 34, 37 Wherefore clause (alleging that Defendant breached section 5(d) of the 

Agreement such that Defendant’s fair market value “is conclusively established by [Defendant’s] 

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appraiser, Dr. Goebel” and seeking a “final judgment against [Defendant] in an amount based on 

Dr. Goebel’s appraisal of [Defendant] as of October 31, 2018”).

“[A] trial court should not entertain an action for declaratory judgment on issues which are 

properly raised in other counts of the pleadings and already before the court, through which the 

plaintiff will be able to secure full, adequate and complete relief.” Fernando Grinberg Tr. Success

Int. Properties LLC v. Scottsdale Ins. Co., No. 10-20448-CIV, 2010 WL 2510662, at *2 (S.D. Fla. 

June 21, 2010) (dismissing declaratory relief count with prejudice because the “claim for 

declaratory judgment is subsumed within [Plaintiff’s] claim for breach of contract”); Tamiami

Condo. Warehouse Plaza Ass’n, Inc. v. Markel Am. Ins. Co., No. 19-CV-21289, 2019 WL 

4863378, at *3 (S.D. Fla. Oct. 2, 2019) (same).6Indeed, a “petition for a declaration that one 

party’s reading of a contract establishes breach is nothing more than a petition claiming breach of 

contract.” Raffell v. Scottsdale Ins. Co., No. 20-21719-CIV, 2020 WL 6385503, at *3 (S.D. Fla. 

June 16, 2020) (quoting AquaDry Plus Corp. v. Rockhill Ins. Co., No. 19-62331-Civ, 2020 WL 

927440, at *2 (S.D. Fla. Feb. 26, 2020)); Ministerio Evangelistico Int'l, 2017 WL 1363344, at *2 

(“A petition seeking a declaratory judgment that alleges breach of duties and obligations under the 

terms of a contract and asks the court to declare those terms breached is nothing more than a 

petition claiming breach of contract.”) (citation omitted). 

6 Although this Court previously did not dismiss a declaratory judgment claim where the defendant 

argued that a breach of contract claim was a “better or more effective” remedy, A&M Gerber

Chiropractic LLC v. Geico Gen. Ins. Co., No. 16-CV-62610, 2017 WL 850177, at *3 (S.D. Fla. 

Mar. 3, 2017), that case is distinguishable. Unlike here, that lawsuit involved a purported class 

action, no monetary relief was sought in the complaint nor was there a breach of contract claim 

raised alternatively, the complaint asserted a single count for declaratory relief, and the Court was 

requested to interpret the insurance policy at issue in light of a Florida statute to determine whether 

the insurer must pay either 100% of all billed charges submitted that are below the fee schedule 

amount or 80% of the billed amount that are submitted. Id. at *1-3.

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While some courts within this district have dismissed these claims with prejudice, others 

have dismissed without prejudice “with leave to amend should [Plaintiff] believe he can adequately 

state a claim for declaratory judgment which is not duplicative of his breach-of-contract claim.” 

See, e.g., Garcia, 2018 WL 3432702, at *3; Raffell, 2020 WL 6385503, at *4. The Court chooses 

the latter approach, especially given Plaintiff’s request in his Respose that he be granted leave 

should any of his claims be deficient. ECF No. [16] at 17. Accordingly, Count III is dismissed 

without prejudice with leave to amend. 

F. Count IV fails to state a claim upon which relief can be granted

In Count IV, Plaintiff asserts a claim for specific performance in which it seeks that 

Defendant be “direct[ed] . . . to specifically perform pursuant to the terms of the Agreement by 

buying [Plaintiff’s] stock at a price to be determined based on Dr. Goebel’s appraisal of 

[Defendant] as of October 31, 2018, plus accrued interest on that amount, at the prime rate 

published by the Wall Street Journal, until paid.” ECF No. [1] at ¶ 54 Wherefore clause. Defendant 

contends that this claim fails because the Complaint does not allege that Plaintiff is without 

adequate legal remedies and Plaintiff, in any event, is not entitled to equitable relief given that he 

supposedly failed to perform under the Agreement and has “unclean hands.” ECF Nos. [9] at 17-

18; [22] at 9-10.

7 Upon review, the Court need not address whether this claim is potentially barred 

7

In the Reply, Defendant argues for the first time (in a three sentence footnote) that Count IV is 

time-barred because that claim should have been brought within one year of June 24, 2019. ECF 

No. [22] at 9 n.2. It is improper to raise an argument for the first time in a reply. See, e.g., Herring 

v. Secretary, Dep’t of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have 

admonished, arguments raised for the first time in a reply brief are not properly before a reviewing 

court.”) (internal quotations omitted); Willis v. DHL Global Customer Sols. (USA), Inc., No. 10-

62464-CIV, 2011 WL 4737909, at *3 (S.D. Fla. Oct. 07, 2011) (collecting cases and noting that 

“[j]udges in this district . . . have repeatedly rejected attempts by parties to raise new arguments in 

reply memoranda”). Further, “[i]ssues adverted to in a perfunctory manner, unaccompanied by 

some effort at developed argumentation, are deemed waived.” Melford v. Kahane and Assocs., 371 

F. Supp. 3d 1116, 1126 n.4 (S.D. Fla. 2019). Because this argument is raised for the first time in 

the Reply and is undeveloped, it is waived and not considered by the Court. In any event, the Court 

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by Plaintiff’s supposed unclean hands8and failure to perform, the resolution of which is 

inappropriate at this stage, because the Court agrees that the Complaint fails to demonstrate the 

absence of an adequate legal remedy. 

