UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22660-CIV-SINGHAL

ZAUSNER FOODS CORP., 

Plaintiff,

v. 

CLAUDE BLANDIN, BRUNO BLANDIN,

PATRICK BLANDIN, ARNO LEONI, individuals

and JOHN DOE DEFENDANTS 1-10,

Defendants. 

________________________________________/

ORDER ON DEFENDANTS’ MOTION TO DISMISS

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss for Lack of

Personal Jurisdiction, Lack of Subject Matter Jurisdiction, and for Failure to State a Claim

and Motion to Strike (“Defs.’ Mot.”) (DE [6]), filed on September 9, 2022, and Defendants’ 

Motion to Take Judicial Notice (DE [5]). Plaintiff filed its Response in Opposition to

Defendants’ Motions (“Pl.’s Opp.”) (DE [19]) on October 10, 2022. Defendants then filed

a Reply in support of their Motion (“Defs.’ Reply”) (DE [20]) on October 24, 2022. With

leave of this Court, Plaintiff filed Supplemental Briefing (“Pl.’s Supp. Br.”) (DE [34]) on

February 17, 2023, and Defendants filed a surreply (“Defs.’ Surreply”) (DE [38]) on

February 24, 2023. A motion hearing was held on May 9, 2023. The Motions are ripe for

this Court’s consideration.

I. BACKGROUND FACTS

Plaintiff, Zausner Foods Corp. (“Plaintiff” or “Zausner”), a Pennsylvania-based food

company, brings this action as successor-in-interest to its former subsidiary, ZNHC. 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 1 of 22
2

(Compl. (DE [1-2] at ¶ 2)). Pursuant to a December 6, 2014, Stock Purchase Agreement

(“SPA”), ZNHC sold its cheese distribution business, Schratter Foods, Incorporated

(“SFI”) to two companies—ECB USA, Inc. (“ECB USA”) and Atlantic Ventures Corp.

(“Atlantic Ventures”)—both purportedly owned and controlled by the individual

Defendants, the Blandin family. Id. at ¶¶ 5, 8. Under the SPA, ECB USA and Atlantic

Ventures agreed to pay ZNHC a total of $27 million for SFI. Id. at ¶ 68. This included: 

(1) $2 million due at closing in December 2014; (2) $15 million due at a second closing in

June 2015; and (3) four annual installments of $2.5 million each (the “Deferred Installment

Payments”). See id. Pursuant to the SPA, the parties agreed to pledge 90% of the stock

in SFI to ZNHC to secure the Deferred Installment Payments. Id. at ¶ 70. On June 16,

2015, the parties to the SPA entered into an amendment to reduce the outstanding $10

million in payments due to ZNHC to $6.1 million. Id. at ¶¶ 80–82. Plaintiff is not a party 

to the original SPA but is a signatory to the amendment. See id. at ¶ 66; Ex. D, ¶ 8. The

remaining three installments were due annually beginning on December 31, 2016. See

id. Defendants allegedly requested extensions of the payment deadlines; all of which

expired with no additional payments made. Id. at ¶¶ 83–86.

In or around February 2018, Defendants, Claude Blandin, Bruno Blandin, Patrick

Blandin, Arno Leoni, and John Doe Defendants 1-10, allegedly caused ECB USA and

Atlantic Ventures to sell SFI’s assets to Atalanta Corporation (“Atalanta”) for at least $12

million. Plaintiff alleges that, instead of using deal proceeds to pay the Deferred

Installment Payments, Defendants caused SFI to be liquidated and drove SFI to enter

into an Assignment for the Benefit of Creditors (“ABC”) Proceeding. 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 2 of 22
3 

II. PROCEDURAL HISTORY

Plaintiff is seeking an equitable accounting of the proceeds from the asset sale to

Atalanta (Count I), alleging tortious interference with the SPA agreement (Count II) and

alleging conspiracy to tortiously interfere (Count III) against Defendants. The instant

litigation is only one of many pending actions between the parties. In a separate

proceeding in this Court, ECB USA, Inc. v. Savencia Cheese USA, LLC, et al, No. 20-cv21681-SINGHAL (S.D. Fla.), Defendants’ companies, ECB USA and Atlantic Ventures, 

have sued Zausner, its officers and directors, and its parent company Savencia, S.A. for

fraud in the inducement, among other claims. Zausner also filed a complaint against ECB

USA, Inc., Atlantic Ventures, and the individual defendants, among others, in the United

States District Court for the District of Delaware. Zausner Foods Corp. v. ECB USA, Inc.

et al., No. 1:20-cv-01769-RGA (D. Del). The Delaware District Court consolidated

Zausner’s action with a pending case by ECB, USA, Inc. against Zausner’s parent

company, Savencia. See ECB USA, Inc., et al. v. Savencia S.A., et al., No. 19-cv-00731-

RGA-CJB (D. Del.). The Delaware District Court dismissed the individual defendants on

March 25, 2022, after determining that it lacked personal jurisdiction over Defendants

pursuant to Defendants’ sworn declarations contesting jurisdiction. See id. (DE [222]). 

