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USCA Case Number as to SPORT & WHEAT CPA PA 20-13411-F for 94 NOTICE OF APPEAL by… — Agent Fee Litigation (Dkt. 98)
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A clerk's letter of the United States Court of Appeals for the Eleventh Circuit docketing an appeal, dated September 11, 2020, together with the district court papers filed with it, in Sport & Wheat CPA PA v. ServisFirst Bank Inc., et al, Appeal Number 20-13411-F, from District Court Docket No. 3:20-cv-05425-TKW-HTC. The letter sets filing requirements, including an Appearance of Counsel form and a Civil Appeal Statement within 14 days under 11th Cir. R. 33-1(a) and a Certificate of Interested Persons under FRAP 26.1. It notes a default for a Transcript Information Form required by Fed.R.App.P. 10(b)(1) and states the appellant's brief is due within 40 days from September 10, 2020. The papers include the notice of appeal, Document 94 of September 9, 2020, from an order denying leave to amend and dismissing the case with prejudice at ECF No. 93.
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Case: 20-13411 Date Filed: 09/10/2020 Page: 1 of 2
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith For rules and forms visit
Clerk of Court September 11, 2020 www.ca11.uscourts.gov
Virginia Marie Buchanan
Levin Papantonio Thomas Mitchell Rafferty & Proctor, PA
316 S BAYLEN ST STE 600
PENSACOLA, FL 32502
William Franklin Cash III
Levin Papantonio Thomas Mitchell Rafferty & Proctor, PA
316 S BAYLEN ST STE 600
PENSACOLA, FL 32502
Matthew D. Schultz
Levin Papantonio Thomas Mitchell Rafferty & Proctor, PA
316 S BAYLEN ST STE 600
PENSACOLA, FL 32502
John Sidney Wirt
Wirt & Wirt - Destin FL
5 CALHOUN AVE STE 306
DESTIN, FL 32541
Pamela Cocalas Wirt
Wirt & Wirt - Wilmette IL
PO BOX 13
WILMETTE, IL 60091
Appeal Number: 20-13411-F
Case Style: Sport & Wheat CPA PA v. ServisFirst Bank Inc., et al
District Court Docket No: 3:20-cv-05425-TKW-HTC
This Court requires all counsel to file documents electronically using the Electronic Case
Files ("ECF") system, unless exempted for good cause. Non-incarcerated pro se parties
are permitted to use the ECF system by registering for an account at www.pacer.gov.
Information and training materials related to electronic filing, are available at
www.ca11.uscourts.gov.
The referenced case has been docketed in this court. Please use the appellate docket number
noted above when making inquiries.
Case: 20-13411 Date Filed: 09/10/2020 Page: 2 of 2
Attorneys who wish to participate in this appeal must be admitted to the bar of this Court,
admitted for this particular proceeding pursuant to 11th Cir. R. 46-3, or admitted pro hac vice
pursuant to 11th Cir. R. 46-4. In addition, all attorneys (except court-appointed counsel) who
wish to participate in this appeal must file an Appearance of Counsel form within 14 days. The
Application for Admission to the Bar and Appearance of Counsel Form are available at
www.ca11.uscourts.gov. The clerk generally may not process filings from an attorney until that
attorney files an appearance form. See 11th Cir. R. 46-6(b).
11th Cir. R. 33-1(a) requires appellant to file a Civil Appeal Statement in most civil appeals.
You must file a completed Civil Appeal Statement, with service on all other parties, within 14
days from the date of this letter. Civil Appeal Statement forms are available on the Internet at
www.ca11.uscourts.gov, and as provided by 11th Cir. R. 33-1(a).
Every motion, petition, brief, answer, response and reply filed must contain a Certificate of
Interested Persons and Corporate Disclosure Statement (CIP). Appellants/Petitioners must file a
CIP within 14 days after the date the case or appeal is docketed in this court;
Appellees/Respondents/Intervenors/Other Parties must file a CIP within 28 days after the case
or appeal is docketed in this court, regardless of whether appellants/petitioners have filed a CIP.
See FRAP 26.1 and 11th Cir. R. 26.1-1.
