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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-81293-CIV-Altman/Brannon

STEPHEN ARPAIA,

Plaintiff,

v.

FOOTE, MIELKE, CHAVEZ & O’NEIL, LLP,

Defendant.

_________________________________________/

DEFENDANT’S MOTION TO DISMISS

PURSUANT TO FED. R. CIV. P. 12(b)(6)

NOW COMES Defendant FOOTE MIELKE CHAVEZ & O’NEILL, LLC incorrectly sued 

as FOOTE MIELKE CHAVEZ & O’NEILL, LLP, by and through the undersigned attorneys, as 

for its Motion to Dismiss pursuant to Rule 12(b)(6), and states as follows:

BACKGROUND

On June 26, 2020 Plaintiff Stephen Arpaia (“Arpaia”) filed a two count complaint in state 

court alleging breach of a consulting agreement and for unjust enrichment, related to legal work 

performed in the class action case known as In Re Google AdWords Litigation, Case No. 5:08-cv03369-EJD filed in the United States District Court, Northern District of California, San Jose 

Division (the “Adwords Litigation”). Plaintiff alleges he is entitled to more money from the Foote 

Firm, beyond the $310,000 he was paid by court appointed lead counsel at the conclusion of the 

aforesaid litigation. On August 10, 2020 Defendant removed the matter to this Court on the basis 

of diversity, 28 U.S.C. § 1332(a)(1), because it is a civil action where the matter in controversy 

exceeds the sum of $75,000 (exclusive of interest and costs), and it is between citizens of different 

States. On August 17, 2020, Defendant filed is Answer and Affirmative Defenses, including 

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improper venue based upon a forum selection clause in the Adwords Settlement Agreement. On 

August 25, 2020, Plaintiff filed an Amended Complaint adding two counts for an implied contract 

and fraud. See Exhibit A (“FAC”). On September 5, 2020, Defendant filed a Motion to Transfer 

pursuant to 28 U.S.C. 1404(a). See Docket Entry (“D.E.”) 13.1

 Defendant now brings the instant 

Motion to Dismiss for failure to state claims in the FAC.

Plaintiff has filed a four count amended complaint. Count I is for breach of contract, Count 

II unjust enrichment, Count III for breach of implied contract and Count IV for fraud. In short, 

this matter is essentially a fee dispute in the Adwords litigation. Arpaia claims the Defendant owes 

him more money than he was paid by Court appointed class counsel in the Adwords litigation. 

However, in pleading his claims in “shotgun” style Plaintiff incorporates the first 89 or 92 

allegations into Counts II, III, and IV which contradict the attempted cause of action he is 

attempting to plead. Additionally, Counts I and IV of Arpaia’s Complaint fail to state a cause of 

action. As such, Plaintiff’s FAC should be dismissed.

I. COUNTS II, III AND IV ARE INCONSISTENT WITH PLAINTIFF’S CLAIMS OF 

AN EXPRESS CONTRACT IN ALLEGATIONS 1-89.

Plaintiff repeatedly refers to a written contract or agreement in ¶¶ 5, 9, 19, 21-24, 85 and 86 of 

his FAC. However, the existence of a written agreement is inconsistent with Plaintiff’s claims for 

unjust enrichment, implied contract and fraud. There can be no unjust enrichment when there is 

an express contract between the parties. See Moynet v. Courtois, 8 So. 3d 377, 379 (Fla. Dist. Ct.

 1 As explained in the Motion to Transfer, this case is inextricably bound to and thus governed by 

the Adwords Settlement Agreement, which provides for exclusive jurisdiction in the Northern 

District of California. D.E. 13. That Settlement Agreement also provides for application of 

California’s substantive law to any claims related to the Agreement, and accordingly Defendant 

believes that California law will govern this dispute. Without waiving those arguments, Defendant 

submits the present Motion to Dismiss based on Florida law, because California and Florida law 

are not different in any manner relevant to this Motion, and because Arpaia has failed to state a 

claim regardless of whether this case is related to the Settlement Agreement.

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App. 2009); Diamond “S” Development Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. Dist.

Ct. App. 2008). Clearly, then, a complaint cannot allege an express agreement in a claim for unjust

enrichment, Poe v. Levy's Estate, 411 So. 2d 253, 256 (Fla. Dist. Ct. App. 1982). (“allegations of 

an express agreement preclude, in the same count, a claim for quantum meruit.”). In paragraph 98 

of his unjust enrichment claim, Plaintiff incorporates all the allegations from paragraphs 1-89 

which assert a written contractual agreement.

Likewise, in paragraph 108 of Count III, for breach of a contract implied in fact, Plaintiff 

incorporates paragraphs 1-92 which included even more allegations concerning a written 

agreement. See FAC¶91-92. This is improper. Id.; Tobin & Tobin Ins. Agency v. Zeskind, 315 

So. 2d 518, 520 (Fla. 3d DCA 1975) (“As a general rule, an action seeking to enforce an express 

contract and also attempting to disavow the existence of the express contract and accomplish the 

same purpose under quantum meruit is not available”).

The same holds true in Count IV for fraud, which in paragraph 114 incorporates all the 

allegations from paragraphs 1-89. In paragraphs 1-89, Arpaia claims there was an express 

agreement with defendant for his compensation. In Count IV, Arpaia alleges he was fraudulently 

induced to work on the Adwords case. A party cannot recover in fraud for alleged oral 

misrepresentations that are adequately covered or expressly contradicted in a later written contract. 

