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Filing# 145238083 E-Filed 03/07/2022 10:54:28 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
TOMOTHERAPY INCORPORATED,
& ACCURAY INCORPORATED CASE NO.: CACE-21-010659
Plaintiff,
V
CARE LG 2016 HOLDINGS LLC,
Defendants.
i
DEFENDANT'S MOTION TO DISMISS THE PLAINTIFFS' SECOND (sic) AMENDED
COMPLAINT
Defendant, CARE LG 2016 HOLDINGS LLC., by and through undersigned counsel,
herby moves to dismiss the Plaintiffs' Second (sic)Amended Complaint, ("Second/Third
Amended Complaint" or "Complaint"),and in support ofwhich states as follows:
SUMMARY OF ARGUMENT
While what is the Third Amended Complaint, not the Second Amended Complaint, fails
to comply with Florida Rule of Civil Procedure 1.130, more importantly,it fails to state an
actionable claim, as the sole count is based on an agreement that the Complaint also allegesis
the Fourth
void. Finally, Attempt to state a cause of action,fails to plead how both Plaintiffs have
standing.Four Complaints in, and the Third Amended Complaint is not actionable. Dismissal is
necessary.
MEMORANDUM OF LAW
"A motion to dismiss tests has stated a cause of action...
whether the plaintiff When
determiningthe merits of a motion to dismiss, a court may not go beyond the four corners of the
complaint and must accept the facts alleged therein and exhibits attached as true, with all
reasonable inferences drawn in favor ofthe pleader."See, Zeiger Crane Rentals, Inc. v. Double a
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/07/2022 10:54:27 PM.****
Indus., 16 So. 3d 907, 910 (Fla.4th DCA 2009) (c
citingRegis Ins. Co. v. Miami Mgmt., Inc.,901
So. 2d 966,968 (Fla.4th DCA 2005))."Florida's forces counsel to
pleading rule [1.110(b)(2)]
recognizethe elements of their cause of action and determine whether they have or can develop
the facts necessary to support it,which avoids a great deal of wasted expense to the litigants
and
unnecessary judicialeffort." See, K.R. Exch. Sen?s. v. Fuerst, Humphrey, Ittleman, PL, 4% So. 3d
889, 893 (Fla.3d DCA 2010).
The Exhibits to The Complaint, and Complaint Itself,show that Plaintiffs Fail to State a
Cause of Action
The attachments to the of the Complaint. As a result,
documents contradict the allegations
and cannot state a cause of action. See Harry Pepper
the complaintis nullified, and Assoc., Inc.
v. Lasseter, 247 So. 2d 736, 736, 737 (Fla.3d DCA 1971), Padgett v. First Fed Sau & Loan
Assoc. ofSanta Rosa Couno;, 378 So. 2d 58, 65 (Fla.1st DCA 1979). In fact,the facts contained
in the Exldbits control the pieading. Florida Recovery Adjusters, LLC v. Pretium Homes, LLC,
261 So. 23 664, 668 (Fla.3d DCA 2018).
The problem is clear,the Plaintiff's Count I (and only count) is for breach of the Second
Letter Agreement (See 716, P. 3) but the Third Letter Agreement, says that it voids all agreements
before same, including the Second Letter Agreement, is attached the Complaint, and, hence,
Ex. G, the Notice of Default also says as much. Once again,the
controlling. Plaintiffs cannot tell
the Court or the Defendant which agreement is the one that they are suing under.
The void nature of all prioragreements, includingthe Second Letter Agreement whose
breach is the cause of action,is quoted in the Complaint itself,
in Paragraph 12. This is a fatal error
in the Plaintiff's Complaint, claiming that the Third Letter Agreement supplantsthe Second Letter
Agreement, and then bringingan action based on the superseded Second Letter Agreement.
2
In other words, the Plaintiff claims in its Third Amended Complaint,that the Second Letter
Agreement is void, and then proceeds to base the cause of action on same. See, Complaint
Paragraphs 12, & 14 statingand incorporatingsame into Count One, and Exhibit G. Count One
of the Complaint necessarilyfails because it is based off the breach of a Letter Agreement that,
and the Third Letter Agreement attached,is void.
according to the Complaint itself,
The Plaintiff does not plead a cause of action upon which relief can be granted,because
it's cause of action is the breach of an already superseded,in full,agreement. Dismissal is
necessary because the Plaintiff does not have a claim that is actionable,since Plaintiff's cause of
action is based on an agreement that has no force.
