UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

BROWARD DIVISION 

IN RE: 

SEVEN STARS ON THE HUDSON CASE NO: 19-17544-RBR 

CORPORATION, d/b/a ROCKIN’JUMP 

 Debtor, 

_______________________________________/ 

SEVEN STARS ON THE HUDSON ADVERSARY NO.: 19-01230-RBR 

CORPORATION, d/b/a ROCKIN’JUMP 

 Plaintiff, 

v. 

MDG POWERLINE HOLDINGS, LLC, 

and XBK MANAGEMENT LLC, d/b/a 

XTREME ACTION PARK, 

 Defendants. 

_______________________________________/ 

MDG POWERLINE HOLDINGS, LLC’S MOTION TO DISMISS COMPLAINT 

Defendant MDG POWERLINE HOLDINGS, LLC (“MDG Powerline”), by and through 

undersigned counsel and pursuant to Federal Rule of Bankruptcy Procedure 7012 and Federal 

Rule of Civil Procedure 12(b)(6), hereby files this Motion to Dismiss the Complaint of 

Debtor/Plaintiff Seven Stars on the Hudson Corporation (“Plaintiff”), and in support thereof 

states as follows: 

In this Adversary Complaint, Plaintiff, a tenant in the Xtreme Action Park, an indoor 

entertainment facility located at 5300 Powerline Road, Fort Lauderdale, Florida, ostensibly 

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asserts an action for breach of a Lease Agreement against the landlord of the facility, MDG 

Powerline, along with collateral claims alleging a vague “conspiracy” between MDG Powerline 

and co-Defendant XBK Management, LLC (“Xtreme”), another tenant in the facility. As will be 

shown below, Plaintiff’s Adversary Complaint is profoundly flawed and should be dismissed in 

its entirety. 

Plaintiff originally entered into the Lease Agreement with MDG Powerline in 2015 to 

operate a “trampoline park” at the facility. (See D.E. 1-1 at 3.) It was understood at the time that 

Plaintiff would share the facility with Xtreme; indeed, it was anticipated in the Lease that 

Plaintiff and Xtreme would share expenses in marketing and advertising their respective ventures 

at the Xtreme Action Park, and that the tenants would host joint events. (Id. at Secs. 14.05(c) & 

20.15.) It was also understood at the time that the tenants would likely have to embark on 

renovations of the premises for their respective businesses. Mindful of the this, the Lease 

expressly states that the Landlord “shall not be liable for any interference or disturbance by any 

tenants or third persons.” (Id. at Sec. 20.21.) 

Despite this plain and unambiguous contract language, Plaintiff nevertheless attempts in 

its Adversary Complaint to hold MDG Powerline liable under the Lease Agreement for the 

alleged conduct of its co-tenant, Xtreme, for various delays and inconveniences allegedly arising 

from Xtreme’s renovations of the premises. (See D.E. 1 at ¶¶ 35-36 (alleging that Xtreme 

removed Plaintiff’s sign in the building lobby); ¶ 45 (“Xtreme willfully refused to provide any 

space on the marquee outside the building); ¶¶ 33-34 (alleging front desk was “dismantled and 

removed by Xtreme”). Plaintiff goes even further by inventing contractual duties that don’t 

exist, seeking, for instance, a declaration that Plaintiff may have a display for its brochures – 

though the Lease says nothing of the sort. (Id. at ¶ 67(f)&(g)). And while the Complaint 

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includes the first, second and third amendments to the Lease Agreement, it conveniently omits 

the fourth amendment to the lease, which expressly deletes from the Lease any obligation by 

MDG Powerline to make its “best effort” to accommodate Plaintiff’s registration desk in the 

front desk area of the facility. (See Fourth Amendment to Lease Agreement, attached as Exhibit 

A.)1

 

At bottom, Plaintiff cannot identify any provisions of the Lease that MDG Powerline has 

breached. Apparently recognizing this, Plaintiff seeks to attribute to MDG Powerline the alleged 

conduct of Plaintiff’s co-tenant, Xtreme. But Plaintiff has failed to establish any agency 

relationship between MDG Powerline and Xtreme – nor has it adequately alleged any of the 

claims asserted in the Adversary Complaint. Accordingly, the Adversary Complaint should be 

dismissed. 

STANDARD OF REVIEW 

 A complaint may be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim 

where “it is clear the plaintiff can prove no set of facts in support of the claims in the complaint.” 

S. Florida Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). While factual 

allegations contained in the Complaint are taken as true for purposes of the motion, id., the court 

is not required to accept as true general or conclusory allegations, or allegations contradicted by 

the exhibits to the Complaint. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 

2007). 

