Euclid Turnaround Opportunity Fund LP v. Amerant Equipment Finance, et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-20647-BLOOM/Elfenbein
EUCLID TURNAROUND OPPORTUNITY
FUND LP,
Plaintiff,
v.
AMERANT EQUIPMENT FINANCE, et al.,
Defendants.
_________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon (1) Defendant Amerant Equipment Finance
(“Amerant”)’s Motion to Dismiss Counts I, II, V, VI, VII and IX of Third Amended Complaint,
to Strike Claims for Punitive Damages, and for Enlargement of Time to Answer Count VIII (the
“Amerant Motion”), ECF No. [131]; (2) Defendants Alliance Metals LLC (“Alliance Metals”),
Technocon 	International, 	Inc. 	(“Technocon”), 	Alliance 	Metals 	Alabama, 	LLC 	(“Alliance
Alabama”), Larry Y. Gitman (“L. Gitman”), and Jacob Gitman (“J. Gitman”)’s (collectively,
“Alliance Defendants”) Motion to Dismiss Plaintiff’s Third Amended Complaint with Prejudice
(the “Alliance Motion”), ECF No. [132]; and (3) Defendants SB Ecliptica LLC (“Ecliptica”),
Truewind Management LLC (“Truewind”), America1 Industries LLC (“America1 Industries”),
America1 	Holdings 	LLC 	(“America1 	Holdings”), 	and 	Sergei 	Bratushev 	(“Bratushev”)’s
(collectively, “America1 Defendants”) Motion to Dismiss Third Amended Complaint and to Strike
Request for Punitive Damages1 (the “America1 Motion”), ECF No. [137]. The Court referred the
1 America1 Defendants requested oral argument for their Motion. However, because the Court is able to decide the
Motion on the briefings, the request is denied.
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Motions to Judge Marty Fulgueira Elfenbein for a Report and Recommendation. ECF No. [138].
On October 6, 2025, Judge Elfenbein issued a Report and Recommendation on Motions to Dismiss
(“R&R”), ECF No. [175]. Alliance Defendants, Amerant, and America1 Defendants filed
Objections. ECF Nos. [189]; [190]; [191]. Plaintiff Euclid Opportunity Fund L.P. filed Responses
to each Objection. ECF Nos. [202]; [201]; [203]. The Court has considered the Motion, the R&R,
the supporting and opposing submissions, the applicable law, and is otherwise fully advised. For
the reasons that follow, the Objections are overruled and the R&R is adopted in full.
I. 	BACKGROUND
The Court assumes the parties’ familiarity with the case and adopts the background section
contained in the R&R. ECF No. [175] at 2-17. The Court provides only the background necessary
to resolve the instant Motions.
This case arises out of an attempted business deal between Plaintiff Euclid Turnaround
Opportunity Fund LP (“Euclid”) and Amerant. Euclid is a “limited partnership fund that focuses
on turnaround investments in companies experiencing financial distress” that it “believes can be
restored to productive operating businesses.” ECF No. [111] at 3, 10. Amerant is a “national
banking association.” Id. at 4. “In 2022 and 2023, Amerant loaned a total of $8,658,083.09 to”
Alliance Metals, a Florida limited liability company that until May 2024 “conducted a secondary
aluminum smelting business.” Id. at 4, 7-8. The loan was “evidenced by two promissory notes”
(the “Notes”), which were “personally guaranteed” by Alliance Alabama, Technocon, L. Gitman,
and J. Gitman. Id. at 7. “L. Gitman and J. Gitman control and direct” Alliance Metals, Alliance
Alabama, and Technocon. Id. at 4.
Alliance Metals used the loan money to buy “major items of unique heavy machinery and
equipment” for its smelting business, and it “integrated” that machinery and equipment “into the
real estate” at its facility in Alabama, which Alliance Alabama owns. Id. at 7-8. Alliance Metals
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gave Amerant “a first lien security interest in” the machinery and equipment as collateral for the
loan. Id. at 7. In June 2024, Alliance Metals’ business became “inactive due to . . . financial
distress,” and it “failed to make the monthly payment due on the Notes on June 1, 2024” and any
monthly payment due after that. See id. at 7, 10. For that reason, in August 2024, Amerant filed a
state-court lawsuit for breach of the Notes and the Guarantees, “which carried an accelerated
balance due of more than $8.9 million.” Id. at 10.
Euclid identified Alliance Metals as “a potential turnaround candidate” and “began a
review of the company” to assess “the capital that would be required to address the creditor claims
against” it and “re-start the dormant business.” Id. at 10. After that review, Euclid discussed a
“potential acquisition investment with representatives of Alliance Metals, including J. Gitman and
L. Gitman. During those discussions, Alliance Metals provided financial information about the
company, including projections for a period following an anticipated re-start of operations.” Id. at
10. Ultimately, however, Euclid and the “representatives of Alliance Metals were unable to reach
an agreement on the terms of an acquisition investment,” and the discussions ended. Id. at 11.
Euclid still wanted to pursue a turnaround investment in Alliance Metals, so it approached
Amerant “to seek a discounted purchase of the obligations owed” on the Notes and the Guarantees
by Alliance Metals, Alliance Alabama, Technocon, and the Gitmans (collectively, the “Alliance
Defendants”). See id. at 11. The purchase at a discounted price “was a key element of structuring”
the turnaround investment, and because Amerant believed its prospect of obtaining collection from
the Alliance Defendants “was limited,” Euclid and Amerant “promptly reached an agreement for
the sale and purchase of the loans at a discount.” See id. at 11. On December 30, 2024, Euclid and
Amerant entered into a written Loan Sale and Assignment Agreement (the “Assignment
Agreement”). Id. at 11; ECF No. [111-1].
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Under the Assignment Agreement, Amerant “became unconditionally obligated” to sell,
assign, and transfer to Euclid all its rights under, title to, and interest in the loan, the loan
documents, the Guarantees, the machinery/equipment collateral, and the state-court collection
lawsuit. ECF No. [111] at 11. Euclid, for its part, had to pay (and did pay) a “10% good-faith
escrow deposit.” Id. “Amerant’s obligations under the Assignment Agreement” were “absolute,
and it had no right to terminate for any reason.” Id. at 12. Euclid, on the other hand, “was afforded
the opportunity through January 24, 2025, to complete due diligence with a unilateral option to
terminate if the results of that diligence were not satisfactory.” Id. Diligence clauses like this one
are “typical in such transactions.” Id.
The 	“main 	element” 	of 	the 	diligence 	clause 	allowed 	Euclid 	to 	inspect 	the
machinery/equipment collateral, and the “Assignment Agreement expressly required that Amerant
cooperate with” Plaintiff “to permit such an inspection.” Id. Euclid “engaged a third-party
engineering consultant to conduct that inspection and sought to confirm inspection dates of January
14 and 15 to allow ample time to meet the” January 24 deadline in the Assignment Agreement. Id.
To facilitate the inspection, Euclid asked Amerant to seek a court order in the state-court collection
lawsuit that would compel Alliance Metals to allow the inspection, but “Amerant’s attorneys
resisted that request and instead sought to proceed by means of an agreement with” Alliance Metals
through its attorney. Id. at 12-13. When the time came for the inspection on January 14, Euclid’s
engineering consultants arrived at the Alabama facility after traveling from Michigan, but Alliance
Metals “reneged on its agreement and refused to allow them to enter and inspect.” Id. at 13.
“Ultimately, after further delay and after the consultants had returned to Michigan, Amerant’s
attorneys obtained a court order compelling an inspection.” Id.
Despite not being able to complete the inspection as intended on January 14, Euclid notified
Amerant on January 17 that the diligence clause was “satisfied and requested wire-transfer
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instructions for payment of the balance of the purchase price in accordance with the Assignment
Agreement.” Id. In response, Amerant told Euclid that the Notes had been paid off earlier that day
and “as a result” were no longer for sale. Id. Because, “as the assignee of the Notes, any payoff
would be payable to” Euclid and not to Amerant, on January 22, Euclid “demanded turnover” of
the “net proceeds” of the payoff. Id. In response to that request, on January 27, Amerant’s Chief
Commercial Banking Officer told Euclid that he had “entered into a payoff agreement to accept
$3.5 million as a purported payoff in satisfaction of the $8.9 million loan.” Id. “Shortly thereafter,
Amerant changed its story yet again. Contrary to its prior representations, Amerant disclosed for
the first time that the loan had not been paid off by” Alliance Metals but instead had been sold to
Ecliptica “for a purchase price higher than the purchase price in” the Assignment Agreement
between Amerant and Euclid. Id. Amerant “purported to sell the Notes” to Ecliptica despite having
“already sold” them to Euclid. Id.
“Unbeknownst to” Euclid, when Ecliptica, Truewind, America1 Holdings, and Bratushev
(collectively, the “Bratushev Defendants”) and the Alliance Defendants “became aware” that
Euclid “had entered into the Assignment Agreement, they worked with Amerant to interfere with
the contract” and Euclid’s “business relationship and deprive” Euclid “of its property rights.” See
id. at 14. After Euclid and Amerant executed the Assignment Agreement on December 30, Euclid’s
“representatives informed the Alliance Defendants of the Assignment Agreement.” Id. “From
January 3, 2025 through January 8, 2025,” Euclid’s “representatives exchanged text messages with
the Alliance Defendants, including L. Gitman and J. Gitman, in which the Alliance Defendants
refused to cooperate with” Euclid unless Euclid “agreed to demands from the Alliance Defendants
for cash and an equity interest in the re-started business.” Id.
“At the same time, between January 3, 2025, and January 6, 2025,” the Bratushev
Defendants and Amerant “entered into negotiations on a loan purchase and sale agreement nearly
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identical to the Assignment Agreement that” Euclid and Amerant had “executed days earlier.” Id.
