Preview
Filing # 103544139 E-Filed 02/19/2020 11:42:17 AM
IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE 19-020722 (04)
OVAIS HAIDER ALI, TRAVIS COLE,
OVAIS MAHMOOD, ADEEL ARIF,
ELIZABETH ILAWAN, and
DENIS BELIUKOV
Plaintiffs,
Vv.
VINCE ECOM EMPIRE LLC, and
YVENSON ISRAEL,
Defendants.
Cesena eee ee ee eee EEE EEE Ent xX
MEMORANDUM IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS AND TO COMPEL ARBITRATION
Plaintiffs hereby respond to Defendant’s motion to dismiss and to compel arbitration and
state as follows.
1.
The motion to dismiss makes multiple general statements of Florida law, yet offers no
support or even argument on many of the issues raised. As just one example, they argue that
having multiple plaintiffs in this case is, in and of itself, violative of Florida law, but, again,
no support is offered for this argument. One presumes that the failure to cite support is that
Florida law does allow such joinder of parties if the action arose out of the same core of
operative facts. Rule 1.210, Fla.R.Civ.P. states as follows:
All persons having an interest in the subject of the action and in obtaining the relief
demanded may join as plaintiffs. ..... Persons having a united interest may be joined on the
same side as plaintiffs or defendants...
Joinder is appropriate if each claim arose out of the same factual pattern so that if each matter
were brought separately, the plaintiffs causes of action would be identical and their
allegations would be the same against the defendant(s). See, Mullray v. Aire-Lok Co., 216
So.2d 801 (Fla. 3d DCA 1968). Joinder of plaintiffs serves the interests of judicial economy,
as well as the interests of all parties joined in the lawsuit, since the costs and administrative
burden to all concerned are substantially reduced. Additionally, by having the cases joined
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/19/2020 11:42:17 AM.****for pleading, discovery and trial, much time is saved and inconsistent verdicts by different
Juries are avoided. It has long been recognized that permitting individuals with similar
interests and substantially the same subject matter to present their claims in one lawsuit will
serve the ends of justice without violating the acceptable pleading rules and without violating
a party’s due process rights. Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968).
Joinder of similar claims in a single lawsuit tends to simplify rather than complicate the trial
of the cause and will enable the trial court to do complete justice in the subject matter of the
litigation. Mullray, 216 So.2d at 803. Ifa trial court does not allow multiple claims arising
out of the same fact pattern to proceed in a joined case, there may be a tremendous burden
created upon all counsel, the parties, and the court system in general as a result of repetitive
pleadings, motions, depositions, etc. This needless waste of judicial resources should be
avoided by allowing joined cases to proceed on a consolidated basis. See, Condominium
Owners Organization of Century Village East, Inc. v. Century Village East, Inc., 428 So.2d
384 (Fla 4th DCA 1983). (Joinder was recommended by the appellate court after the failure
of a class-action claim.)
. In Carbonell v. American International Pictures, 313 So.2d 417, 419 (Fla. 3d DCA 1975), a
defendant moved to dismiss the Plaintiffs’ complaint for allegedly mis-joining nine (9)
plaintiffs’ claims against the defendant for breach of contract, accounting, fraud, and deceit.
In that case, the Third District Court of Appeals upheld the trial court’s order denying the
defendant’s motion to dismiss for misjoinder, holding that misjoinder of parties is not a
ground for dismissal of an action pursuant to Rule 1.250, Fla.R.Civ.P. The Court further
stated that if joinder was not allowed, the probable result would lead to judicial waste,
including “... nine (9) separate complaints being filed, pre-trial discovery being multiplied
nine (9) fold, defendant’s records being audited nine (9) separate times, and nine (9) jury
trials being held to determine basically the same legal issues.” Id. The court concluded by
stating that “... it cannot be said that the ends of justice would be served best thereby.” Id. at
419.
. Ifthe trial court determines that the joined claims should not have been brought together, the
court cannot dismiss the case. Misjoinder is not a ground for dismissal. The proper remedy
pursuant to Rule 1.250, Fla.R.Civ.P. is severance of the claims that were improperly joined.
This would allow the cases to proceed on an individual basis without delaying the cases from
proceeding. Harrell v. Hess Oil & Chemical Corp., 287 So.2d 291, 294 (Fla. 1973); Anderson
v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travellers Express, Inc. v. Acosta,
397 So.2d 733, 737 (Fla. 3d DCA 1981). The joint handling and trial of otherwise repetitive
cases benefits everyone and serves the interests of judicial economy.