ARGUMENT 

                                                             1 Plaintiff attempts to justify its omission of this amendment by claiming, with no 

argument or factual support, that “its validity is questionable.” (D.E. 1 ¶ 23 n.2.) In any event, 

because this amendment is part of the Lease Agreement attached to the Complaint and is 

specifically referenced in the Complaint the Court may consider this exhibit on a motion to 

dismiss. Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 

1997). 

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I. Xtreme Action Park Is Not an Agent of MDG Powerline 

Plaintiff’s claims against MDG Powerline are based entirely on the false premise that Xtreme 

Action Park was an “agent” of MDG Powerline, such that the alleged conduct of Xtreme is 

somehow attributable to MDG Powerline. (See D.E. 1 ¶¶ 44, 71. 78(l), 81, 85). Plaintiff 

advances this baseless theory because it cannot identify any breaches of the Lease Agreement by 

MDG Powerline itself. Thus, Plaintiff must resort to alleging that MDG Powerline has liability 

for “condoning” Xtreme’s alleged removal of its signage and advertising brochures and so-called 

“lock-out events” – allegations that, as pleaded, are attributable solely to Xtreme. (Id. at ¶ 81.) 

The Complaint fails to allege any basis to attribute Xtreme’s conduct to MDG Powerline; indeed, 

Xtreme is specifically identified as a third-party beneficiary to the Lease Agreement, not an 

agent of the landlord. (D.E. 1-1 at 36, Sec. 20.28). Moreover, the Lease Agreement specifically 

disclaims any liability to MDG Powerline for Xtreme’s conduct. (Id. at 35, Sec. 20.21 

(“Landlord shall not be liable for any interference or disturbance by other tenants or third 

persons.”) For this reason alone, all the claims against MDG Powerline should be dismissed. 

To plead the existence of actual agency relationship, a plaintiff must allege “(1) 

acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the 

undertaking, and (3) control by the principal over the actions of the agent.” Belik v. Carlson 

Travel Grp., Inc., 864 F.Supp.2d 1302, 1310 (S.D. Fla. 2011) (internal citation omitted). 

Similarly, “[t]o properly plead a claim of apparent agency, a plaintiff must allege three elements: 

(1) the alleged principal made a manifestation which caused a third party to believe that an 

alleged agent had authority to act for the benefit of the principal; (2) such a belief was 

reasonable; and (3) the claimant reasonably relied upon that belief to his or her detriment.” Id. at 

1311. 

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Here, Plaintiff makes no effort to establish any of these elements in its Complaint. 

Rather, Plaintiff simply makes the conclusory assertion that Xtreme is an “agent” of MDG 

Powerline, without alleging any facts in support of the elements necessary to plead an agency 

relationship. Plaintiff’s conclusory agency allegations carry no weight, particularly where, as 

here, they contradict the terms of the Lease Agreement attached to the Complaint. Brooks v. 

Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). The claims 

against MDG Powerline based on Xtreme’s conduct therefore fail. 

II. Plaintiff Fails to State Any Viable Claims in its Adversary Complaint 

Plaintiff’s failure to plead an agency relationship between MDG Powerline and Xtreme is 

just one of the many defects in Plaintiff’s Complaint, as shown below. 

A. Count I: Declaratory Judgment 

Count I of the Complaint ostensibly seeks a declaration of the rights and duties of 

Plaintiff and MDG Powerline under the Lease Agreement. (See D.E. 1 ¶ 67.) In reality, Plaintiff 

is requesting that the Court re-write the Lease Agreement by adding new terms, while 

duplicating the relief sought in the remaining claims. The Court should decline the invitation to 

enter a declaratory judgment in this case and dismiss Count I. 

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., a federal court “may 

declare the rights and other legal relations of any interested party in the case of an actual 

controversy within its jurisdiction.” Fernando Grinberg Tr. Success Int. Properties LLC v. 

Scottsdale Ins. Co., 2010 WL 2510662, at *1 (S.D. Fla. June 21, 2010). The Declaratory 

Judgment Act “is an enabling Act, which confers a discretion on courts rather than an absolute 

right upon the litigant...It only gives the federal courts competence to make a declaration of 

rights; it does not impose a duty to do so.” Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 

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1328, 1330 (11th Cir. 2005). It is well-established that “the purpose of the Declaratory 

Judgment Act is to settle ‘actual controversies’ before they ripen into violations of law or a 

breach of some contractual duty.” QBE Ins. Corp. v. Prof'l Ins. Underwriters, Inc., 2007 WL 

9701183, at *3 (S.D. Fla. Mar. 13, 2007) (quoting Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 

779, 780 (5th Cir. 1949)) (emphasis added). Moreover, “[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 Trust, 2010 WL 2510662 at *1. 

