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Filing # 55291449 E-Filed 04/19/2017 12:07:41 PM
IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-14-001087 (04)
PLANET T UNIFORMS, INC.,
Plaintiff,
Vv.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL, DISCOVERY SCHOOLS, INC.,
iUNIFORMS, INC., RICHARD SHELLOW,
JON THOMAS ROGERS, and SCOTT
SZNITKEN,
Defendants.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL,
Counter-Plaintiff,
v.
PLANET T UNIFORMS, INC.,
Counter-Defendant.
/
DEFENDANT FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’S CORRECTED
SUPPLEMENTAL MOTION TO DISMISS COUNT XXII OF
PLAINTIFE’S SECOND AMENDED COMPLAINT!
Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School,
(“Franklin”), by and through undersigned counsel, pursuant to Rule 1.420 of the Florida Rules of
Civil Procedure hereby files and serves his Supplemental Motion to Dismiss Count XXII of
Plaintiff's Second Amended Complaint and states as follows:
' Filed to correct an inadvertent omission of service date.
FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 4/19/2017 12:07:40 PM.****CASE NO.: CACE-14-001087 (04)
LEGAL STANDARD:
The purpose of a complaint is to advise the defendant of the nature of the cause of
action asserted by the plaintiff. The function of a motion to dismiss a complaint is
to raise as a question of law the sufficiency of the facts alleged to state a cause of
action. For the purpose of passing upon a motion to dismiss, the court must assume
all the facts alleged in the complaint to be true. Consequently, a motion to dismiss
a complaint must be decided on questions of law and questions of law only. The
purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good
cause of action, and the court when faced with a motion to dismiss a complaint for
failure to state a cause of action must confine itself strictly to the allegations within
the four corners of the complaint.
Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968)
Introduction:
Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended
complaint fails to allege cognizable claims against Franklin and should therefore be dismissed in
its entirety.
Count XXII - Misappropriation of Trade Secrets—Fails to State a Claim; Planet T failed to
plead the elements required by the statute.
The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort,
restitutory, and other law of this state providing civil remedies for misappropriation of a trade
secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla.
Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade
secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla.
2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d X271, 1291 (S.D.
Fla. 2001.
2
FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance
on the pre-empted common law elements of a claim for misappropriation of trade secrets requires
dismissal of Count XXII.
FUTSA defines a trade secret as follows:
“Trade secret” means information, including a formula, pattern, compilation,
program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
(Emphasis added.)
§ 688.002, Fla. Stat.
Planet T failed for a third time to plead that its alleged trade secrets “derive[d] independent
economic value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value from its disclosure
or use; and ... [i]s the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.” (emphasis added). § 688.002, Fla. Stat.
As a matter of law, Planet T’s claim for misappropriation of trade secrets against Franklin
fails and must be dismissed.
Request for Attorney’s Fees
Franklin, pursuant to § 688.05, Fla. Stat. requests an award of attorney’s fees incurred in
connection defending the Plaintiff's claims for misappropriation of trade secrets.
WHEREFORE, Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy
Charter School respectfully requests that this Honorable Court dismiss Count XXII of Plaintiff
Planet T Uniforms, Inc.’s Second Amended Complaint and to award Defendant Franklin its
3
FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
attorney’s fees, if applicable, his costs incurred in defending this action, along with any and all
other relief this Court deems just and proper.
