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Filing # 71296596 E-Filed 04/26/2018 02:50:28 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 16-2018-CA-001661
DIVISION: CV-G
PHYSEP COMPONENTS AND SERVICE,
INC., a Florida corporation,
Plaintiff,
Vv.
ERIN B. DYKES, an individual, and
KENNETH W. PRESGRAVES, an
individual,
Defendants.
/
DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
Defendants, ERIN B. DYKES and KENNETH W. PRESGRAVES ("Defendants"), by and
through their undersigned counsel, hereby files their Answer and Affirmative Defenses to the
Complaint of Plaintiff, PHYSEP COMPONENTS AND SERVICE, INC. ("Plaintiff"), and
responds to the correspondingly numbered paragraphs as follows:
PARTIES, JURISDICTION, AND VENUE
1 Admitted that this is an action for damages for violation of Florida’s Computer
Abuse and Data Recovery Act (“CADRA”). Defendants deny that Plaintiff is entitled to any
damages or other relief in this action.
2. Admitted.
3 Admitted.
Admitted
Admitted for purposes of venue only. Defendants deny that Plaintiffs can satisfy
ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 04/27/2018 10:58:33 AM.
the elements of the cause of action asserted.
6 Admitted.
7
Admitted.
8 Admitted that Defendants were Physep employees in 2013. Defendants deny that
their employment with Physep began in 2013.
9 Admitted that Ms. Dykes’ job duties included marketing and sales reporting in the
latter part of her employment. Denied that her job duties included marketing and sales reporting
during the entirety of her employment. Admitted that at certain points, Ms. Dykes had access to
the information specified.
10. Admitted.
11. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 11 of the Complaint and therefore, the allegations are
denied.
12. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 12 of the Complaint and therefore, the allegations are
denied.
13. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 13 of the Complaint and therefore, the allegations are
denied.
14 Admitted.
15 Denied.
16 Denied.
17 Admitted that after being terminated as employees of Plaintiff, Defendants were
hired by International Mineral Separation Components Group (“IMSC”), a competitor of Plaintiff.
Defendants deny that there was anything improper about the timing and nature of their
employment. Defendants deny that the hiring occurred “immediately.”
18 Admitted.
19 Denied.
20. Admitted.
21 Denied.
22. Denied. Outotec, not IMSC, announced that IMSC has been granted a license.
23. Denied.
24. Denied.
25 Denied.
COUNT I— VIOLATION OF CADRA - § 668.801, Fla. Stat. et seg
26. Defendants adopt and incorporate their responses to Paragraphs 1 through 25
above, as if fully set forth herein.
27 Denied.
28 Denied.
29. Denied.
30 Defendants are without knowledge or information sufficient to form a belief as to
the truth of the allegations in Paragraph 30 of the Complaint and therefore, the allegations are
denied.
31. Denied.
PRAYER FOR RELIEF
Defendants deny that Plaintiff is entitled to the relief requested against Defendants in its
prayer for relief, or any relief against Defendant whatsoever.
AFFIRMATIVE DEFENSES
1 Plaintiff’s claim fails because Defendants were “authorized users” as that term is
defined in Section 668.802, Florida Statutes.
2 Plaintiff's claim fails because Plaintiff failed to maintain technological measures
that effectively controlled access to the allegedly protected computer or the information stored in
the protected computer pursuant to Section 668.802, Florida Statutes.
3 Plaintiff's claim fails because Defendants never obtained information from any
protected computer belonging to Plaintiff “without authorization” as required by Section 668.803,
Florida Statutes.
4 Plaintiff’s claim fails because Defendants’ actions did not cause “harm” or “loss”
to Plaintiff or its protected computer systems as required by CADRA.
5 Plaintiff's claim is barred in whole or in part because Plaintiff's own negligence
and/or fault was the proximate cause of its alleged damages. Specifically, Plaintiff's own actions,
including its pricing and performance, was the sole basis for Outotec electing to enter into a
contractual relationship with IMSC rather than Plaintiff.
6 Plaintiff's claim is barred to the extent that Plaintiff's alleged damages were caused
in whole or in part by others whose actions were not controlled by or related to Defendants. Such
actions are the intervening and/or supervening cause of Plaintiff's injuries and, therefore, Plaintiff
may not recover from Defendants as a matter of law.
