FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 17, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12897

Non-Argument Calendar

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D.C. Docket No. 06-21590-CV-PCH

DONAL B. BARRETT,

Plaintiff-Appellant, 

versus

PHILIP J. SCUTIERI, JR.,

 Defendant-Appellee.

 

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Appeal from the United States District Court 

for the Southern District of Florida

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(June 17, 2008)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Donal B. Barrett, proceeding pro se, appeals the district

court’s dismissal of his second amended complaint alleging fraud and promissory
 Barrett, a Massachusetts resident, brought his suit against Scutieri, a Florida resident, in federal 1

court based on diversity jurisdiction, 28 U.S.C. § 1332.

2

estoppel against Defendant Philip J. Scutieri, Jr. The district court dismissed the

complaint with prejudice for failure to state a claim upon which relief can be

granted, Fed.R.Civ.P. 12(b)(6). No reversible error has been shown; we affirm. 

1

In Barrett’s second amended complaint, he alleged the following facts: (1)

in 1995, he founded NetFax Incorporated (“NetFax”) and, when the company later

began to experience financial troubles, he controlled it by virtue of his ownership

of a majority of its stock; (2) at a December 2001 meeting, he discussed his plans

for the financial reorganization of the company with its directors and some fellow

stockholders, including Scutieri; (3) shortly after this meeting, Scutieri called

Barrett and falsely represented to him that he desired to collaborate with Barrett on

the contemplated reorganization plan; (4) over the next six weeks, Barrett and

Scutieri “collaborated closely [] as co-venturers” in effecting the transfer of

control of NetFax from Barrett to Scutieri; (5) during this period, Scutieri

intentionally concealed from Barrett his true intentions with NetFax, which was to

place it into Chapter 7 liquidation proceedings; (6) NetFax, in fact, was liquidated,

effectively extinguishing any ownership interest Barrett had; and (7) had Barrett
 “A federal court applies the substantive law of the forum state in a diversity case, unless federal 2

constitutional or statutory law requires a contrary result.” Galindo v. ARI Mut. Ins. Co., 203 F.3d

771, 774-75 (11th Cir. 2000) (citation omitted).

3

known Scutieri’s true intentions, Barrett never would have transferred his interest

to him. 

On appeal, Barrett argues that these facts, as alleged, constituted legally

cognizable claims for fraud and promissory estoppel. He also contends that his

fraud claim was pleaded with the requisite level of particularity. We review de

novo a district court’s dismissal for failure to state a claim pursuant to Rule

12(b)(6). Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004). And “[w]e

accept the facts of the complaint as true and view them in the light most favorable

to the nonmoving party.” Id. 

To state a claim for fraudulent inducement under Florida law a plaintiff 2

must allege that (1) the defendant made a false statement about a material fact; (2)

the defendant knew the statement was false when he made it or was without

knowledge of its truth of falsity; (3) the defendant intended that the plaintiff rely

and act on the false statement; and (4) the plaintiff justifiably relied on the false

statement to his detriment. Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla.

Dist. Ct. App. 2004). In addition, Fed.R.Civ.P. 9(b) requires a plaintiff to plead

with particularity the circumstances constituting fraud. 
 The district court also concluded that Barrett did not allege fraud based on Scutieri’s failure to 3

disclose his intention of liquidating NetFax because there was no fiduciary relationship between

them and, thus, Scutieri had no duty to disclose. We see no error in this conclusion. Barrett did not

allege that an express contract existed between him and Scutieri, but alleged only that they

collaborated together in the reorganization of NetFax; nothing evidenced that Barrett was a weaker

party dependent on Scutieri in the collaborative relationship. See Taylor Woodrow Homes Fla., Inc.

4

Barrett’s fraud claim fails procedurally and substantively. He did not set

forth a specific oral or written statement or omission by Scutieri about a material

fact. See Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2002) (to

satisfy the particularity requirement of Rule 9(b), a plaintiff must, among other

things, set forth “precisely what statements were made in what documents or oral

representations or what omissions were made”). Barrett only vaguely alleged that

Scutieri falsely stated an intention to collaborate on the implementation of a

reorganization plan for NetFax. But to give rise to an action for fraud, the false

statement must be about a past or existing fact, not a future action. See Vance v.

Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1371 (Fla. Dist. Ct.

App. 1981). While a plaintiff can state a cause of action for fraud if a defendant

makes a promise to perform a material matter in the future with no intention of

performing, see id. at 1372, here, Barrett does not even allege that Scutieri made a

promise to perform, but instead, simply alleged that he expressed an interest in

collaborating. Barrett did not set forth facts about what Scutieri promised to do or

to refrain from doing and, thus, did not sufficiently allege fraud. 

3
v. 4/46-A Corp., 850 So. 2d 536, 540 (Fla. Dist. Ct. App. 2003) (“[t]o establish [an implicit]

fiduciary relationship, a party must allege some degree of dependency on one side and some degree

of undertaking on the other side to advice, counsel, and protect the weaker party”).

5

The absence of a promise also defeats Barrett’s promissory estoppel claim.

See Mount Sinai Hosp. of Greater Miami, Inc. v. Jordan, 290 So. 2d 484, 486 (Fla.

1974) (explaining that the doctrine of promissory estoppel applies when a promise

is made and that promise is reasonably expected to cause the promisee either to

take some action or forego taking action). 

Barrett also argues that the district court should not have dismissed his

second amended complaint with prejudice. Dismissal of a case with prejudice is a

sanction of last resort, applicable only in extreme circumstances. See Goforth v.

Owens, 766 F.2d 1533, 1535 (11th Cir. 1993) (in the context of a Fed.R.Civ.P.

41(b) dismissal for failure to comply with a court order). Also, a district court’s

discretion to dismiss a complaint without leave to amend is restricted by

Fed.R.Civ.P. 15(a), which directs that leave to amend shall freely be given when

justice so requires; but if there has been a repeated failure to cure deficiencies by

amendments previously allowed, the district court does not have to allow the party

to amend the pleading. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.

2001). Shortly after Barrett filed his original complaint, he filed a first amended

complaint, which the district court dismissed without prejudice on Scutieri’s
6

motion to dismiss. The district court instructed Barrett that he could filed a second

amended complaint. Here, the district court committed no abuse of discretion in

dismissing the second amended complaint with prejudice because the court

previously had explained to Barrett the deficiencies in his first amended complaint

and had allowed him to correct them, but he failed to do so. 

AFFIRMED.