“During these negotiations, and no later than January 6, 2025, Amerant’s in-house counsel
informed” the Bratushev Defendants “that Amerant had already entered into the Assignment
Agreement” with Euclid. Id. “In fact, Amerant’s in-house counsel sent the” Bratushev Defendants
a “draft backup Loan Sale and Assignment Agreement on January 6, 2025, which disclosed that
Amerant had already entered into a primary Loan Sale and Assignment Agreement, that is, the
Assignment Agreement with” Euclid. Id. “Just two days later, on January 8, 2025, even though
Amerant remained bound by the Assignment Agreement,” its in-house counsel, “at the direction
of” its Chief Commercial Banking Officer (who is its “senior loan officer”) sent the Bratushev
Defendants “a revised draft of a loan and sale agreement for the Notes that deleted references to
Amerant’s prior obligations to” Euclid, “reflecting Defendants’ intent to erase” Euclid’s “property
rights.” See id. at 14-15.
“Over the next week, the” Bratushev Defendants “and Amerant, with the knowledge,
agreement, and assistance of the Alliance Defendants, negotiated the details of an agreement for
Ecliptica to purchase the Notes from Amerant for a price several hundred thousand dollars higher
than the price Amerant agreed to accept from” Euclid in the Assignment Agreement. Id. at 15.
“The Alliance Defendants preferred for the” Bratushev Defendants to buy the Notes instead of
Euclid because the Bratushev Defendants “agreed to allow the Alliance Defendants to maintain an
ownership and operational interest in the underlying aluminum smelting business, whereas” Euclid
“would not accept the Alliance Defendants’ unreasonable demands.” Id.
To give the Bratushev Defendants and Amerant “time to work out the details of their illicit
deal,” the Bratushev Defendants, Amerant, and the Alliance Defendants “colluded to delay”
Euclid’s “completion of its due diligence, particularly” its “inspection of the Alliance Metals’
facility and” the machinery/equipment collateral, despite Euclid’s “urgent requests to expedite the
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process.” Id. “Representatives of Alliance Metals and Alliance Alabama misled representatives
of” Euclid “regarding the scheduling of an inspection and refused to permit an inspection at the
times” Euclid requested. Id. The “inspection delay allowed the” Bratushev Defendants, Amerant,
and the Alliance Defendants to delay both Euclid’s notification that the diligence clause had been
satisfied and its transfer of the balance of the purchase price to Amerant under the Assignment
Agreement. Id. Once Euclid “insisted on filing an emergency motion in the” state-court collection
lawsuit to permit the inspection, Amerant’s Chief Commercial Banking Officer and its in-house
counsel “rushed to complete Amerant’s transaction with the” Bratushev Defendants. Id.
“On Tuesday, January 14 — the same day” Euclid “brought specialists from Michigan to
Alabama to perform a scheduled inspection, only to be turned away by the Alliance Defendants
— Amerant’s in-house counsel texted counsel for the” Bratushev Defendants, “in conscious
disregard” of Euclid’s “contractual rights and equitable title to the Notes” to say: “Any updates on
whether your client is going to close today[?] We need to close this week. Otherwise, we will
proceed with the primary contract.” Id. at 15-16. “The primary contract, of course, was” the
Assignment Agreement between Euclid and Amerant. Id. at 16. “Armed with this knowledge and
assistance from Amerant and the Alliance Defendants, and” at the time “unbeknownst to” Euclid,
the Bratushev Defendants “quickly entered into a loan and sale agreement with Amerant to
purchase the Notes on or around January 15, 2025.” Id. The next day, January 16, “Amerant
accepted payment under its agreement with the” Bratushev Defendants, “contrary to Amerant’s
internal procedures” and “despite warnings from its in-house counsel that such an agreement
would lead Amerant to breach its obligations to” Euclid. Id.
The “Alliance Defendants invoked these moves to resist” Euclid’s “eventual effort to seek
injunctive relief, claiming on February 19, 2025, that the Alliance Defendants already took steps
to reorganize the business in reasonable reliance on the consummated sale” with the Bratushev
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Defendants, “including entering into agreements and delivering a mortgage on the unsecured real
property on which the relevant metal-working equipment now sits.” Id. at 16-17. “This
representation indicates that the Alliance Defendants had Alliance Alabama, as the owner of the
real property on which the relevant metal-working equipment now sits, encumber the real property
on which” the machinery/equipment collateral is installed. Id. at 17.
The Defendants’ “scheme also is evident from the formation of two America1 entities on
January 21, 2025, less than a week after Ecliptica entered into its agreement with Amerant.” Id.
One of those entities is Defendant America1 Industries, in which the Bratushev Defendants and
the Alliance Defendants “share an ownership interest.” Id. America1 Industries “now purports”
through its “public website” to “solicit aluminum smelting business in association with the same
Leighton, Alabama, address listed on Alliance Metals’ public website.” Id. “America1 Industries
subsequently filed applications to transact business in Alabama on January 29, 2025, and in Florida
on February 7, 2025.” Id. “Similarly, on January 29, 2025, counsel for the” Bratushev Defendants
“instructed Amerant to file a substitution of parties document in the” state-court collection lawsuit
“substituting America1 Holdings for Amerant because Ecliptica had, according to two of its
attorneys, assigned the Notes to America1 Holdings,” which the Bratushev Defendants also
control. Id. Later, however, counsel for the Bratushev Defendants “submitted a declaration
purporting to walk back his earlier representation regarding the re-assignment to America1
Holdings” in an “effort to shield America1 Holdings from discovery in this matter.” Id.
“Either way, the back and forth and quick formation and overlap of entities demonstrates
that the entities that make up the Alliance Defendants and the” Bratushev Defendants “are not
independent corporate entities, but instead are shareholder dominated to such an extent that they
have no independent existence, such that the shareholders are the alter egos of the corporations.”
Id. at 18. It also demonstrates that “the corporate form was used fraudulently or for an improper
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purpose — to hinder, delay, and ultimately defeat” Euclid’s “ability to enforce its rights and profit
from its investment under the Assignment Agreement and shield Defendants’ assets from liability
for their wrongdoing.” Id. “All the facts that have now become known to” Euclid “make clear not
only an intentional course of conduct by Defendants in flagrant and purposeful breach of the
Assignment Agreement, but also a calculated, secret alliance between Amerant, America1
Industries,” the Bratushev Defendants, and the Alliance Defendants to “strip” Euclid “of its rights
under that Assignment Agreement.” Id.
For that reason, “Defendants are personally guilty of intentional misconduct.” Id.
Specifically, “Defendants had actual knowledge of the wrongfulness of their conduct and the high
probability that it would harm” Euclid, but they still “intentionally pursued that course of conduct,
resulting in” harm. Id. “Those Defendants that are corporations or limited liability companies are
liable for the intentional misconduct of their managing agents.” Id. “As a direct and proximate
result of Defendants’ wrongful conduct,” Euclid “has suffered and continues to suffer substantial
damages.” Id.
In the operative Third Amended Complaint, Euclid asserts nine claims against some or all
Defendants: (1) Conversion against Amerant, Ecliptica, and America1 Holdings (“Count 1”); (2)
Aiding and Abetting Conversion against all Defendants except Ecliptica (“Count 2”); (3) Tortious
Interference with Contract against all Defendants except Amerant (“Count 3”); (4) Aiding and
Abetting Tortious Interference with Contract against all Defendants except Amerant and Ecliptica
(“Count 4”); (5) Tortious Interference with Business Relationship against all Defendants except
Alliance Metals and Alliance Alabama (“Count 5”); (6) Aiding and Abetting Tortious Interference
with Business Relationship against all Defendants except Ecliptica, Alliance Metals, and Alliance
Alabama (“Count 6”); (7) Civil Conspiracy against all Defendants (“Count 7”); (8) Breach of
Contract against Amerant only (“Count 8”); and (9) Declaratory Judgment against all Defendants
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(“Count 9”). Euclid also requested punitive damages based on Defendants’ egregious conduct. See
ECF No. [111].
In June 2025, all eleven Defendants filed motions to dismiss. See ECF Nos. [131]; [132];
[137]. They did so in three groups: Amerant filed the Amerant Motion on its own, ECF No. [131];
the Alliance Defendants filed the Alliance Motion together, ECF No. [132]; and the Bratushev
Defendants, together with America1 Industries (collectively, the “America1 Defendants”), filed
the America1 Motion, ECF No. [137]. In the R&R, Judge Elfenbein recommends that the Motions
be granted in part and denied in part. ECF No. [175].
II. 	LEGAL STANDARD
“In order to challenge the findings and recommendations of the magistrate judge, a party
must file written objections which shall specifically identify the portions of the proposed findings
and recommendation to which objection is made and the specific basis for objection.” Macort v.
Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989)) (alterations omitted). The objections must also present “supporting legal
authority.” S.D. Fla. L. Mag. J.R. 4(b). The portions of the R&R to which an objection is made are
reviewed de novo only if those objections “pinpoint the specific findings that the party disagrees
with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P.
72(b)(3). If a party fails to object to any portion of the magistrate judge’s report, those portions are
reviewed for clear error. Macort, 208 F. App’x at 784; see also Liberty Am. Ins. Grp., Inc. v.
WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001). However, “[a]
district court reviewing a magistrate judge’s discovery order is, in general, limited by statute and
rule to reversing that order only if it is ‘clearly erroneous or contrary to law.’” Wausau
Underwriters Ins. Co. v. Danfoss, LLC, 310 F.R.D. 689, 690 (S.D. Fla. 2015) (quoting SEC v.
Merkin, 283 F.R.D. 699, 200 (S.D. Fla. 2012)).
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“It is improper for an objecting party to . . . [submit] papers to a district court which are
nothing more than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the
apple’ when they file objections to a R & R.” Marlite, Inc. v. Eckenrod, No. 10-cv-23641, 2012
WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors-Rate Emps.
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)). A court, in its discretion, need not
consider arguments that were not, in the first instance, presented to the magistrate judge. Williams
v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009). A district court may accept, reject, or modify a
magistrate judge’s R&R. 28 U.S.C. § 636(b)(1).
