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Filing # 137208244 E-Filed 10/25/2021 03:05:23 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
NEW WORLD TRADE, INC., a Florida
corporation, and WAHOO FISHING
PRODUCTS, INC., a Florida corporation,
Plaintiffs,
VS. CASE NO.: 21-CA-940
CONTINENTAL SPORTS, INC., a foreign
corporation, FLAMINGO, SRL, a foreign
limited liability company, FLAMINGO
TACKLE, SRL, a foreign limited liability
company, TALL PINES TACKLE, INC., a
Florida corporation, MICHAEL VUKETS,
individually, BARRY KEAST, individually,
RICHARD KOVACS, individually, MARK
WELLE, individually, and MARYLLIAN
WELLE, individually,
Defendants.
DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
COME NOW, the Defendants, CONTINENTAL SPORTS, INC., a foreign corporation,
FLAMINGO, SRL, a foreign limited liability company, TALL PINES TACKLE, INC., a Florida
corporation, MICHAEL VUKETS, individually, BARRY KEAST, individually, RICHARD
KOVACS, individually, MARK WELLE, individually, and MARYLLIAN WELLE, individually,
by and through the undersigned counsel, and hereby answers and responds to the Complaint, in like
numbered paragraphs as follows:
JURISDICTION AND PARTIES
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Denied.
Denied.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
10. Denied.
11 Denied.
12. Denied.
13. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
14. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation.
GENERAL ALLEGATIONS
15. Without knowledge therefore denied
16. Without knowledge therefore denied.
17. Denied as phrased.
18 Admitted.
19. Denied as phrased.
20. Admitted.
21 Admitted.
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22 Admitted.
23 Admitted to the extent that Richard Kovas was a former employee of NWT. Denied as to any
other inference or allegation.
24. Denied.
25 Denied.
26. Denied.
27 Admitted.
28 Admitted.
29, Admitted.
30. Without knowledge therefore denied.
31 Denied.
32. Denied.
33 Denied.
34, Denied.
35 Denied.
36. Denied.
37. Denied.
38 Denied.
39, Denied.
40. Denied.
41 Denied.
42 Denied.
43 Denied.
Page 3 of 16
Without knowledge therefore denied.
45 Without knowledge therefore denied.
46. Denied.
47 Denied.
COUNT I-THEFT OF TRADE SECRETS
48 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action.
49. Defendants restate their response to the paragraphs set forth above.
50. Denied.
51 Denied.
52. Denied.
53 Denied.
54, Denied.
55 Denied.
56. Denied.
57. Denied.
58 Denied.
59, Denied.
60. Denied.
61 Denied.
62 Denied.
63 Without knowledge therefore denied.
Denied.
Page 4 of 16
COUNT II-CONVERSION
65 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action.
66. Defendants restate their response to the paragraphs set forth above.
67. Denied.
68 Denied.
69. Denied.
70. Denied.
COUNT I1I-TORTIOUS INTERFERENCE
71 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action.
72. Defendants restate their response to the paragraphs set forth above.
73 Denied.
74, Denied.
75 Denied.
76. Denied.
77. Denied.
78 Denied.
79. Denied.
80. Denied.
COUNT IV-CONSPIRACY
81 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action.
82. Defendants restate their response to the paragraphs set forth above.
83 Denied.
84. Denied.
Page 5 of 16
85 Denied.
COUNT V- REPLEVIN
86. Denied.
87. Defendants restate their response to the paragraphs set forth above.
88 Denied.
89. Denied.
90. Denied.
91 Denied.
92 Denied.
93 . Without knowledge therefore denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Preemption Under Florida’s Uniform Trade Secrets Act (“FUTSA”). Section 688.008 of
the Act provides that the FUTSA "displace[s] conflicting tort, restitutory, and other law of this
state providing civil remedies for misappropriation of a trade secret." Whether FUTSA preempts
other causes of actions depends on "whether allegations of trade secret misappropriation alone
comprise the underlying wrong.” See Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d
1329, 1335 (S.D. Fla. 2002) and Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F.