Courts are particularly wary of claims for declaratory judgment that concern the same 

factual dispute as a pending claim for breach of contract. See, e.g., id. at *1-2; Eisenberg v. 

Standard Ins. Co., 2009 WL 3667086, at *2 (S.D. Fla. Oct. 26, 2009) (“[q]uestions regarding 

whether a contract was adequately performed is [sic] unrelated to the purpose behind the 

Declaratory Judgment Act”); Young v. Lexington Ins. Co., 2018 WL 7572240, at *4 (S.D. Fla. 

Dec. 6, 2018) (“a party should not be permitted to litigate what is in essence a breach of contract 

claim under the guise of a declaratory judgment action”); ABC Univ. Shops, LLC v. Scottsdale 

Ins. Co., 2018 WL 6271839, at *6-7 (S.D. Fla. Oct. 18, 2018) (same); Ministerio Evangelistico 

Int'l v. United Specialty Ins. Co., 2017 WL 1363344, at *2 (S.D. Fla. Apr. 5, 2017) (“[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”). Thus, a claim for declaratory judgment should be dismissed 

where it does not concern an ambiguity in a contract, but rather concerns a factual dispute over 

whether a contract has been breached. ABC Univ. Shops, 2018 WL 6271839 at *7; Young, 2018 

WL 7572240 at *4. 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 6 of 20
Here, Plaintiff has not identified any ambiguities within the Lease Agreement that require 

interpretation by the Court. Instead, Plaintiff simply seeks a declaration that MDG Powerline 

breached the alleged contractual “duties” that form the basis of its claims for breach of the 

covenant of quiet enjoyment and breach of the duty of good faith and fair dealing. (Compare

D.E. 1 ¶ 67(a)-(h) with ¶¶ 30-59,68-71 & 78(a)-(m).) Thus, whether MDG Powerline breached 

these alleged duties – and whether the contract gives rise to any of the duties alleged in the 

Complaint – are issues that the Court will necessarily address in Plaintiff’s other claims. 

Plaintiff’s declaratory judgment claim is therefore duplicative of Plaintiff’s other claims, and 

should be dismissed. See, e.g., Eisenberg, 2009 WL 3667086 at *2-3. 

Plaintiff’s disingenuous attempt to seek a declaratory judgment to “enforce” non-existent 

lease terms is further grounds for dismissal. In Count I, seeks a declaration allowing it to have a 

separate waiting line for patrons, dedicated display space on a back wall, marketing displays 

equal to that of the other tenant, and “adequate representation” in Xtreme’s video advertising. 

(D.E. 1 ¶ 67(e)-(h).) Plaintiff has cited no contractual terms supporting these demands – because 

none exists. Nowhere does the lease reference, let alone require, space for waiting lines or 

brochure displays. And contrary to the implications of the Complaint, the Lease Agreement does 

not require Xtreme (a non-party to the Lease) to provide cross-advertising with Plaintiff; rather, 

the Agreement requires Plaintiff to reimburse Xtreme up to $25,000 in the event that there is 

cross-marketing among the tenants. (See D.E. 1-1, Sec. 14.05(c)(i).) In essence, Plaintiff is 

using the guise of a declaratory judgment claim to ask this Court to rewrite the express terms of 

the Lease Agreement and invent new duties for the landlord. This is plainly improper. “[Under 

universal contract principles judicial equitable notions cannot override unambiguous contract 

rights...[A] court cannot rewrite the terms of a contract in an attempt to make otherwise valid 

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contract terms more reasonable for a party or to fix an apparent improvident bargain.” Leverso v. 

SouthTrust Bank of AL., Nat. Assoc., 18 F.3d 1527, 1534 (11th Cir. 1994). 

Plaintiff clearly attempts in Count I to use a declaratory judgment action to bring a breach 

of contract claim in disguise – and attempts to rewrite the Lease Agreement in the process. This 

improper claim should be dismissed. 