III. 	DISCUSSION
A. Amerant’s Objections
In the R&R, Judge Elfenbein recommended that Amerant’s Motion be denied as to Counts
1 (Conversion); 2 (Aiding and Abetting Conversion); 7 (Civil Conspiracy); and 9 (Declaratory
Judgment). ECF No. [175] at 40-46. Judge Elfenbein also recommended that the Court deny
Amerant’s motion to strike Euclid’s request for punitive damages and grant Amerant’s motion for
an extension of its deadline to answer Count 8 (Breach of Contract). Id. at 45, 46. Amerant
objected, arguing (1) the R&R did not address the threshold issue of whether the tort claims seek
“independent, separate, and distinct damages”; (2) the R&R erred in limiting its analysis to
whether allegations were required to prove breach of contract instead of whether the conduct was
independent of the contract; (3) the cases upon which the R&R relied to permit the theory that a
party can hold equitable title outside of the real estate context are not applicable; (4) because Euclid
has failed to state a claim for conversion, the aiding and abetting conversion claim does not
survive; (5) regarding the civil conspiracy claim, the R&R only analyzed the conversion claim as
the underlying wrongdoing against Amerant and the conspiracy claim fails if the underlying claims
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are not viable; (6) the R&R did not address Amerant’s argument that Euclid has not sufficiently
alleged specific acts or wrongdoing to support punitive damages; and (7) the Court should not
exercise its discretion to permit a declaratory judgment claim because Euclid no longer seeks
ownership of the loan documents. ECF No. [190]. Euclid responds that the R&R (1) properly
concluded that Euclid’s tort claims are valid under the independent tort doctrine; (2) correctly
upheld Euclid’s tort claims for conversion, aiding and abetting conversion, and civil conspiracy;
(3) correctly recommended denying Amerant’s request to strike Euclid’s request for punitive
damages; and (4) correctly recommended denying Amerant’s Motion to Dismiss Euclid’s claim
for declaratory relief. ECF No. [201].
i. 	Independent Tort Doctrine
As Judge Elfenbein has pointed out:
[t]he Florida Supreme Court has recognized that a party may bring “causes of action based
upon torts independent of the contractual breach even though there exists a breach of
contract action.” See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110
So. 3d 399, 402 (Fla. 2013) (citation omitted). “Where a contract exists, a tort action will
lie for either intentional or negligent acts considered to be independent from the acts that
breached the contract.” Id. (citation omitted). The Court has explained that claims are
“independent tort[s]” when they “require[] proof of facts separate and distinct from the
breach of contract.” See id. (citation omitted); cf. Lamm v. State St. Bank & Tr., 749 F.3d
938, 947 (11th Cir. 2014) (noting that “the exact contours of” the independent tort doctrine,
“as applied post-Tiara, are still unclear,” but that “the standard appears to be that where a
breach of contract is combined with some other conduct amounting to an independent tort,
the breach can be considered negligence” (quotation marks omitted)).
ECF No. [175] at 35.
Amerant first argues that Judge Elfenbein’s analysis failed to address the requirement that
plaintiffs “plead damages for tort claims ‘independent, separate and distinct from the damages
sustained from the contract’s breach.” ECF No. [190] at 4 (quoting Merch. One, Inc. v. TLO, Inc.,
No. 19-cv-23719, 2020 WL 248608, at *4 (S.D. Fla. Jan. 16, 2020)). Because Euclid “seeks the
identical damages for the contract and tort claims[,]” specifically, “compensatory damages + lost
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profits)”, Amerant argues Counts 1, 2, and 7 should be precluded by the independent tort doctrine.
Id. (citing ECF No. [111] ¶¶ 62-64, 65-69, 91-97, 104-109).
Indeed, this Court has previously recognized that “[w]here damages sought in tort are the
same as those for breach of contract a plaintiff may not circumvent the contractual relationship by
bringing an action in tort.” Merch. One, 2020 WL 248608, at *4 (quoting Ginsberg v. Lennar Fla.
Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994)). The Court also stated, “[h]owever, the
independent tort doctrine does not bar claims where the plaintiff alleges conduct independent from
acts that breach the contract, and do not in and of themselves constitute a breach of the contract.”
Id. (citing XP Glob. Inc. v. AVM, L.P., No. 16-cv-80905, 2016 WL 4987618, at *4 (S.D. Fla. Sept.
19, 2016)). As Euclid points out, it alleged “that Amerant’s misconduct involved ‘far more’ than
a simple breach of its obligation to show up [to] the closing or failure to transfer the notes to
Euclid.” ECF No. [201] at 7-8 (quoting ECF No. [175] at 38). The R&R described in detail the
allegations that support Counts 1, 2, and 7, but are not “necessary to prove [Euclid’s] breach-of-
contract claim.” ECF No. [175] at 37-39. These additional allegations of Amerant’s “affirmative
and intentional acts” included:
• 	Proactively negotiating a separate agreement with the SB Defendants to sell
the loans to SB Ecliptica for several hundred thousand dollars more than it
agreed to accept from Euclid. TAC ¶ 48.
• 	Obstructing Euclid’s due-diligence, as Amerant resisted seeking a court
order to permit Euclid’s inspection of the collateral. Id. ¶ 38.
• 	Colluding with the SB Defendants to speed up the completion of the
separate, more lucrative transaction with the SB Defendants, during the time
when Euclid’s due diligence was delayed and when it became clear that
Euclid wanted to move forward. Id. ¶ 50.
• 	Misrepresenting the status of the loans repeatedly to hide the competing sale
and prevent Euclid from taking immediate action to block the separate
transaction with the SB Defendants. Id. ¶ 52.
ECF No. [201] at 8.
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As this Court has previously held, “the independent tort doctrine will not bar tort claims
based on an ‘action beyond and independent of breach of contract that amounts to an independent
tort.’” Pearson v. Deutsche Bank AG, No. 21-cv-22437, 2023 WL 5905958, at *9 (S.D. Fla. Sept.
11, 2023) (quoting Reagan Wireless Corp. v. Apto Sols., Inc., No. 18-cv-61147, 2018 WL
4901127, at *3 (S.D. Fla. Oct. 9, 2018)). The R&R described in detail the allegations of Counts 1,
2, and 7 that were not “necessary to support a breach-of-contract claim.” ECF No. [175] at 37-39.
The Court agrees with the R&R’s analysis.
Amerant also argues that the R&R erred because, even if Euclid alleged conduct that is
“not necessary for a contract claim, the question is whether the alleged conduct is independent of
the contract and not itself a breach of the contract.” ECF No. [190] at 7. Because the “supposed
extra-contract allegations” all “arise from and are related to the contract” the independent tort
doctrine bars Counts 1, 2, and 7. Id. at 7-8. Euclid responds that Amerant “advances an
interpretation of the independent tort doctrine irreconcilable with Florida law” and “makes no
effort to reconcile its broad ‘arises from or related to’ rule with binding Florida precedent that
permits tort claims bearing some relationship to a contract to proceed.” ECF No. [201] at 9 (citing
Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. 3d DCA 1987) (“[W]e are not persuaded by the
argument that no civil theft or conversion occurred in this case because there was a contractual
relationship between the parties.”); Duncan v. Kasim, Inc., 810 So. 2d 968, 971 (Fla. 5th DCA
2002) (“This court held that the mere existence of a contractual relationship between the parties
does not preclude actions for civil theft and conversion.”); Pershing Indus., Inc. v. Estate of Sanz,
740 So. 2d 1246, 1248 (Fla. 3d DCA 1999) (holding that independent tort doctrine “does not
preclude independent tort claims that fall outside the scope of a breach of contract,” including
conversion)). Although there must be a “‘meaningful’ or ‘substantive’ distinction[] between the
tort claim and the breach of contract claim[,]” Amerant urges the Court to impose a lower standard
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for applying the independent tort doctrine. Kanen v. BBQ Holdings, Inc., No. 23-cv-62173, 2024
WL 5508197, at *11 (S.D. Fla. Nov. 8, 2024). Euclid responds that “[n]one of the authorities that
Amerant cites involved affirmative, extracontractual misconduct like Amerant engaged in here.
To the contrary, most of the cases concerned the simple failure of a defendant to pay a debt or
some other amount owed to the plaintiff.” ECF No. [201] at 7.
For example, Amerant argues that, in ReneG, this Court dismissed “claims for civil theft,
conversion and violation of Fla. Stat. § 674.401 as not independent from the deposit agreement,
which covered subject matter of tort claims[.]” ECF No. [190] at 8. However, in ReneG, this Court
found that these claims were barred by the independent tort doctrine because “each claim is
premised on” the alleged breach of contract and “Plaintiff has failed to allege any independent act
that would support the tort claims.” ReneG, 2025 WL 2239263, at *4. Similarly, in Alhassid v.
Bank of Am., N.A., which Amerant also cites, this Court found that the “minimal facts alleged by
Plaintiffs to substantiate their claim for civil conspiracy are identical to their remaining breach of
contract allegations.” 60 F. Supp. 3d 1302, 1318 (S.D. Fla. 2014). Therefore, the Court determined
that the plaintiffs “have not pleaded any breach or injury separate and apart from their breach of
contract claims.” Id. The same is not true here as Euclid has alleged several affirmative,
independent acts that are distinct from the breach of contract claim.
To the extent Amerant argues that Euclid “seeks the identical damages for the contract and
tort claims,” Amerant relies upon the fact that in Counts 1, 2, and 7, Euclid states it is entitled to
“compensatory damages and lost profits.” ECF No. [111] ¶¶ 64, 69, 97, 103, 108. However, these
are broad categories of damages that apply across a wide range of causes of action. The mere fact
that Euclid alleges that it is “entitled to judgment against Defendants for compensatory damages
[and] lost profits” cannot be interpreted to mean that it is therefore asking for identical damages
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for every claim. In making this argument, Amerant misinterprets Peebles v. Puig, in which the
Court stated it is “well settled that, for an alleged misrepresentation regarding a contract to be
actionable, the damages stemming from that misrepresentation must be independent, separate and
distinct from the damages sustained from the contract's breach.” 223 So. 3d 1065, 1068 (Fla. 3d
DCA 2017). As Euclid notes, Peebles “was decided post-trial, after all evidence was presented,
and stands for the proposition that a plaintiff may not recover ‘duplicate damages.’” ECF No.
