Electronically Filed 04/08/2013 04:35:52 PM ET

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 13-06705 CA 02 KEVIN BRINKWORTH, JR. Plaintiff, v. WILLIAM COHEN, a/k/a BILLY CORBEN, and RAKONTUR, LLC., a Florida Corporation, Defendants. ________________________________________/ DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT FOR DAMAGES AND MOTION TO STRIKE DEMAND FOR ATTORNEYS FEES IN ALL COUNTS OF PLAINTIFFS AMENDED COMPLAINT FOR DAMAGES Defendants, William Cohen, a/k/a Billy Corben (Corben), and Rakontur, LLC (Rakontur) (collectively referred to as Defendants), pursuant to Rule 1.140(b)(6) Fla.R.Civ.P., move to dismiss all counts of Plaintiff, Kevin Brinkworth, Jr.s (Brinkworth or Plaintiff) Amended Complaint for Damages (Complaint) and specifically, Count I (Breach of Contract against Corben), Count II (Breach of Contract against Rakontur), Count III (Unjust Enrichment against Corben) and Count IV (Unjust Enrichment against Rakontur). Defendants further move to strike Plaintiffs demand for attorneys fees in all counts of Plaintiffs Complaint, and as grounds in support state as follows:

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PRELIMINARY STATEMENT In this action, Plaintiff is seeking both damages and equitable relief for breach of a contract that was purportedly executed by the parties to this action. Defendant Rakontur is a Miami based media studio founded by Defendant Corben and his business partner. Corben directs the companies films and his partner is the producer of the films. Rakonturs portfolio of productions includes award winning films such as Raw Deal: A Question of Consent and Cocaine Cowboys to name a few. Plaintiffs claims arise out of a documentary film produced for ESPN Networks 30 for 30 series titled The U. The U tells the story of how the University of Miami recruited local football players and built a dynasty of winning and championship teams during the 1980s. In his Complaint, Plaintiff alleges that on November 14, 2008, he entered into a contract with Corben and Rakontur pursuant to which the parties purportedly agreed that Plaintiff would operate as a consultant for both Corben and Rakontur in the making of The U. The

Complaint further alleges that in exchange for Plaintiffs consulting services, Plaintiff was to receive a credit as Associate Producer in the film and his personal footage of the University of Miami football team would also be used in the film. Plaintiff also alleges that Defendants agreed to pay industry standards and/or good faith value for the services rendered and further alleges that if Defendants had in fact used his personal footage, then he would have also been entitled to a residual payout. The Complaint fails to state a cause of action as a matter of law for at least two (2) reasons. First, Plaintiff fails to attach the purported contract between the parties even though it is specifically referenced as Exhibit A to the Complaint. Defendants respectfully submit that no

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contract is attached because no such contract with terms as set forth in Plaintiffs Complaint even exists.1 Second, Plaintiffs claims for unjust enrichment should be dismissed because Plaintiff has pled the existence of an express contract. The Court should also strike Plaintiffs demand for attorneys fees because Plaintiff has failed to allege any statutory or contractual basis in support of his demand for fees. Accordingly, Plaintiffs Complaint should be dismissed in its entirety. ARGUMENT I. Standard of Review. When considering a motion to dismiss, a trial court must look only to the four corners of the complaint including the attachments, and the allegations contained therein must be taken as true without regard to the pleaders ability to prove them. Biscayne Investment Group, Ltd. v. Guar. Management Servs., Inc., 903 So. 2d 251, 253 (Fla. 3d DCA 2005). Dismissal is

appropriate, however, where it appears from a reading of the complaint that a plaintiff would not be entitled to recovery even if the plaintiff proved each and every allegation of the complaint. See Thompkins v. Metropolitan Dade Co., 345 So. 2d 1090, 1091 (Fla. 3d DCA 1977).2 The Complaint should be dismissed because, assuming the truth of the allegations in Plaintiffs Complaint for purposes of this motion, Plaintiff fails to state a valid cause of action. I. PLAINTIFFS COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION. A. Count I and Count II of Plaintiffs Complaint, for Breach of Contract Must Fail Because Plaintiff Has Failed to Attach a Copy of the Purported Contract to the Complaint.

