United States District Court 

for the 

Southern District of Florida 

Caterpillar Financial Services 

Corp., Plaintiff, 

v. 

Venequip Machinery Sales Corp., 

Defendant.

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Civil Action No. 22-23002-Civ-Scola 

Order Adopting in Part Report and Recommendations 

This matter is before the Court on the Defendant Venequip Machinery 

Sales Corporation’s (“VMSC Miami”) motion to dismiss, or alternatively stay, 

the instant case. (Mot., ECF No. 22.) The Court referred the motion to 

Magistrate Judge Jonathan Goodman for either an order or a report and 

recommendations. (ECF No. 28.) Judge Goodman issued a report and 

recommendations, wherein he recommended (i) that the Court grant VMSC 

Miami’s request to stay this proceeding and, alternatively, (ii) that the 

complaint be dismissed without prejudice for failure to state a claim. (R&R., 

ECF No. 44.) The Plaintiff Caterpillar Financial Services Corporation (“CFSC”) 

timely objected to the report and recommendations (Obj., ECF No. 45), and 

VMSC Miami responded to those objections (Resp. Obj., ECF No. 48). After 

careful consideration of the parties’ written submissions, the record, and the 

relevant legal authorities, the Court adopts Judge Goodman’s report and 

recommendations in part (R&R., ECF No. 44) and grants VMSC Miami’s 

motion to dismiss this case (Mot., ECF No. 22), as further explained below. 

Because the Court concludes that dismissal is appropriate, it does not reach 

VMSC Miami’s alternative arguments for a stay. 

1. Background 

In this breach of contract action, CFSC sues VMSC Miami for its failure 

to repay amounts allegedly due under a June 16, 2016, inventory loan 

agreement (the “Inventory Loan Agreement”). (Compl. ¶¶ 1–5, ECF No. 1.) CFSC 

is a subsidiary of Caterpillar, Inc. (“Caterpillar”), which, in turn, is a leading 

manufacturer of industrial equipment and engines. (Id. ¶¶ 7–8.) Pursuant to 

the Inventory Loan Agreement, CFSC would make certain funds available to 

VMSC Miami to allow it to finance products manufactured by Caterpillar. (Id. ¶ 

28.) To that end, throughout 2017, the parties executed six promissory notes 

pursuant to which VMSC Miami requested funds under the Inventory Loan 

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Agreement. (Id. ¶¶ 29–38.) CFSC complains that VMSC Miami has breached 

the Inventory Loan Agreement and related promissory notes by failing to make 

the payments due thereunder. (Id. ¶¶ 42, 47.) In support of its breach of 

contract claim, CFSC provides certain details as to the Inventory Loan 

Agreement and related promissory notes. Critically, it also provides significant 

information regarding related entities and litigation currently unfolding in 

Curaçao (the “Curaçao Proceeding”).

As relevant here, the reason that CFSC claims VMSC Miami’s payments 

are outstanding is because CFSC declared an event of default under the 

Inventory Loan Agreement. (Id. ¶¶ 42, 47.) Although not totally clear from the 

complaint, that event of default may have been based on a purported adverse 

change in VMSC Miami’s financial condition as a result of another, albeit 

related, entity’s default under another, albeit related, agreement. (Id. ¶ 39.) 

Specifically, in 2007, a subsidiary of CFSC called Caterpillar Crédito, SA de CV 

Sociedad Financiera De Objecto Múltiple ENR (“Cat Crédito”) entered into a 

loan agreement with VMSC Curaçao, N.A. (“VMSC Curaçao”), a company that, 

like VMSC Miami, is part of a group of companies known as the Venequip 

Group. (Id. ¶¶ 8, 10, 13.) In 2015, Cat Crédito entered into an extension of the 

original loan agreement with VMSC Curaçao that increased the line of credit 

thereunder (the “2015 Loan Agreement”). (Id. ¶ 16.) In December 2017, VMSC 

Curaçao defaulted on its payment obligations under the 2015 Loan Agreement. 