B. Count II: Breach of Covenant of Quiet Enjoyment 

In Count II, Plaintiff asserts a claim against MDG Powerline for breach of the covenant 

of quiet enjoyment based solely on the alleged conduct of the other tenant, Xtreme. (D.E. 1 ¶ 71 

(“Landlord permitted Xtreme to act as its agent when dealing with the Debtor. Xtreme’s actions 

as described herein are therefore attributable to the Landlord”).) This claim is expressly 

disallowed by the covenant of quiet enjoyment contained in the Lease Agreement, which 

expressly states: “Landlord shall not be liable for any interference or disturbance by other 

tenants or third persons.” (D.E. 1-1 at 35, Sec. 20.21.) Contrary to the express terms of the 

covenant of quiet enjoyment in the Lease, Plaintiff improperly attempts to allege a breach of this 

covenant based solely on Xtreme’s alleged conduct. 

“Under Florida law, when the terms of a contract are unambiguous, the Court is bound to 

give the language therein its plain and ordinary meaning.” Vernon v. Resolution Trust Corp., 

907 F.2d 1101, 1109 (11th Cir. 1990). By its plain terms, the Lease Agreement disallows any 

claim for breach of the covenant of quiet enjoyment based on the conduct of other tenants or 

third persons. Count II therefore fails on its face. 

Even if this claim were not barred by the express provisions of the Lease Agreement, it 

still would fail. Plaintiff has not alleged any facts to support its vague and conclusory suggestion 

that MDG Powerline “authorized” any acts to be done by Xtreme on its behalf. (D.E. 1 ¶ 70.) 

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And, as discussed above, Plaintiff has not adequately alleged an agency relationship between 

MDG Powerline and Xtreme. Belik, 864 F.Supp.2d at 1310-11. Thus, Count II fails under any 

analysis. 

C. Count III: Breach of Implied Duty of Good Faith and Fair Dealing 

Plaintiff has also failed to state a claim for breach of the implied covenant of good faith 

and fair dealing (Count III). Under Florida law, a breach of the implied covenant of good faith 

and fair dealing does not by itself create an independent cause of action. Resnick v. AvMed, Inc., 

693 F.3d 1317, 1329 (11th Cir. 2012). Rather, the “duty of good faith must relate to the 

performance of an express term of the contract and is not an abstract and independent term of a 

contract which may be asserted as a source of breach when all other terms have been performed 

pursuant to the contract requirements... A claimant asserting a cause of action for breach of the 

implied covenant must allege a failure or refusal to discharge contractual responsibilities, 

prompted not by an honest mistake, bad judgment or negligence; but, rather by a conscious and 

deliberate act, which unfairly frustrates the agreed common purpose and disappoints the 

reasonable expectations of the other party.” Id. (internal citations omitted). 

In this case, Plaintiff attempts to base this claim against MDG Powerline on either (1) the 

conduct of Xtreme or (2) nonexistent contractual duties. To the extent that Plaintiff attempts to 

base this claim on allegations that its signage was removed or “tampered with,” (D.E. 1 ¶¶ 78(a) 

& (b)), or that its front desk was “interfered with” (id. at ¶ 78(c)&(d)), this claim fails because 

the complaint only alleges interference by Xtreme, not by MDG Powerline. (Id. at ¶¶ 35-36 

(alleging that Xtreme removed Plaintiff’s sign in the building lobby; ¶ 45 (“Xtreme willfully 

refused to provide any space on the marquee outside the building); ¶¶ 33-34 (alleging front desk 

was “dismantled and removed by Xtreme”). As discussed above, Plaintiff has failed to 

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adequately allege an agency relationship by which Xtreme’s conduct could be attributed to MDG 

Powerline. In the absence of any allegations that MDG Powerline breached the lease agreement 

– or any allegations that MDG Powerline consciously and deliberately breached the Lease 

Agreement, as required, see Resnick, 693 F.3d at 1329 – this claim must fail. 

Plaintiff also alleges that it “should have had space on a backwall where Xtreme displays 

its attractions” and “should have been allowed to display its own brochures” with Xtreme’s 

brochures. (Id. at ¶¶ 78(e)&(f)). However, MDG Powerline owes no duty to provide display 

space under the Lease; indeed, the Lease does not even address or discuss brochure displays. 

These invented contractual duties cannot support a claim for breach of the implied covenant of 

good faith and fair dealing. Resnick, 693 F.3d at 1329. And Plaintiff clearly cannot base this 

claim on its claim for breach of the covenant of quiet enjoyment (D.E. 1 at ¶ 78(g)) because 

Plaintiff has failed to allege that MDG Powerline directly breached that covenant, as discussed 

above. (See supra at II(B)). Thus, Count III also fails. 

D. Count IV: Constructive Eviction 

Plaintiff has not pleaded the elements of a constructive eviction claim – nor can it. To 

sustain a claim for constructive eviction under Florida law, a tenant must have abandoned the 

premises as a result of the landlord’s actions allegedly giving rise to the claim. See, e.g., 

Richards v. Dodge, 150 So.2d 477, 481 (Fla. 2d DCA 1963) (“abandonment of the premises 

within a reasonable time after the landlord’s wrongful act is a necessary element of constructive 

eviction”); Kaplan v. McCabe, 532 So.2d 1354, 1356 (Fla. 5th DCA 1988) (same); Bass v. 

Wollitz, 384 So.2d 704, 706 (1st DCA 1980) (“a tenant who remains in possession cannot 

logically be regarded as constructively evicted”). Here, there are no allegations that Plaintiff 

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abandoned the premises – nor can there be, as Plaintiff remains in the leased space today. 

Plaintiff therefore cannot sustain this constructive eviction claim.

This claim is defective in other respects as well. Plaintiff has not alleged that MDG 

Powerline intended to interfere with Plaintiff’s use of the premises without actually evicting it, as 

required to state a constructive eviction claim. See Perkins v. Nat'l Credit Sys., Inc., 2018 WL 

3931860, at *2 (M.D. Fla. Aug. 16, 2018). 

 Nor has Plaintiff alleged that it provided timely notice to MDG Powerline or a demand 

for rectification – also a required element to plead a constructive eviction claim. Id.; see also 

Kaplan, 532 So.2d at 1356 (same); Richards, 150 So.2d at 484 (same). For all of these reasons, 

the Count IV of the Complaint should be dismissed. 

E. Count V: FDUPTA 

Count V is a misguided claim against MDG Powerline under the Florida Deceptive and 

Unfair Trade Practices Act (FDUPTA), again attempting to hold MDG Powerline liable for the 

conduct of Xtreme. Putting aside its failed agency theory, Plaintiff cannot sustain a FDUPTA 

claim on the facts alleged in the Adversary Complaint. 

In this claim, Plaintiff alleges that MDG Powerline “permitted” Xtreme as its so-called 

“agent” to “economically squeeze” Plaintiff by removing signs, prohibiting Plaintiff from 

advertising on the marquee, “authorizing lock-out events for Xtreme’s benefit,” removing 

brochures and marketing materials, and “depriv[ing] Debtor of the use and quiet enjoyment of its 

premises” through construction projects (though MDG Powerline has no liability for any breach 

of the covenant of quiet enjoyment arising from Xtreme’s conduct, as discussed above). (D.E. 1 

¶ 85.) As a result of this conduct, the Complaint alleges, Plaintiff has been damaged “through 

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the loss of business and damage to its competitive advantages it has earned in the marketplace.” 

(Id. at ¶ 86.) These allegations do not state a claim under FDUPTA. 

The elements of a FDUPTA claim are: (1) a deceptive act or unfair practice; (2) 

causation; and (3) actual damages. Cox v. Porsche Fin. Servs., Inc., 342 F.Supp.3d 1271, 1286 

(S.D. Fla. 2018). “Under the FDUTPA, an unfair practice is one that ‘offends established public 

policy’ and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to 

consumers.’”2 Martorella v. Deutsche Bank Nat. Tr. Co., 931 F.Supp.2d 1218, 1223-24 (S.D. 

Fla. 2013) (internal citation omitted) (emphasis added). For purposes of FDUPTA, “[a] 

consumer is one who has engaged in the purchase of goods or services.” Leon v. Tapas & Tintos, 

Inc., 51 F.Supp.3d 1290, 1297 (S.D. Fla. 2014). 

In the Complaint, however, Plaintiff does not allege that any of the conduct that forms the 

basis of this claim caused any injury to consumers; rather, Plaintiff vaguely asserts that this 

conduct was “driving” consumers away from Plaintiff. Thus, the injury alleged is not to 

consumers, but only to Plaintiff. The purported injury alleged in the Complaint is not the type of 

injury FDUPTA is intended to remedy. See id. (internal citation omitted) (“FDUTPA...has no 

application to entities complaining of tortious conduct which is not the result of a consumer 

transaction”). 