On April 28, 2022, Plaintiff commenced the instant action by filing its three-count

Complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade

County, Florida. See (DE [1]). Defendants removed the action to this Court on August

22, 2022. See id.

Defendants ask this Court to take judicial notice of the pending ABC Proceeding

and the Delaware consolidated action (ECB USA, Inc., et al., No. 19-cv-00731-RGACase 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 3 of 22
4 

CJB). See (DE [5]). Defendants also urge dismissal of Plaintiff’s Complaint on five

grounds: (1) the core substantive and jurisdictional allegations are based on “information

and belief;” (2) all claims are barred by the statute of limitations, which ran on April 25,

2022; (3) Plaintiff lacks standing to file claims because it enjoys no rights under the

December 6, 2014 SPA; (4) the Court lacks personal jurisdiction over the Defendants;

and (5) the Complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). 

See (Defs.’ Mot. (DE [6])). Finally, pursuant to Rule 12(f) of the Federal Rules of Civil

Procedure, Defendants move to strike allegations relating to the sale of nonparty SFI’s 

assets as irrelevant and immaterial. See id. at 2. For the reasons set forth below,

Defendants’ Motion to Dismiss (DE [6]) and Motion to Strike (DE [5]) are denied. 

III. LEGAL STANDARDS

A. Lack of Personal Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss

a complaint for lack of personal jurisdiction. “A federal district court sitting in diversity may

exercise personal jurisdiction to the extent allowed by the law of the forum state and the

Constitution’s Due Process Clause.” Am. Univ. of the Caribbean v. Caritas Healthcare, 

484 Fed. Appx. 322, 326 (11th Cir. 2012) (citing Meier v. Sun Int’l Hotels, Ltd., 288 F.3d

1264, 1269 (11th Cir. 2002)). “A plaintiff seeking the exercise of personal jurisdiction over

a nonresident defendant bears the initial burden of alleging in the complaint sufficient

facts to make out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556

F.3d 1260, 1274 (11th Cir. 2009) (citations omitted). If a plaintiff pleads sufficient material 

facts to support the exercise of personal jurisdiction, defendants may “challenge[] 

jurisdiction by submitting affidavit evidence in support of its position,” after which “the

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 4 of 22
5 

burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.” 

Id. (quoting Meier, 288 F.3d at 1269).

“A federal court sitting in diversity undertakes a two-step inquiry in determining

whether personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate

under the state long-arm statute, and (2) not violate the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.” United Techs. Corp., 556 F.3d

at 1274 (11th Cir. 2009) (citations omitted); see also Venetian Salami Co. v. Parthenais, 

554 So. 2d 499, 502 (Fla. 1989). As the extent of the long-arm statute is governed by

Florida law, this Court must construe it as would the Florida Supreme Court. Sculptchair,

Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1991). In International Shoe Co. v. 

Washington, the U.S. Supreme Court “held that in order to subject a defendant to an in

personam judgment when he is not present within the territory of the forum, due process

requires that the defendant have certain minimum contacts with the forum such that the

maintenance of the suit does not offend traditional notions of fair play and substantial

justice.” Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 500 (Fla. 1989). “[T]he test

is whether the defendant’s conduct in connection with the forum state is ‘such that he

should reasonably anticipate being haled into court there.’” Id. at 500 (quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

B. Failure to State a Claim

At the pleading stage, a complaint must contain “a short and plain statement of the 

claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) 

does not require “detailed factual allegations,” it does require “more than labels and 

conclusions . . . a formulaic recitation of the cause of action will not do.” Bell Atl. Corp. v. 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 5 of 22
6 

Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “factual allegations 

must be enough to raise a right to relief above the speculative level” and must be sufficient 

“to state a claim for relief that is plausible on its face.” Id. at 555. “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally 

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 

949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th 

Cir. 2002)). Courts must review the complaint in the light most favorable to the plaintiff, 

and it must generally accept the plaintiff’s well-pleaded facts as true. Hishon v. King & 

Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 

1057 (11th Cir. 2007). However, pleadings that “are no more than conclusions are not 

entitled to the assumption of truth. While legal conclusions can provide the framework of 

a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

IV. DISCUSSION

A. Defendants’ Motion to Take Judicial Notice (DE [5])

Defendants request this Court to take judicial notice of records from two parallel

proceedings: (1) the entire docket in the ABC Proceeding, In Re: Assignment for the

Benefit of Creditors of Schratter Foods Inc., No. 2018-013998-CA-01 (Cir. Ct. MiamiDade Cty.); and (2) the entire docket in the Delaware District Court case, ECB USA, Inc.

et al. v. Savencia S.A., et al, No. 19-cv-00731-RGA-CJB (D. Del.). Defendants, in

particular, ask this Court to notice dates surrounding the ABC Petition, including the

Petition filing date of April 30, 2023, and that the Assignment was executed by Arno Leoni,

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 6 of 22
7 

on behalf of SFI, on April 25, 2018. Plaintiff agrees that this Court should take notice of

the dates on the dockets, but objects to this Court taking judicial notice of anything else,

including the facts in the filings themselves. (Pl.’s Opp. (DE [19] at 10, n.9)). 