COUNTERCLAIM
Defendants / Counter-Plaintiffs, ERIN B. DYKES and KENNETH W. PRESGRAVES
(“Counter-Plaintiffs”) hereby bring this action against Plaintiff / Counter-Defendant PHYSEP
COMPONENTS AND SERVICE, INC. (“Physep”), a Florida corporation, and allege as follows:
Jurisdiction and Venue
1 Counter-Plaintiffs are residents of Nassau County, Florida.
2 Physep is a Florida corporation with its principal place of business in Duval County,
Florida.
3 Physep is subject to the jurisdiction of this Court pursuant to Chapter 48, Florida
Statutes, because the causes of action alleged herein arise out of Physep’s:
a. operating, conducting, engaging in, or carrying on a business, or business
venture in the State of Florida, or having an office or agency in this state;
and/or
committing a tortious act within this state; and/or
c. engagement of solicitation or service activities within this state.
4 Venue is proper in this Court pursuant to Section Chapter 47.011, Florida Statutes
inasmuch as causes of action at issue arose in this County and because Physep maintains business
operations and a physical location in Jacksonville, Florida.
Background Facts
5 Physep is a company that formerly provided support, maintenance, and repair
services to the physical separation industry. Essentially all of Physep’s revenue arose from its
contractual relationship with Outotec, a manufacturer of industrial mining equipment. Physep
provided support, maintenance, and repair services to Outotec’s customers.
6 Counter-Plaintiffs became employees of Physep in 2012.
7
Beginning in 2015 and continuing through the end of 2017, Physep’s business and
revenue declined. The decline of Physep’s business culminated in Outotec’s decision not to renew
its contractual relationship with Physep.
8 On January 31, 2018, after Outotec’s decision was announced, Physep terminated
Counter-Plaintiffs’ employment.
9 Counter-Plaintiffs subsequently became employees of International Mineral
Separation Components Group (“IMSC”). IMSC provides repair, maintenance, and support
services in the physical separation sphere and also undertakes certain manufacturing operations
relating to the physical separation industry.
10. Outotec has announced that it has granted IMSC a license to manufacture Outotec
equipment and parts and provide certain services to Outotec and its customers worldwide.
11. Outotec’s decision to enter into a relationship with IMSC was due solely to Physep
and its ownership’s unreasonable demands during Physep’s contract renewal negotiations with
Outotec, its faulty business practices, and failure to serve its clients.
12. Physep and its ownership’s animosity at Counter-Plaintiffs over the loss of the
Outotec contract has led Physep to defame and disparage Counter-Plaintiffs in order to damage
their reputation and business. Rather than compete to secure new business, Physep has attempted
to seek revenge by making false statements about Counter-Plaintiffs to Outotec as well as
customers of Outotec and IMSC.
13. Specifically, after filing this lawsuit, Physep and its ownership have been sending
emails and letters to the customers of Outotec about IMSC and Counter-Plaintiffs’ service, stating
that Counter-Plaintiffs and IMSC are thieves, that they have rerouted customer purchase orders
without authorization, and that they have taken or rerouted customer information as part of the
formation of IMSC.
14, In addition, after filing this lawsuit, Physep and its ownership have been making
telephone calls and other oral statements to the customers of Outotec about IMSC and Counter-
Plaintiffs’ service, stating that the Counter-Plaintiffs and IMSC are thieves, that they have rerouted
customer purchase orders without authorization, and that they have taken or rerouted customer
information as part of the formation of IMSC.
15. Multiple customers of Outotec/Counter-Plaintiffs have reported receiving such
statements and communications. Inasmuch as Outotec terminated its relationship with Physep and
Physep no longer services customers, Physep has no legitimate business purpose for any
communications with these third parties. The sole purpose of the communications was to defame
Counter-Plaintiffs and hurt their relationship with their customers and Outotec.
16. By way of example, on or about March 15, 2018, Physep sent an email to Imerys,
a customer of Counter-Plaintiffs and IMSC. The email stated that Counter-Plaintiffs improperly
stole or rerouted Imerys purchase orders and information, among other false statements.
17. In addition to communications with customers, Physep and its ownership have sent
multiple written communications to Outotec and its executives. The communications contain false
statements about business misconduct by Counter-Plaintiffs and were sent for the sole purpose of
harming or destroying Counter-Plaintiffs’ business reputation and business interests.