(Id. ¶ 17.) In response, CFSC and its affiliates declared events of default as to 

both the 2015 Loan Agreement and the Inventory Loan Agreement that is the 

subject of the instant case. (Id. ¶ 39.) The circumstances of the initial default 

are currently being litigated in the Curaçao Proceeding, where, pursuant to the 

terms of the 2015 Loan Agreement, Cat Crédito initiated a petition to the court 

of First Instance against VMSC Curaçao seeking to recover all amounts due 

thereunder. (Id. ¶ 19.)

In its motion, VMSC Miami requested that the Court stay this action 

pending resolution of the Curaçao Proceeding based on the international 

abstention doctrine and this Court’s inherent power to control its docket. (Mot., 

ECF No. 22.) Alternatively, VMSC Miami raised various arguments for why the 

complaint should be dismissed pursuant to Federal Rule of Civil Procedure 

12(b)(6), including for failure to sufficiently allege a breach of contract. (Id.) 

Judge Goodman agreed that this action should be stayed, concluding that the 

Curaçao Proceeding is a parallel proceeding, and that abstention is appropriate 

pursuant to all the relevant factors. (R&R. 16, 30, ECF No. 44.) Should the 

Court deem it appropriate at this time, however, he also recommended that it 

grant VMSC Miami’s motion to dismiss the complaint for failing to properly 

allege a breach of contract. (Id. at 17–23, 31.)

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The Court finds Judge Goodman’s findings of fact and conclusions of law 

to be well-reasoned, thorough, cogent, and compelling. Because the Court 

agrees that CFSC has failed to adequately allege a breach of contract, however, 

it declines to address that part of the report and recommendations relating to 

VMSC Miami’s request for a stay of this action. Accordingly, the Court adopts 

and affirms Judge Goodman’s report and recommendations in part (R&R., 

ECF No. 44) and grants VMSC Miami’s motion to dismiss this case (Mot., ECF 

No. 22).

2. Standard of Review

“In order to challenge the findings and recommendations of the 

magistrate judge, a party must file written objections which shall specifically 

identify the portions of the proposed findings and recommendation to which 

objection is made and the specific basis for objection.” Macort v. Prem, Inc., 208 

F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822 

(11th Cir.1989)) (cleaned up). The objections must also present “supporting 

legal authority.” Local Mag. J. R. 4(b). Once a district court receives “objections 

meeting the specificity requirement set out above,” it must “make a de novo

determination of those portions of the report to which objection is made and 

may accept, reject, or modify in whole or in part, the findings or

recommendations made by the magistrate judge.” Macort, 208 F. App’x at 783-

84 (quoting Heath, 863 F.2d at 822) (cleaned up). To the extent a party fails to 

object to parts of the magistrate judge’s report, those portions are reviewed, at 

a minimum, for clear error. Macort, 208 F. App’x at 784 (quoting Johnson v. 

Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.1999)). A court, in its discretion, 

need not consider arguments that were not, in the first instance, presented to 

the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009).

3. Analysis

While VMSC Miami raised various arguments for why the complaint fails 

to meet the standard of Federal Rule of Civil Procedure 12(b)(6), Judge 

Goodman recommended dismissal only on the ground that the complaint fails 

to sufficiently allege a breach of contract. Specifically, he agreed with VMSC 

Miami that the complaint fails to allege the contractual provisions breached 

and that it fails to establish compliance with a contractual notice of default 

requirement. (R&R. 17–23, ECF No. 44.)

In its objections to the report and recommendations, CFSC argues that 

Judge Goodman incorrectly finds its allegations regarding the nature of the 

breach to be ambiguous. In addition, CFSC argues that notice of default was 

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not required and that, even if it was, the complaint clearly alleges that notice 

was provided. Unsurprisingly, VMSC Miami argues that Judge Goodman 

correctly concluded that the complaint’s allegations as to breach of contract are 

inadequate. As noted, the Court agrees with Judge Goodman that the 

complaint fails to adequately allege a breach of contract claim. CFSC’s 

objections to the contrary are unpersuasive.

The Inventory Loan Agreement provides that it shall be governed and 

construed in accordance with the laws of the State of Tennessee. (See

Agreement § 8.08, ECF No. 1-3.) “In order to make a prima facie case for a 

breach of contract claim” under Tennessee law, “a plaintiff must allege: (1) The 

existence of an enforceable contract, (2) nonperformance amounting to a 

breach of the contract, and (3) damages caused by the breach of the contract.”