. The motion next argues that Plaintiff failed to attach the contract which is the basis of the
claims asserted herein. Even a quick reading of the amended complaint reflects that there is10.
11.
12.
no contract claim being asserted. The amended complaint is premised upon a pre-contractual
series of mis-representations made by the defendants to induce plaintiffs into entering into a
contractual relationship. The representations were knowingly false when made and were
designed to convince plaintiffs to give the defendants money. This is not a contract claim.
Moreover, since Defendants have filed the contracts, it is a moot argument as they are now
part of the court file.
Next, the motion to dismiss gets into the specific counts. Defendants argue that the
deceptive trade practices act cannot be asserted because there was a contract. We need look
no further than the very cases cited by Defendants themselves. In Batlemento v. Dove
Fountain, 593 So. 2d 234 (Fla Sth DCA 1991), the court found that Plaintiff did prove the
alleged fraud at trial and upheld that portion of the judgment entered. Each case cited by
Defendants states similar results and/or cites to the general proposition that a tort can be
asserted if independent of a contract claim. Here, the claim is solely for fraudulent activity.
Next, they argued that more details are needed. The amended complaint adequately sets
forth the representations.
Ina one sentence and completely unsupported argument, Defendants next argue that the
count of implied breach of good faith fails to state a cause of action. Again, no basis for the
argument is provided and no cases are cited.
Defendants next argue that FS 607.1408 does not apply here as Defendant is an LLC.
Plaintiffs agree that this count should be dismissed, but, for a different reason. At the time of
filing the complaint, the corporate Defendant had been dissolved. Presumably as a result of
getting served with the complaint, Defendant got itself reinstated. Under Florida law, such
reinstatement relates back to the original dissolution, so there is no need to pursue this count.
Finally, on the motion to compel arbitration, Defendants arguments must fail on every level.
First, there is simply no agreement to submit a dispute to arbitration. The contracts that
Defendants have filed state as follows:
Any dispute... will be discussed with Mr. Israel. ...
If the dispute is not resolved, the client. ... {submits the dispute]..”to an
arbiter chosen by Mr. Israel prior to seeking a legal recourse.
There is a key word missing: ARBITRATOR. There is a plain language definition of arbiter
which is quite distinct from arbitrator. An arbiter is anyone who can resolve something. A
baseball umpire is an arbiter, yet, clearly, not an arbitrator. Vogue magazine is an arbiter of
fashion trends, yet, clearly not an arbitrator. This Court is an arbiter, but, not an arbitrator.
This is clearly not an agreement to submit to arbitration. Indeed, arguably, Plaintiffs did
comply with this provision inasmuch as they submitted the dispute to this Court, which is an
arbiter.13. Moreover, the entire sentence states that after the arbiter is done, then, one can seek legal
recourse. Again, it is obvious that this is not an arbitration provision inasmuch as a real
arbitration is the legal recourse.
14. Additionally, this so-called arbitration provision lacks the specific details to enforce. When
would a client submit the dispute and how would one do so? After discussing the dispute
with Mr. Israel and it was not resolved, now what? Mr. Israel himself would need to take the
next step and choose an arbiter to whom the client could submit the dispute. It has been
multiple months since these disputes arose and he has still failed to choose an arbiter. So,
how can a client submit this dispute without such arbiter being chosen?
15. Finally, arbitration provisions are not enforced pursuant to the same grounds as vacating a
contract. Here, the unilateral nature of this provision (an arbiter solely chosen by Mr. Israel)
would support vacating this provision. Putting aside that the entire premise here is that
Defendants were operating a fraudulent enterprise, who does Mr. Israel get to choose as the
arbiter? His wife? His best friend? His accountant? His co-conspirators in the fraudulent
activity? This provision is wholly unenforceable and the notion that this represents a valid
arbitration agreement is fallacious.
WHEREFORE, Plaintiffs requests that the motion to dismiss be denied and the motion to
compel arbitration be denied.
THEREBY CERTIFY that a true and correct copy of the foregoing was filed and served in
the e-portal this 19th day of February, 2020 on Joe Grant, at jgrant@marshallgrant.com and
all others listed on the portal.
THE LAW OFFICES OF ALAN P. DAGEN, P.A.