Supp. 2d 1170, 1181 (M.D. Fla. 2005). Comparing the allegations comprising the claim for
Page 6 of 16
conversion, tortious interference, conspiracy, and replevin with those comprising the claim for
misappropriation of trade secrets, the claims contain no material distinction. Accordingly, the
claims for conversion, tortious interference, conspiracy, and replevin should be dismissed.
SECOND AFFIRMATIVE DEFENSE
Failure to State Cause of Action under Chapter 688. To state a valid a claim for misappropriation
of trade secrets pursuant to Ch. 688, Florida Statutes, Plaintiff must plead sufficiently that he or
she 1) possessed secret information and took steps to protect its secrecy, and 2) the secret possessed
was misappropriated, either by one who knew or had reason to know that the secret was improperly
obtained or by one who used improper means to obtain it. American Registry, LLC v. Hanaw,
2013WL6332971 (M.D. Fla. 2013). Plaintiffs have failed to describe the “trade secret”. The list
contained in the complaint is so broad as to be meaningless and does not adequately inform
defendants what they supposedly misappropriated, and the allegations regarding the
misappropriation are without adequate factual support. Moreover, Plaintiffs did not take
reasonable efforts to maintain the secrecy of their alleged trade secrets. Thus, Plaintiffs have no
trade secrets pursuant to Fla. Stat. § 688.002. In addition, the information claimed to be a trade
secret was readily ascertainable or voluntarily given by Plaintffs and not obtained through theft or
improper methods. As such nearly anyone could access the information without resorting to
improper methods such as theft, bribery, espionage, misrepresentation or a breach of
confidentiality.
THIRD AFFIRMATIVE DEFENSE
No underlying tort. Plaintiffs’ claim for conspiracy is barred because there is no actionable
underlying tort or wrong doing by Defendants.
Page 7 of 16
FOURTH AFFIRMATIVE DEFENSE
Lack of damages. Defendants never received any trade secrets from Plaintiffs and thus, Plaintiffs
suffered no damages or irreparable harm and are not entitled to any relief. To the extent that a
Court does find damages, Plaintiffs’ claims are barred, in whole or in part, because the damages
sought by Plaintiffs’ are speculative, remote, and/or impossible to ascertain. Regions Bank v.
Maroone Chevrolet, L.L.C., 118 So.3d 251, 257 (Fla. 3d DCA 2013) (citations and quotations
omitted) ("the plaintiff must present evidence regarding a reasonable certainty as to its amount of
damages, and a plaintiff's claim cannot be based upon speculation or guesswork.").
FIFTH AFFIRMATIVE DEFENSE
Defendants had no contractual or other duty to keep any data or information confidential. Plaintff
did not have defendants execute a non-compete or confidentiality agreement. Accordingly,
Defendants did not know or have reason to know that any information it obtained from Plaintff
was acquired by improper means. Rather, any information obtained was used from Defendants’
expertise and contacts while working in the industry.
SIXTH AFFIRMATIVE DEFENSE
No Trade Secret. Some or all of the information obtained by Defendants conceming Plaintiffs were
not a trade secret because such information could have been obtained by other means, including
through Defendants’ own knowledge and efforts and/or through publicly available or generally
known information.
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SEVENTH AFFIRMATIVE DEFENSE
Waiver/Consent. Plaintff voluntary waived any alleged claim regarding trade secrets by freely
disseminating the alleged trade secrets to third parties without taking any steps or precautions to
safeguard the alleged trade secrets. The complaint even concedes the alleged trade secrets were
voluntarily provided to third parties. Thus, Defendants had Plaintff’s consent in accessing the
information.
EIGHTH AFFIRMATIVE DEFENSE
Statute of Limitations. Any alleged misappropriation which Plaintiffs failed to bring within three
years after it was discovered, or by the exercise of reasonable diligence should have discovered,
are barred by Fla. Stat. § 688.007.
NINTH AFFIRMATIVE DEFENSE
To the extent the property being sought in the replvin action is not located in Charlotte County,
Florida, the Court lacks jurisdiction over said items as replevin actions can be brought only in the
county where the property is located. Fla. Stat. ch. 78.03.
TENTH AFFIRMATIVE DEFENSE
Unclean hands. Plaintiffs come to court with unclean hands as they have breached their agreement
with Flamingo as alleged in the counterclaim.