Plaintiff also has failed to allege that it suffered “actual damages” within the meaning of 

the statute. As the Eleventh Circuit has repeatedly held, actual damages under FDUPTA “must 

be direct damages, not indirect and consequential damages.” Hetrick v. Ideal Image Dev. Corp., 

372 Fed. Appx. 985, 991 (11th Cir. 2010). See also HRCC, Ltd. v. Hard Rock Cafe Int'l (USA), 

Inc., 703 Fed. Appx. 814, 815 (11th Cir. 2017) (affirming limitation of FDUPTA damages to 

                                                             2 The Complaint does not allege any “deceptive acts” by MDG Powerline. 

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“direct damages, not consequential damages in the form of lost profits”). Thus, “FDUTPA 

damages are measured according to the difference in the market value of the product or service 

in the condition in which it was delivered and its market value in the condition in which it should 

have been delivered according to the contract of the parties.” Carriuolo v. Gen. Motors Co., 823 

F.3d 977, 986 (11th Cir. 2016). 

In the Complaint, the only damages alleged in Plaintiff’s FDUPTA claim are “loss of 

business and damage to its competitive advantages it has earned in the marketplace.” (D.E. 1 ¶ 

86.) “Lost business” and goodwill are clearly consequential damages. See BPI Sports, LLC v. 

Labdoor, Inc., 2016 WL 739652, at *6 (S.D. Fla. Feb. 25, 2016) (finding that “competitive harm, 

diverted or lost sales, and harm to the goodwill and reputation” were consequential damages and 

dismissing FDUPTA claim); Emondson v. 2001 Live, Inc., 2017 WL 10085029, at *2 (M.D. Fla. 

July 25, 2017) (“competitive harm, lost sales, harm to the goodwill and reputation” are 

consequential damages not recoverable under FDUPTA). Because this commercial lease is not a 

“consumer” transaction and Plaintiff has not alleged any actual damages its claim under 

FDUPTA fails. 

F. Count VI: Assumption of Lease 

Count VI of the Adversary Complaint purports to be a “claim” to allow the Debtor’s 

Trustee to assume the lease with MDG Powerline pursuant to 11 U.S.C. § 365. (D.E. 1 ¶¶ 86-

88). However, 11 U.S.C. § 365 does not create a cause of action to be asserted in an adversary 

complaint; rather, 11 U.S.C. § 365 creates a procedure within a bankruptcy proceeding under 

which a debtor may by formal motion assume or reject an unexpired nonresidential lease. This 

claim is procedurally improper and substantively without merit. 

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It is well established that “in order to assume an unexpired nonresidential lease, a debtor 

must bring a formal motion requesting the court’s permission to assume the lease within 120 

days as set forth in [11 U.S.C.] § 365(d)(4). Without a formal motion, a debtor’s conduct will 

not constitute an assumption.” In re Sportsman’s Link, Inc., 2007 WL 7023835, at *3 (Bankr. 

S.D. Ga. Oct. 31, 2007); see also Matter of J. Woodson Hays, Inc., 69 B.R. 303, 306-08 (M.D. 

Fla. 1987) (analyzing statutory scheme and finding that a written motion is a condition precedent 

to assumption of an unexpired lease); In re Southern Motel Assocs., Ltd., 81 B.R. 112, 116-117 

(Bankr. M.D. Fla. 1987) (same); In re Fillard Apartments, Ltd., 96 B.R. 397, 399 (Bankr. S.D. 

Fla. 1989) (same). Thus, if Plaintiff seeks an assumption of the mortgage, it must file a motion 

in the bankruptcy proceeding as with any other contested matter under Fed. R. Bankr. P. 9014 – 

not a claim in an adversary complaint. Sportsman’s Link, 2007 WL 7023835 at *2. In short, 

Count VI is not a claim at all, and it should be dismissed. 

In the Wherefore clause of this claim, Plaintiff also requests that the Court enter an order 

“determining that the Debtor is not in default under the Lease either currently or as of the 

Petition Date.” (D.E. 1 at 26.) Because there is no legal basis for this cause of action under 11 

U.S.C. § 365, as discussed above, the Court need not reach the issue of the relief requested. 

However, to the extent that the Court considers this a de facto claim for declaratory relief, this 

request should rejected and the claim dismissed. Once again, Plaintiff is not seeking a 

declaration to address ambiguities regarding the parties’ rights and obligations under the Lease; 

Plaintiff is simply attempting to use a request for declaratory relief to resolve a factual dispute 

over whether it has breached the terms of the Lease Agreement.3

 As discussed above, this is not 

                                                             3 In fact, Plaintiff is in default under the Lease: Pursuant to the Lease and its Addendum 

(D.E. 1-1 at 55-59), Plaintiff is required to maintain the leased premises as a franchisee of the 

Rockin’ Jump Franchise, and it has failed to do so. 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 14 of 20
the purpose of a declaratory action. See, e.g., Eisenberg, 2009 WL 3667086 at *2 (“[q]uestions 

regarding whether a contract was adequately performed is [sic] unrelated to the purpose behind 

the Declaratory Judgment Act”); Young, 2018 WL 7572240 at *4 (same); ABC Univ. Shops, 

2018 WL 6271839, at *6-7 (same); Ministerio Evangelistico Int'l, 2017 WL 1363344 at *2 

(same). 