746 Heritage Drive
Weston, Florida 33326
Tel.: 954-389-8605
Fax: 954-337-3250
email: alan@litigationlawyerattorney.com
By: /s/Alan Dagen.
ALAN P. DAGEN, P.A.
Florida Bar No.: 456535
Preview
Filing # 103544139 E-Filed 02/19/2020 11:42:17 AM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 19-020722 (04) OVAIS HAIDER ALI, TRAVIS COLE, OVAIS MAHMOOD, ADEEL ARIF, ELIZABETH ILAWAN, and DENIS BELIUKOV Plaintiffs, Vv. VINCE ECOM EMPIRE LLC, and YVENSON ISRAEL, Defendants. Cesena eee ee ee eee EEE EEE Ent xX MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND TO COMPEL ARBITRATION Plaintiffs hereby respond to Defendant’s motion to dismiss and to compel arbitration and state as follows. 1. The motion to dismiss makes multiple general statements of Florida law, yet offers no support or even argument on many of the issues raised. As just one example, they argue that having multiple plaintiffs in this case is, in and of itself, violative of Florida law, but, again, no support is offered for this argument. One presumes that the failure to cite support is that Florida law does allow such joinder of parties if the action arose out of the same core of operative facts. Rule 1.210, Fla.R.Civ.P. states as follows: All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs. ..... Persons having a united interest may be joined on the same side as plaintiffs or defendants... Joinder is appropriate if each claim arose out of the same factual pattern so that if each matter were brought separately, the plaintiffs causes of action would be identical and their allegations would be the same against the defendant(s). See, Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968). Joinder of plaintiffs serves the interests of judicial economy, as well as the interests of all parties joined in the lawsuit, since the costs and administrative burden to all concerned are substantially reduced. Additionally, by having the cases joined *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/19/2020 11:42:17 AM.****for pleading, discovery and trial, much time is saved and inconsistent verdicts by different Juries are avoided. It has long been recognized that permitting individuals with similar interests and substantially the same subject matter to present their claims in one lawsuit will serve the ends of justice without violating the acceptable pleading rules and without violating a party’s due process rights. Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968). Joinder of similar claims in a single lawsuit tends to simplify rather than complicate the trial of the cause and will enable the trial court to do complete justice in the subject matter of the litigation. Mullray, 216 So.2d at 803. Ifa trial court does not allow multiple claims arising out of the same fact pattern to proceed in a joined case, there may be a tremendous burden created upon all counsel, the parties, and the court system in general as a result of repetitive pleadings, motions, depositions, etc. This needless waste of judicial resources should be avoided by allowing joined cases to proceed on a consolidated basis. See, Condominium Owners Organization of Century Village East, Inc. v. Century Village East, Inc., 428 So.2d 384 (Fla 4th DCA 1983). (Joinder was recommended by the appellate court after the failure of a class-action claim.) . In Carbonell v. American International Pictures, 313 So.2d 417, 419 (Fla. 3d DCA 1975), a defendant moved to dismiss the Plaintiffs’ complaint for allegedly mis-joining nine (9) plaintiffs’ claims against the defendant for breach of contract, accounting, fraud, and deceit. In that case, the Third District Court of Appeals upheld the trial court’s order denying the defendant’s motion to dismiss for misjoinder, holding that misjoinder of parties is not a ground for dismissal of an action pursuant to Rule 1.250, Fla.R.Civ.P. The Court further stated that if joinder was not allowed, the probable result would lead to judicial waste, including “... nine (9) separate complaints being filed, pre-trial discovery being multiplied nine (9) fold, defendant’s records being audited nine (9) separate times, and nine (9) jury trials being held to determine basically the same legal issues.” Id. The court concluded by stating that “... it cannot be said that the ends of justice would be served best thereby.” Id. at 419. . Ifthe trial court determines that the joined claims should not have been brought together, the court cannot dismiss the case. Misjoinder is not a ground for dismissal. The proper remedy pursuant to Rule 1.250, Fla.R.Civ.P. is severance of the claims that were improperly joined. This would allow the cases to proceed on an individual basis without delaying the cases from proceeding. Harrell v. Hess Oil & Chemical Corp., 287 So.2d 291, 294 (Fla. 1973); Anderson v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travellers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981). The joint handling and trial of otherwise repetitive cases benefits everyone and serves the interests of judicial economy. . The motion next argues that Plaintiff failed to attach the contract which is the basis of the claims asserted herein. Even a quick reading of the amended complaint reflects that there is10. 