ELEVENTH AFFIRMATIVE DEFENSE
Setoff. To the extent that Plaintiffs are awarded any sums in the action, such sums should be offset
by amounts due and owing to Defendant, Flamingo, as requested in the counterclaim in this action.
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Thus, the amount of any such compensation should be set off against any recovery Plaintiffs may
receive in this action.
TWELFTH AFFIRMATIVE DEFENSE
Justified Interference. Plaintff did not have defendants execute a non-compete or confidentiality
agreement. Defendants were therefore free to obtain business from the open market once their
relationship with Plaintff came to an end. Florida recognizes a "privilege of interference"
applicable to competition for contracts. Where "there is no contract right to have the relation
continued, but only an expectancy[,] ... a competitor has the privilege of interference in order to
acquire the business for himself." Wackenhut Corp. v. Maimone, 389 So.2d 656, 657-658 (Fla. 4th
DCA 1980); Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc., 629 So.2d 252, 255 (Fla.
3d DCA 1993). Harllee v. Professional Services Industries, Inc., 619 So.2d 298, 300 (Fla. 3d DCA
1992) ("[a] former employee is free to compete against a former employer (absent a
noncompetition agreement to the contrary)."); Ethyl Corp. v. Baiter, 386 So.2d 1220, 1225 (Fla.
3d DCA 1980) (reversing judgment based on jury verdict awarding damages for interference with
advantageous business relations, holding, "activities taken to safeguard or promote one's own
financial and contractual interests are entirely non-actionable"). Therefore, Plaintiffs’ claims
against Defendants fail.
THIRTEENTH AFFIRMATIVE DEFENSE
In order to be actionable, alleged tortious interference must be direct; conduct that has only indirect
consequences on the plaintiff will not support a claim. Astro Tel, Inc. v. Verizon Florida, LLC,
979 F.Supp.2d 1284, 1297 (M.D.Fla. 2013); Lawler v. Eugene Wuesthoff Memorial Hospital Ass
‘n, 497 So.2d 1261, 1263 (Fla. 5th DCA 1986) (tortious interference claim dismissed as the
Page 10 of 16
interference was "only an indirect consequence" of alleged conduct). Plaintiffs’ claims are based
on indirect tortious interference and are not actionable.
FOURTEENTH AFFIRMATIVE DEFENSE
Failure to State a Claim for Conspiracy. Under Florida law, "[a] civil conspiracy requires (a) an
agreement between two or more parties, (b) to do an unlawful act or to do an unlawful act by
unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to
plaintiff as a result of the acts done under the conspiracy." Raimi v. Furlong, 702 So.2d 1273, 1284
(Fla. 3d DCA 1997). Plaintiffs cannot prove any of these required elements. Therefore, Plaintiffs’
conspiracy claim fails.
WHEREFORE, Defendants respectfully requests that the Court dismiss Plaintiffs’
Complaint, deny any remedy against the Defendants, award Defendants attorney’s fees and costs for
litigating this matter, and grant further relief as this Court deems just and proper under the
circumstances.
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COUNTERCLAIM
COMES NOW the Defendant/Counter-Plaintiff, FLAMINGO, SRL, a foreign limited
liability company, (hereinafter “Flamingo”), by and through the undersigned counsel and hereby
files this Counterclaim against the Plaintiff/Counter-Defendant, NEW WORLD TRADE, INC., a
Florida corporation, (hereinafter “NWT”) and alleges as follows:
PARTIES, JURISDICTION, AND VENUE
The amount of the damages is in excess of $30,000.00, exclusive of interest, costs
and attorney’s fees.
Counter Plaintiff, Flamingo, is a foreign limited liability company that conducts
business in Charlotte County, Florida and has previously submitted itself to the
jurisdiction of this court.
Counter Defendant, New World Trade, Inc. (“NWT”), is a Florida corporation with
a principal address in Charlotte County, Florida and has previously submitted itself
to the jurisdiction of this court.
FACTUAL ALLEGATIONS
Flamingo has operated as an integrated family business for the manufacture, sale
and distribution of fishing tackle products.
Flamingo, over the course of many years, established a business relationship with
Counter Defendant.