See Englezios v. Batmasian, 593 So. 2d 1077 (Fla. 4th DCA 1992); Greenwald v. Food Fair Stores 

Corp., 100 So. 2d 200 (Fla. 3rd DCA 1958).

Defendant acknowledges that under Rule 8 a party may plead alternatively or 

hypothetically. However, Plaintiff has not pled a single allegation in the alternative. Rather, in 

shotgun style, Plaintiff has incorporated allegations of an express agreement which would defeat 

his other causes of action.

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II. PLAINTIFF HAS FAILED TO ADEQUATELY PLEAD A FRAUD CLAIM.

When pleading fraud, the plaintiff should generally identify the individuals who made the 

alleged misrepresentation, the time of the alleged fraud and the place of the alleged fraud. See

Anthony Distribs., Inc. v. Miller Brewing Co., 904 F. Supp. 1363 (M.D.Fla.1995). While Rule 

9(b) requires particularity when pleading fraud, it must be read in conjunction with the notice

pleading requirements of Rule 8, Fed. R. Civ. P. Durham v. Business Mgmt. Assocs., 847 F.2d 

1505, 1511 (11th Cir.1988). Accordingly, parties must not only plead fraud with particularity but 

conform such pleadings of fraud to Rule 8. “Allegations of date, time or place satisfy the Rule 

9(b) requirement that the circumstances of the alleged fraud must be pleaded with particularity, 

but alternative means are also available to satisfy the rule.” Durham v. Business Management 

Associates, 847 F.2d 1505, 1512 (11th Cir.1988). Furthermore, Rule 9(b) requires that allegations 

of fraud include: (1) precisely what false or fraudulent statements were made, in what documents 

or oral representations, or what omissions were made; (2) the time and place of each such statement 

and the person responsible for making (or, in the case of omissions, not making) same; (3) the 

content of such statements and the manner in which they misled the Plaintiff; and (4) what the 

defendants obtained as a consequence of the fraud. See Brooks v. Blue Cross and Blue Shield of 

Fla., Inc., 116 F.3d 1364, 1371 (11th Cir.1997). Finally, a fraud claim lies for (1) 

misrepresentation of material fact; (2) by someone who knew or should have known of the 

statement's falsity; (3) with intent that the representation would induce another to rely and act on 

it; and (4) injury suffered in justifiable reliance on the representation. Fla. Evergreen Foliage v. 

E.I. Dupont De Nemours & Co., 336 F. Supp. 2d 1239, 1284 (S.D.Fla.2004), aff'd 470 F.3d 1036 

(11th Cir.2006).

Here, Plaintiff fails to identify any time, place or date with respect to the allegations of 

paragraphs 118-121. Moreover, he fails to plausibly allege that he justifiably relied on any 

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statements. Arpaia alleges reliance only in paragraph 126 of the Amended Complaint, stating that 

he relied on Ms. Chavez’s statement that she “Talked to Bob S. [Schubert] earlier this week 

and...Bob S. [Schubert] understands that we need to get your time from the past (since the case 

started) or it would not be fair.” FAC ¶¶ 124 – 126. But Arpaia fails to explain how anyone could 

justifiably infer from this statement that Schubert had “agreed to pay Arpaia for all his time from 

the past since the case was started.” Id. ¶ 125. Plaintiff has failed to allege all the necessary 

elements of a fraud claim with the required specificity.

III. PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION FOR BREACH OF 

CONTRACT IN COUNT I.

In order to state a claim for breach of contract under Florida law, Plaintiff must allege: “(1) a 

valid contract, (2) a material breach, and (3) damages,” as well as Plaintiff’s “performance of 

its obligations under the contract or a legal excuse for its nonperformance.” Bookworld Trade, 

Inc. v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350, 1357 (M.D.Fla.2007) (internal quotation 

marks omitted). Nowhere does Plaintiff allege his full performance under the purported 

Agreement. For that matter, he fails to allege as part of the contract what his obligations were. 

Arpaia cannot realistically claim he was entitled to 10% of other lawyers’ lodestar on a case that 

took nine years to litigate so long as he worked a single hour on the case.

CONCLUSION

Arpaia’s First Amended Complaint fails to state a cause of action for breach of contract 

and fraud, and Arpaia’s claims of unjust enrichment, breach of an implied contract, and fraud are 

all barred by his allegations of an express contract between the parties. For the reasons explained 

above, Arpaia’s First Amended Complaint should be dismissed.

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September 8, 2020 Respectfully submitted,

BOIES SCHILLER FLEXNER LLP

By: /s/ Stuart Singer

Stuart H. Singer

Florida Bar No. 377325

Pascual Oliu

Florida Bar No. 107737

401 East Las Olas Blvd., Suite 1200

Fort Lauderdale, Florida 33301

Telephone: (954) 356-0011

Facsimile: (954) 356-0022

Email: ssinger@bsfllp.com

Email: poliu@bsfllp.com

Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 8th day of September 2020, that a true and correct 

copy of the foregoing was served on all counsel of record via CM/ECF System on:

Stephen Barker, Esq.

The Law Office of Stephen Barker

901-A Clint Moore Road

Boca Raton, FL 33487

slb@stephenbarkerlaw.com

By: /s/ Pascual Oliu

Pascual Oliu, Esq.

Florida Bar No. 1077

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