Dated: April 19, 2017
Respectfully submitted,
FUERST ITTLEMAN DAVID & JOSEPH
1001 Brickell Bay Drive, Suite 3112
Miami, Florida 33131
Tel. (305) 350-5690
Fax (305) 371-8989
E-mail: Cdavid@fuerstlaw.com
E-mail: Tdavid@ fuerstlaw.com
Secondary: dmuller@fucrstlaw.com
Counsel for Defendants
By: /s/ CHRISTOPHER M. DAVID
Florida Bar No. 985163
Thomas M. David
Florida Bar No. 20846
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 19, 2017, I electronically filed the foregoing
document using Florida’s eFiling Portal. I also certify that the foregoing document is being served
this day on all parties of record via the E-service list associated with this action
!s/ Christopher M. David
CHRISTOPHER M. DAVID
Florida Bar No. 985163
4
FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM
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Filing # 55291449 E-Filed 04/19/2017 12:07:41 PM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-14-001087 (04) PLANET T UNIFORMS, INC., Plaintiff, Vv. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, DISCOVERY SCHOOLS, INC., iUNIFORMS, INC., RICHARD SHELLOW, JON THOMAS ROGERS, and SCOTT SZNITKEN, Defendants. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, Counter-Plaintiff, v. PLANET T UNIFORMS, INC., Counter-Defendant. / DEFENDANT FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’S CORRECTED SUPPLEMENTAL MOTION TO DISMISS COUNT XXII OF PLAINTIFE’S SECOND AMENDED COMPLAINT! Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School, (“Franklin”), by and through undersigned counsel, pursuant to Rule 1.420 of the Florida Rules of Civil Procedure hereby files and serves his Supplemental Motion to Dismiss Count XXII of Plaintiff's Second Amended Complaint and states as follows: ' Filed to correct an inadvertent omission of service date. FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 4/19/2017 12:07:40 PM.****CASE NO.: CACE-14-001087 (04) LEGAL STANDARD: The purpose of a complaint is to advise the defendant of the nature of the cause of action asserted by the plaintiff. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss, the court must assume all the facts alleged in the complaint to be true. Consequently, a motion to dismiss a complaint must be decided on questions of law and questions of law only. The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action, and the court when faced with a motion to dismiss a complaint for failure to state a cause of action must confine itself strictly to the allegations within the four corners of the complaint. Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968) Introduction: Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended complaint fails to allege cognizable claims against Franklin and should therefore be dismissed in its entirety. Count XXII - Misappropriation of Trade Secrets—Fails to State a Claim; Planet T failed to plead the elements required by the statute. The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla. Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla. 2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d X271, 1291 (S.D. Fla. 2001. 2 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance on the pre-empted common law elements of a claim for misappropriation of trade secrets requires dismissal of Count XXII. FUTSA defines a trade secret as follows: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Emphasis added.) § 688.002, Fla. Stat. Planet T failed for a third time to plead that its alleged trade secrets “derive[d] independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and ... [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (emphasis added). § 688.002, Fla. Stat. As a matter of law, Planet T’s claim for misappropriation of trade secrets against Franklin fails and must be dismissed. Request for Attorney’s Fees Franklin, pursuant to § 688.05, Fla. Stat. requests an award of attorney’s fees incurred in connection defending the Plaintiff's claims for misappropriation of trade secrets. WHEREFORE, Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School respectfully requests that this Honorable Court dismiss Count XXII of Plaintiff Planet T Uniforms, Inc.’s Second Amended Complaint and to award Defendant Franklin its 3 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) attorney’s fees, if applicable, his costs incurred in defending this action, along with any and all other relief this Court deems just and proper. Dated: April 19, 2017 Respectfully submitted, FUERST ITTLEMAN DAVID & JOSEPH 1001 Brickell Bay Drive, Suite 3112 Miami, Florida 33131 Tel. (305) 350-5690 Fax (305) 371-8989 E-mail: Cdavid@fuerstlaw.com E-mail: Tdavid@ fuerstlaw.com Secondary: dmuller@fucrstlaw.com Counsel for Defendants By: /s/ CHRISTOPHER M. DAVID Florida Bar No. 985163 Thomas M. David Florida Bar No. 20846 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 19, 2017, I electronically filed the foregoing document using Florida’s eFiling Portal. I also certify that the foregoing document is being served this day on all parties of record via the E-service list associated with this action !s/ Christopher M. David CHRISTOPHER M. DAVID Florida Bar No. 985163 4 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112,, MIAMI, FL 33131 * T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM