The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
Plaintiff Blake Bookstaff and defendant William J. Marquez were jointly involved in several internet-related business ventures. Marquez claims that Bookstaff failed to disclose material facts to him in connection with the sale of Marquez's interest in two of the businesses to Bookstaff. Currently pending is the plaintiff's motion to dismiss defendant's counterclaim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure [Court File #27]. Marquez has not filed a response to that motion, but has filed an amended answer and counterclaim with the Court's permission [Court File #46]. For the reasons that follow, the motion to dismiss the counterclaim will be denied.
I. The Allegations of Defendant's Counterclaim
Defendant Marquez makes the following factual allegations in the amended counterclaim:
4. In October of 2000, Marquez and Bookstaff formed the Florida corporation of PopularCategories.Com, Inc. Marquez and Bookstaff were each initially 50% shareholders in this Florida corporation. Bookstaff was also an officer and director of Popular Categories. Throughout subsequent transactions, Bookstaff became the majority shareholder and Marquez the minority shareholder of Popular Categories.
5. In March of 2004, Marquez and Bookstaff also formed North American Internet, LLC, a Florida Limited Liability Company. Marquez and Bookstaff were both members of North American Internet, LLC (North American). Throughout subsequent transactions, Bookstaff acquired the majority membership interest and Marquez held the minority membership interest in North American. The filings of the State of Florida for North American listed Vince Claude (Claude) as the managing member of North American. However, Bookstaff was, in reality, the acting managing member of that entity.
6. In February of 2001, Marquez, Bookstaff and Claude formed Popular Enterprises, LLC, a Florida Limited Liability Company. The concept was that Popular Enterprises would be owned 2/3 by Popular Categories and 1/3 by Compatible Technologies, another Florida corporation owned by Claude. Based upon the 50/50 ownership of Popular Categories, this arrangement would have resulted in Bookstaff, Marquez and Claude each effectively owning 1/3 of Popular Enterprises. The initial application to the State of Florida was signed by Bookstaff and indicated his status as the "Secretary" of Popular Enterprises. Subsequent filings confirm that Bookstaff was acting as an officer and as the "VP" of Popular Enterprises. However, until approximately March/April of 2005, Marquez, Bookstaff and Claude were each listed and disclosed individually as the managers/members of Popular Enterprises. It was not until approximately April 28, 2005, that the official State of Florida records were amended so that the managers/members of Popular Enterprises were changed from Bookstaff, Marquez and Claude, Individually, to Claude as the President of Compatible Technologies, Inc., and Bookstaff as the Vice-President of Popular-Categories.Com, Inc.
7. Popular Categories, Popular Enterprises, and North American essentially operated as internet domain name aggregators and also operated an internet search engine and service called "Netster."
8. Based almost exclusively upon the internet domain aggregation techniques developed by Mr. Marquez, Popular Enterprises, North American and Netster became incredibly profitable.
9. As the business progressed, the three principals evolved into a tacit division of labor with respect to the operations. Mr. Marquez focused primarily upon the domain name aggregation and business development opportunities. Mr. Claude was primarily involved in the technical aspects of the operation. Mr. Bookstaff, on the other hand, undertook almost complete control of administrative responsibilities and assumed control over the finances and books of the operation.
10. As the business operations became more and more profitable, the parties also entertained and solicited a number of offers to purchase the entire operation. Mr. Marquez believed that he was integrally involved with each of these offers and the negotiations relating to the purchase of the business enterprise. However, in each instance, Bookstaff determined that he did not want to accept the proposed offer.
11. As each successive offer was rejected, Bookstaff was made aware of Mr. Marquez' need for capital to fund other business ventures. During the applicable period, Bookstaff also withheld distributions that could and should have been properly made to the shareholders/members of the various entities at least in part to keep financial pressure on Marquez. Because of his functional position with the business entities, and due to the trust and confidence reposed in him by Marquez, Bookstaff was in a unique position to individually control and determine any distributions.
12. Bookstaff had previously loaned money to Mr. Marquez for various purposes, charging an interest rate of 2.5% per month. In approximately 2003-2004, Marquez discussed the possibility of another loan with Bookstaff to fund other, unrelated business ventures. Several of these business ventures were matters upon which Bookstaff had previously indicated a willingness to join Marquez, but subsequently decided to withdraw, leaving Mr. Marquez to fund 100% of the expenses.
13. During the course of these discussions, Bookstaff suggested that he simply buy Mr. Marquez' stock in ...