The Court may take judicial notice of the records filed in this and other federal

courts. D’Amico v. Scola, 2023 WL 2318233, at *1 (S.D. Fla. Jan. 11, 2023) (citing United

States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice

of its own records and the records of inferior courts.”); United States v. Jones, 29 F.3d

1549, 1553 (11th Cir. 1994) (indicating that documents filed in another court may be

judicially noticed); Colburn v. Odom, 911 F.3d 1110, 1112 n.6 (11th Cir. 2018)). The

Court may, therefore, take judicial notice of the records in the ABC Proceeding and

pending Delaware litigation, including record dates as both parties agree. But the Court

cannot give weight to any facts that have not been identified and that were not litigated

by Plaintiff in this case. 

Defendants’ Motion to Take Judicial Notice (DE [5]) is GRANTED IN PART AND

DENIED IN PART. To the extent Defendants request the Court to take judicial notice of

the record dates in the ABC Proceeding, In Re: Assignment for the Benefit of Creditors

of Schratter Foods Inc., No. 2018-013998-CA-01 (Cir. Ct. Miami-Dade Cty.); and the

Delaware District Court case, ECB USA, Inc. et al. v. Savencia S.A., et al, No. 19-cv00731-RGA-CJB (D. Del.), the motion will be GRANTED. To the extent Defendants

request this Court take notice of any facts within either proceeding, the Motion is DENIED. 

B. MOTION TO DISMISS (DE [6])

i. Whether Plaintiff Pleads Facts Sufficient to Support a Claim for Relief 

In their Motion to Dismiss, Defendants argue that Plaintiff fails to state a claim

because its core allegations are based on “information and belief.” See (Defs.’ Mot. (DE

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 7 of 22
8

[6] at 5)). Defendants contend that Plaintiff’s entire theory of the case relies on allegations

made on information and belief. This includes Plaintiff’s contentions that Defendants

“conspired to destroy any value remaining in SFI,” and had “ulterior motives” in redirecting

funds from SFI for their personal use. See id. at 5–6 (quoting (DE [1-2] at ¶¶ 45, 89, 94,

128)). Defendants argue these allegations are not entitled to any evidentiary weight. See

id. at 6. Absent these allegations, Defendants maintain that the Complaint fails to state

any claim for relief. Plaintiff counters that it has more than satisfied 12(b)(6) pleading

requirements and notes that allegations relying upon “information and belief” appear in

only seven paragraphs within the Complaint. Plaintiff, moreover, argues that it is entitled

to bring allegations on “information and belief,” particularly where such allegations speak

to Defendants’ culpability. See (Pl.’s Opp. (DE [19] at 7)). 

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead factual

allegations that raise a right to relief above a speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“Twombly”). On a Motion to Dismiss, a court “may

begin by identifying allegations that, because they are mere conclusions, are not entitled

to the presumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). 

The Court agrees with Plaintiff. The 176-page Complaint features detailed and

highly-specific factual allegations regarding the sale of SFI, its post-closing ownership

structure, the sale of SFI’s assets, and its eventual placement into ABC Proceedings. 

See generally (DE [1]). Plaintiff’s allegations based on “information and belief” are

likewise adequate where the “belief is based on factual information that makes the

inference of culpability plausible.” Zhejiang Dushen Necktie Co. v. Blue Med, Inc., No.

16-24679-CIV, 2017 WL 4119604, at *6 (S.D. Fla. Sept. 18, 2017) (quoting Associated

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 8 of 22
9

Indus. Ins. Co. v. Advanced Mgmt. Servs., Inc., No. 12-80393-CIV, 2013 WL 1149668, at

*6 (S.D. Fla. Mar. 19, 2013)). Though Plaintiff relies on information and belief to bolster

its substantive allegations, this comes as no surprise given the nature of its claims. 

Plaintiff is requesting an equitable accounting because it suspects foul play and is not

able to prove as much at the motion to dismiss stage. This Court refuses to create a

catch-22 situation in which it dismisses Plaintiff’s complaint for a failure to obtain facts

that could not be proven before discovery. See Lan Li v. Walsh, No. 16-81871-CIV, 2017

WL 3130392, at *7 (S.D. Fla. July 24, 2017) (finding that, in a claim for equitable

accounting, the Court could not “determine the level of complexity of the account until a

factual record [was] developed.”). 