1 Plaintiff has now had two opportunities to attach the purported contract to the Complaint, but failed to attach it to either the Complaint or the Amended Complaint. 2 Defendants assume the truth of the allegations asserted in the Complaint, as they must, only for purposes of moving to dismiss this action for failure to state a cause of action pursuant to FLA. R. CIV. P. 1.140. However, Defendants deny all allegations of wrongdoing. 3

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In Count I and Count II of the Complaint Plaintiff attempts to assert a claim for breach of contract against both Corben and Rakontur. However, despite alleging that it is attached as Exhibit A, Plaintiff fails to attach a copy of the contract to the Complaint. Pursuant to Florida law, [a]ll contracts upon which action may be brought or defense made, or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. Fla. R. CIV. PROC. 1.130(a). Moreover, where, as here, a complaint [is] based on a written instrument it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question. Safeco Ins. Co. of Am. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981). See also Contractors Unlimited v. Nortrax Equip. Co. Southeast, 833 So. 2d 286, 288 (Fla. 5th DCA 2002) (A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.). Accordingly, because Plaintiff has failed to attach a copy of the purported contract to the Complaint, Plaintiffs claim for breach of contract should be dismissed against both Corben and Rakontur. B. Count III and Count IV of Plaintiffs Complaint, for Unjust Enrichment Must Fail Because Plaintiff Has Alleged the Existence of an Express Contract Which Controls the Subject Matter of These Alleged Claims.

Plaintiffs claims for unjust enrichment against Corben and Rakontur (Counts III and IV, respectively), are equitable claims sounding in quasi contract which should be dismissed for failure to state a cause of action. Specifically, Plaintiff has pleaded that an express, legal contract exists between the parties and has alleged that he has attached this express contract to the Complaint as Exhibit A. Compl. 10. Moreover, Plaintiff has alleged that, whatever legal liability exists on the part of Defendants for Plaintiffs quasi contractual remedies, arises because of the mutual obligations contained within the Contract, i.e. Plaintiffs duty to provide consulting services and Defendants obligation to use footage, credit Plaintiff as Associate 4

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Producer and to pay for those services. See Compl., 10-15, 19-28, 30-39. Counts III and IV for unjust enrichment fail to state a cause of action because under Florida law, a claim for unjust enrichment, a form of equitable relief, cannot stand if an express contract exists. Degirmenci v. Sapphire-Fort Lauderdale, LLLP, No. 09-60089-CIV, 2010 WL 342256, at *15 (S.D. Fla. Feb. 1, 2010). Indeed, where there is an express contract between the parties, claims arising out of that contractual relationship will not support a claim for unjust enrichment. Moynet v. Courtois, 8 So. 3d 377, 379 (Fla. 3d DCA 2009) (holding that count for unjust enrichment did not state a cause of action and that the parties were governed by the contract that they entered into and thus, an unjust enrichment claim cannot be alleged). Plaintiffs claims for unjust enrichment against Corben and Rakontur should be dismissed because Plaintiff has pleaded the existence of an express contract and has incorporated that Contract into Counts III and IV by alleging that he has attached the contract to the Complaint. Pursuant to Florida law, Plaintiff cannot seek relief in quasi-contract in the same pleading to which it has alleged attachment of a written contract. Accordingly, Counts III and IV should be dismissed, with prejudice, because Plaintiff has pled the existence of an express contract. II. PLAINTIFFS DEMAND FOR ATTORNEYS FEES IN ALL COUNTS SHOULD BE STRICKEN. Plaintiff seeks attorneys fees in the Wherefore clause of Counts I through IV of the Complaint. It is well settled in Florida that attorneys fees are not taxable unless specifically authorized by a statute or contract. Coral Springs Roofing Co., v. G.S. Campagna, 528 So. 2d 557, 558 (Fla. 4th DCA 1988). Plaintiff has not alleged any statutory or contractual basis in support of his demand for attorneys fees, and therefore his claim for attorneys fees should be stricken from the Complaint.

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CONCLUSION For the foregoing reasons, Plaintiff, Kevin Brinkworth has failed to state a cause of action for breach of contract or unjust enrichment against Defendants, Billy Corben and Rakontur. Plaintiff has further failed to allege any statutory or contractual basis for attorneys fees. WHEREFORE, Defendants, William Cohen, a/k/a Billy Corben and Rakontur, LLC respectfully request that the Court dismiss all counts against them alleged in Plaintiff, Kevin Brinkworths Complaint, strike Plaintiffs demand for attorneys fees in all counts of the Complaint, and grant such further relief deemed just and proper. Dated: April 8, 2013.

Respectfully submitted, LEGON FODIMAN, P.A. Attorneys for Defendants 1111 Brickell Avenue, Suite 2150 Miami, Florida 33131 Telephone: (305) 444-9991 Facsimile: (305) 444-9937

By:____/s/ A. Sheila Oretsky TODD R. LEGON Florida Bar No. 814415 A. SHEILA ORETSKY Florida Bar No. 31365

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically and via facsimile on this 8th day of April, 2013 to: Richard B. Sharp, Esq., Mallard & Sharp, P.A. 7700 N. Kendall Drive, Suite 303, Miami, Florida 33156.

___/s/ A. Sheila Oretsky______ A. SHEILA ORETSKY