11. 12. no contract claim being asserted. The amended complaint is premised upon a pre-contractual series of mis-representations made by the defendants to induce plaintiffs into entering into a contractual relationship. The representations were knowingly false when made and were designed to convince plaintiffs to give the defendants money. This is not a contract claim. Moreover, since Defendants have filed the contracts, it is a moot argument as they are now part of the court file. Next, the motion to dismiss gets into the specific counts. Defendants argue that the deceptive trade practices act cannot be asserted because there was a contract. We need look no further than the very cases cited by Defendants themselves. In Batlemento v. Dove Fountain, 593 So. 2d 234 (Fla Sth DCA 1991), the court found that Plaintiff did prove the alleged fraud at trial and upheld that portion of the judgment entered. Each case cited by Defendants states similar results and/or cites to the general proposition that a tort can be asserted if independent of a contract claim. Here, the claim is solely for fraudulent activity. Next, they argued that more details are needed. The amended complaint adequately sets forth the representations. Ina one sentence and completely unsupported argument, Defendants next argue that the count of implied breach of good faith fails to state a cause of action. Again, no basis for the argument is provided and no cases are cited. Defendants next argue that FS 607.1408 does not apply here as Defendant is an LLC. Plaintiffs agree that this count should be dismissed, but, for a different reason. At the time of filing the complaint, the corporate Defendant had been dissolved. Presumably as a result of getting served with the complaint, Defendant got itself reinstated. Under Florida law, such reinstatement relates back to the original dissolution, so there is no need to pursue this count. Finally, on the motion to compel arbitration, Defendants arguments must fail on every level. First, there is simply no agreement to submit a dispute to arbitration. The contracts that Defendants have filed state as follows: Any dispute... will be discussed with Mr. Israel. ... If the dispute is not resolved, the client. ... {submits the dispute]..”to an arbiter chosen by Mr. Israel prior to seeking a legal recourse. There is a key word missing: ARBITRATOR. There is a plain language definition of arbiter which is quite distinct from arbitrator. An arbiter is anyone who can resolve something. A baseball umpire is an arbiter, yet, clearly, not an arbitrator. Vogue magazine is an arbiter of fashion trends, yet, clearly not an arbitrator. This Court is an arbiter, but, not an arbitrator. This is clearly not an agreement to submit to arbitration. Indeed, arguably, Plaintiffs did comply with this provision inasmuch as they submitted the dispute to this Court, which is an arbiter.13. Moreover, the entire sentence states that after the arbiter is done, then, one can seek legal recourse. Again, it is obvious that this is not an arbitration provision inasmuch as a real arbitration is the legal recourse. 14. Additionally, this so-called arbitration provision lacks the specific details to enforce. When would a client submit the dispute and how would one do so? After discussing the dispute with Mr. Israel and it was not resolved, now what? Mr. Israel himself would need to take the next step and choose an arbiter to whom the client could submit the dispute. It has been multiple months since these disputes arose and he has still failed to choose an arbiter. So, how can a client submit this dispute without such arbiter being chosen? 15. Finally, arbitration provisions are not enforced pursuant to the same grounds as vacating a contract. Here, the unilateral nature of this provision (an arbiter solely chosen by Mr. Israel) would support vacating this provision. Putting aside that the entire premise here is that Defendants were operating a fraudulent enterprise, who does Mr. Israel get to choose as the arbiter? His wife? His best friend? His accountant? His co-conspirators in the fraudulent activity? This provision is wholly unenforceable and the notion that this represents a valid arbitration agreement is fallacious. WHEREFORE, Plaintiffs requests that the motion to dismiss be denied and the motion to compel arbitration be denied. THEREBY CERTIFY that a true and correct copy of the foregoing was filed and served in the e-portal this 19th day of February, 2020 on Joe Grant, at jgrant@marshallgrant.com and all others listed on the portal. THE LAW OFFICES OF ALAN P. DAGEN, P.A. 746 Heritage Drive Weston, Florida 33326 Tel.: 954-389-8605 Fax: 954-337-3250 email: alan@litigationlawyerattorney.com By: /s/Alan Dagen. ALAN P. DAGEN, P.A. Florida Bar No.: 456535