As for Plaintiff’s jurisdictional allegations, Plaintiff filed a supplemental opposition

to Defendants’ Motion to Dismiss after deposing Defendants Claude Blandin, Arno Leoni,

Bruno Blandin, and Patrick Blandin. See generally (Pl.’s Supp. Opp. (DE [34])). In its

supplemental briefing, Plaintiff posits additional, concrete facts pertaining to this Court’s

exercise of personal jurisdiction over the Defendants. See id. at 4 (noting, inter alia, that

Claude Blandin “moved to Miami after obtaining an E-2 visa” and “acquired a residential

property on South Beach” which he owned until its sale in September 2022.”). Particularly

at the Motion to Dismiss stage, and notwithstanding its reliance on “information and belief” 

allegations, Plaintiff has sufficiently pled its claims. 

i. Whether Plaintiff’s Claims are Barred by the Statute of

Limitations

Defendants also seek to dismiss Plaintiff’s claims as untimely under Florida’s

statute of limitations. Defendants argue that Plaintiff’s claims, which arise from

Defendants alleged placement of SFI into ABC Proceedings, began tolling on the date

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 9 of 22
10

that SFI made its assignment to the Assignee on April 25, 2018. Defendants correctly

acknowledge that Florida’s statute of limitations for tortious interference and equitable

accounting claims is four years. See Fla. Stat. § 95.11(3)(o) (tortious interference); Fla.

Stat. § 95.11(k) and (p) (equitable accounting). Defendants therefore conclude that

Plaintiff’s Complaint, filed on April 28, 2022, is untimely by three days and warrants

dismissal. Plaintiff responds that its Complaint is timely for two independent reasons. 

First, Plaintiff posits that the “last element” constituting the cause of action–the final

Deferred Installment Payment–was not due until December 31, 2019. See (Pl. Opp (DE

[19] at 9) (citing Fla. Stat. § 95.03 (1) (2003)). Plaintiff asks this Court to calculate the

applicable statute of limitations from the last payment due date and argues that it could

have filed an action as late as December 31, 2023. Second, Plaintiff maintains that the

action is still timely where the statute of limitations ran from the ABC Proceeding

commencement date of April 30, 2018. (Pl. Opp. (DE ([19] at 9)). This, Plaintiff argues,

is that date that the assignee “signed, noticed, and commenced the ABC proceeding.” 

See id. 

Plaintiff’s Complaint is timely under Florida law. The parties do not dispute that

the relevant statute of limitations period is four years for the causes of action alleged in

Plaintiff’s complaint. See (Defs.’ Mot. (DE [6] at 8)); (Pl.’s Opp. (DE [19] at 8)). The

parties also agree that, under Florida law, “[a] cause of action accrues when the last

element constituting the cause of action occurs.” (Defs.’ Reply (DE [20] at 8)) (citing

Yoder v. Kuvin, 785 So. 2d 679, 681 (Fla. 3d DCA 2001)); (Pl.’s Opp. (DE [19] at 8–9)). 

The Court disagrees with Plaintiff that the relevant “last element” for purposes of

this action is the final Deferred Installment Payment due date of December 31, 2019. 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 10 of 22
11

Plaintiff fails to explain why the final payment due date would constitute the “last element” 

in the cause of action, particularly when its claims center on Defendants’ placement of

SFI into ABC proceedings in April 2018. Plaintiff’s complaint, however, is still timely

because this Court finds that the statute of limitations first ran on the assignment issue

date of April 28, 2018. Defendants’ argument to the contrary – that this Court should

consider only their execution date of April 25, 2018, unavailing. Defendants’ mere

assignment, without a countersignature from the Assignee, carries no legal effect. The

ABC proceedings commenced on the issue date of April 30, 2018, and this date is

therefore the date that the statute of limitations period began running. 

This Court is wary of plaintiffs who wait until the final hour to file their complaint. 

Plaintiff, however, showed little indication of undue delay. The District Court for the

District of Delaware dismissed the individual Defendants on March 25, 2022, for lack of

personal jurisdiction. See ECB USA, Inc., et al., No. 19-cv-00731-RGA-CJB at Dkt. 222. 

The earliest, therefore, that Plaintiff could have initiated this action was late March 2022. 

Plaintiff filed the action one month later, on April 28, 2022, and the Court therefore

determines that Plaintiff’s Complaint is timely. 

ii. Whether Plaintiff has Standing to Bring Claims Arising from

the December 6, 2014 SPA

Defendants urge this Court to dismiss all claims for Plaintiff’s lack of standing under

Rules 12(b)(1) and 12(b)(6). Defendants argue that Plaintiff cannot assert its claims as

successor-in-interest to ZNHC, the original seller of SFI under the parties’ SPA,

notwithstanding ZNHC’s merger into Zausner in 2017. See (Compl. (DE [1-2] at 5, n.1,

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 11 of 22
12

¶¶ 2, 73, 148, 154, 165)).1 Specifically, Defendants argue that Plaintiff has no basis to

sue where (i) ECB USA and Atlantic Ventures were obligated to pay only ZHNC, not

Zausner, under the SPA; and (ii) the SPA’s anti-assignment clause specifically precludes

Zausner from bringing claims on ZNHC’s behalf. See (Def. Mot. (DE [6] at 10)). Although

a 12(b)(1) challenge may be facial or factual, Defendants clarify that they are raising a 

facial challenge, “purely on the sufficiency of the allegations in the complaint,” to Plaintiff’s 

standing. See id. (quoting Harrison v. Soroof Int’l, Inc., 320 F. Supp. 3d 602, 610 (D. Del.