[201] at 12 (quoting Peebles, 223 So. 3d at 1069). Euclid also argues that “[t]his case is not like
Merch. One . . . where damages were limited to a defendant’s failure to pay a defined sum. Rather,
Euclid alleges a complex scheme resulting in various forms of harm, including substantial lost
profits.” Id. (citing Merch. One, 2020 WL 248608 at *4). Therefore, the R&R properly concluded
that the independent tort doctrine does not bar Counts 1, 2, and 7. ECF No. [175] at 39.
ii. 	Conversion; Aiding and Abetting Conversion
To state a claim for conversion against Amerant, Euclid “must allege Amerant wrongfully
asserted dominion over [Euclid]’s property in a way that was inconsistent with [Euclid’s]
ownership interest.” ECF No. [175] at 40 (citing Special Purpose Accts. Receivable Co-op Corp.
v. Prime One Cap. Co., 125 F. Supp. 2d 1093, 1099 (S.D. Fla. 2000)). The R&R noted that Euclid
alleged “Amerant ‘secretly sold’ the Notes and Guarantees to Ecliptica and that the sale ‘was
inconsistent with’” Euclid’s ownership rights under the Assignment Agreement. Id. (quoting ECF
No. [111] at 6, 19). Euclid also alleged that Amerant “exerted wrongful dominion and control over
the Notes, Guarantees, and related documentation, rather than transferring those documents to”
Euclid, despite Euclid’s demand for their return. 	Id. (quoting ECF No. [111] at 19). Therefore,
Judge Elfenbein concluded that the allegations “are sufficient to satisfy the elements of
conversion.” Id. (citing Bove v. PBW Stock Exch., Inc., 382 So. 2d 450, 452 (Fla. 2d DCA 1980)).
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The R&R rejected Amerant’s argument, now raised again in its Objections, that Euclid
“does not have a sufficient ownership interest in the Notes and related rights because Florida has
not recognized that a party can hold equitable title outside of the real estate context, so there cannot
be ‘equitable conversion’ here.” Id. at 41 (citing ECF No. [131] at 8-9). Judge Elfenbein relied
upon the caselaw Euclid “cite[d] in its Response, including decisions in which Florida courts
recognized conversion of equitable owners’ interests in a stock exchange seat and a jet (albeit
without explicitly calling the interests equitable)[.]” Id. This caselaw, the R&R concluded,
“suggests that Florida law would in fact permit the theory in this context.” Id. (citing Bove, 382
So. 2d at 452-54; Un2jc Air 1, LLC v. Whittington, 324 So. 3d 1, 4-5 (Fla. 4th DCA 2021)).
Judge Elfenbein also addressed Amerant’s argument, now raised again in its Objections,
that even if “equitable conversion does apply in this context,” Euclid did not acquire an interest in
the Notes “because it never paid the full purchase price of the Assignment Agreement, which was
a condition precedent to Amerant delivering the Notes, and because Amerant never treated
[Euclid] as a de facto owner, which was a feature of [Euclid’s] main supporting authority (Bove).”
Id. (citing ECF No. [153] at 5-6). The R&R concluded that, although those arguments may
ultimately preclude Euclid “from proving conversion against Amerant, they do not make [Euclid’s]
allegations inadequate to state a claim for conversion, particularly because the Court must accept
all factual allegations in the Third Amended Complaint as true and take them in the light most
favorable” to the plaintiff. Id. (citing Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th
Cir. 2016); Campos v. INS, 32 F. Supp. 2d 1337, 1343 (S.D. Fla. 1998)).
In its Objections, Amerant first argues that the R&R erred in relying upon Bove and
Whittington to conclude that “‘Florida law would in fact permit the theory’ that a party can hold
equitable title outside of the real estate context[,]” because those cases are distinguishable. ECF
No. [190] at 10 (quoting ECF No. [175] at 40-41). In Bove, the plaintiff
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paid defendant for a seat on defendant’s stock exchange and made a trading account
deposit. Because Bove was not a licensed stockbroker, Bove associated with a
licensed broker, Byrne, and the seat was formally taken in Byrne’s name with an
entity owned by Bove and Byrne listed as the exchange member. However,
everyone knew that Byrne was [the] de facto (and thus equitable) owner of the seat.
After a dispute arose between defendant and Byrne, defendant sold the seat to
another party without notice to Bove [and] Bove sued for conversion. The court
reversed a summary judgment for defendant finding the record disputed the
conversion claim.
Id. (citing Bove, 382 So. 2d at 452).
Euclid responds that Bove is persuasive because “the Second DCA expressly held that ‘[a]n
equitable owner can maintain the action’ for conversion, and the plaintiff sought ‘both
compensatory and exemplary damages.’” ECF No. [201] at 12-13 (quoting Bove, 382 So. 2d at
452). Euclid further argues that “[t]he Fourth DCA’s decision in Whittington, 324 So. 3d at 3, also
defeats Amerant’s argument” because “the court held that the plaintiff had alleged a ‘superior
interest’ in the plane based on its allegations that it had fulfilled its obligations under the contract,
which sufficed to establish the ownership element for a conversion claim.” Id. at 15 (citing
Whittington, 324 So. 3d at 2).
Amerant’s argument that Bove is differentiable because “Euclid did not pay the purchase
price to Amerant and Euclid was never treated as a de facto owner[,]” is unavailing because, as
the R&R stated “‘those arguments may ultimately preclude [Euclid] from proving conversion
against Amerant,” but they do not make Euclid’s “allegations inadequate to state a claim for
conversion.” ECF No. [175] at 41. To the extent Amerant argues that “the alleged conversion had
already occurred before Euclid could even claim to be an equitable owner or entitled to
possession,” ECF No. [190] at 12, Judge Elfenbein correctly stated that on a motion to dismiss,
the Court must accept all factual allegations in the Third Amended Complaint as true and take
them in the light most favorable to Euclid. ECF No. [175] at 41. Euclid alleged that it “had a right
to possession of the Notes, the Guarantees, and related documentation concerning property
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interests in the Collateral and all other rights and obligations in relation thereto[.]” ECF No. [111]
¶ 61. As Amerant acknowledges, Euclid pled that “by entering into the Assignment Agreement,
Amerant was ‘unconditionally obligated to sell, assign and transfer’ the Loan Documents to
Euclid[.]” ECF No. [190] at 11 (quoting ECF No. [111] at 32). Euclid also alleged that Amerant
“‘exerted wrongful dominion and control over the Notes, Guarantees, and related documentation,
rather than transferring those documents to’ [Euclid], despite [Euclid’s] demand for their return.”
ECF No. [175] at 40 (citing ECF No. [111] at 19). As Judge Elfenbein concluded, “[t]hose
allegations are sufficient to satisfy the elements of conversion. See Bove, 382 So. 2d at 452
(explaining that the wrongful sale of another’s property is conversion).” Id.
Amerant’s objection as to the R&R’s reliance upon Whittington is similarly unavailing.
Amerant argues that in Whittington, “the court found that conversion was properly pled because
as lessee of the aircraft, plaintiff was entitled to immediate possession.” ECF No. [190] at 11 (citing
Whittington, 324 So. 3d at 3). Although Whittington does not mention equitable ownership or title,
as Euclid noted, the plaintiff in Whittington
entered into a contract to purchase a plane similar to the Loan Sale Agreement
between Amerant and Euclid, in that it required the plaintiff to make “monthly
payments” to the defendant, which “would continue to retain ownership of the jet
until all payments” were made. [Whittington, 324 So. 3d] at 2. When the plaintiff
failed to make a monthly payment, which it claimed was permissible due to the cost
of repairs, the defendant retook possession of the plane. Id. Reversing the dismissal
of the plaintiff’s conversion claim, the court held that the plaintiff had alleged a
“superior interest” in the plane based on its allegations that it had fulfilled its
obligations under the contract, which sufficed to establish the ownership element
for a conversion claim. Id. at 3-4. As the plane purchaser in Whittington did not
hold formal title to the plane, its ownership interest was no different than Euclid’s
here.
ECF No. [201] at 15.
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To the extent Amerant argues that Whittington is distinguishable because the plaintiff in
Whittington was entitled to immediate possession whereas “the Assignment Agreement conditions
delivery of the Loan Documents only against Amerant’s receipt of the purchase price proceeds
from Euclid, which never occurred (and has not been alleged)[,]” ECF No. [190] at 11, the Court
again agrees with Judge Elfenbein’s conclusion. Such an argument “may ultimately preclude
[Euclid] from proving conversion against Amerant, [but] they do not make [Euclid’s] allegations
inadequate to state a claim for conversion.” ECF No. [175] at 41. Euclid alleged that it had
“superior property rights in certain promissory notes, guarantees, and underlying collateral and
real estate” and “Defendant Amerant unconditionally agreed to sell, assign, and transfer its
property rights to Euclid,” but “Amerant secretly sold those same rights to Ecliptica at a price
higher than the amount it had previously and unconditionally agreed to accept from Euclid.” ECF
No. [111] ¶ 19. Therefore, Euclid has stated a claim for conversion. Because Euclid has stated a
claim for conversion, Amerant has not raised any basis for dismissing the claim of aiding and
abetting conversion. See ECF No. [190] at 13.
iii. 	Civil Conspiracy
Amerant contends that Count 7 “alleges that Amerant conspired to commit conversion,
tortious interference with a business relationship and tortious interference with contract[,]” but the
R&R “only analyzed the conversion claim as the underlying wrongdoing against Amerant.” ECF
No. [190] at 13. Because the “conspiracy claim fails if the underlying claims are not viable[,]”
Amerant argues Count 7 should be dismissed. ECF No. [190] at 14. However, in light of the
Court’s holding that Euclid has stated a claim as to Counts 1 and 2, Amerant’s Objection as to
Count 7 also fails.
