USCA11 Case: 21-11392 Document: 47-1 Date Filed: 01/18/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11392
Non-Argument Calendar
____________________
SOHO OCEAN RESORT TRS, LLC,
A Delaware limited liability company,
Plaintiff-Appellant,
versus
DANIEL RUTOIS,
an individual,
KGA MANAGEMENT GROUP, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-11392
D.C. Docket No. 0:19-cv-61335-AHS
____________________
Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Soho Ocean Resort TRS, LLC appeals the district court’s or-
der dismissing its claims for tortious interference. We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
This case arises from a contract between Soho and the 4111
South Ocean Drive Condominium Association, Inc. Soho entered
the contract to operate and manage the Hyde Resort—a ho-
tel/condo resort governed by the condo association in Hollywood,
Florida—soon after the resort began experiencing a number of
problems. Under the contract, Soho also manages and operates the
only rental program sanctioned by the resort for its units. Daniel
Rutois is an owner of a condo in the resort who operates a compet-
ing rental program through KGA Management Group, LLC.
A few months after Soho began managing the resort, the
condo association scheduled a member vote to terminate several
of its major contracts, including Soho’s. The vote failed. The
condo association rescheduled the vote to accommodate its
1
The facts are taken as alleged in the operative complaint.
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21-11392 Opinion of the Court 3
members who wanted to vote electronically, but that vote also
failed. A third vote was set for three months later.
Before the third vote, Rutois set about campaigning against
Soho’s contract. Rutois’s efforts included e-mails, flyers, in-person
conversations, and beachside marketing to the resort’s unit own-
ers, residents, and guests. The third vote resulted in the termina-
tion of Soho’s contract.
In the operative complaint, Soho sued Rutois and KGA for
tortious interference. Soho’s claims against Rutois included one
count for tortious interference with a contract (Count I) and an-
other for tortious interference with a business relationship (Count
II). Soho’s claim against KGA was for tortious interference with a
contract (Count III). Count I was based on Rutois’s efforts to ter-
minate Soho’s contract. Counts II and III were based on various
things Rutois and KGA were doing in the meantime to undermine
Soho’s relationships with the resort’s employees, unit owners, and
guests.
Rutois and KGA moved to dismiss Soho’s complaint on the
ground that Soho failed to allege a cause of action for tortious in-
terference under any count. Specifically, they argued that Soho
failed to allege the prima facie elements of tortious interference as
to Count I, that it failed to allege damages as to Count II, that Ru-
tois enjoyed a qualified privilege against tortious interference as to
Counts I and II, and that KGA’s conduct didn’t give rise to tortious
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4 Opinion of the Court 21-11392
interference as to Count III. The district court granted the motion
and dismissed all counts with prejudice. 2
STANDARD OF REVIEW
We review de novo a dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. Leib v. Hills-
borough Cnty. Pub. Transp. Comm’n,
558 F.3d 1301, 1305 (11th
Cir. 2009).
DISCUSSION
The threshold for surviving a motion to dismiss for failure
to state a claim under rule 12(b)(6) is a low one. Quality Foods de
Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A.,
711
F.2d 989, 995 (11th Cir. 1983). A plaintiff must plead only enough
facts, all of which are accepted as true, to state a claim to relief that
is plausible on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544,
556, 570 (2007). In other words, a plaintiff must provide the
2
On appeal, we determined that the operative complaint didn’t allege the
identity and citizenship of each member of Soho and KGA at the time suit was
filed. We remanded the case to the district court for the limited purpose of
determining the citizenship of the parties to establish whether diversity juris-
diction existed. The district court found that, when the suit was filed, Soho’s
sole member was MHI LLC, whose sole member was MHI Inc., a Maryland
corporation with its principal place of business in Virginia; that KGA’s sole
member was Sara Peremolnik, a Florida citizen; and that Rutois was a Florida
citizen. Based on these findings, we find that the parties were completely di-
verse, so we have jurisdiction to hear this appeal.
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21-11392 Opinion of the Court 5
grounds for his entitlement to relief but needn’t include detailed
factual allegations.
Id. at 555. Overall, a complaint must “give the
defendant fair notice of what the claim is and the grounds upon
which it rests.”
Id. (alteration omitted).
We conclude that Soho met this low threshold. Soho’s op-
erative complaint provided all that Rutois and KGA needed to give
them fair notice of Soho’s claims and their grounds.
Under Florida law, to state a claim for tortious interference
with a contract, a plaintiff must allege four elements: (1) the exist-
ence of a contract, (2) the defendant’s knowledge thereof, (3) the
defendant’s intentional and unjustified procurement of a breach
thereof; and (4) damages. Sun Life Assurance Co. of Canada v. Im-
perial Prem. Fin., LLC,
904 F.3d 1197, 1215 (11th Cir. 2018). Simi-
larly, to state a claim for tortious interference with a business rela-
tionship, a plaintiff must allege four elements: (1) the existence of
a business relationship, (2) the defendant’s knowledge thereof;
(3) the defendant’s intentional and unjustified interference there-
with; and (4) damages. Ethan Allen, Inc. v. Georgetown Manor,
Inc.,
647 So. 2d 812, 814 (Fla. 1994). Soho’s operative complaint
alleged facts that, if taken as true, established each element of its
claims against Rutois and KGA sufficiently for pleading purposes.
A. Count I
As to Count I, Soho alleged that Rutois made false state-
ments to the resort’s unit owners, residents, and guests with the
intent to induce the condo association, through its owners, to
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6 Opinion of the Court 21-11392
terminate its contractual agreement with Soho. These statements
included that Soho may start charging a resort and parking fee to
unit owners’ friends and family; that Soho cannot be trusted as the
manager to hire financial auditors, engineers, and counsel for the
Hyde Resort; that Soho had a conflict of interest; that Soho ex-
tended an illegal bribe to unit owners; and that Soho engaged in
discriminatory conduct, is racist, and underestimates the intelli-
gence of Hispanic people.