Florida Rule of Civil Procedure 1.130 Has Been Violated a Fourth Time.
Fla. R. Civ P. 1.130 states:
Rule 1.130. Attaching Copy of Cause of Action and Exhibits
(a) Instruments Attached. All bonds, notes, bills of exchange,
contracts, accounts, or documents on which action may be brought
or defense made, or a copy thereof or a copy o f the portionsthereof
material to the pleadings,must be incorporatedin or attached to the
pleading.No documents shall be unnecessarilyannexed as exhibits.
The pleadings must contain no unnecessary recitals of deeds,
documents, contracts, or other instruments.
(b)Part for ARPurposes. Any exhibit attached to a pleading must
be considered a part thereof for att purposes. S?emems \n a
pleadingmay be adopted by reference in a different part ofthe same
pleading,in another pleading,or in any motion.
[Emphasis addedl
The Complaint does not include all the documents which must be included, as it depends
on a contract which is not attached. According to the first contract which is attached,the Amended
and Restated Accuray Sales Agreement, there is a prior agreement signed December 29, 2014,
which the Amended and Restated Accuray Sales Agreement takes the place of. Exhibit A of
Complaint Amended and Restated System Sales Agreement pg. 11 paragraph 11 .17 The original .
3
contract is not a document that is attached to the Complaint. This is not a small pleading defect,
same vitiates the Complaint, because every document must be attached upon which an action may
be based"or a defense made." Id. Hence, one cannot bring a breach of contract action,without
attachingall of the contract documents, as defenses may be based on the contract. Id.
This is not the first motion to dismiss that has cited this deficiency.The first and second
motions to dismiss cited this deficiencyand same was not fixed,hence the Complaint should be
dismissed, as it suffers the same infirmitythat the last three Complaints suffered from, and three
chances to fix same have not helped.
Plaintiffs also fails to explainwhich entityis in privitywith the Defendant and why. This
was also a basis of a priorMotion to Dismiss, which this Court granted.
Plaintiffs Have Not Established How Both Plaintiffs Have Standing
As pointedout in the last Motion to Dismiss, the Plaintiffs fail to pleadhow both Plaintiffs
have standing to bring the single action. Tomotherapy is its own corporation,as is Accuray,
regardlessof Tomotherapy being a subsidiaryof Accuray. Simply pleading that one company is
the wholly owned subsidiaryof the other,givesneither standing.
" "
'A parent corporation and its wholly-owned subsidiaryare
"
separate and distinct legal entities." Am. Int'1 Group, Inc. v.
Cornerstone, Businesses, Inc., 872 So.2d 333, 336 (Fla.2d DCA
2004); Molenda Hoechst Celanese Corp.,60 F.Supp.2d 1294,
v.
1300 (S.D.Fla.
1999)"
Am. Exp. Europe Ltd v. Duvall, 972 So. 2d 1035, 1040, 33
Ins. Services Fla. L. Weekly D244,
2008 WL 141127 (Fla.3d Dist. App. 2008)
Plaintiffs assume the Court can treat them as one, despitebeing two separate companies.
However, each company must establish their own standing for suit,as they are separate legal
entities. The Complaint must be dismissed because there are no ultimate facts pled which entitle
4
as to which company would be entitled to
and there are no allegations
both corporationsto relief,
which relief.
CONCLUSION
For the third time the Plaintiffs have failed to attach a contract between the parties.
Plaintiffs have failed to explain which party is in privitywith the Defendant and why. The
Complaint fails to state a cause of action,because the document upon which the Third Amended
Complaint's breach of contract count is voided by its terms and that of the Notice of Default.
Therefore, the Third Amended Complaint must be dismissed.
WHEREFORE: Defendant, CARE LG 2016 HOLDINGS LLC., by and through
undersignedcounsel,herby moves to dismiss the Plaintiffs' Second (sic)Amended Complaint.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished
via E-Service to all counsel ofrecord via the Court's e-filing accordingto Rule 2.516(b)(1)
portal,
ofthe Florida Rules of Judicial Administration, on this 7th day ofMarch, 2022
LUBELL ROSEN, LLC
Museum Plaza, Suite 900
200 S. Andrews Avenue
Fort Lauderdale, Florida 33301
Phone: (954) 880-9500
Fax: (954) 755-2993
By: /s/ Joshua H. Sheskin
Marshall A. Adams, Esq.