2018)). As a threshold matter, Plaintiff notes that Defendants’ exact arguments were

considered and rejected by the Delaware District Court.2 Plaintiff then posits three

arguments in response. First, Plaintiff contends that the SPA’s anti-assignment clause

provides that the Agreement is binding upon successors, including Zausner. Second,

Plaintiff argues that Zausner has standing to bring its claims under Delaware and Florida

law. Florida law, Plaintiff argues, is even more permissive where parties are free to assign

the right to receive payments unless the anti-assignment provision expressly provides

otherwise. See (Pl. Opp. (DE [19] at 11)) (citing Rapid Settlements, Ltd. V. Dickerson, 

941 So. 2d 1275, 1277 (Fla. Dist. Ct. App. 2006). Third and finally, Plaintiff argues that

Defendants waived the right to challenge standing through its conduct. Plaintiff points in

particular to a Delaware action in which ECB USA and AVC sued Zausner for breach of

contract claim as “successor in interest” to ZNHC. See (Pl. Opp. (DE [19] at 12)). 

1 Zausner is not a party to the SPA itself, although a representative from Plaintiff signed the SPA as a 

Guarantor. Zausner appears as a party to Amendment No. 1 of the SPA, the modified Deferred Installment 

Payment plan. See id. at ¶ 66; Ex. D, ¶ 8)). 2 Plaintiff argues, as a threshold matter, that it is not asserting contract claims pursuant to the SPA. See 

(Pl. Opp. (DE [19] at 10)). Rather, Plaintiff asserts tort claims against Defendants for tortious interference 

and conspiracy. 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 12 of 22
13

“Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be

asserted on either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Servs.,

Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Facial challenges to subject matter

jurisdiction, as Defendants assert here, are “based solely on the allegations in the

complaint.” Id. In considering Defendants’ challenge, “the court must, as with a Rule

12(b)(6) motion, take the complaint’s allegations as true.” Id. 

Both parties direct the Court to the SPA’s anti-assignment provision. Plaintiff cites

to the below excerpt, while Defendant references only the italicized portion: 

This Agreement shall be binding upon, and inure to the benefit

of, the parties hereto and their respective successors, heirs,

legal representatives and permitted assigns. Neither party

may directly or indirectly assign any of its rights or delegate

any of its obligations under this Agreement by operation of law

or otherwise, without the prior written consent of the other

party. Any purported direct or indirect assignment in violation

of this Section shall be null and void ab initio . . .

SPA X § XII.4 (emphasis added). 

The Delaware Court recognized Plaintiff’s “full right to seek to enforce the SPA’s

provisions” – including for payment from ECB and Atlantic Ventures– where such

provisions “inure[d] to Zausner’s benefit” after it succeeded ZNHC. ECB USA, Inc., et al.,

No. 19-cv-00731-RGA-CJB, at *8 (cleaned up). This Court agrees. The SPA’s antiassignment provision clearly distinguishes between assignments by the parties’ 

“successors” and “permitted assigns.” See SPA X § XII.4. Successors, like Zausner,

automatically assume rights and obligations in place of the succeeded party. Whereas

“permitted assigns” only do so if the parties agree upon the assignment in writing. 

Defendants argue that this Court should apply Delaware law because the merger

occurred between two Delaware entities under Delaware law. See (Defs.’ Mot. (DE [6] at

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 13 of 22
14

10)). Defendants then argue that, under Delaware law, a merger is an assignment “by

operation of law” that is specifically prohibited by the SPA’s anti-assignment clause. In

support, Defendants cite to a single case, MTA Canada Royalty Corp. v. Compania

Minera Pangea S.A. de C.V., in which the Delaware Superior Court determined that an

SPA’s anti-assignment clause the phrase “assignment by operation of law” is “commonly

understood to include a merger.” No. CV N19C-11-228 AML, 2020 WL 5554161, at *3

(Del. Super. Ct. Sept. 16, 2020). Defendants’ arguments are unpersuasive. For one,

Defendants do not address why Delaware law would apply in light of the SPA’s Florida

choice of law provision. See ECF [1-2], SPA § XII.5. Moreover, even if Delaware law

were to apply, the anti-assignment clause in MTA is distinguishable. The anti-assignment

clause in this case begins with the following sentence: 

This Agreement shall be binding upon, and inure to the benefit

of, the parties hereto and their respective successors, heirs,

legal representatives and permitted assigns. 

SPA X § XII.4 (emphasis added). 

While the anti-assignment clause in MTA included a similar provision, it appeared

after the anti-assignment provision and was “subject to” the anti-assignment clause. See

MTA Canada Royalty Corp., 2020 WL 5554161, at *2. On the facts of this case, MTA’s 

reasoning is inapplicable. The Court, therefore, agrees with the Delaware District Court

and finds that Plaintiff has standing to assert its claims against Defendants.3

iii. Whether this Court has Personal Jurisdiction Over the

Individual Defendants

3 This Court need not address Plaintiff’s third argument regarding Defendants’ purported waiver of the antiassignment clause, where it has already determined that Plaintiff has standing on other grounds.