The district court, focusing on the third element (the defend-
ant’s intentional and unjustified procurement of a breach), found
that “[t]he problem with each of these allegations is the same: the
[second] amended complaint does not allege that Rutois actually
made any of these statements.” This was the same problem we
found in Duty Free Americas, Inc. v. Estée Lauder Cos. See
797
F.3d 1248, 1281 (11th Cir. 2015) (“As we see it, the problem with
each of these allegations is the same: the complaint does not allege
that Estée Lauder actually made any of these statements.”). There,
the plaintiff indeed failed to allege that the defendant made any
statements at all that directly supported the plaintiff’s claims.
Id. at
1281. Instead, the plaintiff asked the court to infer the requisite in-
tent from various benign communications between the parties.
Id.
In stark contrast, Soho not only alleged that Rutois made these
statements; he provided details about the contents of the state-
ments, how the statements were communicated, to whom the
statements were directed, and the dates the statements were made.
We find these allegations more than adequate at the pleading stage.
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21-11392 Opinion of the Court 7
The district court found that it was “[m]ore telling” that
“Soho[] fail[ed] to attach a single exhibit showcasing the statements
purportedly written by Rutois, including the alleged e-mail,” which
was “not even incorporated by reference in the” operative com-
plaint. But this is not a proper ground for dismissal because the
Federal Rules of Civil Procedure permit, but don’t require, the at-
tachment of relevant exhibits to the complaint. See Fed. R. Civ. P.
10(c).
Finally, the district court found that Rutois had the requisite
financial interest in the condo association, as its president, to in-
voke the affirmative defense of privilege. “Generally, the existence
of an affirmative defense will not support a motion to dismiss.
Nevertheless, a complaint may be dismissed under Rule 12(b)(6)
when its own allegations indicate the existence of an affirmative
defense, so long as the defense clearly appears on the face of the
complaint.” Quiller v. Barclays Am./Credit,
727 F.2d 1067, 1069
(11th Cir. 1984). Because no allegation in Soho’s operative com-
plaint indicated that Rutois had any relationship at all with the
condo association, this exception doesn’t apply. As such, the af-
firmative defense of privilege is unavailable at this stage of the pro-
ceedings. More factual development is necessary to establish
whether Rutois’s alleged actions were taken in his capacity as an
agent of the condo association, in his capacity as an agent of Soho’s
competitor, or in his personal capacity.
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B. Count II
As to Count II, Soho alleged that Rutois engaged in conduct
designed to interfere with Soho’s business relationships with its
employees at the Hyde Resort. Specifically, Soho alleged that Ru-
tois told Soho’s employees that they must follow his orders and
directives or face the consequences; that he was rude to and made
unreasonable demands of Soho’s employees; that he denigrated
Soho’s employees by speaking to them in a condescending, mali-
cious, humiliating, or threatening manner, to include continually
threatening Soho’s employees with loss of employment; that he
constantly bullied valet staff; that he threatened to terminate the
resort’s valet parking manager’s employment; that he encouraged
other unit owners at the Hyde Resort to similarly threaten Soho’s
staff; and that he once called local law enforcement officers on
members of the staff. Soho alleged that as a direct and proximate
result of Rutois’s improper conduct, Soho lost trained staff and suf-
fered income loss.
The district court found these allegations to be “vague” and
“insufficient to state a claim for tortious interference that is plausi-
ble on its face.” We disagree. Soho alleged a legitimate business
relationship—namely, its employment relationship with members
of its staff. See Florida Power & Light Co. v. Fleitas,
488 So. 2d 148,
152 (Fla. 3d DCA 1986) (“Intentional interference with a contrac-
tual employment relationship—even one, as here, which is termi-
nable at will—is actionable in Florida.”). It alleged that Rutois
knew of the relationship and intentionally and unjustifiably
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21-11392 Opinion of the Court 9
interfered with it. And it alleged that the relationship was damaged
when employees resigned as a result of Rutois’s actions. Nothing
more is needed at the pleading stage. Rule 8’s pleading standards
do not support the district court’s finding that Soho is required, at
this time, to “name[] any of the employees Rutois reportedly inter-
fered with” or to attach any supporting documentation to the op-
erative complaint. These details will emerge in discovery.
C. Count III
As to Count III, Soho alleged that KGA set up shop on resort
premises and proceeded to engage in various marketing practices
and activities targeting unit owners whom they knew to be partic-
ipants of the Soho rental program, with the intent of inducing them
to participate in KGA’s competing rental program. This is a closer
call than in Count I against Rutois, whose alleged actions leave lit-
tle doubt regarding their propriety. But Soho alleged that KGA vi-
olated various industry norms and resort policies by operating an
unsanctioned competitor to Soho within the resort, by comman-
deering Soho’s resources and employees for its benefit, by adver-
tising artificially lower rates, by using proprietary and trademarked
resort materials without authorization, and by hiring an employee
to solicit unit owners to participate in its rental program. “‘[W]hen
there is room for different views’ about the propriety of a defend-
ant’s interference with a plaintiff’s business relationships,” as there
is here, “‘the determination of whether the interference was im-
proper or not is ordinarily left to the jury.’” Duty Free Ams.,
797
F.3d at 1280 (quoting Mfg. Rsch. Corp. v. Greenlee Tool Co., 693
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10 Opinion of the Court 21-
11392
F.2d 1037, 1040 (11th Cir. 1982)). We therefore find that Soho’s
allegations are sufficient to pass the pleading threshold.
CONCLUSION
Because Soho has met the low bar of notice pleading, we
reverse the district court’s order dismissing its claims and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