On the same day a party or amicus curiae first files its paper or e-filed CIP, that filer must also
complete the court's web-based CIP at the Web-Based CIP link on the court's website. Pro se
filers (except attorneys appearing in particular cases as pro se parties) are not required or
authorized to complete the web-based CIP.
Pursuant to Eleventh Circuit Rule 42-1(b) you are hereby notified that upon expiration of (14)
days from this date, this appeal will be dismissed by the clerk without further notice unless the
default(s) noted below have been corrected:
File a Transcript Information Form, as required by Fed.R.App.P. 10(b)(1); a Transcript
Information Form is available from the district court clerk. Appellant is required to file and
serve copies of the form in accordance with the instructions included on the form. UNLESS A
TRANSCRIPT IS ORDERED, APPELLANT'S BRIEF MUST BE SERVED AND FILED
WITHIN 40 DAYS FROM SEPTEMBER 10, 2020. See 11th Cir. R. 12-1 and 31-1.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Dionne S. Young, F
Phone #: (404) 335-6224
Case 3:20-cv-05425-TKW-HTC Document 94 Filed 09/09/20 Page 1 of 2
Case: 20-13411 Date Filed: 09/10/2020 Page: 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA PA,
a Florida corporation, individually and
on behalf of a class of similarly situated
businesses and individuals,
Plaintiff,
Case No. 3:20-cv-5425-TKW-HTC
v.
SERVISFIRST BANK INC.;
SYNOVUS BANK;
THE FIRST, A NATIONAL
BANKING ASSOCIATION; and
TRUIST BANK,
Defendants.
NOTICE OF APPEAL
Sport & Wheat CPA PA now serves its notice of appeal from the Court’s
order denying leave to amend and dismissing this case with prejudice (ECF No.
93), as well as all interlocutory orders that merge into this final order. That includes
the prior order of the Court, dismissing the amended complaint (ECF No. 87).
Appeal is being taken to the United States Court of Appeals for the Eleventh
Circuit.
1
Case 3:20-cv-05425-TKW-HTC Document 94 Filed 09/09/20 Page 2 of 2
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Dated: September 9, 2020 Respectfully submitted,
/s/ William F. Cash III
Virginia M. Buchanan
(Fla. Bar No. 793116)
Matthew D. Schultz (Fla. Bar No. 640328)
William F. Cash III (Fla. Bar No. 68443)
LEVIN, PAPANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR,
P.A.
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Phone: 850-435-7059
Email: bcash@levinlaw.com
/s/ John S. Wirt
John S. Wirt, Esq. (Fla. Bar No. 117640)
Pamela Cocalas Wirt, Esq. (Fla. Bar No.
109576)
WIRT & WIRT, P.A.
5 Calhoun Ave, Suite 306
Destin, FL 32541
Tel: 847-323-4082
Fax: 314-431-6920
jwirt@wirtlawfirm.com
Attorneys for the Plaintiff
2
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT, CPA, PA,
Plaintiff,
v. Case No. 3:20cv5425-TKW-HTC
SERVISFIRST BANK, INC., et al.,
Defendants.
______________________________/
ORDER DISMISSING AMENDED COMPLAINT
The central issue of first impression in this case is whether Plaintiff and others
like it are entitled to any portion of the fees paid by the federal government to lenders
like Defendants who were tasked with handing out hundreds of billions of dollars of
“loans” under the Paycheck Protection Program (PPP).1 The short answer is “no.”
This issue arises in the context of Defendants’ motions to dismiss Plaintiff’s
amended complaint under Fed. R. Civ. P. 12(b)(6). See Docs. 46, 49, 67, 69. The
motions, responses (Docs. 56, 85), and reply (Doc. 65) were comprehensively (and
ably) briefed, and no hearing is necessary to rule on the motions.
1
This case was apparently the first of what is now at least 50 cases pending around the
country raising the same issue. A motion to transfer these cases into a single MDL proceeding
was denied by the Judicial Panel on Multidistrict Litigation last week. See In re Paycheck
Protection Program (PPP) Agent Fees Litigation, MDL No. 2950 (J.P.M.L. Aug. 5, 2020).