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 14 of 22
15

Defendants, French citizens residing in Guadeloupe, next argue that Plaintiff fails

to plead a prima facie basis for personal jurisdiction over them. Defendants maintain that

simply serving as an officer or director of a Florida corporation and taking actions in that

capacity affords no basis for personal jurisdiction. See (Defs.’ Mot. (DE [6] at 12)). The

corporate shield doctrine, Defendants argue, also precludes Florida’s long-arm statute

from conferring jurisdiction over Defendants even where they may be personally liable. 

See id. Defendants then ask this Court to disregard any allegations by Plaintiff that

Defendants acted in their personal interest where such allegations are based on

“information and belief.” See id. at 12–13. Defendants further argue that Plaintiff’s

intentional tort claims cannot assert personal jurisdiction over them where such claims

are subject to dismissal. Id. at 13. Plaintiff counters that Florida’s long-arm statute

provides a clear basis for personal jurisdiction where Defendants have significant

contacts in the forum. Plaintiff also alleges personal jurisdiction based on Defendants’ 

intentional torts committed in Florida. 

Between Plaintiff’s Complaint and its supplemental briefing, Plaintiff has

sufficiently pled personal jurisdiction over Defendants. Plaintiff has pled general and

specific jurisdiction sufficient to satisfy Florida’s long-arm statute. “To establish a

defendant is carrying on business under Section 48.193(1)(a)(1), the activities of the

Defendants must be considered collectively and show a general course of business

activity in the state for pecuniary benefit.” In re Takata Airbag Prod. Liab. Litig., 396 F.

Supp. 3d 1101, 1139 (S.D. Fla. 2019) (cleaned up). Relevant factors include the

“presence and operation of an office in Florida” and “the possession and maintenance of

a license to do business in Florida.” Id. Plaintiff alleges that Defendants, as directors of

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 15 of 22
16

ECB and AVC, decided to move SFI’s offices to Miami, Florida after closing. See (Compl.

(DE [1] at ¶ 15)). As demonstrated in Defendants’ depositions and as set forth in Plaintiff’s

supplemental briefing, Defendants maintained substantial contacts with the state of

Florida from August 2014 through June 2020. In October 2014, Arno Leoni, a former

Board member and Treasurer of SFI, met with the former President and CEO of SFI, Alain

Voss, in Miami. See (Pl. Supp. Br. (DE [34] at 5)). After ECB and Atlantic Ventures

closed on its purchase of SFI, Leoni moved his family to Miami in August 2015 and his

children attended school for the following five years. See id. During this Court’s hearing

on Defendants’ Motion, Defendants conceded that this Court has general jurisdiction over

Leoni. Claude Blandin, SFI’s former president, also met with Voss in 2014 in Miami. Id.

at 4. Blandin subsequently acquired an E-2 visa and purchased a residential property in

South Beach, Miami. Id. As for Bruno Blandin and Patrick Blandin, Plaintiff alleges that

Defendants visited Miami for corporate meetings and personal family visits intermittently

throughout the relevant period. Id. at 5–6. While Defendants take issue with Plaintiff’s

allegations, they submitted no affidavits in rebuttal even though Defendants successfully

defeated the Delaware Court’s exercise of personal jurisdiction through affidavit evidence. 

Absent any rebuttal evidence, Plaintiff has sufficiently pled general jurisdiction under Fla.

Stat. § 48.193(1)(a)(1). 

To establish specific jurisdiction under Section § 48.193(1)(a)(2), “a plaintiff must

allege factual matter showing the Defendants’ acts caused injury within Florida—even if

the Defendants committed the act outside the state.” In re Takata Airbag Prod. Liab.

Litig., 396 F. Supp. At 1140. Plaintiff’s Complaint includes several factual allegations

detailing torts committed by Defendants within the state of Florida. See (DE [1-2] at ¶¶

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 16 of 22
17

47–51; 163–69. Defendants’ argument – that Plaintiff cannot assert personal jurisdiction

over them for actions taken as officers and directors of SFI – misses the mark. As

Defendants note, “[u]nder Florida law, in order to assert jurisdiction over a corporate

officer for acts taken in his or her corporate capacity, a plaintiff must allege that the officer

acted in a way other than for the furtherance of the business of his principal.” (Defs.’ Mot.

(DE [6] at 12)) (quoting VIS Holdings Corp. v. Cooper, No. 07-20882-CIV, 2007 WL

9702900, at *7 (S.D. Fla. Dec. 11, 2007)). Plaintiff clearly and repeatedly alleges that

Defendants acted in their own self-interest. See (Compl. (DE [1-2] at ¶¶ 128–29; 167;

175–76)). As discussed supra in Section II.b., Plaintiff’s allegations satisfy pleading

requirements even where they are pled on “information and belief.” Finally, Defendants

raise no due process concerns and none exist here in light of Defendants’ meaningful

operations and contacts in the state of Florida. See Posner v. Essex Ins. Co., 178 F.3d

1209, 1220 (11th Cir. 1999). Defendants’ final argument, that Plaintiff’s underlying tort

claim fails and cannot serve as a basis for jurisdiction, likewise fails for the reasons

discussed below. 