Simply put, if Plaintiff seeks an assumption of the Lease, it must file a formal motion 

seeking this relief. Matter of J. Woodson Hays, Inc., 69 B.R. at 308. Because there is no legal 

basis for the cause of action purportedly asserted in Count VI, it should be dismissed. 

G. Count VIII: Conspiracy 

Finally, in Count VIII, Plaintiff alleges that MDG Powerline and Xtreme entered into a 

so-called “conspiracy to permit the Landlord to evade its obligations under the Lease and permit 

Xtreme to economically deprive the Debtor of its business opportunities.” (D.E. 1 ¶ 99.) The 

conclusory and contradictory allegations in the Complaint fail to state a conspiracy claim against 

MDG Powerline. 

It is well established that “under Florida law, a civil conspiracy must have as its object 

the commission of an underlying tort.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1281 

(11th Cir. 2009) (emphasis added). Thus, to the extent that Plaintiff attempts to allege that MDG 

Powerline and Xtreme conspired to breach the Lease Agreement, this claim clearly fails, as 

breach of a contract is not a tort. 

Moreover, even if an underlying breach of contract could support this conspiracy claim, 

the claim is nevertheless barred under the independent tort doctrine, because Plaintiff has not 

alleged that MDG Powerline has breached any duty beyond the duties owed under the Lease 

Agreement. Alhassid v. Bank of Am., N.A., 60 F.Supp.3d 1302, 1318 (S.D. Fla. 2014) (where 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 15 of 20
“Plaintiffs have not pleaded any breach or injury separate and apart from their breach of contract 

claims...their claim for civil conspiracy cannot survive”). 

Nor can Plaintiff sustain a conspiracy claim against MDG Powerline based on the vague 

allegation that it conspired with Xtreme to “economically deprive the Debtor of its business 

opportunities.” (D.E. 1 ¶ 99.) Because a civil conspiracy claim is not an independent cause of 

action, it is “dependent on the merits of an underlying, predicate claim.” Marlborough Holdings 

Grp., Ltd. v. Azimut-Benetti, Spa, Platinum Yacht Collection No. Two, Inc., 505 Fed. Appx. 899, 

907 (11th Cir. 2013). Thus, a civil conspiracy claim must allege the elements of a conspiracy as 

well as the elements of the underlying tort on which the conspiracy claim is predicated. See, e.g.,

In re Ernie Haire Ford, Inc., 459 B.R. 824, 842 (Bankr. M.D. Fla. 2011) (conspiracy claim 

“requires the pleading of both the underlying tort itself and the conspiracy”); In re Palm Beach 

Fin. Partners, L.P., 517 B.R. 310, 343 (Bankr. S.D. Fla. 2013) (same). Where the alleged object 

of the conspiracy is not an actionable tort, then the conspiracy claim itself must fail. Posner v. 

Essex Ins. Co., Ltd., 178 F.3d 1209, 1217-18 (11th Cir. 1999). 

To state a claim for civil conspiracy, a plaintiff must allege “(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.” Alhassid, 60 F.Supp.3d at 1316. Plaintiff’s conspiracy 

claim is based on four alleged overt acts: (1) the removal of signs; (2) “blocking access and 

sight-line view to Debtor’s business”; (3) “mis-direction/re-direction of Debtor’s customers to 

Xtreme attractions”; and (4) “late delivery of food services.” (D.E. 1 ¶ 99.) Plaintiff appears to 

assert that these allegations constitute “interference with its business opportunities and customer 

base.” (Id. at ¶ 100.) Significantly, however, Plaintiff has not asserted a claim for tortious 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 16 of 20
interference with its customer base. Rather, Plaintiff’s only tort claim (Count VII) alleges that 

Xtreme has interfered with Plaintiff’s business relationship with MDG Powerline.

4

 (Id. at ¶¶ 89-

97.) In other words, Plaintiff has failed to assert an underlying predicate tort claim to sustain its 

conspiracy claim, and the only tort claim it has asserted is not the basis for its conspiracy claim. 

Even if there were an underlying tort to support the conspiracy claim, it still would fail. 

