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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDATAMPA DIVISIONMEDICAL LIEN MANAGEMENT, INC.,Plaintiff,v.Case No. 8:13-cv-486-T-33TGWSUSAN FREY, JEFFREY D. MURPHY,P.A., and JEFF MURPHY,Defendants./SUSAN FREY,Counter-Claimant,v.MEDICAL LIEN MANAGEMENT, INC.,Counter-Defendant./SUSAN FREY,Third-Party Plaintiff,v.LASER SPINE INSTITUTE, LLC,Third-Party Defendant./ORDER
This cause comes before the Court in consideration sDefendant Susan Frey’s Counterclaim (Doc. # 52), filed onJuly 18, 2013.Frey filed a response in opposition to theMotion (Doc. # 55) on July 30, 2013.For the reasons thatfollow, the Motion is edinanautomobile accident and thereafter sought treatment withLaser Spine Institute (LSI).“LSIagreedtotreatFrey(Doc. # 24 at ¶¶ 9, 10).pursuanttoaLetterofProtection whereby LSI would be paid out of the proceeds ofFrey’s personal injury settlement or judgment.”11).(Id. at ¶In accordance with the Letter of Protection, Frey andJeff Murphy, Frey’s counsel, agreed “to reimburse LSI forany outstanding invoices for services rendered . . . uponreceipt of any monetary damages or settlements received byway of cash, check, or other draft means whether in partialor full settlement of this matter.”(Letter of ProtectionDoc. # 24-1 at e of Lien or Assignment of Proceeds” to Frey andMurphy in which Medical Lien provided notice “that LSI had2
assigned its rights with respect to Frey, including itsassignmentrightsintheproceedsderivedpersonal injury case, to [Medical Lien].”fromFrey’s(Doc. # 24 at ¶18).Medical Lien claims that “Frey settled her personalinjury lawsuit for the amount of 350,000.00,” yet Frey,Murphy, and Murphy, P.A. have refused to pay Medical Lienfor the treatment LSI provided to Frey.(Id. at ¶¶ 19-20).Medical Lien additionally accuses Defendants of failing equires them to pay monies into the court registry in theevent of a dispute.”MedicalFebruaryLien21,(Id. at ¶ sactionon(1)BreachofContract –- Susan Frey; (2) Account Stated -- Susan Frey;(3) Unjust Enrichment -- Susan Frey (in the n)--SusanFrey, Jeffrey D. Murphy, P.A., and Jeff Murphy, torney; and (6) Fraud in the Inducement -- Susan Frey,Murphy, P.A., and Jeff Murphy, attorney.3(Doc. # 1).On
April 30, 2013, Medical Lien filed an Amended Complaintalleging the same six counts.OnJune28,2013,(Doc. # 24).Freyfiledheranswerandaffirmative defenses to Medical Lien’s Amended nallyincluded a counterclaim against Medical Lien alleging refusing to submit its bills to Frey’s health insurer,” andthat, “[a]s LSI’s assign[ee], Plaintiff is liable for LSI’sbreach.”Party(Id. at 8).ComplaintOn July 9, 2013, Frey filed a Third-againstLSI,againallegingthat“LSIbreached its agreement with Frey by failing and refusing tosubmit its bills to Frey’s health insurer.”(Doc. # 49 n to Dismiss Frey’s Counterclaim (Doc. # 52), to whichFrey filed a response on July 30, 2013 (Doc. # 55).TheCourt has carefully reviewed the pleadings, the Motion, theresponse, and is otherwise fully advised in the premises.II.Legal StandardIn reviewing a motion to dismiss for failure to gations in the complaint and construes the facts in the4
light most favorable to the plaintiff. Jackson v. BellsouthTelecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).However,courts are not “bound to accept as true a legal conclusioncouched as a factual allegation.”Papasan v. Allain, 478U.S. 265, 286 (1986).In Bell Atlantic Corp. v. Twombly, the Supreme aluated on a motion to dismiss:While a complaint attacked by a Rule 12(b)(6)motion to dismiss does not need detailed factualallegations, a plaintiff’s obligation to providethe grounds of his entitlement to relief requiresmore than labels and conclusions, and a formulaicrecitation of the elements of a cause of actionwill not do. Factual allegations must be enoughto raise a right to relief above the speculativelevel.550 U.S. 544, 555 (2007) (internal citations e on its efmustCivilmatter,thatisAshcroft v. Iqbal, 556 U.S. 662,663 (2009) (quoting Twombly, 550 U.S. at 570).claimofinclude“factualA plausiblecontent[that]allows the court to draw the reasonable inference that thedefendant is liable for the misconduct alleged.”III. Discussion5Id.