See Tolliver v. Tellico Vill. Prop. Owners Ass’n, 579 S.W.3d 8 (Tenn. Ct. App. 

2019). Importantly, as recognized by Tennessee courts, “[i]t is a basic tenet of 

contract law that a party can only advance a claim of breach of written contract 

by identifying and presenting the actual terms of the contract allegedly 

breached.” Archambeault v. Wyndham Vacation Ownership, No. 3:20-cv-01044, 

2021 U.S. Dist. LEXIS 250833, at *15 n.19 (M.D. Tenn. July 14, 2021) (quoting 

KSA Enters. v. Branch Banking & Tr. Co., 761 F. App’x 456, 460 (6th Cir. 

2019)); Pearson v. Specialized Loan Servicing, LLC, No. 1:16-cv-318, 2017 U.S. 

Dist. LEXIS 116137, 2017 WL 3158791, at *4 (E.D. Tenn. Jul. 24, 2017) 

(finding plaintiff’s failure “to identify any provision in the security trust . . . that 

the [defendant] has breached” to be “fatal to her claim [for breach of contract]”

and dismissing claim for failure to state a claim upon which relief can be 

granted); Simmons v. Countrywide Home Loans, No. 3:09-00621, 2010 U.S. 

Dist. LEXIS 33760, at *7 (M.D. Tenn. Feb. 25, 2010), report and 

recommendations adopted, 2010 U.S. Dist. LEXIS 33761 (M.D. Tenn. Apr. 5, 

2010) (“Plaintiffs fail to allege which provisions of the Loan Agreement were 

breached by Defendants, or how those provisions were breached[.]”); see also 

Reyes v. Scottsdale Ins. Co., Civil Action No. 20-21437-Civ-Scola, 2020 U.S. 

Dist. LEXIS 71616, at *2-3 (S.D. Fla. Apr. 23, 2020) (Scola, J.) (compiling 

cases) (same).

The Court agrees with Judge Goodman’s conclusion that CFSC fails to 

adequately allege nonperformance amounting to a breach because it fails to 

adequately set forth the provision of the Inventory Loan Agreement that has 

been breached. Neither in its complaint nor in its briefing opposing VMSC 

Miami’s motion to dismiss does CFSC ever point to the specific terms of the 

Inventory Loan Agreement on which its claim is based. Granted, the complaint 

contains various allegations to the effect that VMSC Miami is “in default of its 

obligations . . . by virtue of its failure to repay amounts as they become due”

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and that “[d]espite written notice as to an event of default . . . CFSC has 

received no repayment of any kind under the terms of the Inventory Loan 

Agreement and related notes.” (Compl. ¶¶ 5, 42, ECF No. 1.) But CFSC never 

points to the actual terms of the Inventory Loan Agreement on which its 

declaration of default or corresponding demand for repayment are based. (See 

generally id.) The significance of this is underscored by the fact that the 

Inventory Loan Agreement sets forth eight different potential events of default, 

so that there are a host of different circumstances in which VMSC Miami’s 

alleged nonperformance could amount to a breach. (See Agreement § 7.01, ECF 

No. 1-3.) Thus, specifying the provision breached is necessary to identifying the 

event of default at issue and any defenses or other deficiencies in the alleged 

breach. CFSC’s conclusory allegations that VMSC Miami’s breach is based on a 

failure to pay do not adequately set forth the nature of the breach at issue, or 

how it came about.

Indeed, at times it seems like CFSC’s allegations as to the nature of its 

claimed breach are left intentionally unclear. For one, in the allegations under 

its breach of contract count, CFSC states that “VMSC Miami[] has materially 

breached its contractual obligations by, among other things, failing to make 

the required payments of principal and interest due and owing[.]” (Compl. ¶ 47, 

ECF No. 1 (emphasis added).) But such “ambiguous catchall allegations are 

insufficient” to allege a breach of contract. See Regal v. Butler & Hosch, P.A., 

No. 15-CIV-61081, 2015 U.S. Dist. LEXIS 182446, at *15-16 (S.D. Fla. Oct. 8, 

2015) (Bloom, J.) (“Plaintiffs also include vague, ‘catchall’ methods of breach 

such as ‘other benefits.’ At a minimum, Rule 8 requires Plaintiffs to indicate 

the precise provisions allegedly breached.”); Gentry v. Harborage CottagesStuart, LLLP, No. 08-14020-CIV, 2008 U.S. Dist. LEXIS 32663, at *10 (S.D. Fla. 