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When ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts the
allegations in the operative complaint (here, the amended complaint, Doc. 21) as
true and construes them in the light most favorable to the plaintiff under the
“plausibility” standard adopted by the Supreme Court. See Ascroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Crespo v.
Coldwell Banker Mortg., 599 F. App’x 868, 874 (11th Cir. 2014). Applying this
standard, the Court finds for the reasons that follow that the motions to dismiss are
due to be granted.
Factual and Procedural Background
Plaintiff is a small accounting firm that assisted its clients (the borrowers) in
obtaining loans from Defendants under the PPP. Plaintiff alleges in the amended
complaint that Defendants did not pay it the “agent fees” (totaling $4,526)2 it was
due under the PPP and its implementing regulation for helping the borrowers obtain
the loans. Plaintiff does not allege that it or the borrowers had agreements with
Defendants regarding payment of Plaintiff’s agent fees.
The amended complaint asserts four counts and seeks monetary damages and
injunctive relief against Defendants (and other “John Doe” lenders) on a class-wide
2
Specifically, the amended complaint alleges that Plaintiff is entitled to $941.65 of the loan
processing fee paid by the Small Business Administration (SBA) to Defendant ServisFirst,
$1,633.03 of the fee paid to Defendant Synovus, $75.75 of the fee paid to Defendant The First,
and $1,875.57 of the fee paid to Defendant Truist. See Doc. 21, at ¶¶ 91, 112, 126, 139.
2
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basis. Count 1 (“unjust enrichment”) and Count 2 (“contract implied in law”) seek
to recover the monetary benefit Plaintiff allegedly conferred on Defendants when it
helped the borrowers obtain PPP loans through Defendants; Count 3 (“conversion”)
alleges the Defendants unlawfully retained the portion of the loan processing fees
that Plaintiff was entitled to under the PPP and its implementing regulation; and
Count 4 (“declaratory relief”) seeks a declaration that Defendants violated federal
law by not paying Plaintiff the portion of the loan processing fee it was entitled to
under the PPP along with appropriate injunctive relief.
Counts 3 and 4 are premised on the assumption that the PPP and its
implementing regulation require lenders to pay the agent’s fee irrespective of
whether there is an agreement between the agent or borrower and the lender to do
so. By contrast, Counts 1 and 2 are premised on equitable principles (rather than
legal entitlement under the PPP and its implementing regulation) under state
common law based on Plaintiff’s allegations that Defendants were aware of and
benefitted from the work Plaintiff did on the borrowers’ PPP loan applications.
Analysis
The crux of this case is in Count 4, which seeks a declaration that Defendants
are required to pay “agent fees” to Plaintiff for the work it performed on behalf of
the borrowers who obtained PPP loans from Defendants. The claim is premised on
3
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the assumption that the CARES Act3 and its implementing regulation require lenders
to pay the borrowers’ agent fees. This assumption, however, finds no support in the
plain language of the statute or the regulation.
Section 1102 of the CARES Act created the PPP as part of the Section 7(a)
Loan Program administered by the SBA. The PPP was intended to help small
businesses impacted by the COVID-19 pandemic by providing loans4 that could be
used to cover payroll and other costs. The loans were administered by the private
sector (e.g., banks, credit unions, existing SBA Section 7(a) lenders), but they were
fully funded and guaranteed by the federal government.
The CARES Act mandated that the SBA Administrator “shall reimburse a
lender authorized to make a covered loan” and it established the fees that the lender
will be paid for making the loans. See Pub. L. No. 116-136, §1102(a)(2) (to be
codified at 15 U.S.C. §636(a)(36)(P)(i)). The Act further provided that “[a]n agent
that assists an eligible recipient to prepare an application for a covered loan may not
3
Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281
(2020).