Amerant also points out that Count 7 alleges that “Defendants conspired together to commit
conversion, tortious interference with a business relationship, and tortious interference with a
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contract[,]” ECF No. [111] ¶ 99, however, tortious interference with a contract, Count 3, is not
asserted against Amerant and, in its Response to Amerant’s Motion, Euclid agreed to dismiss
Counts 5 and 6 against Amerant. See ECF No. [175] at 36 (citing ECF No. [140] at 1 n.1).
Therefore, Amerant argues that neither claim is a proper predicate claim for conspiracy against
Amerant. ECF No. [190] at 14. However, because the Court found that Euclid has stated a claim
for conversion against Amerant, which may serve as a predicate claim for civil conspiracy, Euclid
has also stated a claim for civil conspiracy against Amerant. Alhassid, 60 F. Supp. 3d at 1317
(“[S]o long as a valid claim is alleged to have been committed, and the named Defendants are
alleged to have conspired with the primary tortfeasor, the civil conspiracy claim may proceed.”)
(internal alterations omitted) (quoting Liva v. Mendolia, 2014 WL 2118814, at *4 (S.D. Fla. May
21, 2014)).
iv. 	Punitive Damages
Amerant argues that, in recommending the denial of its Motion to Strike Euclid’s punitive
damages claim, the R&R erred by failing to address “Amerant’s argument that Euclid has not
sufficiently alleged specific acts or wrongdoing, rather than conclusory allegations or labels,
reflecting malice, moral turpitude, wantonness, willfulness or reckless indifference by Amerant to
Euclid’s rights.” ECF No. [190] at 15-16. Euclid responds that the basis for punitive damages “is
the very same extra-contractual conduct that the R&R thoroughly analyzed in its discussion of the
independent tort doctrine.” ECF No. [201] at 18.
As Euclid points out, the Complaint
explicitly alleges that “Defendants had actual knowledge of the wrongfulness of
their conduct and the high probability that it would harm Euclid, but nevertheless
intentionally pursued that course of conduct.” (TAC ¶ 57.) It alleges a “calculated,
secret alliance” (TAC ¶ 56) to defraud Euclid for profit, and that Amerant
proceeded “despite warnings from its in-house counsel that such an agreement
would lead Amerant to breach its obligations to” Euclid. (TAC ¶ 51). These are not
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conclusory labels; they are specific allegations that support a claim for punitive
damages. (ECF No. 190 at 16.).
Id.
As such, the R&R properly found that Euclid’s “requests for punitive damages, which are
rooted in its intentional tort claims, are appropriately included in the Third Amended Complaint.”
ECF No. [175] at 44 (citing, e.g., Cerny v. Boulevard Del, Inc., No. 18-cv-1808, 2019 WL
5291208, at *8 (M.D. Fla. July 11, 2019) (“Punitive damages are also recoverable for
conversion.”)).
v. 	Declaratory Judgment
Amerant argues that Euclid’s declaratory judgment claim is duplicative in light of the Third
Amended 	Complaint 	“because 	Euclid 	has 	dropped 	its 	claims 	for 	specific 	performance,
constructive trust and other claims to determine proper ownership of the Loan Documents and
seeks only damages.” ECF No. [190] at 17 (citing ECF No. [140] at 3). Because “[t]here is no
existing claim that any party other [than] Ecliptica ‘lawfully owns’ the Loan Documents; only that
Euclid was damaged when Amerant did not sell to Euclid[,]” Amerant argues that the declaratory
judgment claim “duplicates the contract claim and is due to be dismissed.” Id. Euclid responds that
the “dismissal of a claim for declaratory relief is not mandatory when a claim for damages is
brought simultaneously” and “[d]eclaratory relief can still serve the useful purpose of clarifying
and settling the legal relations in issue, even when damages are also sought.” ECF No. [201] at 19
(internal quotations omitted); see United Church of Marco Island v. Lexington Insurance Co., No.
2:23-cv-331- JES-KCD, 2023 WL 4865729, at *2 (M.D. Fla. July 31, 2023) (denying motion to
dismiss parallel declaratory relief claim).
Amerant does not dispute that the Court has discretion to permit the declaratory judgment
claim to proceed at the motion to dismiss stage. See ECF No. [190] at 16-17. Instead, it argues that
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an exercise of that discretion is not warranted because the declaratory judgment claim “provides
the plaintiff with no relief unavailable under its other claims.” Id. at 17 (citing Cooseman’s Miami,
Inc. v. Aspen Specialty Ins. Co., No. 22-cv-23264, 2023 WL 315803, at *2 (S.D. Fla. Jan. 19,
2023); Arch Ins. Co. v. A3 Dev., LLC, No. 23-CV-23524, 2025 WL 1504176, at *8 (S.D. Fla. May
27, 2025)).
In Cooseman, the court agreed with the defendant that the plaintiff could not “prevail on
its breach of contract claim unless the Court determines that Plaintiff’s loss is covered by the
policy. Accordingly, ‘the declaratory judgment count would serve no useful purpose because the
issues will be resolved by another claim[.]’” 2023 WL 315803, at *2 (quoting Organo Gold Int'l
Inc. v. Aussie Rules Marine Servs., Ltd., 416 F. Supp. 3d 1369, 1377 (S.D. Fla. 2019)). By contrast,
here, “[t]he breach-of-contract claim seeks to determine whether Amerant breached its contract in
the past and seeks damages for that alleged breach. The rights that claim decides are between
[Euclid] and Amerant alone.” ECF No. [175] at 46. However, the declaratory judgment claim “will
impact all parties with an interest in the Notes, not just [Euclid] and Amerant. And when a
declaratory judgment claim is forward-looking in that way instead of retrospective, it is not
duplicative.” Id. (citing Mena Catering, Inc. v. Scottsdale Ins. Co., 512 F. Supp. 3d 1309, 1322
(S.D. Fla. 2021); Cooseman’s, 2023 WL 315803, at *2).
Additionally, in Arch, this Court found that “litigating the question of breach in both the
Declaratory Judgment and Breach of Contract claims would be ‘inefficient and unnecessary’ since
resolution of the Breach of Contract claims will afford Plaintiff full and complete relief,” thereby
warranting dismissal of the declaratory judgment action. 2025 WL 1504176, at *8. Here, however,
resolution of the breach of contract claim, as to Amerant, would not inherently “declar[e] Euclid’s
superior rights, interests, and title to the Notes, Guarantees, the security interests and liens in the
Collateral, and other related obligations.” ECF No. [111] ¶ 120. Although Euclid does not seek
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specific performance, it seeks a declaration of “the existence and superiority of Euclid’s rights and
the non-existence of Ecliptica’s rights in the Notes and Guarantees.” Id. ¶ 119. Therefore, the Court
exercises its discretion and permits the declaratory judgment claim. Accordingly, Amerant’s
Objections are overruled.
B. Alliance Defendants’ Objections
Alliance Defendants objected to the R&R, arguing that it failed to dismiss (1) Count 2, the
aiding and abetting conversion claim, despite the absence of a present possessory interest and the
inapplicability of equitable conversion to negotiable instruments; (2) Counts 5 and 6, the tortious
interference and aiding and abetting claims, by rewarding conclusory pleading and misapplying
the “stranger” doctrine; and (3) Count 7, the civil conspiracy claim, despite conclusory allegations.
ECF No. [189].
i. 	Absence of Present Possessory Interest and Inapplicability of Equitable
Conversion
Alliance Defendants argue that the Court may not apply equitable principles to negotiable
instruments because the UCC governs negotiable instruments. ECF No. [189] at 5 (citing Fla. Stat.
§ 673.1021). Cases such as Bove and Whittington involved “an identifiable, tangible asset,”
however, the instant case involves a negotiable instrument. Id. at 4. Therefore, Alliance Defendants
argue, “[b]ecause Article 3 [of the UCC] comprehensively governs negotiable instruments . . .
doctrines like ‘equitable conversion’ have no role.” Id. (citing Fla. Stat. ch. 673). In Response,
Euclid notes “the UCC itself defeats the Alliance Defendants’ argument” because it states that the
“law applicable to conversion of personal property applies to instruments.” ECF No. [202] at 9
(quoting Fla. Stat. § 673.4201).
Alliance Defendants’ argument that Bove and Whittington’s expansion of equitable
conversion is not applicable to the instant case because those cases involved “personal property”
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is unpersuasive. The UCC states that “[t]he law applicable to conversion of personal property
applies to instruments.” Fla Stat. § 673.4201. To the extent Alliance Defendants argue that “Article
3 displaces equitable analogies here[,]” it does not explain why equitable conversion cannot be
read into the UCC. ECF No. [189] at 5. Indeed, Section 671.103 states that “[u]nless displaced by
the particular provisions of this code, the principles of law and equity . . . shall supplement its
provisions.” Fla Stat. § 671.103 (emphasis added).
Courts have found, within the context of secured transactions governed by the UCC, “once
default has occurred, a secured creditor has the right to possess the collateral and is authorized to
take possession of the collateral.” Beach Cmty. Bank v. Disposal Servs., LLC, 199 So. 3d 1132,
1134 (Fla. DCA 1st 2016). In Beach Cmty, Beach was the successor in interest of creditors that
made loans to the Debtor, which was secured by Containers worth $400,800. Id. at 1133. Without
notice to Beach, the Debtor sold the Containers to Disposal, but did not apply the sale proceeds to
the loans and subsequently defaulted on its loan obligations to Beach. Id. “Following Disposal’s
acquisition of the Containers and Debtor’s default on the loans, Beach made [a] written demand
to Disposal for either repayment of the loans in full or return of the Containers.” Id. The Court
held that, “[r]egardless of whether Disposal acquired rightful possession of the Containers when it
purchased them from Debtor, once the Debtor defaulted on its loan obligations, Beach gained the
right to possess the Containers as collateral securing the debt.” Id. at 1135. After Beach “informed
Disposal that Beach was a creditor with rights to possess the Containers and demanded their return,
Disposal had the opportunity to comply with the proper demand. By refusing to comply with
Beach’s lawful demand, Disposal took an overt action inconsistent with Beach’s possessory rights,
thereby completing the necessary elements for a claim of conversion.” Id.