Florida Bar No. 712426
Primary Email Addresses:
MAA@lubellrosen.com
Joshua H. Sheskin, Esq.,
Florida Bar No. 93028
JHS@lubellrosen.com
Secondary Email Addresses:
5
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Filing# 145238083 E-Filed 03/07/2022 10:54:28 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA TOMOTHERAPY INCORPORATED, & ACCURAY INCORPORATED CASE NO.: CACE-21-010659 Plaintiff, V CARE LG 2016 HOLDINGS LLC, Defendants. i DEFENDANT'S MOTION TO DISMISS THE PLAINTIFFS' SECOND (sic) AMENDED COMPLAINT Defendant, CARE LG 2016 HOLDINGS LLC., by and through undersigned counsel, herby moves to dismiss the Plaintiffs' Second (sic)Amended Complaint, ("Second/Third Amended Complaint" or "Complaint"),and in support ofwhich states as follows: SUMMARY OF ARGUMENT While what is the Third Amended Complaint, not the Second Amended Complaint, fails to comply with Florida Rule of Civil Procedure 1.130, more importantly,it fails to state an actionable claim, as the sole count is based on an agreement that the Complaint also allegesis the Fourth void. Finally, Attempt to state a cause of action,fails to plead how both Plaintiffs have standing.Four Complaints in, and the Third Amended Complaint is not actionable. Dismissal is necessary. MEMORANDUM OF LAW "A motion to dismiss tests has stated a cause of action... whether the plaintiff When determiningthe merits of a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true, with all reasonable inferences drawn in favor ofthe pleader."See, Zeiger Crane Rentals, Inc. v. Double a 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/07/2022 10:54:27 PM.**** Indus., 16 So. 3d 907, 910 (Fla.4th DCA 2009) (c citingRegis Ins. Co. v. Miami Mgmt., Inc.,901 So. 2d 966,968 (Fla.4th DCA 2005))."Florida's forces counsel to pleading rule [1.110(b)(2)] recognizethe elements of their cause of action and determine whether they have or can develop the facts necessary to support it,which avoids a great deal of wasted expense to the litigants and unnecessary judicialeffort." See, K.R. Exch. Sen?s. v. Fuerst, Humphrey, Ittleman, PL, 4% So. 3d 889, 893 (Fla.3d DCA 2010). The Exhibits to The Complaint, and Complaint Itself,show that Plaintiffs Fail to State a Cause of Action The attachments to the of the Complaint. As a result, documents contradict the allegations and cannot state a cause of action. See Harry Pepper the complaintis nullified, and Assoc., Inc. v. Lasseter, 247 So. 2d 736, 736, 737 (Fla.3d DCA 1971), Padgett v. First Fed Sau & Loan Assoc. ofSanta Rosa Couno;, 378 So. 2d 58, 65 (Fla.1st DCA 1979). In fact,the facts contained in the Exldbits control the pieading. Florida Recovery Adjusters, LLC v. Pretium Homes, LLC, 261 So. 23 664, 668 (Fla.3d DCA 2018). The problem is clear,the Plaintiff's Count I (and only count) is for breach of the Second Letter Agreement (See 716, P. 3) but the Third Letter Agreement, says that it voids all agreements before same, including the Second Letter Agreement, is attached the Complaint, and, hence, Ex. G, the Notice of Default also says as much. Once again,the controlling. Plaintiffs cannot tell the Court or the Defendant which agreement is the one that they are suing under. The void nature of all prioragreements, includingthe Second Letter Agreement whose breach is the cause of action,is quoted in the Complaint itself, in Paragraph 12. This is a fatal error in the Plaintiff's Complaint, claiming that the Third Letter Agreement supplantsthe Second Letter Agreement, and then bringingan action based on the superseded Second Letter Agreement. 2 In other words, the Plaintiff claims in its Third Amended Complaint,that the Second Letter Agreement is void, and then proceeds to base the cause of action on same. See, Complaint Paragraphs 12, & 14 statingand incorporatingsame into Count One, and Exhibit G. Count One of the Complaint necessarilyfails because it is based off the breach of a Letter Agreement that, and the Third Letter Agreement attached,is void. according to the Complaint itself, The Plaintiff does not plead a cause of action upon which relief can be granted,because it's cause of action is the breach of an already superseded,in full,agreement. Dismissal is necessary because the Plaintiff does not have a claim that is actionable,since Plaintiff's cause of action is based on an agreement that has no force. Florida Rule of Civil Procedure 1.130 Has Been Violated a