4
The monies received under the PPP are “loans” in only the loosest sense of that word
because the borrower is not required to make any payments for six months and the full amount of
the principal borrowed and any accrued interest will be forgiven if the borrower uses the loan
proceeds to cover payroll and other approved costs. See Pub. L. No. 116-136, §1102(a)(2) (to be
codified at 15 U.S.C. §636(a)(36)(M)), §1106(b); see also Paycheck Protection Program
Flexibility Act of 2020, Pub L. No. 116-142, §3, 134 Stat. 641, 641-43 (2020) (extending the
deferral period and modifying the criteria for loan forgiveness).
4
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collect a fee in excess of the limits established by the [SBA] Administrator.” Id. (to
be codified at 15 U.S.C. §636(a)(36)(P)(ii)).
In April 2020, pursuant to the authority delegated by the statutory language
quoted above, the SBA issued an interim final rule (IFR) to implement the PPP. See
Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed.
Reg. 20,811 (Apr. 15, 2020).5 The IFR provides in pertinent part:
Agent fees will be paid by the lender out of the fees the
lender receives from SBA. Agents may not collect fees
from the borrower or be paid out of the PPP loan proceeds.
The total amount that an agent may collect from the lender
for assistance in preparing an application for a PPP loan
(including referral to the lender) may not exceed:
i. One (1) percent for loans of not more than
$350,000;
ii. 0.50 percent for loans of more than $350,000 and
less than $2 million; and
iii. 0.25 percent for loans of at least $2 million.
Id. at 20,816. The IFR also states that its provisions “temporarily supersede any
conflicting Loan Program Requirement (as defined in 13 CFR 120.10).” Id. at
20,812.
5
The SBA has since adopted other regulations to implement the PPP, see
https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-
program#section-header-9 (list of regulations), but none of those regulations appear to have any
bearing on the issues in this case.
5
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The CARES Act does not require lenders to pay the agent’s fees absent an
agreement to do so (or create a private right of action for payment6) because the
statutory language does not even speak to who pays the agent’s fees; it merely
provides that the agent cannot collect a fee from anyone in excess of the amount
established by the SBA Administrator. Indeed, the different language used by
Congress in mandating payment of lenders (“shall reimburse”) and limiting agent
fees (“may not collect”) is indicative of an intent not to require lenders to pay agent
fees. See In re Failla, 838 F.3d 1170, 1176-77 (11th Cir. 2016) (quoting Antonin
Scalia & Bryan A. Garner, Reading Law 170 (2012)) (“The presumption of
consistent usage instructs that ‘[a] word or phrase is presumed to bear the same
meaning throughout a text’ and that ‘a material variation in terms suggest a variation
in meaning.’”). Thus, if lenders have any legal obligation to pay agent fees absent
an agreement to do so, that obligation must come from the IFR.
The IFR asks—and then answers—the question of “[w]ho pays the fee to an
agent who assists a borrower” by stating that payment is to be made “by the lender
6
Defendants spend a significant amount of their briefing arguing that the CARES Act does
not create an express or implied private right of action as required to bring a claim under the
Declaratory Judgment Act (DJA). Although it is doubtful that such a private right of action exists,
see Profiles, Inc. v. Bank of Am. Corp., 2020 WL 1849710, at *7 (D. Md. Apr. 13, 2020) (“The
Court is not persuaded that the language of the CARES Act evidences the requisite congressional
intent to create a private right of action.); see also United States v. Fid. Capital Corp., 920 F.2d
827, 838 n.39 (11th Cir. 1991) (noting that “no private right of action exists for a violation of the
[Small Business] Act or the regulations”), the Court need not decide that issue because the claim
asserted by Plaintiff under the DJA clearly fails on the merits.
6
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out of the fees the lender receives from SBA” and not “from the borrower or . . . out
of the PPP loan proceeds.” 85 Fed. Reg. 20,816. This language does not require
that lenders share their fees—nor does it (or could it7) create or provide a right of
action for agents to collect fees from the lender; instead, the language simply
explains that, if an agent is to be paid a fee, the fee must be paid by the lender from
the fee it receives from the SBA. This, then, begs the question of whether an
agreement between the lender and the agent is necessary for the lender to be required
to pay the agent fees.
Defendants argue that the existing Section 7(a) regulations require such an
agreement as a prerequisite to the lender’s payment of agent fees. Plaintiff conceded
this point in the amended complaint, but it now argues that an agreement with the
lender is not required under the PPP.8 The Court agrees with Defendants.