Although the agreement was not in writing, the course of conduct of the parties and
verbal arrangement was as follows (“Agreement”):
Page 12 of 16
Counter Defendant would receive purchase orders directly from their
customers.
Counter Defendant would then, at their own cost, provide Flamingo raw
materials, packing supplies, equipment, and operating capital to manufacture
the finished product and fulfil the sales orders.
The purchase order would then be converted to a sales order to be manufactured
at two separate facilities: (i) manufacturing facilities in the Dominican
Republic, and (ii) and manufacturing facilities in Haiti.
Flamingo would send the materials to Haiti for assembly and would receive the
assembled products back from Haiti.
Once the products were manufactured and retuned from Haiti to the Dominican
Republic, the finished products were packaged and consolidated at Flamingo’s
facility and retuned to Counter Defendant with a packing list by price for final
distribution and invoicing to Counter Defendant’s customers.
Counter Defendant would then sell the finished goods to either: a) third party
retailer; or b) to a separate company known as Wahoo Fishing Products, Inc.
(“Wahoo”).
Wahoo never did business directly with Flamingo, nor would they exchange
money.
Flamingo and Counter Defendant would then work out a reconciliation between
the cost of finished product manufactured by Flamingo and FTP and received
by Counter Defendant and the value, at cost, of the raw materials, equipment,
and operating capital provided by Counter Defendant to Flamingo.
Page 13 of 16
Counter Defendant would periodically send Flamingo an “invoice” that
teconciled the credits and debits related to the transaction, leaving Counter
Defendant owing money to Flamingo for services rendered.
Counter Defendant would then write a check to Counter Plaintiff for the amount
owed.
The Agreement was in place for various years without any issues or disputes and
eventually became the standard course of conduct between the parties.
However, in the last transaction between the parties, Counter Defendant has failed and
or refused to provide a reconciliation to Counter Plaintiff and has not paid the amounts
due and owing for Couter Plaintiffs manufacturing services.
Flamingo has performed the Agreement and is entitled to the promised reconciliation
and payment of their services and was the standard practice of the parties.
COUNTI
BREACH OF CONTRACT.
10. The allegations contained in paragraphs 1 through 9 are re-alleged as if fully stated
herein.
11 Counter Plaintiff and Counter Defendant entered into a verbal agreement as outlined in
paragraph 7 above.
12. Counter Defendant has breached the Agreement by failing to provide a reconciliation
to Counter Plaintiff or paying for the services Counter Plaintiff provided to Counter
Defendant.
13. Counter Plaintiff has been harmed as a result of the Counter Defendant’s breach of
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contract.
14. Counter Plaintiff is entitled to recover from the Counter Defendant for the damages it
has sustained.
WHEREFORE, Counter Plaintiff respectfully request judgment against Counter Defendant
for damages, interest, costs, and such other relief as this Court deems just and proper.
COUNT II
UNJUST ENRICHMENT
(In the Alternative)
15. The allegations contained in paragraphs 1 through 9 are re-alleged as if fully stated
herein.
16. This count is pled in the alternative to Count I.
17 Counter Plaintiff has conferred a benefit by providing manufacturing services to
Counter Defendant.
18 Counter Defendant voluntarily accepted and retained the benefit conferred.
19. The circumstances render Counter Defendant’s retention of the benefit inequitable
unless the Counter Defendant pays or reimburses Counter Plaintiff the value of the
benefit.
20. Counter Defendant have been unjustly enriched at the expense of Counter Plaintiff.
21 Counter Plaintiff is entitled to damages as a result of Counter Defendant’s unjust
enrichment.
WHEREFORE, Counter Plaintiff respectfully requests judgment against Counter
Defendant for unjust enrichment and such other relief as this Court deems just and proper.
Page 15 of 16
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on this 25th day of October 2021, a true and correct copy of the
above and foregoing was electronically filed with the Clerk of the Court using the E-Portal Filing
System and a copy of same will be served via e-service to: All counsel of record.
BURANDT, ADAMSKI, FEICHTHALER &
SANCHEZ, PLLC
Attorneys for Defendants
1714 Cape Coral Parkway East
Cape Coral, Florida 33904
Phone: (239) 542-4733 / Fax: (239) 542-9203
By: /s/ Alvaro C. Sanchez
Alvaro C. Sanchez, Esq
Florida Bar No. 105539
Robson D.C. Powers, Esq.