Apr. 21, 2008) (Moore, J.) (“[G]iven the vague and factually limited pleadings 

concerning the breach of contract claim and this Court’s inability to discern 

which of the provisions were allegedly breached, Plaintiffs have failed to 

sufficiently state a claim for breach of contract.”).

In addition, the grounds for breach alleged in the complaint do not 

clearly correspond to those argued by CFSC in its briefing. For example, while 

in the complaint CFSC alleges that it declared an event of default as to the 

Inventory Loan Agreement as a result of VMSC Curaçao’s default under the 

2015 Loan Agreement (Compl. ¶¶ 39–42, ECF No. 1), in its opposition to 

dismissal CFSC seems to argue that the primary default at issue here is based 

on VMSC Miami’s failure to pay the amounts owed on the promissory notes at 

maturity, independent of any other entity’s default. (See Obj. 10, 18, ECF No. 

45 (“Plaintiff has properly pled a breach for non-payment of matured notes, 

which is no way, shape or form before the Curaçao court, and never could 

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be.”).) Yet, CFSC’s position on this point is wholly undermined by the 

allegations in the complaint, including the fact that a significant portion of 

those allegations focus exclusively on the Curaçao Proceeding. And the 

complaint includes a single count for breach of contract; it does not purport to 

allege different bases for the purported breach. In short, given CFSC’s failure to 

specify the provision of the Inventory Loan Agreement allegedly breached and 

its corresponding confusion as to the nature of the breach itself, the Court has 

no difficulty agreeing with Judge Goodman that the complaint fails to 

adequately allege nonperformance by VMSC Miami amounting to a breach of 

the contract.

Because CFSC has failed to adequately allege the grounds for its breach 

of contract claim, the Court will not reach the issue of whether the complaint 

should also be dismissed for failure to establish compliance with the Inventory 

Loan Agreement’s notice of default requirement. Indeed, because the complaint 

is unclear as to the circumstances underlying the alleged breach, the Court is 

unable to definitively determine whether such notice was required by the 

contract or, if required, whether CFSC properly alleged that it was provided.

Finally, the Court denies CFSC’s request for leave to amend. CFSC 

requests leave to amend as an afterthought, at the end of its objections to 

Judge Goodman’s report and recommendations, making the request both 

procedurally defective and lacking in substantive support under Eleventh 

Circuit Precedent. See Newton v. Florida, 895 F.3d 1270, 1277-78 (11th Cir. 

2018) (reaffirming the rule that a request for leave to amend is not properly 

raised if embedded in a memorandum in opposition to a motion to dismiss); 

see also Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 

2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to 

dismiss before filing a motion for leave to amend.”). The Court will not now 

afford CFSC another bite at the apple where it declined “to follow the welltrodden procedural path toward amendment.” Eiber Radiology, Inc. v. Toshiba 

Am. Med. Sys., Inc., 673 Fed. App’x 925, 930 (11th Cir. 2016).

4. Conclusion

For the reasons set forth above, the Court adopts and affirms Judge 

Goodman’s report and recommendations in part (R&R., ECF No. 44) and 

grants VMSC Miami’s motion to dismiss CFSC’s complaint (Mot., ECF No. 22), 

which is comprised solely of one count of breach of contract against VMSC 

Miami. The Court dismisses CFSC’s complaint with prejudice because it has 

failed to state a claim under Rule 12(b)(6). In addition, as stated, the Court 

denies the CFSC’s request for leave to amend.

Case 1:22-cv-23002-RNS Document 52 Entered on FLSD Docket 07/14/2023 Page 6 of 7
Done and ordered in Miami, Florida, on July 13, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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