A similar analysis can be applied to Euclid’s possessory interest here. Euclid alleged that
it had “a right to possession of the Notes, the Guarantees, and related documentation concerning
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property interests in the Collateral” and Euclid “demanded return of such property; but Defendants
did not relinquish such property to Euclid.” ECF No. [111] ¶ 67. Accordingly, the R&R correctly
concluded that case law “suggests that Florida law would in fact permit the theory” of conversion
of equitable owners’ interests “in this context.” ECF No. [175] at 41.
To the extent Alliance Defendants argue that Euclid did not have a present possessory
interest in the notes, such an argument “may ultimately preclude [Euclid] from proving [aiding
and abetting] conversion” however, “they do not make [Euclid’s] allegations inadequate to state a
claim for [aiding and abetting] conversion, particularly because the Court must accept all factual
allegations in the Third Amended Complaint as true and take them in the light most favorable to
[Euclid].” ECF No. [175] at 41 (citing Dusek, 832 F.3d at 1246; Campos, 32 F. Supp. 2d at 1343).
ii. 	Conclusory Pleading as to Counts 5 and 6
Alliance Defendants argue that the R&R improperly applied a “‘relaxed’ standard” as to
Counts 5 and 6 and drew “inferences from purely conclusory recitals.” ECF No. [189] at 6.
Specifically, Alliance Defendants argue that the only allegation “supporting inferences of intent
and knowledge is the alleged January 2024 inspection delay. . . . Yet the Complaint alleges nothing
about what any specific Alliance Defendant said or did in relation to that inspection, when those
acts occurred, or who from Euclid allegedly communicated with them.” Id. Similarly, regarding
Count 6, Alliance Defendants argue the Complaint “identifies no basis for knowledge, no act of
assistance, and no individual actor.” Id. at 7. Although the Complaint “fails to apportion its
allegations among the Defendants, leaving it entirely unclear who engaged in which acts, made
which communications, or possessed which knowledge[,]” Alliance Defendants argue that the
R&R improperly “treat[ed] these conclusory allegations as sufficient.” Id. Euclid responds that the
Complaint directly alleges knowledge and “sets forth affirmative acts taken by the Alliance
Defendants to enable, facilitate, and ultimately effectuate the conversion of Euclid’s property
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rights, including post-conversion actions taken by the Alliance Defendants to conceal and defeat
Euclid’s ability to reclaim the converted property rights.” ECF No. [202] at 10.
In order to state a claim for tortious interference with a business relationship, Euclid must
allege: “(1) the existence of a business relationship under which the plaintiff has legal rights; (2)
knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified
interference with that relationship by the defendant; and (4) damage to the plaintiff as a result of
the breach of the business relationship.” Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041,
1048 (Fla. 4th DCA 2009) (quoting N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 639 So. 2d
32, 33 (Fla. 4th DCA 1994)).
The Eleventh Circuit has held that a plaintiff “need not have pled [the defendant’s]
knowledge of the relevant contracts2 with specificity[.]” Sun Life Assurance Co. of Canada v.
Imperial Premium Fin., LLC, 904 F.3d 1197, 1215 (11th Cir. 2018). The fact that the plaintiff
“expressly alleged that [the defendant] knew of the . . . contracts with [the plaintiff]” is sufficient.
Id. As the R&R points out, Euclid “explicitly alleged the Alliance Defendants knew about both
the Assignment Agreement with Amerant (the relevant contract in Count 3) and its prospective
business relationship with Alliance Metals and Alliance Alabama, a business relationship which,
according to [Euclid]’s allegations, existed by virtue of the Assignment Agreement (the relevant
business relationship in Count 5).” ECF No. [175] at 51 (citing ECF No. [111] at 21-24). Euclid
adds further detail to the knowledge element, “by alleging its ‘representatives informed the
Alliance Defendants of the Assignment Agreement’ and then ‘exchanged text messages with the
Alliance Defendants, including L. Gitman and J. Gitman,’ between January 3 and 8 trying (but
2 Although Sun Life involved a claim for tortious interference with a contract, the Eleventh Circuit has recognized that
“[t]ortious interference with a contract and tortious interference with a business relationship are basically the same
cause of action . . . The only material difference appears to be that in one there is a contract and in the other there is
only a business relationship.” Pilkington v. United Airlines, 112 F.3d 1532, 1540 (11th Cir. 1997) (internal citations
omitted).
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failing) to secure their cooperation with restarting the business.” Id. at 51-52 (citing ECF No. [111]
at 14). Therefore, Euclid properly alleges knowledge.
As to the intentional interference element, Euclid alleges “[t]he Alliance Defendants
preferred for the SB Defendants, rather than Euclid, to purchase the Notes, because the SB
Defendants agreed to allow the Alliance Defendants to maintain an ownership and operational
interest in the underlying aluminum smelting business, whereas Euclid would not accept the
Alliance Defendants’ unreasonable demands.” ECF No. [111] ¶ 48. Therefore, in order to “give
the SB Defendants and Amerant time to work out the details of their illicit deal, SB Defendants,
Amerant, and the Alliance Defendants colluded to delay Euclid’s completion of its due diligence,
particularly Euclid’s inspection of the Alliance Metals’ facility and Collateral, despite Euclid’s
urgent requests to expedite the process.” Id. ¶ 49. Although Alliance Defendants argue that the
Complaint “alleges nothing about what any specific Alliance Defendant said or did in relation to
that inspection, when those acts occurred, or who from Euclid allegedly communicated with
them[,]” such specificity is not required. ECF No. [189] at 6. See ECB USA, Inc. v. Savencia
Cheese USA, LLC, 148 F.4th 1332, 1349 (11th Cir. 2025) (“[W]e apply the less demanding
pleading standard” to a tortious interference claim). Because the Complaint contains “more than .
. . a formulaic recitation of the elements[,]” Euclid has stated a claim for tortious interference with
a business relationship. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In order to state a claim for aiding and abetting tortious interference, Euclid must allege
“(1) an underlying violation on the part of the primary wrongdoer; (2) knowledge of the underlying
violation by the alleged aider and abettor; and (3) the rendering of substantial assistance in
committing the wrongdoing by the alleged aider and abettor.” Letidas Logistics, LLC v. Citibank,
N.A., 789 F. Supp. 3d 1121, 1128 (S.D. Fla. 2025)).
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The R&R found that “the same allegations described . . . as to the Alliance Defendants’
knowledge of and substantial assistance with Ecliptica’s conversion apply to the Gitmans’ and
Technocon’s knowledge of and substantial assistance with Ecliptica’s tortious interference.” ECF
No. [175] at 61. Specifically, Ecliptica tortiously interfered with the “prospective business
relationship” between Euclid and Alliance Metals and Alliance Alabama. Id. Therefore, “the
reasons the Gitmans and Technocon knew about Ecliptica’s conversion would also be the reasons
they knew about its tortious interference and that the ways in which the Gitmans and Technocon
substantially assisted Ecliptica’s conversion would also be the ways they substantially assisted its
tortious interference.” Id.
Euclid 	has 	alleged 	an 	underlying 	claim 	for 	tortious 	interference 	with 	a business
relationship. Additionally, Euclid has alleged that in order to “give the SB Defendants and
Amerant time to work out the details of their illicit deal, SB Defendants, Amerant, and the Alliance
Defendants colluded to delay Euclid’s completion of its due diligence, particularly Euclid’s
inspection of the Alliance Metals’ facility and Collateral, despite Euclid’s urgent requests to
expedite the process.” ECF No. [111] ¶ 49. Therefore, Alliance Defendants were aware of the
underlying tortious interference with the business relationship between Euclid and Alliance Metals
and Alliance Alabama. Id. ¶ 92. Because Alliance Defendants “colluded to delay Euclid’s
completion of its due diligence, particularly Euclid’s inspection of the Alliance Metals’ facility
and Collateral, despite Euclid’s urgent requests to expedite the process[,]” Alliance Defendants
rendered 	substantial 	assistance 	in 	the 	underlying 	tortious 	interference 	with 	the 	business
relationship. Id. ¶ 49.
iii. 	Application of Florida’s Stranger Doctrine
Alliance Defendants argue that the R&R misapplied “Florida’s ‘stranger’ doctrine” as to
the tortious interference claim “and ignore[d] the qualified privilege that shields interested parties
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from liability.” ECF No. [189] at 8. Euclid responds that the R&R properly rejected this argument
because (1) the question of whether a defendant’s interference is privileged is an affirmative
defense, not properly addressed at the motion to dismiss stage; (2) even those who have a privilege
to interfere in a business relationship to protect their own economic interests may be liable for
tortious interference if they do so in bad faith; and (3) Alliance Defendants were not parties to the
Euclid-Amerant Assignment Agreement, therefore, their interference was not privileged or
justified, regardless. ECF No. [202] at 12-18.