18. By way of example, on or about February 9, 2018, Burma Domenico, an owner and
officer of Physep, sent an email from her att.net email account, on Physep’s behalf, to Janne
Turunen at Outotec. The email made numerous false statements about Counter-Plaintiffs,
including, but not limited to:
a. Counter-Plaintiffs “have been stealing company information from us [Physep] i.e.
client lists, purchase orders, etc.”;
Counter-Plaintiffs “were fired on Feb. 3, 2018 for inferior quality of work for the
prior 6 months.”;
At the time of their firing Counter-Plaintiffs “had been stealing information from
us [Physep].”;
Counter-Plaintiffs formed IMSC “behind [Physep’s] back in a very underhanded,
deceitful and unprofessional manner.”
This email contains additional misstatements as well. Physep sent the email to Outotec solely for
the purpose of harming Counter-Plaintiffs’ income and business reputation for the benefit of
Physep.
19. Upon information and belief, Physep and its ownership are waging a concerted
campaign to defame Counter-Plaintiffs and IMSC, in writing and orally, by making false
statements to Outotec and the customers of Counter-Plaintiffs and Outotec. The statements were
made solely out of Physep’s animosity towards Counter-Plaintiffs.
20. Each factual statement and allegation made in the oral and written communications
is false. Counter-Plaintiffs are not thieves, they have not misappropriated customer information or
purchase orders, and their employment at IMSC after being terminated by Physep is not improper
in any way. Physep and its ownership knew or should have known that the statements were false.
21. Under Florida law, Physep cannot claim any privilege or immunity relating to the
communications sent to Outotec and various customers. Although Physep filed a lawsuit prior to
making some of the communications, the defamatory communications were not made in judicial
proceedings, do not advance the pending judicial proceedings in any way, and the communications
were made to persons and companies that are not parties to this lawsuit.
22. As a result of these oral statements, customers have decided not to do business with
Counter-Plaintiffs or customers have decided to otherwise reduce the amount of business they
conduct with Counter-Plaintiffs.
23. Physep and its ownership’s statements were made to damage Counter-Plaintiffs’
business relationships and to damage their reputation and income for the benefit of Physep.
Counter-Plaintiffs’ business reputation has been damaged as a result of the communications and
upon information and belief, Physep continues to make defamatory statements.
24. Counter-Plaintiffs reserve the right to amend this Counterclaim to assert a cause of
action for punitive damages at the appropriate time. Counter-Plaintiffs further reserve the right to
add the individual owners of Physep as defendants once additional discovery has been taken.
25. All conditions precedent to bringing this action have occurred or have been waived.
COUNT I— DEFAMATION — LIBEL
26. This is a cause of action for defamation and libel against Physep which exceeds
$15,000.00, exclusive of costs, interest, and attorneys’ fees. Counter-Plaintiffs re-allege and
incorporate herein the allegations contained in paragraphs 1 through 25.
27. As set forth above and herein, Physep’s actions with respect to its emails and letters
constitute actionable defamation under Florida law.
28. Upon information and belief, Physep has been actively defaming, libeling, and
disparaging Counter-Plaintiffs to Outotec, Outotec’s customers, and Counter-Plaintiffs’
customers, and to the public as a whole. These statements of fact constitute defamation per se
because the statements impute to Counter-Plaintiffs conduct, characteristics, and/or a condition
incompatible with the proper exercise of Counter-Plaintiffs’ lawful business and trade.
29. The defamatory and libelous statements are included, at a minimum, in the many
letters and emails that Physep has sent to Outotec, Outotec’s customers, and Counter-Plaintiffs’
customers. These statements by Physep are false and unprivileged publications.
30. These defamatory statements were clearly made in an effort to damage Counter-
Plaintiffs’ current and/or prospective business relationships.
31. Physep’s statements were made either negligently or intentionally and with malice
with the aim of damaging Counter-Plaintiffs’ business relationships with Outotec, Outotec’s
customers and Counter-Plaintiffs’ customers.
32. Counter-Plaintiffs’ reputation, income, and business sales have been and will
continue to be damaged as a result of Physep’s defamatory statements. The falsity of the statements
are prejudicial to Counter-Plaintiffs and their business and deter persons from entering into and/or
continuing business relationships with Counter-Plaintiffs.
WHEREFORE, Counter-Plaintiffs demand a judgment against Physep for damages,
including prejudgment interest, costs of this action, reasonable attorneys' fees and any such other
telief the Court deems appropriate.