The PPP was added to and exists within the framework of Section 7(a) of the
Small Business Act, see Pub. L. No. 116-136, §1102(a), and the IFR states that it
only supersedes “conflicting” Section 7(a) program requirements, see 85 Fed. Reg.
7
See Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Language in a regulation may
invoke a private right of action that Congress through statutory text created, but it may not create
a right that Congress has not.”).
8
Compare Doc. 21, at ¶ 65 (“Harmonizing these provisions, a Borrower may agree to hire
a PPP Agent, subject to the fee caps set by the SBA in its PPP Interim Final Rule; and to be paid
under 13 CFR § 103.5(a), the PPP Agent must submit the arrangement in writing on SBA’s Form
159.”) with Doc. 56, at 21 (“[Plaintiff] has reconsidered its position and now argues that Form 159
and other SBA formalities are not required”).
7
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20,812. Accordingly, it follows that all non-conflicting program requirements
continue to apply.
The existing Section 7(a) program requirements provide that the fees charged
by an agent must be “reasonable” and they establish presumptively reasonable
amounts for the fees. See 13 C.F.R. §103.5(b). The applicant or agent must execute
a “compensation agreement” and provide it to the SBA on a specific form. See 13
C.F.R. §103.5(a); SBA Form 159 (rev. Apr. 9, 2018).9 The form must identify the
portion of the agent fee to be paid by the borrower and the portion to be paid by the
lender, see SBA Form 159, at 2 (providing separate boxes for these amounts), and
the agent’s fees cannot be contingent upon the loan being approved, id. at 1 (“The
SBA does not allow contingency fees (fees paid only if the loan is approved) . . . .”).
The Court sees no conflict in these requirements and the IFR, except that the
cap on agent fees in the IFR are considerably lower than the presumptively
reasonable amounts in 13 C.F.R. §103.5(b) and agent fees under the PPP are
necessarily contingent because they can only be paid out of the fee received by the
lender and the lender only receives the fee if the loan is funded. Specifically, Form
159 does not conflict with the IFR because (1) there is nothing in the IFR that
prohibits the SBA Administrator from requiring use of the form (or the disclosure of
9
The form is available online at https://www.sba.gov/document/sba-form-159-fee-
disclosure-compensation-agreement.
8
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agent fees) and the form clearly states that it is to be used “whenever an Agent is
paid by either the [borrower] or the SBA Lender in connection with the SBA loan
application” (emphasis added),10 and (2) even though the IFR prohibits agents from
collecting fees from borrowers, there are separate spaces on the form to indicate the
portion of the fee paid by the borrower (which would have to be $0 under the IFR)
and the portion of the fee paid by the lender (which could be whatever the lender
and agent agreed up to the caps in the IFR). Accordingly, because these existing
program requirements do not conflict with the IFR, they apply to agents who assist
borrowers in obtaining loans under the PPP.
Here, it is undisputed that neither Plaintiff nor the borrowers executed Form
159, nor did they have agreements with Defendants regarding payment for the work
Plaintiff performed in assisting borrowers in obtaining PPP loans through
Defendants. Accordingly, Defendants have no legal obligation under the CARES
Act or the IFR to pay Plaintiff an “agent fee” for helping the borrowers get PPP loans
from Defendants, and on that basis, Count 4 of the amended complaint is due to be
dismissed.
10
On this point, the Court did not overlook Plaintiff’s argument that it need not sign Form
159 because the form’s instructions state that the agent’s signature is only required when it is being
paid by the borrower (“Each Agent paid by the Applicant to assist in connection with its application
must also complete and sign the form.”) and the PPP prohibits the agent from collecting a fee from
the borrower. However, the form clearly states that “[w]hen an Agent is paid by the SBA Lender,
the SBA Lender must complete this form and the SBA Lender and Applicant must both sign the
form.” Thus, before the lender can pay the agent’s fee under the PPP, Form 159 must be signed
by at least the lender and the borrower.