As an initial matter, this Court has previously recognized that “the assertion of a privilege
to interfere in an otherwise protected business relationship is an affirmative defense,” therefore,
the “privilege argument . . . is unavailing on a motion to dismiss.” Wilson v. EverBank, N.A., 77
F. Supp. 3d 1202, 1239 (S.D. Fla. 2015) (quoting Persaud v. Bank of Am., N.A., No. 14-21819-
CIV, 2014 WL 4260853, at *15 (S.D. Fla. Aug. 28, 2014)). And, in a thorough review of Florida’s
law on tortious interference with a business relationship, Judge Elfenbein stated
[t]hough it explicitly declined to decide the issue, the Eleventh Circuit has noted
Florida “apparently places the burden 	on the plaintiff to show 	unjustified
interference, but then requires the defendant to prove that the interference was
lawful” — or, stated another way, “once the plaintiff establishes a prima facie case
of interference, the burden shifts to the defendant to justify the propriety of its
conduct.” Austral Insulated, 262 F.3d at 1158-59 (quotation marks omitted). Still,
“when courts talk about a party’s act as unjustified or unlawful, they essentially are
talking about the same thing.” Id. at 1158 (quotation marks omitted). For that
reason, many courts have declined to dismiss tortious interference claims based on
the justification/privilege component. See, e.g., Peacock, 432 So. 2d at 144-45
(“[W]ithout 	undertaking 	on 	this 	record 	to 	state 	definitively 	where
counterclaimants’ burden to allege unjustified interference ends and where [the
defendant’s] burden to allege its privilege begins, we conceive that the complaint
alleges tortious conduct . . . sufficiently to withstand a motion to dismiss.”
(footnotes and quotation marks omitted)) . . . .
ECF No. [175] at 25.
Euclid has established a prima facie case of tortious interference with a business
relationship. The Court agrees with the R&R’s conclusion that the parties’ arguments as to whether
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Alliance Defendants had a privilege to interfere or were justified in their interference “highlight
the difficulty of assessing a privilege/justification defense at the motion-to-dismiss stage. As many
courts have recognized, it is far from clear where [Euclid]’s burden to allege unjustified
interference ends and where the Alliance Defendants’ burden to allege privilege begins.” Id. at 54
(citing Peacock, 432 So. 2d at 144-45; Austral Insulated, 262 F.3d at 1158; Berkley Ins. Co. v.
Banc of Am. Cmty. Dev. Co., LLC, 386 So. 3d 623, 625 (Fla. 2d DCA 2024); Glob. Marine Expl.,
Inc. v. Republic of France, 151 F.4th 1296, 1312-13 (11th Cir. 2025)).
Although Alliance Defendants argue that they “are the source of the relationship at issue”
because their “property and debts gave rise to the Assignment Agreement,” ECF No. [189] at 8,
“neither L. Gitman, J. Gitman, nor Technocon is a party to the alleged business relationship” in
Count 5. ECF No. [175] at 54. Therefore, on the face of the Complaint, “the Alliance Defendants
are, at most, interested third parties[,]” who may “assert the privilege to interfere . . . but they
cannot use improper means to do so[.]” Id. at 54-55 (citing M & M Realty Partners at Hagen
Ranch, LLC v. Mazzoni, 982 F.3d 1333, 1339 (11th Cir. 2020); Ernie Haire Ford, Inc. v. Ford
Motor Co., 260 F.3d 1285, 1294 (11th Cir. 2001); Johnson Enters. of Jacksonville, Inc. v. FPL
Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998)).
Even if Alliance Defendants are “interested third parties,” as Euclid notes, the Complaint
alleges that the Alliance Defendants “had actual knowledge of the wrongfulness of their conduct
and the high probability that it would harm Euclid, but nevertheless intentionally pursued that
course of conduct, resulting in said harm.” ECF No. [111] ¶ 57. Indeed, the Complaint specifically
alleges Alliance Defendants’ motives: “Euclid’s representatives exchanged text messages with the
Alliance Defendants, including L. Gitman and J. Gitman, in which the Alliance Defendants refused
to cooperate with Euclid unless Euclid agreed to demands from the Alliance Defendants for cash
and an equity interest in the re-started business” and “Alliance Defendants preferred for the SB
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Defendants, rather than Euclid, to purchase the Notes, because the SB Defendants agreed to allow
the Alliance Defendants to maintain an ownership and operational interest in the underlying
aluminum smelting business, whereas Euclid would not accept the Alliance Defendants’
unreasonable demands.” Id. ¶¶ 45, 48. To the extent Alliance Defendants argue that the actions
they were alleged to have taken in the Complaint do not qualify as “improper means,” the
definition of improper means is not as restrictive as Alliance Defendants suggest. ECF No. [189]
at 9. “Ultimately, to determine whether interference is justified or privileged requires a
commonsense consideration of whether the conduct was ‘sanctioned by the rules of the game’ and
what is ‘right and just’ under the circumstances.” Bluesky Greenland Env't Sols., LLC v. 21st
Century Planet Fund, LLC, 985 F. Supp. 2d 1356, 1367 (S.D. Fla. 2013). “Improper means”
include “physical violence, misrepresentations, intimidation, conspiratorial conduct, illegal
conduct and threats of illegal conduct.” Id. “Misrepresentations” include false statements or
omissions of material facts. Id. (citing Boldstar Technical LLC v. Home Depot, 517 F. Supp. 2d
1283 (S.D. Fla. 2007); Berg v. Capo, 994 So. 2d 322 (Fla. 3d DCA 2007)). As Euclid notes, the
“improper means” alleged in the Complaint include:
(a) “misl[eading] representatives of Euclid regarding the scheduling” of the
diligence inspection in order to buy Amerant and Ecliptica more time to deprive
Euclid of its contractual and property rights under the Assignment Agreement, TAC
¶¶ 49, 51; (b) refusing, in bad faith, to permit the diligence inspection, again, to
grant the co-conspirators more time to accomplish the interference, TAC ¶¶ 49, 51;
(c) colluding and conspiring with the SB Defendants to accomplish the Amerant-
Ecliptica deal in secret, TAC ¶¶ 44, 51, 56; (d) reorganizing Alliance Metals and
Alliance Alabama to interfere with Euclid’s rights to the collateral, TAC ¶ 52; and
(e) creating a new entity to conceal and protect the collateral in an attempt to defeat
Euclid’s property and contractual rights, TAC ¶¶ 53–54
ECF No. [202] at 13.
The Court agrees with the R&R’s conclusion that these allegations of misrepresentation
and conspiratorial conduct are sufficient to avoid dismissal.
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iv. 	Conclusory Allegations as to Civil Conspiracy
In order 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.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d
DCA 1997).
Alliance Defendants argue that the R&R’s analysis regarding Count 7 “repeats the same
fundamental pleading errors that infect its analysis of Counts 5 and 6.” ECF No. [189] at 10.
Specifically, Alliance Defendants contend the Complaint “fails to allege any actual agreement,
communication, or overt act” and 	relies on 	“collective, 	undifferentiated accusations that
‘Defendants’ acted ‘together’ to interfere with [Euclid’s] transaction.” Id. at 10, 11. In Response,
Euclid argues that the R&R conducted the proper analysis. ECF No. [202] at 18-9.
In the R&R, Judge Elfenbein rejected the arguments Alliance Defendants’ now raise as
Objections. She concluded that, although Euclid’s “general allegations of conspiracy are
inadequate[,]” Euclid has “alleged its civil conspiracy claim with enough specificity to survive
dismissal.” ECF No. [175] at 62. Although Euclid does not allege in the count-specific allegations
“which particular Defendants took each action, earlier allegations fill in those details.” Id. at 63.
Indeed, the R&R notes that the Complaint alleges
“the Alliance Defendants colluded” with Amerant and the Bratushev Defendants
“to delay” [Euclid’s] “completion of its due diligence, particularly” its “inspection
of the Alliance Metals’ facility and” the machinery/equipment collateral. See ECF
No. [111] at 15. [Euclid] alleges “[r]epresentatives of Alliance Metals and Alliance
Alabama misled” [Euclid’s] representatives “regarding the scheduling of an
inspection and refused to permit an inspection at the times” [Euclid] requested,
which caused a delay in [Euclid’s] ability to notify Amerant that the diligence
clause was satisfied and to transfer the rest of the purchase price. See ECF No. [111]
at 15. And [Euclid] alleges “the Alliance Defendants invoked these moves to resist”
[Euclid’s] “eventual effort to seek injunctive relief, claiming on February 19, 2025,
that the Alliance Defendants already took steps to reorganize the business in
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reasonable reliance on the consummated sale, including entering into agreements
and delivering a mortgage on the unsecured real property on which the relevant
metal-working equipment now sits.” See ECF No. [111] at 16–17.
ECF No. [175] at 63-64.
To the extent Alliance Defendants argue that each of the alleged overt acts, “site access,
forming entities, [and] encumbering property[,]” are “lawful self-protective conduct[,]” ECF No.
[189] at 11, the overt act need only be “in pursuance of the conspiracy,” and Alliance Defendants
cite no authority for the proposition that the overt act must be illegal in and of itself. See ECB, 148
F.4th at 1347. Additionally, “[e]ach coconspirator need not act to further a conspiracy[,] each
‘need only know of the scheme and assist in it in some way to be held responsible for all of
the acts of his [or her] coconspirators[.]’” Plastiquim, S.A. v. Odebrecht Constr., Inc., 337 So. 3d
1270, 1274 (Fla. 3d DCA 2022) (quoting Charles v. Fla. Foreclosure Placement Ctr., LLC, 988
So. 2d 1157, 1160 (Fla. 3d DCA 2008)). Therefore, the Court agrees with the R&R’s analysis and
its conclusion that the allegations in the Complaint are “sufficient to allow the Court to draw the
reasonable inference that the Alliance Defendants are liable for the misconduct alleged” in Count
7. ECF No. [175] at 64.
C. America1 Defendants’ Objections
America1 Defendants objected to the R&R, arguing (1) Euclid’s claim for conversion and
aiding and abetting conversion should be dismissed because it failed to allege that it had possession
of the Notes or an immediate right to possess the notes; (2) the Assignment Agreement evidences
that Euclid had no immediate right to possess the Notes and controls; and (3) because there can be
no claim for conversion, the aiding and abetting claim must also be dismissed. ECF No. [191]. In
Response, Euclid states the America1 Defendants “repeat the same arguments raised by Amerant
and the Alliance Defendants concerning possession, equitable title, and negotiable instruments,”
which the R&R rejected. ECF No. [203] at 1. Additionally, America1 Defendants’ argument “that
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the Amerant-Euclid agreement was illusory . . . lacks merit, as [Euclid] adequately alleged a valid
agreement with consideration.” Id. at 2.