In the Motion to Dismiss Frey’s Counterclaim, ationsthat[Medical Lien] is liable to Frey for breach of contractbased on the alleged action or inaction of LSI,” (Doc. # 52at 5), and argues that Frey cannot state a claim for ent between Frey and [Medical Lien].”thereisno(Id. at 6).The Court iedassignment transfers to the assignee all the interest andrights of the assignor in and to the thing Theissubject to all equities and defenses that could have beenasserted against the assignor had the assignment not beenmade.”State v. Family Bank of Hallandale, 667 So. 2d 257,259 (Fla. 1st DCA 1995); see also Shreve Land Co., Inc. v.J & D Fin. Corp., 421 So. 2d 722, 724 (Fla. 3d DCA 1982)(“The law is well settled that an assignee succeeds to hisassignor’s rights under the assignment of a contract andtakes it with all the burdens to which it is subject in ms and setoffs against the assignor which thedebtor can establish to reduce the sum recoverable against6
him.”).shoesThus, because Medical Lien has stepped into s, and setoffs that could have been assertedagainst LSI at the time of assignment, Frey’s fanindependent agreement between Frey and Medical ��sargument that “Frey cannot unilaterally bind or obligateassignee [Medical Lien] to the performance of any dutiesunder a contract without the assignee’s agreement,” (Doc. #52 at 6), which is a correct statement of Florida law as itrelates to the assignment of contractual obligations.SeeState Farm Mut. Auto. Ins. Co. v. Physicians Injury CareCenter, Inc., 427 F. App’x 714, 719-20 (11th Cir. 2011)(“Under Florida law, the assignment of a contract rightdoes not entail the transfer of any duty to the assignee,unless the assignee assents to assume the duty.”) (internalcitations and quotations omitted); Sans Souci v. Div. ofFla. Land Sales and Condos., 448 So. 2d 1116, 1120 (Fla.1st DCA 1984) (“[A]n assignment normally involves only theassignee’s acquiring the rights of the assignor and notnecessarily the obligations, unless it is found that theassignment was also a novation.”).7
However, this principle is inapposite in the presentcase because the counterclaim Frey asserts against tion.Frey does not seek to impose upon Medical Lien some I;rather, Frey seeks only to assert the same counterclaimagainst Medical Lien that could have been asserted performance of contractual duties is unpersuasive.With regard to Medical Lien’s argument that “in hercounterclaim Frey has repeated the same breach of contractclaim against [Medical Lien] that she alleged in her ThirdParty Complaint against LSI,” (Doc. # 52 at 5), the thisIssues relating to the procedural and substantiveappropriateness of Frey’s Third Party Complaint against LSIare not properly before the Court at this liberalpleading standard of Federal Rule of Civil Procedure 8(a).Accordingly, Medical Lien’s Motion to Dismiss is denied.Accordingly, it isORDERED, ADJUDGED, and DECREED:8
Plaintiff’s Motion to Dismiss Defendant Susan Frey’sCounterclaim (Doc. # 52) is DENIED.DONE and ORDERED in Chambers in Tampa, Florida, this7th day of August, 2013.Copies: All Counsel and Parties of Record9
In June of 2009, Medical Lien Management sent a "Notice of Lien or Assignment of Proceeds" to Frey and Murphy in which Medical Lien provided notice "that LSI had . 3 assigned its rights with respect to Frey, including its assignment rights in the proceeds derived from Frey's