9
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The state law conversion claim in Count 3 is due to be dismissed for similar
reasons. Under Florida law, “[t]he gist of a conversion [is] . . . the wrongful
deprivation of a person of property to the possession of which he is entitled.” Star
Fruit Co. v. Eagle Lake Growers, Inc., 33 So. 2d 858, 860 (Fla. 1948). Thus, to
state a claim for conversion, “the plaintiff must have a present or immediate right of
possession of the property in question.” United States v. Bailey, 419 F.3d 1208,
1214 (11th Cir. 2005) (quoting Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th
DCA 1980)). If the plaintiff has no right to the property in question, it has no
conversion claim. Here, as explained above, Plaintiff had no legal right to any
portion of the fee Defendants received from the SBA for making the loans to the
borrowers assisted by Plaintiff. Accordingly, Count 3 is due to be dismissed.
The state law claims for unjust enrichment and contract implied in law in
Counts 1 and 2 are duplicative11 and fare no better than the other counts. To state a
claim for unjust enrichment and/or contract implied in law, Plaintiff must allege “(1)
plaintiff conferred a benefit upon the defendant, who has knowledge of that benefit;
(2) defendant accepts and retains the conferred benefit; and (3) under the
11
Under Florida law, the elements for a claim for “unjust enrichment” or “contract implied
in law” are the same. See Commerce P’Ship 8098 Ltd. P’ship v. Equity Contr. Co., 695 So. 2d
383, 386 (Fla. 4th DCA 1997) (explaining that Florida courts have synonymously used a number
of different terms, including “unjust enrichment,” to describe the cause of action encompassed by
a contract implied in law); see also Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 n.2 (11th Cir.
2012) (“To the extent Plaintiffs allege a contract implied in law, such contracts must be pled in the
same way as unjust enrichment claims.”).
10
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circumstances, it would be inequitable for the defendant to retain the benefit without
paying for it.” Vibo Corp. v. US Flue-Cured Tobacco Growers, 762 F. App'x 703,
705 (11th Cir. 2019) (quoting Fito v. Attorneys' Title Ins. Fund, Inc., 83 So. 3d 755,
758 (Fla. 3d DCA 2011)). To satisfy the first element, “the plaintiff must directly
confer a benefit to the defendant.” Kopel v. Kopel, 229 So. 3d 812, 818 (Fla. 2017)
(citing Peoples Nat'l Bank of Commerce v. First Union Nat'l Bank of Fla. N.A., 667
So. 2d 876, 879 (Fla. 3d DCA 1996)) (emphasis added); see also Virgilio v. Ryland
Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012) (affirming dismissal of unjust
enrichment claim under Florida law where benefit was indirect); Century Senior
Servs. V. Consumer Health Ben. Ass’n Inc., 770 F. Supp. 2d 1261, 1267 (S.D. Fla.
2011) (“A benefit that a defendant gains that does not come directly from the
plaintiff does not give rise to a claim for unjust enrichment.”); Tilton v. Playboy
Entm’t Grp., Inc., 2007 WL 80858, at *3 (M.D. Fla. Jan. 8, 2007) (explaining, the
plaintiff’s conferral of an indirect benefit upon the defendant is insufficient to
support an unjust enrichment claim); Am. Safety Ins. Serv., Inc. v. Griggs, 959 So.
2d 322, 331-32 (Fla. 5th DCA 2007) (holding that conferral of a direct benefit is
required).
Here, although Plaintiff’s work on the borrowers’ PPP loan applications
directly benefitted the borrowers because it helped them get PPP loans, the benefit
received by Defendants for making the loans to the borrowers (i.e., loan processing
11
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fees from the SBA) was merely an incidental benefit of Plaintiff’s work for the
borrowers.12 Thus, putting aside the question of whether each Defendant had the
requisite knowledge of the benefit allegedly conferred on them by Plaintiff,13 the
Court finds that Plaintiff’s indirect conferral of a benefit on Defendants is
insufficient to satisfy the first element of a claim for unjust enrichment or contract
implied in law against Defendants. Accordingly, Counts 1 and 2 are due to be
dismissed.14
12
The Court has not overlooked Plaintiff’s argument that the benefit it conferred on
Defendants was the time that Defendants did not need to spend pulling together information to
complete the borrowers’ loan applications. However, as the Court understands Plaintiff’s claims,
it is not suing to recover the value of that work (nor could it because the IFR caps the fee the agent
can receive); rather, Plaintiff is only suing to recover what it considers to be its share of the fee
Defendants received for making the loans, and no matter how you look at that, it is merely an
incidental benefit of Plaintiff’s work on behalf the borrowers.