COUNT Il—- DEFAMATION — SLANDER
33. This is a cause of action for defamation and slander against Physep which exceeds
$15,000.00, exclusive of costs, interest, and attorneys’ fees. Counter-Plaintiffs re-allege and
incorporate herein the allegations contained in paragraphs 1 through 25.
34. As set forth above and herein, Physep’s actions with respect to its oral statements
to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers regarding Counter-Plaintiffs
constitute actionable defamation under Florida law.
35. Physep has been actively defaming, slandering, and disparaging Counter-Plaintiffs
to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers, and to the public as a whole.
10
These statements of fact constitute defamation per se because the statements impute to Counter-
Plaintiffs conduct, characteristics, and/or a condition incompatible with the proper exercise of
Counter-Plaintiffs’ lawful business and trade.
36. The defamatory and slanderous statements include, at a minimum, oral statements
that Physep has made to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers. These
statements by Physep are false and unprivileged publications.
37. These defamatory statements are being made in an effort to damage Counter-
Plaintiffs’ current and/or prospective business relationships.
38. Physep’s statements were made either negligently or intentionally and with malice
with the aim of damaging Counter-Plaintiffs’ business relationships with Outotec, Outotec’s
customers and Counter-Plaintiff’s customers.
39. Counter-Plaintiffs’ reputation, income, and business sales have been and will
continue to be damaged as a result of Physep’s defamatory statements. The falsity of the statements
are prejudicial to Counter-Plaintiffs’ business and deter third persons from entering into and/or
ontinuing business relationships with Counter-Plaintiffs.
WHEREFORE, Counter-Plaintiffs demand a judgment against Physep for damages,
including prejudgment interest, costs of this action, reasonable attorneys' fees and any such other
telief the Court deems appropriate.
HOLLAND & KNIGHT LLP
/s/ Andrew J. Steif.
Joshua H. Roberts (FBN 042029)
joshua.roberts@hklaw.com
Andrew J. Steif (FBN 042475)
andrew.steif@hklaw.com
Justin W. Dixon (FBN 105860)
justin.dixon@hklaw.com
50 North Laura Street, Suite 3900
11
Jacksonville, FL 32202
(904) 353-2000 (telephone)
(904) 358-1872 (facsimile)
Attorneys for Kenneth W. Presgraves and
Erin B. Dykes
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 26, 2018, a copy of the foregoing was filed and served
on the following attorneys of record:
W. Braxton Gillam, IV
John C.W. Cherneski
Milam Howard Nicandri Gillam & Renner, P.A.
bgillam@milawhoward.com
sjames@milamhoward.com
jcherneski@milamhoward.com
hdurham@milamhoward.com
s/ Andrew J. Steif.
Attorney
#56324081_Vv1
12
Preview
Filing # 71296596 E-Filed 04/26/2018 02:50:28 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2018-CA-001661 DIVISION: CV-G PHYSEP COMPONENTS AND SERVICE, INC., a Florida corporation, Plaintiff, Vv. ERIN B. DYKES, an individual, and KENNETH W. PRESGRAVES, an individual, Defendants. / DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM Defendants, ERIN B. DYKES and KENNETH W. PRESGRAVES ("Defendants"), by and through their undersigned counsel, hereby files their Answer and Affirmative Defenses to the Complaint of Plaintiff, PHYSEP COMPONENTS AND SERVICE, INC. ("Plaintiff"), and responds to the correspondingly numbered paragraphs as follows: PARTIES, JURISDICTION, AND VENUE 1 Admitted that this is an action for damages for violation of Florida’s Computer Abuse and Data Recovery Act (“CADRA”). Defendants deny that Plaintiff is entitled to any damages or other relief in this action. 2. Admitted. 3 Admitted. Admitted Admitted for purposes of venue only. Defendants deny that Plaintiffs can satisfy ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 04/27/2018 10:58:33 AM. the elements of the cause of action asserted. 6 Admitted. 7 Admitted. 8 Admitted that Defendants were Physep employees in 2013. Defendants deny that their employment with Physep began in 2013. 9 Admitted that Ms. Dykes’ job duties included marketing and sales reporting in the latter part of her employment. Denied that her job duties included marketing and sales reporting during the entirety of her employment. Admitted that at certain points, Ms. Dykes had access to the information specified. 10. Admitted. 11. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 11 of the Complaint and therefore, the allegations are denied. 12. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 12 of the Complaint and therefore, the allegations are denied. 13. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the Complaint and therefore, the allegations are denied. 14 Admitted. 15 Denied. 16 Denied. 17 Admitted that after being terminated as employees of Plaintiff, Defendants were hired by International Mineral Separation Components Group (“IMSC”), a competitor of Plaintiff. Defendants deny that there was anything improper about the timing and nature of their employment. Defendants deny that the hiring occurred “immediately.” 