C. Whether Plaintiff Failed to State a Claim under Rule 12(b)(6)

Defendants ask this Court to strike Plaintiff’s substantive allegations for (i)

equitable accounting; (ii) tortious interference; and (iii) conspiracy to tortiously interfere

for failure to state a claim. 

i. Equitable Accounting

Defendants contend that Plaintiff’s equitable accounting claim fails for four

reasons: (1) Plaintiff is not a party to transaction between SFI and Atalanta; (2) Plaintiff

alleges no fiduciary relationship with Defendants or any party to the SFI asset sale

transaction; (3) the transaction in the SPA; namely, the non-payment of $6.1M in deferred

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 17 of 22
18

payments, is “not complex;” and (4) Plaintiff has an adequate remedy at law through

damages. See (Defs.’ Mot. (DE [6] at 13–14)).

Under Florida law, to establish a claim for equitable accounting, a plaintiff “must

show the existence of a fiduciary relationship or complex transaction and must

demonstrate it has no adequate remedy at law.” Validsa, Inc. v. PDVSA Services, Inc.,

632 F. Supp. 2d 1219, 1244 (S.D. Fla. 2009), rev’d on other grounds (citing Kee v. Nat’l

Reserve Life Ins. Co., 918 F.2d 1538, 1540 (11th Cir.1990)). The Delaware District Court,

applying Florida law, rejected Defendants’ arguments, and Defendants fare no differently

here. Defendants’ first argument, that Plaintiff is a stranger to the SFI asset sale

transaction, fails here where the case cited by Defendants, Managed Care Sols., Inc. v.

Essent Healthcare, Inc., does not require direct privity between parties to a transaction

for a claim of equitable accounting. See 694 F. Supp. 1275, 1280 (S.D. Fla. 2010). 

Defendants’ second argument fails as Plaintiff need not plead a fiduciary relationship

where, as here, Plaintiff pleads that a complex transaction is at issue. This Court agrees

with the District Court in Delaware that the transaction is plausibly complex because:

(1) the transaction at issue has generated three separate

lawsuits in two federal courts; (2) it involves a “multi-tiered

structure for securing payment” for SFI’s sale; and (3)

implicates a number of different contractual agreements and

many different parties/related corporations/relevant actors.

ECB USA, Inc., et al., No. 19-cv-00731-RGA-CJB, at 29 (citing Lan Li v. Walsh, CASE

NO. 16-81871-CIV-MARRA, 2017 WL 3130392, at *7 (S.D. Fla. July 24, 2017)). 

Defendants’ final argument fails in light of Plaintiff’s argument that it otherwise

lacks an adequate remedy at law. Plaintiff posits that it likely cannot recover the $6.1M

in deferred payment in light of the “disappearance” of the Atalanta deal proceeds and the

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 18 of 22
19

cash-pooling Treasury Agreement among Defendants’ affiliate organizations, including

non-party C2B. At least at the Motion to Dismiss stage, Plaintiff has sufficiently pled its

equitable accounting claim. 

ii. Tortious Interference

Defendants urge dismissal of Plaintiff’s tortious interference claim where (1)

Plaintiff has no contractual rights to be interfered with; (2) Defendants are not strangers

to the transaction; and (3) the alleged tortious acts do not interfere with contractual rights. 

To plead tortious interference under Florida law, a plaintiff must show: (1) the

existence of a contractual relationship; (2) knowledge of the relationship on the part of the

defendant; (3) an intentional and unjustified interference with the relationship by

defendant; and (4) plaintiff’s damages resulting from the breach. Duty Free Ams., Inc. v. 

Estee Lauder Cos ., 797 F.3d 1248, 1279 (11th Cir. 2015). Notwithstanding Defendants’ 

objections, Plaintiff has adequately pled its tortious interference claim. As to the

contractual relationship, Plaintiff alleges that Zausner was a party to Amendment No. 1,

which modified the Deferred Payment installments and payment schedule. Under

Defendants’ second argument, Plaintiff cannot plausibly allege tortious interference

where Defendants acted in the best interests of the corporation. As discussed in Section

II.b., Plaintiff has repeatedly and adequately pled that Defendants acted in their own

personal interest. Defendants’ third argument – that Plaintiff asserts no interference with

contractual rights – is also of no moment. Plaintiff alleges that Defendants breached the

SPA and Amendment No. 1 by directing proceeds from the SFI asset sale to themselves. 

See (Pl. Opp. (DE [19] at 19)). Plaintiff also alleges that Defendants’ placement of SFI

into ABC Proceedings breached the Stock Pledge Agreement signed by Zausner. 