“Specific performance is an equitable remedy as opposed to a legal cause of action. To 

demonstrate a right to this remedy under Florida law, a plaintiff must plead facts showing: (1) the 

plaintiff is clearly entitled to this remedy; (2) there is no adequate remedy at law; and (3) justice 

must require it.” La Gorge Palace Condo Ass’n, Inc. v. QBE Ins. Corp., 733 F. Supp. 2d 1332, 

1334 (S.D. Fla. 2010) (citation omitted). In addition to pleading facts supporting the second 

element of no adequate remedy at law, the first element of the claim requires litigants seeking the 

remedy to establish the legal requirements of entitlement to the right “by clear, definite and certain 

proof.” Id.; see also Kruse v. Massachusetts Mut. Life Ins. Co., No. 17-CV-61115, 2017 WL 

3494334, at *7–8 (S.D. Fla. Aug. 15, 2017) (“In order for a court of equity to 

decree specific performance of a contract, the terms of the agreement must be clear, definite, 

certain and complete, for the equitable remedy of specific performance is granted only where the 

parties have actually entered into an agreement that is definite and certain in all of its essential 

elements. . . . [T]he plaintiff must do more than merely prove his case by a preponderance of the 

need not decide if June 24, 2019 is the very last date of a possible breach given that the Complaint 

alleges that after this date, Defendant would not proceed with exchanging appraisals despite 

subsequent email discussions. See ECF No. [1] at ¶¶ 24-27; ECF Nos. [1-6]; [1-7]. 

8

“Application of the equitable doctrine of unclean hands lies within the sound discretion of the 

district court.” Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, 1355 (11th Cir. 

1983). Notably, this Court has previously declined to dismiss claims on the basis that a “Plaintiff 

has come to this Court with unclean hands” because “the doctrine of unclean hands is an 

affirmative defense that Defendant may raise in its answer which requires resolution of factual 

issues not ripe for discussion at the dismissal stage.” Abramson v. 1 Glob. Capital, LLC, No. 15-

CV-61373, 2015 WL 12564318, at *3 (S.D. Fla. Sept. 23, 2015) (citing Pronman v. Styles, No. 

12-80674-CIV, 2013 WL 3894978, at *5 (S.D. Fla. July 26, 2013) (“[Unclean hands and laches] 

are [ ] equitable remedies that are fact intensive, thereby making them an unsuitable basis for 

dismissal at the pleading stage.”).

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evidence, . . . he must prove the contract as alleged in his complaint by competent and satisfactory 

proof which must be clear, definite, and certain.”) (citations omitted).

Further, as this Court previously recognized, “it is not to be overlooked that a claim 

for specific performance is subject to dismissal because ‘specific performance is a remedy, not a 

freestanding legal claim.’” Kruse, 2017 WL 3494334, at *8 (citation omitted). In this respect, 

Count IV “cannot stand alone as its own claim.” Id.; see also Glob. Digital Sols., Inc. v. Grupo

Rontan Electro Metalurgica, S.A., No. 18-80106-CIV, 2019 WL 8323955, at *2 (S.D. Fla. Nov. 

27, 2019) (explaining that even though plaintiff brought a count for breach of contract and a count 

for specific performance, plaintiff “in essence, brings only one cause of action” for breach of 

contract because specific performance “is a remedy for breach, not a stand-alone cause of action”). 

Regardless, specific performance is available only when there is no adequate remedy at law, yet 

the same relief sought in Count IV—money damages based on Defendant purchasing Plaintiff’s 

stock at a price determined by Dr. Goebel’s appraisal—is also pled in Counts I and II. Compare 

ECF No. [1] at ¶¶ 37 and 43 Wherefore clauses with ¶ 54 Wherefore clause. “[S]pecific 

performance of a contract concerning stock usually will not be decreed unless damages at law are 

clearly incomplete and inadequate.” Baruch v. W.B. Haggerty, Inc., 188 So. 797, 798-99 (Fla. 

1939). 

“Specific performance is, by its nature, only an alternative to money damages in enforcing 

the terms of a contract.” Kruse, 2017 WL 3494334, at *8 (citation omitted). Count IV, therefore, 

is duplicative of the legal remedy claims available to Plaintiff and thus subject to dismissal. See 

id. (dismissing claim for specific performance with prejudice and explaining that specific 

performance claim was “redundant” and “duplicative” with claim for breach of third-party 

beneficiary contract because “payment of the Policy’s death benefit is the very same remedy 

Plaintiff seeks” in the breach of contract claim). The Motion, accordingly, is granted on this point.

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IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [9], is 

GRANTED IN PART AND DENIED IN PART as follows: 

1. Count III is DISMISSED without prejudice and Count IV is DISMISSED with 

prejudice. 

2. Plaintiff is granted leave to amend and shall file an Amended Complaint on or 

before December 18, 2020.

DONE AND ORDERED in Chambers at Miami, Florida, on December 8, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

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