18 Admitted. 19 Denied. 20. Admitted. 21 Denied. 22. Denied. Outotec, not IMSC, announced that IMSC has been granted a license. 23. Denied. 24. Denied. 25 Denied. COUNT I— VIOLATION OF CADRA - § 668.801, Fla. Stat. et seg 26. Defendants adopt and incorporate their responses to Paragraphs 1 through 25 above, as if fully set forth herein. 27 Denied. 28 Denied. 29. Denied. 30 Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 30 of the Complaint and therefore, the allegations are denied. 31. Denied. PRAYER FOR RELIEF Defendants deny that Plaintiff is entitled to the relief requested against Defendants in its prayer for relief, or any relief against Defendant whatsoever. AFFIRMATIVE DEFENSES 1 Plaintiff’s claim fails because Defendants were “authorized users” as that term is defined in Section 668.802, Florida Statutes. 2 Plaintiff's claim fails because Plaintiff failed to maintain technological measures that effectively controlled access to the allegedly protected computer or the information stored in the protected computer pursuant to Section 668.802, Florida Statutes. 3 Plaintiff's claim fails because Defendants never obtained information from any protected computer belonging to Plaintiff “without authorization” as required by Section 668.803, Florida Statutes. 4 Plaintiff’s claim fails because Defendants’ actions did not cause “harm” or “loss” to Plaintiff or its protected computer systems as required by CADRA. 5 Plaintiff's claim is barred in whole or in part because Plaintiff's own negligence and/or fault was the proximate cause of its alleged damages. Specifically, Plaintiff's own actions, including its pricing and performance, was the sole basis for Outotec electing to enter into a contractual relationship with IMSC rather than Plaintiff. 6 Plaintiff's claim is barred to the extent that Plaintiff's alleged damages were caused in whole or in part by others whose actions were not controlled by or related to Defendants. Such actions are the intervening and/or supervening cause of Plaintiff's injuries and, therefore, Plaintiff may not recover from Defendants as a matter of law. COUNTERCLAIM Defendants / Counter-Plaintiffs, ERIN B. DYKES and KENNETH W. PRESGRAVES (“Counter-Plaintiffs”) hereby bring this action against Plaintiff / Counter-Defendant PHYSEP COMPONENTS AND SERVICE, INC. (“Physep”), a Florida corporation, and allege as follows: Jurisdiction and Venue 1 Counter-Plaintiffs are residents of Nassau County, Florida. 2 Physep is a Florida corporation with its principal place of business in Duval County, Florida. 3 Physep is subject to the jurisdiction of this Court pursuant to Chapter 48, Florida Statutes, because the causes of action alleged herein arise out of Physep’s: a. operating, conducting, engaging in, or carrying on a business, or business venture in the State of Florida, or having an office or agency in this state; and/or committing a tortious act within this state; and/or c. engagement of solicitation or service activities within this state. 4 Venue is proper in this Court pursuant to Section Chapter 47.011, Florida Statutes inasmuch as causes of action at issue arose in this County and because Physep maintains business operations and a physical location in Jacksonville, Florida. Background Facts 5 Physep is a company that formerly provided support, maintenance, and repair services to the physical separation industry. Essentially all of Physep’s revenue arose from its contractual relationship with Outotec, a manufacturer of industrial mining equipment. Physep provided support, maintenance, and repair services to Outotec’s customers. 6 Counter-Plaintiffs became employees of Physep in 2012. 7 Beginning in 2015 and continuing through the end of 2017, Physep’s business and revenue declined. The decline of Physep’s business culminated in Outotec’s decision not to renew its contractual relationship with Physep. 8 On January 31, 2018, after Outotec’s decision was announced, Physep terminated Counter-Plaintiffs’ employment. 9 Counter-Plaintiffs subsequently became employees of International Mineral Separation Components Group (“IMSC”). IMSC provides repair, maintenance, and support services in the physical separation sphere and also undertakes certain manufacturing operations relating to the physical separation industry. 10. Outotec has announced that it has granted IMSC a license to manufacture Outotec equipment and parts and provide certain services to Outotec and its customers worldwide. 11. Outotec’s decision to enter into a relationship with IMSC was due solely to Physep and its ownership’s unreasonable demands during Physep’s contract renewal negotiations with Outotec, its faulty business practices, and failure to serve its clients. 