Florida Bar No. 99617
Email: alavro@capecoralattorney.com
tobson@capecoralattorney.com
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Preview
Filing # 137208244 E-Filed 10/25/2021 03:05:23 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION NEW WORLD TRADE, INC., a Florida corporation, and WAHOO FISHING PRODUCTS, INC., a Florida corporation, Plaintiffs, VS. CASE NO.: 21-CA-940 CONTINENTAL SPORTS, INC., a foreign corporation, FLAMINGO, SRL, a foreign limited liability company, FLAMINGO TACKLE, SRL, a foreign limited liability company, TALL PINES TACKLE, INC., a Florida corporation, MICHAEL VUKETS, individually, BARRY KEAST, individually, RICHARD KOVACS, individually, MARK WELLE, individually, and MARYLLIAN WELLE, individually, Defendants. DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM COME NOW, the Defendants, CONTINENTAL SPORTS, INC., a foreign corporation, FLAMINGO, SRL, a foreign limited liability company, TALL PINES TACKLE, INC., a Florida corporation, MICHAEL VUKETS, individually, BARRY KEAST, individually, RICHARD KOVACS, individually, MARK WELLE, individually, and MARYLLIAN WELLE, individually, by and through the undersigned counsel, and hereby answers and responds to the Complaint, in like numbered paragraphs as follows: JURISDICTION AND PARTIES Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Denied. Denied. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. 10. Denied. 11 Denied. 12. Denied. 13. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. 14. Admitted for jurisdictional purposes only. Denied as to any other inference or allegation. GENERAL ALLEGATIONS 15. Without knowledge therefore denied 16. Without knowledge therefore denied. 17. Denied as phrased. 18 Admitted. 19. Denied as phrased. 20. Admitted. 21 Admitted. Page 2 of 16 22 Admitted. 23 Admitted to the extent that Richard Kovas was a former employee of NWT. Denied as to any other inference or allegation. 24. Denied. 25 Denied. 26. Denied. 27 Admitted. 28 Admitted. 29, Admitted. 30. Without knowledge therefore denied. 31 Denied. 32. Denied. 33 Denied. 34, Denied. 35 Denied. 36. Denied. 37. Denied. 38 Denied. 39, Denied. 40. Denied. 41 Denied. 42 Denied. 43 Denied. Page 3 of 16 Without knowledge therefore denied. 45 Without knowledge therefore denied. 46. Denied. 47 Denied. COUNT I-THEFT OF TRADE SECRETS 48 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action. 49. Defendants restate their response to the paragraphs set forth above. 50. Denied. 51 Denied. 52. Denied. 53 Denied. 54, Denied. 55 Denied. 56. Denied. 57. Denied. 58 Denied. 59, Denied. 60. Denied. 61 Denied. 62 Denied. 63 Without knowledge therefore denied. Denied. Page 4 of 16 COUNT II-CONVERSION 65 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action. 66. Defendants restate their response to the paragraphs set forth above. 67. Denied. 68 Denied. 69. Denied. 70. Denied. COUNT I1I-TORTIOUS INTERFERENCE 71 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action. 72. Defendants restate their response to the paragraphs set forth above. 73 Denied. 74, Denied. 75 Denied. 76. Denied. 77. Denied. 78 Denied. 79. Denied. 80. Denied. COUNT IV-CONSPIRACY 81 Admitted for jurisdictional purposes. Denied that the claim states a valid cause of action. 82. Defendants restate their response to the paragraphs set forth above. 83 Denied. 84. Denied. Page 5 of 16 85 Denied. COUNT V- REPLEVIN 86. Denied. 87. Defendants restate their response to the paragraphs set forth above. 88 Denied. 89. Denied. 90. Denied. 91 Denied. 92 Denied. 93 . Without knowledge therefore denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Preemption Under Florida’s Uniform Trade Secrets Act (“FUTSA”). Section 688.008 of the Act provides that the FUTSA "displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret." Whether FUTSA preempts other causes of actions depends on "whether allegations of trade secret misappropriation alone comprise the underlying wrong.” See Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329, 1335 (S.D. Fla. 2002) and Am. Honda Motor Co. v. Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1181 (M.D. Fla. 2005). Comparing the allegations comprising the claim for Page 6 of 16 conversion, tortious interference, conspiracy, and replevin with those comprising the claim for misappropriation of trade secrets, the claims contain no material distinction. Accordingly, the claims for conversion, tortious interference, conspiracy, and replevin should be dismissed. SECOND AFFIRMATIVE DEFENSE Failure to State Cause of Action under Chapter 688. To state a valid a claim for misappropriation of trade secrets pursuant to Ch. 688, Florida Statutes, Plaintiff must plead sufficiently that he or she 1) possessed secret information and took steps to protect its secrecy, and 2) the secret possessed was misappropriated, either by one who knew or had reason to know that the secret was improperly obtained or by one who used improper means to obtain it. American Registry, LLC v. Hanaw, 2013WL6332971 (M.D. Fla. 2013). Plaintiffs have failed to describe the “trade secret”. The list contained in the complaint is so broad as to be meaningless and does not adequately inform defendants what they supposedly misappropriated, and the allegations regarding the misappropriation are without adequate factual support. Moreover, Plaintiffs did not take reasonable efforts to maintain the secrecy of their alleged trade secrets. Thus, Plaintiffs have no trade secrets pursuant to Fla. Stat. § 688.002. In addition, the information claimed to be a trade secret was readily ascertainable or voluntarily given by Plaintffs and not obtained through theft or improper methods. As such nearly anyone could access the information without resorting to improper methods such as theft, bribery, espionage, misrepresentation or a breach of confidentiality. THIRD AFFIRMATIVE DEFENSE No underlying tort. Plaintiffs’ claim for conspiracy is barred because there is no actionable underlying tort or wrong doing by Defendants. Page 7 of 16 FOURTH AFFIRMATIVE DEFENSE Lack of damages. Defendants never received any trade secrets from Plaintiffs and thus, Plaintiffs suffered no damages or irreparable harm and are not entitled to any relief. To the extent that a Court does find damages, Plaintiffs’ claims are barred, in whole or in part, because the damages sought by Plaintiffs’ are speculative, remote, and/or impossible to ascertain. Regions Bank v. Maroone Chevrolet, L.L.C., 118 So.3d 251, 257 (Fla. 3d DCA 2013) (citations and quotations omitted) ("the plaintiff must present evidence regarding a reasonable certainty as to its amount of damages, and a plaintiff's claim cannot be based upon speculation or guesswork."). FIFTH AFFIRMATIVE DEFENSE Defendants had no contractual or other duty to keep any data or information confidential. Plaintff did not have defendants execute a non-compete or confidentiality agreement. Accordingly, Defendants did not know or have reason to know that any information it obtained from Plaintff was acquired by improper means. Rather, any information obtained was used from Defendants’ expertise and contacts while working in the industry. SIXTH AFFIRMATIVE DEFENSE No Trade Secret. Some or all of the information obtained by Defendants conceming Plaintiffs were not a trade secret because such information could have been obtained by other means, including through Defendants’ own knowledge and efforts and/or through publicly available or generally known information. Page 8 of 16 SEVENTH AFFIRMATIVE DEFENSE Waiver/Consent. Plaintff voluntary waived any alleged claim regarding trade secrets by freely disseminating the alleged trade secrets to third parties without taking any steps or precautions to safeguard the alleged trade secrets. The complaint even concedes the alleged trade secrets were voluntarily provided to third parties. Thus, Defendants had Plaintff’s consent in accessing the information. EIGHTH AFFIRMATIVE DEFENSE Statute of Limitations. Any alleged misappropriation which Plaintiffs failed to bring within three years after it was discovered, or by the exercise of reasonable diligence should have discovered, are barred by Fla. Stat. § 688.007. NINTH AFFIRMATIVE DEFENSE To the extent the property being sought in the replvin action is not located in Charlotte County, Florida, the Court lacks jurisdiction over said items as replevin actions can be brought only in the county where the property is located. Fla. Stat. ch. 78.03. TENTH AFFIRMATIVE DEFENSE Unclean hands. Plaintiffs come to court with unclean hands as they have breached their agreement with Flamingo as alleged in the counterclaim. ELEVENTH AFFIRMATIVE DEFENSE Setoff. To the extent that Plaintiffs are awarded any sums in the action, such sums