13
Viewed in the light most favorable to Plaintiff, the amended complaint appears to
sufficiently allege that three of the four defendants—ServisFirst, Synovus, and Truist—were aware
of the work Plaintiff was doing to assist the borrowers in obtaining PPP loans because they
communicated directly with Plaintiff about the loan applications. See E & M Marine Corp. v. First
Union Nat’l Bank, 783 So. 2d 311, 312 (Fla. 3d DCA 2001) (“[A] party is liable for services
rendered only when he requests the other party to perform the services or knowingly and
voluntarily accepts their benefits.”) (quoting Coffee Pot Plaza P’ship v. Arrow Air Conditioning
and Refrigeration, Inc., 412 So. 2d 883, 884 (Fla. 2d DCA 1982)). By contrast, the amended
complaint does not allege that the other defendant, The First, had any communications with
Plaintiff about its work on a borrower’s loan application from which it could be inferred that The
First knew that Plaintiff conferred a benefit on it by performing that work.
14
Even if these counts had survived Defendants’ motions to dismiss (or could somehow be
amended to state a claim), the Court does not see why Plaintiff would want to expend the resources
necessary to pursue these claims in this forum because the claims involve less than $5,000 and
they are not likely to be found suitable for class action treatment. See Vega v. T-Mobile, USA,
Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) (explaining that unjust enrichment claims are not
appropriate for class action treatment because “common questions will rarely, if ever, predominate
an unjust enrichment claim, the resolution of which turns on individualized facts”) (emphasis
added).
12
Case 3:20-cv-05425-TKW-HTC Document 87 Filed 08/17/20 Page 13 of 13
Case: 20-13411 Date Filed: 09/10/2020 Page: 13 of 13
The Court finds it highly unlikely that Plaintiff will be able to further amend
the complaint to state a claim against Defendants, but the Court is not yet prepared
to say that amendment would be “futile” and it will keep an open mind if Plaintiff
seeks leave to file a second amended complaint. Alternatively, if Plaintiff would
rather forego further proceedings in this Court and try its luck at the Eleventh Circuit
on the legal issues in this case, the Court will (upon Plaintiff’s request) direct the
Clerk to enter judgment dismissing the amended complaint with prejudice based on
the rulings in this Order.
In sum, for the reasons stated above, it is ORDERED that Defendants’
motions to dismiss (Docs. 46, 49, 67, 69) are GRANTED, and the amended
complaint is DISMISSED. Plaintiff may seek leave to file a second amended
complaint within 14 days of the date of this Order if it can do so in good faith.
DONE and ORDERED this 1th day of August, 2020.
T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
13
Case 3:20-cv-05425-TKW-HTC Document 93 Filed 09/04/20 Page 1 of 1
Case: 20-13411 Date Filed: 09/10/2020 Page: 1 of 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT, CPA, PA,
Plaintiff,
v. Case No. 3:20cv5425-TKW-HTC
SERVISFIRST BANK, INC., et al.,
Defendants.
______________________________/
ORDER DENYING LEAVE TO AMEND
AND DISMISSING CASE WITH PREJUDICE
This case is before the Court on Plaintiff’s motion for leave to amend the
complaint (Doc. 89) and Defendants’ responses in opposition (Docs. 91, 92). Upon
due consideration of these filings and the proposed second amended complaint (Doc.
90), the Court finds that the motion to amend is due to be denied because the
proposed amendment would be futile. Accordingly, it is
ORDERED that the motion for leave to amend the complaint is DENIED,
this case is DISMISSED with prejudice, and the Clerk shall close the file.
DONE and ORDERED this 4th day of September, 2020.
T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
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