Florida/Georgia Personal Injury & Workers Compensation

...g that the individual Defendants had a valid contract with Plaintiffs. *1326 Accordingly, Plaintiffs did not sufficiently plead a breach of contract claim-and therefore, this Count is dismissed. b. Breach of Fiduciary Duty in Violation of Fla. Stat. § 605.04091 (Count II) From the outset, Defendants assert that Plaintiffs' breach of fiduciary duty in violation of Fla. Stat. § 605.04091 is a derivative claim....

...Quiskeya Trading Corp. , No. 16-CV-23905, 2017 U.S. Dist. LEXIS 141815 , at *10-11 (S.D. Fla. 2017) (Goodman, J.). Here, there is a statutory fiduciary relation between Defendants-as managers of Manor Glenn-and Plaintiffs-as members of Manor Glenn. Fla. Stat. 605.04091....

...care to ASMO, which the jury by its verdict found ASMO had in fact proven, even if the jury also determined that no damages should be awarded to ASMO for that breach. In light of the jury’s determination, the plain language of sections 605.0408, 605.04091, and 605.0105, Florida Statutes (2016) (the Revised Limited Liability Company Act)7 precluded the trial court from finding in favor 7 As an initial matter, Rodriguez contends that, because ASMO’s underlying lawsuit was filed in Jul...

...and a debt, obligation, or other liability incurred by the person by reason of the person's former or present capacity as a member or manager if the claim, demand, debt, obligation, or other liability does not arise from the person's breach of . . . 605.04091. (Emphasis added). In turn, section 605.04091(1), Florida Statutes, provides standards of conduct for members and managers: Each manager of a manager-managed limited liability company and member of a member-managed limited liability company owes fiduciary duties of loyalty and care to the limited liability company and members of the limited liability company. Section 605.04091(2)(b)-(c) then further provides that this duty of loyalty includes: 1) “Refraining from dealing with the company in the conduct or winding up of the company's activities and affairs as, or on behalf of, a...

...conduct or winding up of the company’s activities and affairs is to refrain from engaging 23 in grossly negligent or reckless conduct, willful or intentional misconduct, or a knowing violation of law.” § 605.04091(3)....

...indemnification pursuant to the above provision of the Operating Agreement was erroneous because Chapter 605 expressly prohibits an operating agreement from providing indemnification to a manager who has breached a duty of care or loyalty under section 605.04091. Further, sections 605.0105(3)(g) & (p) together provide: An operating agreement may not do any of the following: ....

...violation of law. 2. A transaction from which the member or manager derived an improper personal benefit. 3. A circumstance under which the liability provisions of s. 605.0406 are applicable. 4. A breach of duties or obligations under s. 605.04091, taking into account a restriction, an expansion, or an elimination of such duties and obligations provided for in the operating agreement to the extent allowed by subsection (4). (Emphasis added). As the plain...

...“circumstances of the case,” we are compelled to reverse its decision in favor of Rodriguez on his claim for indemnification. Instead, and given the jury’s verdict, which constituted a determination that Rodriguez violated his duty of care or duty of loyalty under section 605.04091, Rodriguez was statutorily precluded from entitlement to indemnification, notwithstanding the provision in the Operating Agreement purporting to confer discretion upon the trial court to do otherwise....

...Breach of Fiduciary Duty (Count VII) The Trustee seeks judgment against Mr. Luboff because he breached' his fiduciary duty to the Debtor, and is an *418 alter ego of the Debtor 1 . Under applicable Florida law, each manager owes fiduciary duties of loyalty and care to his or her limited liability company. Fla. Stat. § 605.04091 (1). “The duty of care in the conduct or winding up of the company’s activities and affairs is to refrain from engaging in grossly negligent or reckless conduct, willful or intentional misconduct, or a knowing violation of law.” Fla. Stat. § 605.04091 (3)....

...The duty of loyalty includes inter alia properly -winding up a company’s activities and affairs, refraining from improper use of a company’s property and competing with the company before dissolution, and not appropriating a company opportunity. See Fla. Stat. § 605.04091 (2)(a)....