Fourth Time. Fla. R. Civ P. 1.130 states: Rule 1.130. Attaching Copy of Cause of Action and Exhibits (a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought or defense made, or a copy thereof or a copy o f the portionsthereof material to the pleadings,must be incorporatedin or attached to the pleading.No documents shall be unnecessarilyannexed as exhibits. The pleadings must contain no unnecessary recitals of deeds, documents, contracts, or other instruments. (b)Part for ARPurposes. Any exhibit attached to a pleading must be considered a part thereof for att purposes. S?emems \n a pleadingmay be adopted by reference in a different part ofthe same pleading,in another pleading,or in any motion. [Emphasis addedl The Complaint does not include all the documents which must be included, as it depends on a contract which is not attached. According to the first contract which is attached,the Amended and Restated Accuray Sales Agreement, there is a prior agreement signed December 29, 2014, which the Amended and Restated Accuray Sales Agreement takes the place of. Exhibit A of Complaint Amended and Restated System Sales Agreement pg. 11 paragraph 11 .17 The original . 3 contract is not a document that is attached to the Complaint. This is not a small pleading defect, same vitiates the Complaint, because every document must be attached upon which an action may be based"or a defense made." Id. Hence, one cannot bring a breach of contract action,without attachingall of the contract documents, as defenses may be based on the contract. Id. This is not the first motion to dismiss that has cited this deficiency.The first and second motions to dismiss cited this deficiencyand same was not fixed,hence the Complaint should be dismissed, as it suffers the same infirmitythat the last three Complaints suffered from, and three chances to fix same have not helped. Plaintiffs also fails to explainwhich entityis in privitywith the Defendant and why. This was also a basis of a priorMotion to Dismiss, which this Court granted. Plaintiffs Have Not Established How Both Plaintiffs Have Standing As pointedout in the last Motion to Dismiss, the Plaintiffs fail to pleadhow both Plaintiffs have standing to bring the single action. Tomotherapy is its own corporation,as is Accuray, regardlessof Tomotherapy being a subsidiaryof Accuray. Simply pleading that one company is the wholly owned subsidiaryof the other,givesneither standing. " " 'A parent corporation and its wholly-owned subsidiaryare " separate and distinct legal entities." Am. Int'1 Group, Inc. v. Cornerstone, Businesses, Inc., 872 So.2d 333, 336 (Fla.2d DCA 2004); Molenda Hoechst Celanese Corp.,60 F.Supp.2d 1294, v. 1300 (S.D.Fla. 1999)" Am. Exp. Europe Ltd v. Duvall, 972 So. 2d 1035, 1040, 33 Ins. Services Fla. L. Weekly D244, 2008 WL 141127 (Fla.3d Dist. App. 2008) Plaintiffs assume the Court can treat them as one, despitebeing two separate companies. However, each company must establish their own standing for suit,as they are separate legal entities. The Complaint must be dismissed because there are no ultimate facts pled which entitle 4 as to which company would be entitled to and there are no allegations both corporationsto relief, which relief. CONCLUSION For the third time the Plaintiffs have failed to attach a contract between the parties. Plaintiffs have failed to explain which party is in privitywith the Defendant and why. The Complaint fails to state a cause of action,because the document upon which the Third Amended Complaint's breach of contract count is voided by its terms and that of the Notice of Default. Therefore, the Third Amended Complaint must be dismissed. WHEREFORE: Defendant, CARE LG 2016 HOLDINGS LLC., by and through undersignedcounsel,herby moves to dismiss the Plaintiffs' Second (sic)Amended Complaint. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished via E-Service to all counsel ofrecord via the Court's e-filing accordingto Rule 2.516(b)(1) portal, ofthe Florida Rules of Judicial Administration, on this 7th day ofMarch, 2022 LUBELL ROSEN, LLC Museum Plaza, Suite 900 200 S. Andrews Avenue Fort Lauderdale, Florida 33301 Phone: (954) 880-9500 Fax: (954) 755-2993 By: /s/ Joshua H. Sheskin Marshall A. Adams, Esq. Florida Bar No. 712426 Primary Email Addresses: MAA@lubellrosen.com Joshua H. Sheskin, Esq., Florida Bar No. 93028 JHS@lubellrosen.com Secondary Email Addresses: 5