12. Physep and its ownership’s animosity at Counter-Plaintiffs over the loss of the Outotec contract has led Physep to defame and disparage Counter-Plaintiffs in order to damage their reputation and business. Rather than compete to secure new business, Physep has attempted to seek revenge by making false statements about Counter-Plaintiffs to Outotec as well as customers of Outotec and IMSC. 13. Specifically, after filing this lawsuit, Physep and its ownership have been sending emails and letters to the customers of Outotec about IMSC and Counter-Plaintiffs’ service, stating that Counter-Plaintiffs and IMSC are thieves, that they have rerouted customer purchase orders without authorization, and that they have taken or rerouted customer information as part of the formation of IMSC. 14, In addition, after filing this lawsuit, Physep and its ownership have been making telephone calls and other oral statements to the customers of Outotec about IMSC and Counter- Plaintiffs’ service, stating that the Counter-Plaintiffs and IMSC are thieves, that they have rerouted customer purchase orders without authorization, and that they have taken or rerouted customer information as part of the formation of IMSC. 15. Multiple customers of Outotec/Counter-Plaintiffs have reported receiving such statements and communications. Inasmuch as Outotec terminated its relationship with Physep and Physep no longer services customers, Physep has no legitimate business purpose for any communications with these third parties. The sole purpose of the communications was to defame Counter-Plaintiffs and hurt their relationship with their customers and Outotec. 16. By way of example, on or about March 15, 2018, Physep sent an email to Imerys, a customer of Counter-Plaintiffs and IMSC. The email stated that Counter-Plaintiffs improperly stole or rerouted Imerys purchase orders and information, among other false statements. 17. In addition to communications with customers, Physep and its ownership have sent multiple written communications to Outotec and its executives. The communications contain false statements about business misconduct by Counter-Plaintiffs and were sent for the sole purpose of harming or destroying Counter-Plaintiffs’ business reputation and business interests. 18. By way of example, on or about February 9, 2018, Burma Domenico, an owner and officer of Physep, sent an email from her att.net email account, on Physep’s behalf, to Janne Turunen at Outotec. The email made numerous false statements about Counter-Plaintiffs, including, but not limited to: a. Counter-Plaintiffs “have been stealing company information from us [Physep] i.e. client lists, purchase orders, etc.”; Counter-Plaintiffs “were fired on Feb. 3, 2018 for inferior quality of work for the prior 6 months.”; At the time of their firing Counter-Plaintiffs “had been stealing information from us [Physep].”; Counter-Plaintiffs formed IMSC “behind [Physep’s] back in a very underhanded, deceitful and unprofessional manner.” This email contains additional misstatements as well. Physep sent the email to Outotec solely for the purpose of harming Counter-Plaintiffs’ income and business reputation for the benefit of Physep. 19. Upon information and belief, Physep and its ownership are waging a concerted campaign to defame Counter-Plaintiffs and IMSC, in writing and orally, by making false statements to Outotec and the customers of Counter-Plaintiffs and Outotec. The statements were made solely out of Physep’s animosity towards Counter-Plaintiffs. 20. Each factual statement and allegation made in the oral and written communications is false. Counter-Plaintiffs are not thieves, they have not misappropriated customer information or purchase orders, and their employment at IMSC after being terminated by Physep is not improper in any way. Physep and its ownership knew or should have known that the statements were false. 21. Under Florida law, Physep cannot claim any privilege or immunity relating to the communications sent to Outotec and various customers. Although Physep filed a lawsuit prior to making some of the communications, the defamatory communications were not made in judicial proceedings, do not advance the pending judicial proceedings in any way, and the communications were made to persons and companies that are not parties to this lawsuit. 22. As a result of these oral statements, customers have decided not to do business with Counter-Plaintiffs or customers have decided to otherwise reduce the amount of business they conduct with Counter-Plaintiffs. 23. Physep and its ownership’s statements were made to damage Counter-Plaintiffs’ business relationships and to damage their reputation and income for the benefit of Physep. Counter-Plaintiffs’ business reputation has been damaged as a result of the communications and upon information and belief, Physep continues to make defamatory statements. 24. Counter-Plaintiffs reserve the right to amend this Counterclaim to assert a cause of action for punitive damages at the appropriate time. Counter-Plaintiffs further reserve the right to add the individual owners of Physep as defendants once additional discovery has been taken. 