should be offset by amounts due and owing to Defendant, Flamingo, as requested in the counterclaim in this action. Page 9 of 16 Thus, the amount of any such compensation should be set off against any recovery Plaintiffs may receive in this action. TWELFTH AFFIRMATIVE DEFENSE Justified Interference. Plaintff did not have defendants execute a non-compete or confidentiality agreement. Defendants were therefore free to obtain business from the open market once their relationship with Plaintff came to an end. Florida recognizes a "privilege of interference" applicable to competition for contracts. Where "there is no contract right to have the relation continued, but only an expectancy[,] ... a competitor has the privilege of interference in order to acquire the business for himself." Wackenhut Corp. v. Maimone, 389 So.2d 656, 657-658 (Fla. 4th DCA 1980); Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc., 629 So.2d 252, 255 (Fla. 3d DCA 1993). Harllee v. Professional Services Industries, Inc., 619 So.2d 298, 300 (Fla. 3d DCA 1992) ("[a] former employee is free to compete against a former employer (absent a noncompetition agreement to the contrary)."); Ethyl Corp. v. Baiter, 386 So.2d 1220, 1225 (Fla. 3d DCA 1980) (reversing judgment based on jury verdict awarding damages for interference with advantageous business relations, holding, "activities taken to safeguard or promote one's own financial and contractual interests are entirely non-actionable"). Therefore, Plaintiffs’ claims against Defendants fail. THIRTEENTH AFFIRMATIVE DEFENSE In order to be actionable, alleged tortious interference must be direct; conduct that has only indirect consequences on the plaintiff will not support a claim. Astro Tel, Inc. v. Verizon Florida, LLC, 979 F.Supp.2d 1284, 1297 (M.D.Fla. 2013); Lawler v. Eugene Wuesthoff Memorial Hospital Ass ‘n, 497 So.2d 1261, 1263 (Fla. 5th DCA 1986) (tortious interference claim dismissed as the Page 10 of 16 interference was "only an indirect consequence" of alleged conduct). Plaintiffs’ claims are based on indirect tortious interference and are not actionable. FOURTEENTH AFFIRMATIVE DEFENSE Failure to State a Claim for Conspiracy. Under Florida law, "[a] civil conspiracy requires (a) an agreement between two or more parties, (b) to do an unlawful act or to do an unlawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy." Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997). Plaintiffs cannot prove any of these required elements. Therefore, Plaintiffs’ conspiracy claim fails. WHEREFORE, Defendants respectfully requests that the Court dismiss Plaintiffs’ Complaint, deny any remedy against the Defendants, award Defendants attorney’s fees and costs for litigating this matter, and grant further relief as this Court deems just and proper under the circumstances. Page 11 of 16 COUNTERCLAIM COMES NOW the Defendant/Counter-Plaintiff, FLAMINGO, SRL, a foreign limited liability company, (hereinafter “Flamingo”), by and through the undersigned counsel and hereby files this Counterclaim against the Plaintiff/Counter-Defendant, NEW WORLD TRADE, INC., a Florida corporation, (hereinafter “NWT”) and alleges as follows: PARTIES, JURISDICTION, AND VENUE The amount of the damages is in excess of $30,000.00, exclusive of interest, costs and attorney’s fees. Counter Plaintiff, Flamingo, is a foreign limited liability company that conducts business in Charlotte County, Florida and has previously submitted itself to the jurisdiction of this court. Counter Defendant, New World Trade, Inc. (“NWT”), is a Florida corporation with a principal address in Charlotte County, Florida and has previously submitted itself to the jurisdiction of this court. FACTUAL ALLEGATIONS Flamingo has operated as an integrated family business for the manufacture, sale and distribution of fishing tackle products. Flamingo, over the course of many years, established a business relationship with Counter Defendant. Although the agreement was not in writing, the course of conduct of the parties and verbal arrangement was as follows (“Agreement”): Page 12 of 16 Counter Defendant would receive purchase orders directly from their customers. Counter Defendant would then, at their own cost, provide Flamingo raw materials, packing supplies, equipment, and operating capital to manufacture the finished product and fulfil the sales orders. The purchase