(Compl. (DE [1-2] at ¶¶ 133–34, 167)). Although Defendants argue that SFI’s asset sale

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 19 of 22
20

did not violate the SPA or Stock Pledge agreement, this Court finds that Plaintiff need not

definitively prove which covenants were violated at this stage in the proceedings. Rather,

Plaintiff need only demonstrate facts sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Plaintiff has done so here and, accordingly,

has sufficiently pled its tortious interference claim. 

iii. Conspiracy

Defendants’ arguments against Plaintiff’s tortious interference conspiracy claim

are similarly unpersuasive. Defendants first argue that Plaintiff’s conspiracy claim cannot

proceed where the substantive tortious interference claim is meritless. This argument, as

discussed above, is inapplicable where Plaintiff has sufficiently pled its tortious

interference claim. Second, Defendants contend that Plaintiff’s conspiracy claim is barred

by the intra-corporate conspiracy doctrine, which forecloses an “actionable conspiracy

between an entity and its officers or agents.” See (Defs.’ Mot. (DE [6] at 16)) (quoting

Hoon v. Pate Const. Co., 607 So. 2d 423, 430 (Fla. 4th DCA 1992)). 

An actionable conspiracy claim under Florida law requires: “(a) an agreement

between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful

means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage

to plaintiff as a result of the acts done under the conspiracy.” United Techs. Corp v. 

Mazer, 556 F.3d 1260, 1271 (11th Cir. 2009) (applying Florida law). “Where corporate

agents are acting within the scope of their employment, their actions ‘are attributed to the

corporation itself, thereby negating the multiplicity of actors needed for a conspiracy.’” 

Weisman v. S. Wine & Spirits of Am., Inc., 297 So. 3d 646, 652 (Fla. 4th DCA 2020)

(quoting HRCC, Ltd. v. Hard Rock Cafe Int’l (USA), Inc., 302 F. Supp. 3d 1319, 1324–25

(M.D. Fla. 2016), aff’d, 703 Fed. Appx.’ 814 (11th Cir. 2017)). 

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 20 of 22
21

Defendants’ arguments again miss the mark. Plaintiff alleges throughout its

Complaint that Defendants – as directors and officers of SFI – continuously placed their

personal interests ahead of SFI’s interests and contractual obligations. See (Compl. (DE

[1-2] at ¶¶ 128–29; 167; 175–76)). Defendants’ arguments do little to rebut, or even

acknowledge, Plaintiff’s allegations. This Court, therefore, finds that Plaintiff’s conspiracy

claim is adequately pled and survives Defendants’ Motion to Dismiss.

V. Defendants’ Motion to Strike (DE [6])

Defendants ask this Court to strike Plaintiff’s allegations relating to SFI’s asset sale

and business affairs. In support, Defendants argue that Plaintiff’s fraudulent conveyance

theory “does not make sense” where Plaintiff’s suggested recourse—paying Plaintiff

instead of its creditors in the ABC proceeding—would constitute an actual fraudulent

conveyance. See (Defs.’ Mot. (DE [6] at 17)). Plaintiff responds that Defendants provide

no legal basis to strike its allegations and maintain that no prejudice concerns exist here. 

This Court agrees with Plaintiff. 

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move

to strike “from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike, however, are

generally disfavored by the court. See Williams v. Jader Fuel Co., 944 F.2d 1388, 1400

(7th Cir. 1991). Striking allegations from a pleading, however, “is a drastic remedy to be

resorted to only when required for the purposes of justice” and only when the stricken 

allegations have “no possible relation to the controversy.” Augustus v. Bd. of Pub.

Instruction, 306 F.2d 862, 868 (5th Cir. 1962). In reviewing a motion to strike, the

circumstances must be considered in the light most favorable to the non-moving party,

and such a motion “will usually be denied unless the allegations have no possible relation

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 21 of 22
22

to the controversy and may cause prejudice to one of the parties.” Poston v. Am. Pres.

Lines, Ltd., 452 F. Supp. 568, 570 (S.D. Fla. 1978) (citing Augustus, 306 F.2d at 868). 

Plaintiff’s allegations, as discussed throughout this opinion, are plausible and

sufficient to withstand Defendants’ Motion to Dismiss (DE [6]). The allegations relating to

SFI’s asset sale are neither irrelevant nor immaterial and raise no prejudice concerns

(and Defendants have not argued that they do). Defendants’ Motion to Strike (DE [6]) is

therefore DENIED. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss for Lack of

Personal Jurisdiction, Lack of Subject Matter Jurisdiction, and for Failure to State a Claim

and Motion to Strike (DE [6]), is DENIED. 

IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion to Take 

Judicial Notice (DE [5]) is GRANTED IN PART AND DENIED IN PART. To the extent

Defendants request the Court to take judicial notice of the record dates in the ABC 

Proceeding, In Re: Assignment for the Benefit of Creditors of Schratter Foods Inc., No. 

2018-013998-CA-01 (Cir. Ct. Miami-Dade Cty.); and the Delaware District Court case, 

ECB USA, Inc. et al. v. Savencia S.A., et al, No. 19-cv-00731-RGA-CJB (D. Del.), the

motion will be GRANTED. To the extent Defendants request this Court take notice of any 

facts within either proceeding, the Motion is DENIED. 

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 16th day of

August 2023.

Copies furnished to counsel of record via CM/ECF

Case 1:22-cv-22660-AHS Document 79 Entered on FLSD Docket 08/16/2023 Page 22 of 22