25. All conditions precedent to bringing this action have occurred or have been waived. COUNT I— DEFAMATION — LIBEL 26. This is a cause of action for defamation and libel against Physep which exceeds $15,000.00, exclusive of costs, interest, and attorneys’ fees. Counter-Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs 1 through 25. 27. As set forth above and herein, Physep’s actions with respect to its emails and letters constitute actionable defamation under Florida law. 28. Upon information and belief, Physep has been actively defaming, libeling, and disparaging Counter-Plaintiffs to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers, and to the public as a whole. These statements of fact constitute defamation per se because the statements impute to Counter-Plaintiffs conduct, characteristics, and/or a condition incompatible with the proper exercise of Counter-Plaintiffs’ lawful business and trade. 29. The defamatory and libelous statements are included, at a minimum, in the many letters and emails that Physep has sent to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers. These statements by Physep are false and unprivileged publications. 30. These defamatory statements were clearly made in an effort to damage Counter- Plaintiffs’ current and/or prospective business relationships. 31. Physep’s statements were made either negligently or intentionally and with malice with the aim of damaging Counter-Plaintiffs’ business relationships with Outotec, Outotec’s customers and Counter-Plaintiffs’ customers. 32. Counter-Plaintiffs’ reputation, income, and business sales have been and will continue to be damaged as a result of Physep’s defamatory statements. The falsity of the statements are prejudicial to Counter-Plaintiffs and their business and deter persons from entering into and/or continuing business relationships with Counter-Plaintiffs. WHEREFORE, Counter-Plaintiffs demand a judgment against Physep for damages, including prejudgment interest, costs of this action, reasonable attorneys' fees and any such other telief the Court deems appropriate. COUNT Il—- DEFAMATION — SLANDER 33. This is a cause of action for defamation and slander against Physep which exceeds $15,000.00, exclusive of costs, interest, and attorneys’ fees. Counter-Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs 1 through 25. 34. As set forth above and herein, Physep’s actions with respect to its oral statements to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers regarding Counter-Plaintiffs constitute actionable defamation under Florida law. 35. Physep has been actively defaming, slandering, and disparaging Counter-Plaintiffs to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers, and to the public as a whole. 10 These statements of fact constitute defamation per se because the statements impute to Counter- Plaintiffs conduct, characteristics, and/or a condition incompatible with the proper exercise of Counter-Plaintiffs’ lawful business and trade. 36. The defamatory and slanderous statements include, at a minimum, oral statements that Physep has made to Outotec, Outotec’s customers, and Counter-Plaintiffs’ customers. These statements by Physep are false and unprivileged publications. 37. These defamatory statements are being made in an effort to damage Counter- Plaintiffs’ current and/or prospective business relationships. 38. Physep’s statements were made either negligently or intentionally and with malice with the aim of damaging Counter-Plaintiffs’ business relationships with Outotec, Outotec’s customers and Counter-Plaintiff’s customers. 39. Counter-Plaintiffs’ reputation, income, and business sales have been and will continue to be damaged as a result of Physep’s defamatory statements. The falsity of the statements are prejudicial to Counter-Plaintiffs’ business and deter third persons from entering into and/or ontinuing business relationships with Counter-Plaintiffs. WHEREFORE, Counter-Plaintiffs demand a judgment against Physep for damages, including prejudgment interest, costs of this action, reasonable attorneys' fees and any such other telief the Court deems appropriate. HOLLAND & KNIGHT LLP /s/ Andrew J. Steif. Joshua H. Roberts (FBN 042029) joshua.roberts@hklaw.com Andrew J. Steif (FBN 042475) andrew.steif@hklaw.com Justin W. Dixon (FBN 105860) justin.dixon@hklaw.com 50 North Laura Street, Suite 3900 11 Jacksonville, FL 32202 (904) 353-2000 (telephone) (904) 358-1872 (facsimile) Attorneys for Kenneth W. Presgraves and Erin B. Dykes CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 26, 2018, a copy of the foregoing was filed and served on the following attorneys of record: W. Braxton Gillam, IV John C.W. Cherneski Milam Howard Nicandri Gillam & Renner, P.A. bgillam@milawhoward.com sjames@milamhoward.com jcherneski@milamhoward.com hdurham@milamhoward.com s/ Andrew J. Steif. Attorney #56324081_Vv1 12