order would then be converted to a sales order to be manufactured at two separate facilities: (i) manufacturing facilities in the Dominican Republic, and (ii) and manufacturing facilities in Haiti. Flamingo would send the materials to Haiti for assembly and would receive the assembled products back from Haiti. Once the products were manufactured and retuned from Haiti to the Dominican Republic, the finished products were packaged and consolidated at Flamingo’s facility and retuned to Counter Defendant with a packing list by price for final distribution and invoicing to Counter Defendant’s customers. Counter Defendant would then sell the finished goods to either: a) third party retailer; or b) to a separate company known as Wahoo Fishing Products, Inc. (“Wahoo”). Wahoo never did business directly with Flamingo, nor would they exchange money. Flamingo and Counter Defendant would then work out a reconciliation between the cost of finished product manufactured by Flamingo and FTP and received by Counter Defendant and the value, at cost, of the raw materials, equipment, and operating capital provided by Counter Defendant to Flamingo. Page 13 of 16 Counter Defendant would periodically send Flamingo an “invoice” that teconciled the credits and debits related to the transaction, leaving Counter Defendant owing money to Flamingo for services rendered. Counter Defendant would then write a check to Counter Plaintiff for the amount owed. The Agreement was in place for various years without any issues or disputes and eventually became the standard course of conduct between the parties. However, in the last transaction between the parties, Counter Defendant has failed and or refused to provide a reconciliation to Counter Plaintiff and has not paid the amounts due and owing for Couter Plaintiffs manufacturing services. Flamingo has performed the Agreement and is entitled to the promised reconciliation and payment of their services and was the standard practice of the parties. COUNTI BREACH OF CONTRACT. 10. The allegations contained in paragraphs 1 through 9 are re-alleged as if fully stated herein. 11 Counter Plaintiff and Counter Defendant entered into a verbal agreement as outlined in paragraph 7 above. 12. Counter Defendant has breached the Agreement by failing to provide a reconciliation to Counter Plaintiff or paying for the services Counter Plaintiff provided to Counter Defendant. 13. Counter Plaintiff has been harmed as a result of the Counter Defendant’s breach of Page 14 of 16 contract. 14. Counter Plaintiff is entitled to recover from the Counter Defendant for the damages it has sustained. WHEREFORE, Counter Plaintiff respectfully request judgment against Counter Defendant for damages, interest, costs, and such other relief as this Court deems just and proper. COUNT II UNJUST ENRICHMENT (In the Alternative) 15. The allegations contained in paragraphs 1 through 9 are re-alleged as if fully stated herein. 16. This count is pled in the alternative to Count I. 17 Counter Plaintiff has conferred a benefit by providing manufacturing services to Counter Defendant. 18 Counter Defendant voluntarily accepted and retained the benefit conferred. 19. The circumstances render Counter Defendant’s retention of the benefit inequitable unless the Counter Defendant pays or reimburses Counter Plaintiff the value of the benefit. 20. Counter Defendant have been unjustly enriched at the expense of Counter Plaintiff. 21 Counter Plaintiff is entitled to damages as a result of Counter Defendant’s unjust enrichment. WHEREFORE, Counter Plaintiff respectfully requests judgment against Counter Defendant for unjust enrichment and such other relief as this Court deems just and proper. Page 15 of 16 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 25th day of October 2021, a true and correct copy of the above and foregoing was electronically filed with the Clerk of the Court using the E-Portal Filing System and a copy of same will be served via e-service to: All counsel of record. BURANDT, ADAMSKI, FEICHTHALER & SANCHEZ, PLLC Attorneys for Defendants 1714 Cape Coral Parkway East Cape Coral, Florida 33904 Phone: (239) 542-4733 / Fax: (239) 542-9203 By: /s/ Alvaro C. Sanchez Alvaro C. Sanchez, Esq Florida Bar No. 105539 Robson D.C. Powers, Esq. Florida Bar No. 99617 Email: alavro@capecoralattorney.com tobson@capecoralattorney.com Page 16 of 16