America1 Defendants argue that the R&R erred by “fail[ing] to consider the mandatory
and quintessential element for conversion—that is, the existence of a claimant’s ‘immediate right
to possession.’” ECF No. [191] at 2 (quoting Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d
490, 499 (Fla. 3d DCA 1994)). However, the R&R stated that this argument “does not comport
with the concept of holding equitable title, which the Court has already determined Florida law
would likely recognize in this context.” ECF No. [175] at 71. Indeed, the Court has already
concluded that Florida law would likely recognize holding of equitable title within the context of
a conversion claim. America1 Defendants’ argument that the Assignment Agreement directly
contradicts Euclid’s allegation that it had an immediate right to possession is similarly unavailing.
ECF No. [191] at 12. America1 Defendants argue that “a plain reading of the Assignment
Agreement confirms that any rights created by the Assignment Agreement, equitable or otherwise,
could not vest in [Euclid] unless and until the Assignment Agreement became effective and the
Purchase Price paid in full.” Id. However, in the Complaint, Euclid alleged that Amerant was
“unconditionally obligated to ‘sell, assign and transfer’ to Euclid all of Amerant’s ‘right, title and
interest in, to, and under’ the loan, loan documents, the Guarantees, the Collateral and the separate
Collection Suit.” ECF No. [111] ¶ 32. Although the Assignment Agreement reflects that the
transfer of the “right, title and interest in, to and under the Loan and Collateral Documents” would
take place “[o]n the Effective Date” and “in exchange for payment to Assignor of the Purchase
Price[,]” ECF No. [111-1], Euclid’s contention is that it had an equitable interest in the Notes
because Amerant was obligated to eventually sell the Notes to Euclid on the Effective Date. ECF
No. [111] ¶ 32. Euclid further alleges that its equitable interest is supported by the fact that it had
the “unilateral option to terminate” the Assignment Agreement if the results of the due diligence
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contingency were not satisfied and Amerant “had no right to terminate for any reason.” Id. ¶ 37.
Therefore, the fact that the Notes were not in fact transferred does not speak to Euclid’s allegations
in the Complaint.
America1 Defendants also argue that the Assignment Agreement was not enforceable, and
the R&R erred in determining that the allegations in the Complaint were sufficient to support a
finding that a valid contract existed. ECF No. [191] at 12-14. Specifically, America1 Defendants
contend that the Assignment Agreement is “a quintessential illusory contract which lacks
mutuality of obligation and which is entirely inequitable and not enforceable.” Id. at 13.
“To prove the existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3)
consideration; and (4) sufficient specification of the essential terms.” Vega v. T-Mobile USA, Inc.,
564 F.3d 1256, 1272 (11th Cir. 2009). The R&R concluded that these elements had been satisfied
because the Complaint alleges that
on December 30, 2024, Amerant and [Euclid] “entered into a written Loan Sale and
Assignment Agreement” in which Amerant “became unconditionally obligated to
‘sell, assign, and transfer’” to [Euclid] “all of Amerant’s ‘right, title and interest in,
to, and under” the loan, loan documents, the Guarantees, the Collateral and the
separate Collection Suit.” See ECF No. [111] at 11. Further, the Third Amended
Complaint attaches a copy of the Assignment Agreement, containing all the specific
terms agreed upon between [Euclid] and Amerant. See ECF No. [111-1]. It further
alleges the existence of consideration, and the attached Assignment Agreement
confirms as much, when stating that [Euclid] paid a “10% good-faith escrow
deposition” upon the execution of the agreement. See ECF No. [111] at 11; ECF
No. [111- 1]. At this juncture, the Court must accept all of [Euclid’s] allegations as
true and view them in the light most favorable to [Euclid], so based on the current
allegations, the Third Amended Complaint alleges the existence of a valid contract.
ECF No. [175] at 73-74.
The R&R 	determined 	that 	America1 	Defendants’ 	argument 	that 	“the Assignment
Agreement was nothing more than a sham contract because only [Euclid] had termination rights
and [Euclid] had no obligation to provide any consideration prior to the effective date of the
agreement, making it illusory[,]” was “better suited for summary judgment or trial where they can
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test the validity of the contract.” Id. (citing Nautica Int’l, Inc. v. Intermarine USA, L.P., 5 F. Supp.
2d 1333, 1341 (S.D. Fla. 1998) (declining to find that no binding contract existed at the motion-
to-dismiss stage when the court was “bound to accept plaintiff’s allegations as true”)). However,
America1 Defendants argue that the Court may properly find that the Assignment Agreement “is
a quintessential illusory contract” at the motion to dismiss stage. ECF No. [191] at 13. America1
Defendants rely upon Miami Coca-Cola Bottling Co. v. Orange-Crush Co., in which the Court
noted that “[t]he instrument purports to convey a perpetual franchise to the complainant within the
counties of Dade and Broward, upon the proviso that the bottler (the complainant) may upon giving
written notice to the grantor (the defendant) cancel the franchise at any time desired.” 291 F. 102,
103 (S.D. Fla. 1923). The Court held that because the complainant could cancel the contract “at
any time” but the defendant could cancel “only in case any of the terms of the franchise are
violated” by the complainant, the contract was “wanting in mutuality as to remedies.” Id.
Therefore, the Court dismissed the complaint. Id. America1 Defendants argue that the Dilligence
Contingency in the Assignment Agreement here is similar to that in Miami Coca-Cola. However,
“[t]he legal principle requiring mutuality in contracts does not require that in every case each party
have the same remedy.” Bossert v. Palm Beach Cnty. Comprehensive Cmty. Mental Health Ctr.,
Inc., 404 So. 2d 1138, 1139 (Fla. 4th DCA 1981). Indeed, “[c]ourts have found unilateral
termination clauses valid where the termination clause contains a notice requirement.” Energy
Smart Indus., LLC v. Big R of Lamar, Inc., No. 11-23627-CIV, 2012 WL 3061600, at *11 (S.D.
Fla. July 26, 2012). The Diligence Contingency acknowledged that Euclid “is conducting, and has
not yet completed its due diligence” therefore, the parties agreed that “it shall be a condition of
[Euclid’s] obligation to pay the Purchase Price and otherwise perform hereunder that [Euclid] be
satisfied, in its sole and absolute discretion, with the results of that due diligence.” ECF No. [111-
1] ¶ 4. Euclid was required to “provide written notice . . . on or before January 24, 2025 whether
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or not this Diligence Contingency has been satisfied.” Id. Therefore, Euclid’s ability to terminate
the Assignment Agreement was restricted to “certain definite circumstances,” which “does not, as
a matter of law, render the contract unenforceable for want of mutuality.” Bossert, 404 So. 2d at
1139. Therefore, Euclid has sufficiently alleged the existence of an enforceable contract.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	The R&R, ECF No. [175], is ADOPTED IN FULL.
2. 	The Alliance Defendants’, Amerant’s, and America1 Defendants’ Objections, ECF
Nos. [189]; [190]; [191] are OVERRULED.
3. 	The Amerant Motion, ECF No. [131], is GRANTED in part and DENIED in part
as follows:
a. 	Count 5 (Tortious Interference with Business Relationship) and Count 6
(Aiding and Abetting Tortious Interference with Business Relationship) are
DISMISSED as to Amerant;
b. 	Amerant’s request for an enlargement of time to file an Answer to Count 8,
which is unopposed, see ECF No. [131] at 1, 18, is GRANTED; and
c. 	Amerant’s Motion to Strike Euclid’s request for punitive damages, see ECF No.
[131] at 16, is DENIED.
4. 	The Alliance Motion, ECF No. [132], is GRANTED in part and DENIED in part as
follows:
a. 	Count 3 (Tortious Interference with a Contract), Count 4 (Aiding and Abetting
Tortious Interference with a Contract), and Count 9 (Declaratory Judgment)
are DISMISSED WITHOUT PREJUDICE as to the Alliance Defendants;
and
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b. 	Euclid may AMEND Counts 3 and 4 to the extent it can, in good faith, allege
that conduct on the part of any Defendant was unjustified or without privilege
and AMEND Count 9 to the extent it seeks to resolve a justiciable question as
to the existence and superiority of its rights versus those of the Alliance
Defendants in the Assignment Agreement, Notes, and Guarantees.
5. 	The America1 Motion, ECF No. [137], is GRANTED in part and DENIED in part
as follows:
a. 	Count 3 (Tortious Interference with a Contract), Count 4 (Aiding and Abetting
Tortious Interference with a Contract), and Count 9 (Declaratory Judgment)
are 	DISMISSED 	WITHOUT 	PREJUDICE 	as 	to 	the 	America1
Defendants;3
b. 	Euclid may AMEND Counts 3 and 4 to the extent it can, in good faith, allege
that conduct on the part of any Defendant was unjustified or without privilege
and AMEND Count 9 to the extent it seeks to resolve a justiciable question as
to the existence and superiority of its rights versus those of America1 Industries,
Truewind, 	and 	Bratushev 	in 	the 	Assignment 	Agreement, 	Notes, 	and
Guarantees;
c. 	The America1 Defendants’ Motion to Strike Euclid’s request for punitive
damages is DENIED; and
d. 	The America1 Defendants’ request for an oral hearing, see ECF No. [137] at
17, is DENIED.
6. 	Euclid shall file its Fourth Amended Complaint on or before January 23, 2026.
3 Because Count 4 is against all America1 Defendants, except for Ecliptica, the dismissal without prejudice of this
Count does not apply to Ecliptica.
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7. 	Amerant shall file an Answer to Count 8 on or before February 6, 2026.
DONE AND ORDERED in Chambers at Miami, Florida on January 9, 2026.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of Record
Case 1:25-cv-20647-BB Document 219 Entered on FLSD Docket 01/09/2026 Page 40 of 40