AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES
COMES NOW, the Plaintiffs, SOUTH TAMPA PAINTBALL, LLC and CASEY HENRY, by and through their undersigned counsel, and sue the Defendants, AMY ABDNOUR and AIM INDUSTRIES, LLC, and as grounds therefore would allege as follows:
- Jurisdiction lies in this Court in accordance with Florida Statutes § 26.012(2) since this action includes a claim for damages in excess of fifteen thousand dollars ($15,000.00).
2. Venue is proper in this Court and Hillsborough County, Florida because the Defendant, Amy Abdnour (hereinafter “Defendant Abdnour”), is a resident of Hillsborough County, Florida.
3. Defendant AIM Industries, LLC (“AIM”) is a Florida limited liability company that owns land in Hillsborough County, Florida of which Plaintiff Casey Henry (hereinafter “Plaintiff Henry”) and Defendant Abdnour are equitable owners. The land is being used in a joint venture with Plaintiff South Tampa Paintball, LLC (hereinafter “STP”).
4. At all times material hereto, STP has had, and continues to have, its main place of business in Hillsborough County, Florida where STP operates a business where customers come to the STP paintball field and play paintball. Paintball can be a dangerous sport because players use paintball guns and shoot paintballs at one another at speeds up to 280 feet per second. The game can be dangerous and requires the utmost care for the protection of customers, employees, bystanders, and anyone on the field from being shot in the eye and blinded by a paintball.
5. Plaintiff Henry and Defendant Abdnour formed STP on February 13, 2013 and are the only members of STP. A copy of the “Limited Liability Company Manager Managed Operating Agreement of SOUTH TAMPA PAINTBALL, LLC” is attached hereto as Exhibit “A” (hereinafter “Operating Agreement”).
6. At all times material hereto: (i) the Newlon Shutts Bowen Trust (hereinafter the “Trust”) has been, and continues to be, the Manager of STP; and (ii) Plaintiff Henry has been, and continues to be, the Trustee of the Trust.
7. As a Member of STP and the Trustee of the Manager of STP, Plaintiff Henry cannot be excluded from the management of STP, the day-to-day activities and operation of STP, the affairs of STP, or any other aspect of STP.
8. In accordance with the Operating Agreement, as well as Florida law, Defendant Abdnour owed, and continues to owe, a fiduciary duty to act in the best interests of STP, as well as in the best interests of Plaintiff Henry, the other member of STP. See paragraph eight (8) of Exhibit “A”.
9. Defendant Abdnour has breached her fiduciary duty and taken 100% control of STP assets without authorization or permission from Plaintiffs and has sole possession of all accounting records, books, and financial information concerning STP.
10. In violation of the Operating Agreement and Florida law, Defendant Abdnour has excluded Plaintiff Henry from the management of STP, the day-to-day activities and operation of STP, the affairs of STP, and other aspects of STP.
11. Because of such violations, on June 22, 2016 Plaintiff Henry demanded that Defendant Abdnour: (i) provide her with an accounting of the finances and financial affairs of STP by no later than July 22, 2016, which is a reasonable time; and (ii) allow her to inspect, by no later than July 22, 2016 which is a reasonable time, all financial records of STP, all books of STP, and all other financial documentation of STP related to revenue, expenses, income, assets, and liabilities, including but not limited to any profit and loss statement, chart of accounts, balance sheets, etc.
12. Defendant Abdnour failed and refused to comply with such demands by July 22, 2016 and, as of the filing of this Complaint, has not: (i) provided the requested accounting; or (ii) allowed the requested inspection.
13. Except for the Operating Agreement requirement that Plaintiff Henry and Defendant Abdnour (i) submit their issues to mediation, and, (ii) should mediation be unsuccessful, seek non-binding arbitration, all conditions precedent to this action have been met, including compliance with Florida Statutes § 605.0802, to the extent that said statute is applicable since Defendant Abdnour (a) has excluded Plaintiff Henry from the management of STP in violation of the Operating Agreement, (b) has taken control of the day-to-day activities, operation, affairs, and other aspects of STP in violation of the Operating Agreement, and (c) is otherwise acting as the Manager of STP in violation of the Operating Agreement. Specifically, there has been compliance with Florida Statutes § 605.0802 since (i) Plaintiff Henry made a demand on Defendant Abdnour, and Defendant Abdnour did not take the action within a reasonable time, (ii) a demand under Florida Statutes § 605.0802(1) would be futile, and/or (iii) irreparable injury would result to STP by waiting for Defendant Abdnour to take action to enforce the right in accordance with Florida Statutes § 605.0802(1), including financial ruin to STP should an employee suffer a catastrophic injury such as losing an eye since STP does not carry workers compensation insurance, criminal and other penalties for failing to properly account for revenue and pay taxes, and criminal and other penalties for improperly treating employees as independent contractors to avoid paying taxes, insurance, social security benefits, and other requirements under state and federal law. As to mediation and non-binding arbitration, the Court has stayed this action for sixty (60) days, effective upon the filing of this Amended Complaint, so that the parties can complete mediation and, if necessary, non-binding arbitration before proceeding further in this action.