As alleged in the Complaint, all the overt acts discussed above were alleged to have been the acts 

of Xtreme, not MDG Powerline. (Id. at ¶¶ 35, 38, 40-42, 45, 54.) While a conspirator need not 

have committed the overt acts to have liability, the conspirator must at least “know of the scheme 

and assist in it in some way.” Burger v. Hartley, 896 F.Supp.2d 1157, 1169 (S.D. Fla. 2012). 

Here, there are no allegations that MDG Powerline “assisted” Xtreme in any way; indeed, the 

entire premise of the Complaint is that Xtreme acted alone but as an “agent” of MDG Powerline. 

This highlights another fatal defect in Plaintiff’s conspiracy claim. Plaintiff alleges a 

conspiracy between Xtreme and MDG Powerline while simultaneously claiming that Xtreme 

was acting as MDG Powerline’s agent. However, “an actionable conspiracy generally cannot 

exist between an entity and its officers, agents, or employees.” Five for Entm't S.A. v. 

Rodriguez, 2013 WL 4433420, at *13 n.10 (S.D. Fla. Aug. 15, 2013) (emphasis added); Zike, 

LLC v. Catalfumo, 2013 WL 12080225, at *8 (S.D. Fla. Feb. 22, 2013) (citing Hoon v. Pate 

Constr. Co., 607 So.2d 423, 430 (Fla. 4th DCA 1992)) (same). The entire basis of Plaintiff’s 

Complaint against MDG Powerline hinges on the theory that Xtreme was acting as MDG 

Powerline’s “agent.” (See D.E. 1 ¶¶ 44, 71. 78(l), 81, 85). In essence, Plaintiff alleges in Count 

VIII that MDG Powerline conspired with itself – which is no conspiracy at all. 

CONCLUSION

                                                             4 Obviously, Plaintiff could not have alleged that MDG Powerline conspired to interfere 

with its own relationship with Plaintiff. 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 17 of 20
Plaintiff ties itself in knots in the Adversary Complaint attempting to drag MDG 

Powerline into this litigation despite the fact that it cannot specify any wrongdoing by MDG 

Powerline under the Lease Agreement. For this reason, Plaintiff attempts to hold MDG 

Powerline responsible for the alleged conduct of Xtreme by making the conclusory (and legally 

defective) claim that Xtreme was an “agent” of the Landlord. However, Plaintiff has failed to 

allege the elements necessary to establish that Xtreme was an agent of MDG Powerline, nor has 

it articulated any cognizable claims against MDG Powerline. 

WHEREFORE, for the reasons stated above, MDG Powerline respectfully requests that 

the Court enter an Order dismissing Counts I, II, III, IV, V, VI and VIII of the Complaint, and 

for such other relief as the Court deems just and proper. 

Respectfully submitted, 

BILZIN SUMBERG BAENA 

PRICE & AXELROD LLP 

 1450 Brickell Avenue, 23rd Floor 

 Miami, Florida 33131 

 (305) 374-7580 

 

 By: /s/ Jay M. Sakalo 

 Jay M. Sakalo 

 Fla. Bar No. 156310 

 

 and 

COFFEY BURLINGTON, P.L. 

2601 South Bayshore Drive, Penthouse One 

Miami, Florida 33133 

Tel: 305-858-2900 

Fax: 305-858-5261 

By: ___s/Susan E. Raffanello__________ 

Susan E. Raffanello, Florida Bar No. 676446 

sraffanello@coffeyburlington.com 

Scott A. Hiaasen, Florida Bar No.: 103318 

shiaasen@coffeyburlington.com 

lmaltz@coffeyburlington.com 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 18 of 20
lperez@coffeyburlington.com 

service@coffeyburlington.com

Counsel for Defendant MDG Powerline Holdings, 

LLC

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 19 of 20
MIAMI 6514747.1 84482/88966 

CERTIFICATE OF SERVICE 

 I hereby certify that a true and correct copy of the foregoing was served by Notice of 

Electronic Filing generated by CM/ECF, on August 30, 2019, on all counsel or parties of record 

on the below/attached Service List. 

___s/Jay M. Sakalo__________ 

 

Service List 

Kathleen A. Daly, Esq. 

Counsel for Debtor/Plaintiff 

Law Office of Kathleen A. Daly, P.A. 

515 North Flagler Drive 

Suite P300 

West Palm Beach, Florida 33401 

Tel: 561-293-8514 

kdaly@kadalylaw.com 

Case 19-01230-RBR Doc 7 Filed 08/30/19 Page 20 of 20